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COTT weighs in on Road March row

By Terry Joseph
March 05, 2006

Controversy over the integrity of this year's declared Road March, "Band of the Year" has heightened, with the Copyright Music Organisation (COTT) describing a definition of sampling by the Trinbago Unified Copyright Organisation (TUCO) as "mythical."

At Thursday's announcement of winners in this year's Carnival competitions, TUCO president Michael "Protector" Legerton, citing legal sources, debunked dispute over originality of the song, saying international law absolved composers of infringement if less than eight bars of another work were used in construction of the new piece.

But COTT CEO and attorney-at-law, Allison Demas disagrees, saying: "That is a myth. There is no such thing as the 'international law' of copyright. There is an international treaty, the Berne Convention, and several countries including Trinidad and Tobago are members of the Berne Convention, Article 9 (1) of which stipulates that 'Authors [creators] of literary and artistic works [which includes musical works] shall have the exclusive right of authorising the reproduction of these works in any manner or form'."

Article 12 of the Berne Convention further provides that "Authors of literary works shall enjoy the exclusive right of authorising adaptations, arrangements and other alterations of their works." In short, if you use any part of a previously registered work in putting together a new song, liability to the original composer is not measured in terms of length of the lift or repetition of a passage. "It is qualitative, not quantitative," Demas said.

"We made this very clear last year when the new rule was first touted. The idea of using just a few bars from someone else's work to create your own is an infringement of the original composer's rights and qualifies for a sharing of any royalties that may accrue. Some local composers have gotten away with this before but there is now greater vigilance in the music industry," Demas said.

The subject song, "Band of the Year", lists Kernal Roberts (son of the late Grandmaster Kitchener) as composer but its opening is said to closely resemble that of "Caribbean Blue", a work by Irish singing phenomenon, Enya. The Road Marching version was vocalised by Patrice Roberts and Machel Montano. Sponsors of the prize seem quite prepared to make the award to the local claimant but that is hardly the major issue.

"The prize is for the most played song and that is not our business in the first instance," Demas said, "but for purposes of royalties accruing from performance of the song, we are committed to upholding the legal requirements." Her position is not new, as evidence in an article by this reporter, published on January 4, 2005, in the Daily Express and headlined COTT Takes Tough Stance on Road-March Sampling.

In that published interview, Demas said: "COTT has officially revised its distribution rules to include a stipulation that royalties in respect of any musical work by members that incorporates protected material from another source, will be held in suspense until such time as written authorisation for use of the sample is presented."

Demas further said: "The move was designed to stem the trend of the past few years, wherein increasing use was being made of portions of foreign songs, particularly in the Road March competition, often without reference to its source and sometimes claiming authorship of (and full royalties for) the adapted work."

Revision of the rule was ratified at COTT's annual general meeting on December 28, 2004 and took effect from January 1 last year, putting on notice local composers who lift musical passages from previously released works (aka "sampling") and fail to acknowledge those sources by presenting documented releases from the original composers."

Conceding it had become a trend in the global music industry, Demas emphasised there is nothing unlawful about sampling but said written permission from the original author-in advance of releasing the adapted version-must be secured before any royalties can be paid to persons claiming full authorship. In assigning their work to COTT, members must sign agreement to a proviso that all work submitted must be original and not infringe on other previously authored material.

Last year, TUCO's Legerton warned that songs borrowing from previously released works will no longer be eligible for Road March prizes.

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