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Crowne: Copyright and the Privy Council; why AG’s wrong on Petrotrin complaint

The Privy Council decision in Maharaj v Petroleum Company of Trinidad and Tobago Ltd, [2019] UKPC 21 (20 May 2019) has shone a Guaracara-esque spotlight onto Petrotrin’s decision to abandon its $97 million USD claim against Malcolm Jones.

According to the Court, based on the evidence available to them, ‘there are some grounds for thinking that the decision to abandon the claim against Mr Jones may have been influenced by political factors’. (ibid., para. 47)

Photo: Late former Petrotrin executive chairman Malcolm Jones (centre).
(Courtesy Firstmagazine.com)

That five Law Lords would make such a statement is remarkable and telling.

Unsurprisingly, the Government has since sought to distance itself from that decision. However, as the observation about possible political interference was made by an objectively ‘disinterested’ entity, the usual tit-for-tat with the Opposition could not work this time. A new strategy was required.

In a press conference held earlier yesterday, the AG sought to chastise an edited version of the Privy Council proceedings being shared on social media. The edited version highlighted the oral arguments at the Privy Council concerning the possible political interference at play.

The AG indicated that ‘as a lawyer with a masters in copyright law’ he intended to report the video to the Privy Council as being a breach of the terms and conditions set out on the Privy Council site. Namely:

“Video footage of past proceedings is made available on specific terms which users accept before they first access a video from the archive. The video footage is made available for the sole purpose of the fair and accurate reporting of the judicial proceedings of the UK Supreme Court and the Judicial Committee of the Privy Council.

“The re-use, capture, re-editing or redistribution of the video footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.”

Photo: A judge at work.

The AG also stated that ‘every time you re-publish [the edited video] you take authorship of the breach of copyright’.

With respect, I must disagree with the AG’s reliance on copyright law and the Privy Council’s terms and conditions to squelch dissent and circulation of the edited video, even if such dissent is politically motivated.

First, the terms and conditions on the Privy Council’s site are so-called ‘browse-wrap’ terms. One does not have to affirmatively click ‘I accept’ before acceding to them. The enforceability of such terms is not clear in the foreign jurisprudence.

Second, even if such terms were enforceable, a thorny conflict of laws situation arises. Trinidad and Tobago’s Copyright Act expressly states that “no protection shall extend… to political speeches and speeches delivered in the course of legal proceedings.” (ibid., sub-section 7 (1) (c)). It is therefore arguable that the exchanges between counsel and their Lordships are not protected by copyright.

Furthermore, Article 2 (8) of the Berne Convention for the Protection of Literary and Artistic Works—which Trinidad and Tobago has long acceded to—also provides that the “protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.”

The proceedings arguably qualify as ‘news of the day’, particularly as they relate to ongoing allegations of political interference and/or access to information.

Photo: Attorney general Faris Al-Rawi.

Third, even if it could be said that the proceedings are subject to copyright. It could be argued that the edited version of the proceedings is justified under the news reporting provisions of the Copyright Act.

Sub-section 13 (b) provides that “the following acts shall be permitted in respect of a work without the authorisation of the owner of copyright… for the purpose of reporting current events, the reproduction and the broadcasting or other communication to the public of short excerpts of a work seen or heard in the course of such events, to the extent justified by the informatory purpose.”

Put simply, the proceedings were edited to specifically show possible suggestions of political interference and therefore tailored to that ‘informatory purpose’.

In the end, modern copyright law was designed to promote the ‘encouragement of learning’ (see, the Statute of Anne 1710) and to balance the interests between authors and users. It was never designed as a tool of censorship, especially on matters of serious public importance and current debate.

About Dr Emir Crowne

Dr Emir Crowne
Dr Emir Crowne is a barrister and attorney-at-law attached to 
New City Chambers in Port-of-Spain.

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5 comments

  1. hope this not in any recent laws, have not read them in their entirety

  2. Shockingly shallow analysis by Crowne, one which dare I say, results in the wrong conclusion.

    “…The video footage is made available for the sole purpose of the FAIR and ACCURATE reporting of the judicial proceedings of the UK Supreme Court and the Judicial Committee of the Privy Council.

