JACAP Warns Cable Operators To Comply With Copyright Law Instead Of Losing In Court

Lydia Rose, general manager of the Jamaica Association of Composers, Authors, and Publishers (JACAP), is warning cable companies to simply comply with Copyright Law instead of mounting expensive multi-million dollar legal challenges they are destined to lose anyway.

“Cable companies need to honour the obligation of the rights holders whose copyrighted music they use. They are not being good corporate citizens and it is better that they pay the fines for using copyrighted material instead of forcing us to go to court because they will end up paying more,” Rose told DancehallMag.

She pointed to the case of Mars Cable Vision Limited, which challenged an initial fine of $280,000 for using copyrighted material. A claim was filed and served on Mars Cable Vision Limited in October 2016.

In the JACAP vs Mars Cable Vision Limited judgment, attorneys Samuda and Johnson sent a final judgment on May 10, 2024 in the amount of $9.32 million to attorney-at-law Chuckweumeka Cameron, who represented Mars Cable Vision.

Mr. Cameron was also invited to pay legal costs of $1.75 million.

“Mars Cable Vision lost and went to appeal and lost, they’re going to have to pay in the end. These cable companies cannot defend the fact that they’re not using copyrighted material,” Rose said.

Since 2018, the Jamaica Association of Composers, Authors, and Publishers (JACAP) has sued at least 22 companies for copyright infringement, with media houses and cable companies topping the list of infringers.

JACAP, by 28 agreements, is mandated to collect royalties from anybody who uses the creativity of individuals, authors, composers, and publishers.

“We are committed to ensure that the rights of our composers, authors, and publishers are protected and they are rewarded for their hard work, their creative works,” Rose said.

HORIZON ENTERTAINMENT JUDGMENT STILL STANDS

In the meantime, JACAP is strongly refuting claims made in an Observer article headlined “JACAP has work to do,” asserting that the article was “regrettably misleading and inaccurate”, and “went beyond the Judge’s decision in the matter”.

The article, authored by attorney-at-law Mr. Chukwuemeka Cameron, was published in the Jamaica Observer on September 22, 2024.

In a press release issued earlier this week, JACAP expressed “deep concerns” with the misinformation contained in Mr. Cameron’s article and for that reason, even though the matter is still before the court, the organisation decided to take this step to draw to the public’s attention certain indisputable facts.

In December 2017, JACAP obtained a default judgment against Horizon Entertainment for breach of copyright. This validated JACAP’s claim for unpaid licensing fees for the use by Horizon Entertainment of copyrighted musical works from JACAP’s repertoire without a licence from JACAP in breach of the Copyright Act.

The recent court judgment in September related to JACAP’s application for Specific Disclosure prior to an assessment of damages due to JACAP.

The judgment handed down by Justice Staple was a determination of JACAP’s application for Specific Disclosure, which was dismissed. The judgment read:

“The Court finds that the disclosure order is unnecessary to resolve the claim. The claimant, by virtue of the definition of license scheme under the Copyright Act, ought to have had all the terms of its scheme already settled and finalized. This includes the licence fees. Further, the Claimant could have and should have established these fees independent of any company returns from any entity which would seek to use their works,” the release said.

However, Mr. Cameron claimed that the judge found that JACAP did not meet the statutory requirement of having a tribunal-approved licensing scheme and consequently lacked the legal authority to request financial disclosure or seek damages. This, regrettably, is not true, JACAP said.

In his article, Cameron erroneously claimed ‘victory’, asserting that Horizon successfully argued that without the involvement of the Copyright Tribunal to set an equitable rate for the use of musical works, JACAP could not enforce the collection of licensing fees or seek damages through the court.

However, the default judgement still stands against the defendant, Horizon and in favour of the claimant JACAP.

In light of the statements made in the Jamaica Observer article, we contacted IP Attorneys Foga Daley for their opinion, and they were of the view that there appears to be a misunderstanding of the functions of the Copyright Tribunal in the context of licensing carried out by Licensing Bodies such as JACAP.

As the judge correctly reasoned, the tribunal is empowered to either confirm or vary a licence scheme which has been referred to the tribunal by ‘any person that wishes to acquire a licence.’

Considering the express statutory provisions of the Copyright Act, there is clearly no statutory requirement for JACAP to have a tribunal-approved licensing scheme and the judgement does not actually state that this is required for JACAP to have legal standing to seek financial disclosure or to pursue damages.

JACAP considers it particularly concerning that the article concluded that “without the involvement of the Copyright Tribunal to set an equitable rate for the use of musical works, JACAP is not only prevented from collecting fees but also faces potential challenges to fees that have already been collected”.

This statement is misleading and overly broad, potentially paving the way for unchecked copyright infringement, to the detriment of Jamaican musicians.

JACAP is reviewing the judgement.

“Suffice it to say our Attorneys-at-Law are reviewing the said judgement with a view to advising on how we proceed, and we will say that it is likely that this decision is one such which will require judicial consideration at a higher level. We would urge members of the public, especially those in professions of responsibility to act with the utmost caution and be careful not to mislead the public,”the JACAP release said.

A case management conference for the assessment of damages is set for November 5, 2024.