Cayman Islands: The Reform of Cayman's Intellectual Property Laws

On 30 June 2016, legislation came into effect that has paved the way for sweeping changes to Cayman's copyright laws. These changes mark the first stage in a complete overhaul of Cayman's intellectual property laws in their entirety, which will eventually update other laws, as they relate to trademarks and patents as well.

Up until that point, Cayman's copyright laws were subject to the UK Copyright Act 1956. In the UK, this legislation was replaced almost 30 years ago by the Copyright, Designs and Patents Act 1988, to which numerous amendments have been added, but the Cayman Islands had never adopted the new law of 1988. This meant the jurisdiction's laws as they related to copyright protection (i.e. the protection of the exclusive legal right, given to the originator or assignee, to use and/or benefit from all kinds of material, and to authorise others to do the same) were extremely outdated, especially when considering the incredible change in communications that have taken place over the last 60 years, none of which could have been predicted when the legislation was first drafted, thereby making the existing legislation lacking in many areas for modern day usage.

THE NEED FOR CHANGE

The Cayman Islands has continued with its attempts to expand and diversify its economic base from the two traditional pillars of financial services and tourism, focusing on attracting innovators, entrepreneurs and generally those with considerable intellectual property in need of protection. Among other areas, Cayman has been busy developing a film industry via the establishment of its Cayman Islands Film Commission and subsequent international Film Festival. There is also a vibrant visual arts community within which exists many artists who are able to make a living from selling their artwork.

Cayman Enterprise City (CEC) is a thriving enterprise geared up to wooing inward investment with a variety of advantages of establishing a presence in the Cayman Islands, including the ability for a business to mitigate taxes, retain profits and, crucially, protect their intellectual property. The CEC comprises of various bodies dedicated to a particular sphere of business: Cayman Internet Park, Cayman Media Park, Cayman Commodities & Derivatives Park, Cayman Science & Technology Park and Cayman Maritime Services Park. For businesses within the science, technology and media industries in particular, protecting intellectual property via up-to-date trademark laws and other pertinent legislation is absolutely crucial if they are to succeed in these fast paced environments where discoveries are made, technologies created and communications developed, often at super high speed.

Protecting the intellectual property of such individuals and businesses has therefore become an increasingly important issue which needed to be addressed, in order to promote Cayman's international reputation as a safe and secure jurisdiction in which to conduct business, especially if the Cayman Islands intends to market itself as such on the global stage, among established players with sophisticated legislation and treaties already in place.

THE PROCESS OF LEGISLATIVE REFORM

To start the process, in March 2015 the Copyright (Cayman Islands) Order 2015 was extended to the Cayman Islands by the UK Privy Council. This meant that the original 1956 UK legislation was revoked, and Part I of the UK's Copyright, Designs and Patents Act 1988 was extended to the Cayman Islands in its place, subject to certain modifications.

This was significant, because it meant copyright protection for all sorts of work could be covered, should the Order be enacted. Such works included written works (not just newspaper or magazine articles, but also computer programmes and technical writing), dramatic and musical works, artwork, film recording and broadcasting.

Another important aspect of the new legislation has been the granting to the owner of material under copyright of the right to claim ownership of that work and to request, via the Cayman's Customs Department, that these be prohibited goods which are not to be imported into the Cayman Islands.

The Order also made it possible for owners of copyrights to seize or detain their copied work if they are found to be for sale or hire, once the police have been notified. This could have a direct impact on businesses in the Cayman Islands, in particular those selling copied DVDs that are under copyright, as well as restaurants and bars playing music under copyright for which they have not received permission to broadcast commercially.

The Order also paved the way for a Copyright Tribunal for the Cayman Islands to be established and detailed enforcement capabilities that could be undertaken by the Director of Commerce and Investment as they related to copyright infringements.

So it was a significant step that, along with this March 2015 Order, the Copyright (Cayman Islands) (Amendment) Order, 2016, which further modifies the extension of the 1988 Copyright Act to the Cayman Islands, were both passed into law on 30 June 2016.

LOOKING AHEAD

The next stage in the modernisation of Cayman's intellectual property is to update its trademark and patents legislation. Currently, the Registrar General maintains a Register of Patents and Trademarks, but this is not a registry of original registration; instead the Cayman Islands registry serves to extend patent and trademark rights that have been registered in other jurisdictions. Clearly this should be updated, because Cayman is in need of an independent trademark right to allow those in need of a local trademark right the ability to register such locally, without the current requirement (causing further expense and extra red tape) of first having to apply overseas for a trademark.

Cayman's current legislation in this regard was originally based upon an almost twenty year old law (of 1998), originally only allowing UK trademark registrations and International (Madrid Protocol) Registrations designating the UK to be extended to the Cayman Islands, with the extension of European Community trademarks afforded to Cayman later that same year.

The fact that local entities looking to register trademarks had to first go overseas, as well as the UK now facing an exit from the EU, meant this matter needed attention. It is very encouraging to know therefore that a new trademark law is currently in the final stages of preparation for the Cayman Islands, thereby allowing trademark owners the ability to file for trademark protection in this jurisdiction. In fact, there will be provisions within Cayman's revised trademark legislation that will ensure Cayman's trademark set up stands head and shoulders above other competitor markets, hopefully attracting a new mini industry in its own right.

Patents are currently covered in the Cayman Islands under the Patents and Trademarks Law, 2011 and it is anticipated that work to update this will take place in the near future.

A newly developed Cayman Island Intellectual Property Office now exists and an IP media awareness campaign continues to update the public on these important legislative changes and the impact they will have on the community as a whole.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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