    “The re-use, capture, RE-EDITING or redistribution of the video footage in any form is not permitted. You should be aware that any such use COULD attract liability for breach of copyright or defamation and, in some circumstances, COULD constitute a contempt of court.”

    I’ve taken the liberty to capitalize what I believe to be the key applicable terms. Arguably, editing the video and representing only a portion of the entire proceedings could lead to a loss or mitigation of context, leaving the viewer to draw erroneous conclusions. That, it would appear, is the specific risk that the Privy Council seems to countenance by posting the warning. The warning further goes on to make clear violating the terms of use will not *necessarily* lead to a judgment of liability for breach of the terms of use… but rather COULD expose the violator to some degree of liability or contempt of court. Emphasis again being on “could.”

    Crowne continues:

    “First, the terms and conditions on the Privy Council’s site are so-called ‘browse-wrap’ terms. One does not have to affirmatively click ‘I accept’ before acceding to them. ****The enforceability of such terms is not clear in the foreign jurisprudence.***”

    I starred the latter portion because it completely destabilizes the foundation upon which he constructs his disagreement. If Faris says violating the terms of use is a breach of copyright law then how could Crowne say there is no breach, if he himself is unsure as to the enforceability of the law?

    First, was Faris saying that breach of the PC’s terms of use for their videos would lead to prosecution/liability in Trinidad courts… or UK courts? If he meant the former, then that’s a sketchy proposition rightly rejected by Crowne. If he meant prosecution of a claim in the UK however (as implied by his threat to make a report to the PC), then neither he nor Crowne is properly positioned to opine conclusively on a) whether the PC would take up the issue; b) if they do, whether they would prevail.

    Crowne continues further:

    “Second, even if such terms were enforceable, a thorny conflict of laws situation arises. Trinidad and Tobago’s Copyright Act expressly states that “no protection shall extend… to political speeches and speeches delivered in the course of legal proceedings.” (ibid., sub-section 7 (1) (c)). It is therefore arguable that the exchanges between counsel and their Lordships are not protected by copyright.

    Furthermore, Article 2 (8) of the Berne Convention for the Protection of Literary and Artistic Works—which Trinidad and Tobago has long acceded to—also provides that the “protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.”

    There would be no conflict of laws, what is he talking about?? If the matter pertains to a breach of UK law, then that could lead to the prosecution of a claim in the UK. It does not matter that TnT law is different or in conflict. The real “conflict” would not be one of laws, but a matter of jurisdiction. Does the PC intend to assert jurisdiction over “all the world” when it puts forth it’s IP content and makes it accessible to the world? Or is the Court only concerned with violators doing so from within UK territories? It would seem that in order to enforce UK law, in TnT, one would first have to obtain judgment against the Defendant in the UK, then try to have the judgment recognized in TnT courts. It may not matter that the alleged conduct is legal in TnT… it is a violation of UK law.

    The same rationale applies to the Berne Convention and Trinidad’s signing onto that Convention. The question would be “is the UK signatory to Article 2 (8)?” Then that would preclude enforcement in the UK. What goes on in Trinidad regarding Trinidad laws is immaterial to the central issue presented… has there been a copyright violation, and if so could enforceability of any judgment apply in TnT.

    All that being said, why is Faris pushing this copyright talk? To what end? How does it benefit him? All he’s doing is making an ass of himself and making the Government look petty in the process.
    Perhaps that should have been ts he sum of Crowne’s contribution.

    • Your analysis makes one fatal flaw.

      The Privy Council is Trinidad and Tobago’s final appeal court so, there is no conflict between UK and T&T law. Breach of conditions of the PC website is actionable under the Court’s jurisdiction which includes Trinidad and Tobago. Copyright under UK law may apply, but that is irrelevant, as the breach is considered a breach of the PC’s terms and conditions and therefore, contempt of court.

  3. The Attorney General is a politician first and foremost. He must necessarily ‘protect’ his party before the government and the nation. One can little wonder then at the political spin he attempts.

    The problem is that more of the country is educated today than when the PNM was started. Therefore, many can tell sense from nonsense. There are three fountains of nonsense presently – the Minister of Finance, The Minister of National Security and the Attorney General.

  4. This position is based on ignoring the terms of use of the Privy Council’s website.

    I disagree that ignoring the T&C’s can be the basis for the defense of the practice