The claimant, composer and performer Sean Caruth, appealed the 2018 decision of the High Court in Caruth v THA, where his claims for infringement of his neighbouring rights and moral rights of integrity and attribution in the song 'Coal Pot' were dismissed. In brief, the key parts of the High Court case were:

1) Caruth had no standing to pursue the claim for neighbouring rights because those rights had been assigned to his collective management organisation [this was an incorrect finding];

2) The claim for infringement of the moral right of integrity failed because the claimant had subsequently performed at the Tobago Blue Foods Festival, which meant that there was no ‘prejudice to his honour or reputation’ [this was a correct finding]; and

3) The claim for infringement of the moral right of attribution was ignored and as a result no answer was provided.

This author commented on the High Court case in a previous research article, exposing the problems with the decision, as well as the broader problems with the copyright jurisprudence in Trinidad and Tobago. It was refreshing to see the Court of Appeal overruling the High Court decision and addressing some of the issues highlighted in that research article.

Some thoughts on the Court of Appeal decision based on the issues raised in the prior research article:

1) Moral right of integrity claim – It was noted that this was a matter of fact and the Court of Appeal should not interfere. The commentary suggests that the CoA may have ruled differently on this matter. It is unfortunate that no clarity or discussion was provided by the CoA on the test/manner that the High Court used to decide that there was no moral right of integrity infringement. It remains unclear what approach should be used – more particularly, a subjective or objective approach. (See para 104)

2) Moral right of attribution claim – This was correctly decided by the CoA on the current law (in the absence of any applicable exception or limitation). However, it raises the question whether the legislature should introduce a DJ exception to avoid such situations of attribution, where it is not feasible. (See para 106)

3) Neighbouring rights – The CoA's discussion on neighbouring rights was well done in ensuring the distinction between copyright and neighbouring rights was made clear. As a comment, the determination that the neighbouring rights were not assigned could have been simplified in paragraph 90 by placing emphasis on the phrase ‘musical works’ instead of ‘undermentioned rights’. The use of ‘musical works’ should be read as an indication of an express intention to cover only copyright. As an additional point, the CoA could have restated the specific provision that was infringed in finding that there was infringement of the neighbouring rights by virtue of broadcasting. This would have ensured greater clarity.

3) Moral rights – There remained some loose uses of the term ‘moral rights’. Given that both integrity and attribution were in question, care should have been placed to ensure ‘moral rights’ was not used descriptively. The specific type of moral right being discussed should have been expressly stated in paragraphs 104-105.

In conclusion, the Court of Appeal came to the correct conclusion across the board, but the discussion on the right of integrity leaves it open that there may have been infringement (at least from the CoA's perspective) without any explanation or clarity about how the moral right of integrity should be interpreted going forward.

Clover® was excited to finally see an IP case be decided by the Court of Appeal. Moreover, the decision reinforces the message that IP rights are important, enforceable and protected in Trinidad and Tobago. Contact Clover® today to ensure your IP rights are properly accounted for and protected.

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