Clover® came across a Trinidad Express newspaper article titled ‘Art already out there. Peters: Working to patent cultural property but…’

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IP Misunderstandings

Yet again, the rights of intellectual property have been incorrectly discussed and reported in the public sphere. These misunderstandings seem to run like clockwork every year in the build-up to Carnival. The Trinidad Express reporting on the National Carnival Commission’s appearance before the Joint Select Committee of the Parliament attributed various quotations to NCC Chairman, Winston Gypsy Peters, including:

“work is ongoing to patent as much cultural and intellectual property as possible to protect Trinidad and Tobago’s interests, but much of the art is already out there”

and

“I am not sure that we can patent all of this now”

These statements are unfortunate because they seem to conflate the term ‘patent’ with ‘intellectual property’ and moreover demonstrate a lack of understanding about the different types of intellectual property rights that are applicable to the carnival industry. What is even more disappointing is that the NCC was recently involved in a brainstorming session focused on intellectual property rights and the Carnival Museum that involved presentations and discussions led by the Trinidad and Tobago Intellectual Property Office, which has done outstanding intellectual property outreach work. It is clear that more intellectual property education and training initiatives are needed.

The reality is that one cannot patent culture. Patents are reserved for inventions that are novel, involve an inventive step and are capable of industrial application. Culture by its very nature is not patentable because it does not solve technical problems, instead expressions of culture are likely to be protected by copyright. As such, clarity is required about what work is being done to patent culture, as that would appear to be a waste of resources given that patent law is unlikely to apply at all.

This is not to say that patent law cannot apply to the carnival industry. There is a plethora of potential inventions that can be created to assist and elevate the carnival industry. For example, there may be inventions to assist with costume manufacturing, mobile sound systems, management of street parades etc. However, from the context of what Peters was discussing, the applicable intellectual property rights are likely to be copyright and design rights. Additionally, there are questions to be had about the protection of traditional knowledge and traditional cultural expressions, which do not currently have formal modes of protection. In terms of copyright, the music, carnival costumes and other artistic and dramatic works associated with the carnival industry can be protected. It should also be remembered that copyright subsists and there is no need for registration. Protection is automatic. In terms of design rights, this may apply to new aesthetic elements of products that create visual appeal, such as fabrics, patterns, and other design elements. However, this requires registration with the Intellectual Property Office.

Statements made by the Corporate Secretary of the NCC, Giselle Martin, are also of concern. Firstly, the Trinidad Express reported Martin as saying that certain low hanging fruit could be quickly protected including phrases such as ‘MOTHER OF ALL CARNIVALS’. Obtaining a trade mark on this phrase although theoretically possible, may be of limited value. Trademarks exist primarily to function as an indicator of origin. The phrase ‘MOTHER OF ALL CARNIVALS’ is mere descriptive puffery and lacks distinctiveness at present. It is not clear that the average consumer will associate the phrase ‘MOTHER OF ALL CARNIVALS’ with Trinidad’s Carnival specifically. Thus, this phrase is likely to fail to function and at best will be an ineffective trade mark. It also remains to be seen whether this phrase will be used again. If it will not be used prominently to market Trinidad’s Carnival, there is no point obtaining a trade mark, were it even possible to do so. Furthermore, obtaining a trademark is not going to be ‘quick’ given that the process usually takes 6 to 9 months in the absence of any filing complications.

Secondly, the Trinidad Express also reported Martin as saying that “there were challenges to pursuing patents including lengthy research and some copyrights may be closed off by Carnival 2024”. It is unclear what was meant by this, but it can be guessed that reference was being made to the protectability of relevant subject matter in the carnival industry. Again, this would appear to be a serious misunderstanding of patentability and copyrightability. If we are talking about things already being done in the industry, patentability is likely impossible as the ideas have been disclosed and are unlikely to be considered novel unless protected by confidentiality agreements (though may still be considered disclosed for products publicly available). Additionally, copyright protection is automatic at the point of creation of the work. Therefore, if something is copyrightable subject matter and is original, then it is already subject to copyright protection.

Conclusion

Notwithstanding the continued misunderstandings pertaining to intellectual property, the public discussion concerning the value of intellectual property rights to the carnival industry and in general are to be applauded. House Speaker Brigid Annisette-George is rightly concerned that not enough is being done to protect the cultural output of Trinidad and Tobago. However, emphasis should not only be placed on the protection of intellectual property rights, but also on the mechanisms to commercialise these rights. This brings into the fold business practices, licensing models, research and development and enforcement of intellectual property laws. Peters is also absolutely right that Trinidad and Tobago may have a competitive advantage in producing authentic approaches to various elements of the carnival industry. This should not be underestimated.

There is much work to be done and it is the hope of Clover® that greater intellectual property awareness training can be offered to all persons in Trinidad and Tobago.

Contact us at Clover® to organise bespoke intellectual property education and training for yourself or organisation.