Caribbean countries capitalise on IP

Several of these activities have been propelled by the Cariforum/EU Economic Partnership Agreement (EPA), a reciprocal trade agreement that focuses on four matters, the objective of which is to liberalise trade in goods, services and investment between the two regions on a reciprocal basis.

Cultural and entertainment services

Governments in the Caribbean have, historically, not addressed directly the economic potential of cultural services in policies to an appreciable extent. The EU has funded several workshops within a project on liberalisation of trade in cultural and entertainment services in the Caribbean region, which aimed to address and correct this issue directly.

The objective of the project was to assess the economic contribution of the cultural/creative industries in CARICOM, a conference made up of the heads of governments from Caribbean countries, to identify the factors constraining the global competitiveness of the sector and to analyse issues aff ecting trade and investment with a view to formulating an action plan for the development of the sector.

One of the major successes of the project was the Protocol on Cultural Cooperation in the EPA. This aims to create avenues of access for those who are not in commercial transactions but wish to enter Europe for other cultural activities, such as collaborating with Europeans.

Picking up on this initiative, The Jamaica National Export Strategy, November 2010 noted that cultural and creative industries are a major contributor to the local economy. The report stated: “Within the creative sector, dance, drama, film and music are among the strongest export services and have the greatest potential to promote our culture and creativity.

"Various reports on the music industry place the number of people employed at between 6000 and 15,000, with estimates of export earnings as high as US$100 million. Film location projects alone may contribute US$14 million to the local economy, with 1500 to 2500 employees who also export their services.”

The Trinidad and Tobago carnival is one of the largest and famous pre-Lenten festivals, along with the Rio Carnival in Brazil and the Mardi Gras in New Orleans in the US. It has been the source of inspiration for several carnivals throughout the Caribbean region as well as in the US and the UK.

The Trinidad and Tobago Coalition of Services Industries noted during Project ICT Innovations for the Development of the Masquerade Industry of Trinidad and Tobago that: “The local masquerade industry has become one of the flagships of the carnival industry landscape of Trinidad and Tobago. Having emerged primarily as a creative activity and a sociocultural practice, the masquerade industry has evolved to also become a substantial contributor to the local economy.

“Carnival visitor arrivals have grown … and in 2007 there were more than 40,000 visitors who spent approximately US$28 million, over 10 percent of the annual visitor expenditures.

“Most recent data show that three weeks of revenue from Trinidad and Tobago’s carnival exceeds US$100 million. Additionally, overseas diaspora carnivals generate hundreds of millions of dollars in revenues.”

Geographical indications (GIs)

In St Lucia, the EU’s TradeCom Facility Programme is launching a pilot project with the aim of preparing a country strategy paper on the potential of GIs. It will highlight products for development, the legal and regulatory framework required and possible marketing strategies.

This project also aims to create a model approach to the development of GIs, which can be replicated in other Organisation of Eastern Caribbean States (OECS) countries, to provide valuable inputs for the final Cariforum-EU EPA negotiations on GIs that are scheduled for 2014.

The project notes the potential for a number of Caribbean and African products to benefit from GI certification based on their quality, characteristics, reputation and origin from a specifi c location or terroir, as do Ugandan bark cloth and South African rooibos tea.

In Jamaica, the Swiss Federal Institute of Intellectual Property recently assisted Jamaica to establish an effective system for protecting Jamaican GIs. These GIs include Jamaica blue mountain coffee, Jamaica rum and Jamaica jerk (a seasoning). Jamaica and Switzerland also discussed negotiating a bilateral agreement on the mutual protection of GIs.

GIs in action

The government of Guyana and the Guyana Sugar Corporation (GuySuCo) have battled a Canadian company over the trademark Demerara Gold for sugar. Canadian company Bedessee Imports Ltd filed lawsuits in Canada and New York in the US after Guyana agriculture minister Robert Persaud accused the company of deceit in marketing its sugar as Demerara Gold.

In 2010, the Guyana government lost an appeal in Canada to have the lawsuit stayed or thrown out until the determination of the New York case. In the 2010 Bedessee Imports Ltd v Guyana Sugar Corporation, Inc case, Canadian Judge Strathy ruled:

“Demerara sugar, made directly from the juice of the sugar cane and noted for its coarse and sticky amber crystals, had its origins in the early 1800s in the plantations of the Demerara district of what was then British Guyana, now the Co-Operative Republic of Guyana (Guyana). Today, sugar calling itself ‘Demerara’, is produced in several countries, including Mauritius, Barbados, India and Malawi, as well as Guyana.”

The case noted that: “The right to use the name Demerara in relation to sugar products is not a recent controversy. In Anderson v Britcher (1913), 24 Cox’s Criminal Law Cases, 60, a matter that came before the English King’s Bench Division … the respondent had been charged with unlawfully selling as ‘Demerara sugar’ a sugar that was ‘cane sugar crystals coloured with an organic dye foreign to genuine Demerara sugar, so that the sugar was not of the quality, substance, or nature of the article demanded by the purchaser’.

“It was found that the sugar was a crystallized cane sugar grown in Mauritius and coloured with dye. The magistrate had dismissed the charge, finding that the term ‘Demerara sugar’ was a generic term applicable to any sugar of the substance, kind, and colour of the sugar in question wherever produced, and that therefore the said sugar was of the nature, substance, and quality of the article demanded by the appellant, the purchaser, and that accordingly the sale was not to his prejudice, and that no offence had been committed by the respondent.”

The judge in Bedessee also reviewed UK case law from the early 20th century to come to a conclusion. The judge noted that: “In dismissing the appeal, Darling J., with whom Avory and Atkin JJ. agreed, stated

"‘It would appear that Demerara sugar does not mean sugar having certain qualities peculiar to Demerara sugar, but it means a sugar which is cane sugar and which has a particular colour owing to certain treatment, and it is stated that Demerara sugar as originally produced was white, and probably if a person asked for Demerara sugar and was offered real Demerara sugar in its natural state he would refuse it.’"

The Canadian case appeared to follow this view: “In dismissing the appeal, Darling J., with whom Avory and Atkin JJ. agreed, stated ‘It was stated and admitted that with regard to Demerara sugar the word Demerara, as applied to sugar, does not mean sugar grown only in Demerara; it means sugar grown in Demerara, or in Grenada, Martinique, or St. Kitts, or Tobago, or Barbados, or Dominics [sic] or in many other islands of the West India group, and therefore the case really is hardly distinguishable from that of a Brussels carpet, which nobody supposes to be necessarily a carpet made in Brussels, or the case of a Cambridge sausage, which I suppose nobody believes to come necessarily from Cambridge.’”

The UK judge’s decision in 1913 must be questioned. Comparing an agricultural product that is associated with the Caribbean, at least with a certain degree of quality and geographical location, to a Brussels carpet or Cambridge sausage, is dismissive. More so is the Canadian court’s apparent endorsement of this analogy.

However, the government of Guyana has been remiss in protecting its IP rights. For instance, there is still no law for protecting GIs, under which a certification for Demerara in relation to sugar could have been made.

Repository for IP

In Anguilla, British West Indies, the government is looking at ways of capitalising on the country’s tax-free status with respect to IP. This initiative was spearheaded by Anguilla Music Publishing & Production Company (AMPP), a joint venture enterprise involving local and overseas partners. AMPP’s mission is to attain for the Caribbean’s authentic brand of music and culture a higher level of recognition using the world’s most sophisticated technology.

To this end, they aim to profit from global e-commerce by effectively collecting and subsequently administering existing IP as well as creating new IP and other unique Caribbean content. As a result, they are creating a repository for all forms of IP, with a focus on Caribbean culture and content that is then administered offshore and on-island by AMPP. AMPP also has a joint venture with the government of Anguilla to engage young people of Anguilla and the Caribbean in musical arts and related technologies.