When I embarked on my journey into intellectual property law and administration several years ago, I could never have imagined what today's Caribbean intellectual property landscape would look like. At that time, awareness about the importance of intellectual property rights was just emerging in the Caribbean and intellectual property was not a national priority.
The coming into force of the World Trade Organization's (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in 1995 propelled Caribbean Countries into a world that I believe we were not quite prepared for.1 It also coincided with a significant milestone in my career - completing my master's degree in Comparative Law, with a specialization in International Copyright and Intellectual Property, at McGill University in Quebec, Canada.
As I landed back on my island that same year, I headed to the Office of the Prime Minister to become the first legal director and head of Jamaica's Copyright Unit a few months later. My predecessor was a retired librarian and educator. My colleague - who is now the Head of the Caribbean Section, Division for Latin America and the Caribbean at the World Intellectual Property Organization (WIPO) - and I, found ourselves navigating the complex terrain of copyright policy amidst active trade negotiations, including those surrounding the Free Trade Area of the Americas (FTAA).
Venturing into the related area of industrial property was inevitable for me as the implementation of Jamaica's obligations under the TRIPS Agreement demanded a comprehensive policy approach. I would find myself over the next five years helping to chart a course for the government to bring all aspects of intellectual property under one ministerial portfolio and ultimately one office, the Jamaica Intellectual Property Office.
Come with me on a bird's eye journey to explore where things stood when I joined the Copyright Unit and how far Jamaica and indeed our Caribbean neighbours have come three decades later.
Copyright has played a central role in shaping intellectual property (IP) policy and legislation in Jamaica. This comes as no surprise, given our vibrant Orange Economy. Policy discussions and debates around intellectual property have predominantly focused on copyright, regardless of the Bill under consideration. I remember noting this once when a parliamentarian passionately advocated for copyright when the Layout-Designs (Topographies) Bill was being tabled.2
While trademark registrations had already been recognized as a revenue-earner for Jamaica's Companies Office, patent and designs were backburner issues. A lone desk officer in the Ministry of Industry and Commerce processed patent applications under the archaic Patent Act of 1857, while industrial designs filings under the Designs Act of 1937, were few and far between.
It was the advocacy of Jamaica's vibrant entertainment industry which served as a catalyst for Jamaica's accession to the Berne Convention for the Protection of Literary and Artistic Works (1886) and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961), and the repeal of the Copyright Act of 1911 (UK's Imperial Copyright Act) resulting in a robust Copyright Act in 1993.3 These major developments set Jamaica on a path of transformation of its IP landscape with the TRIPS Agreement serving to bring into focus the other areas of IP that needed attention.
Like Jamaica, most Commonwealth Caribbean countries had joined the WTO in 1995 with outdated IP laws and low participation in the international IP framework. Some countries had joined WIPO and the foundational IP treaties, the Berne Convention and the Paris Convention on Industrial Property (1883), a few years before and some in tandem with their membership in the WTO.4
At the time, Trinidad and Tobago and Jamaica were very active in the international IP arena, often being the only English-Speaking Caribbean participating in discussions on ground-breaking treaties like the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (together the 'WIPO Internet Treaties') adopted in 1996, which both countries signed and subsequently acceded to.5
As Caribbean countries began to appreciate the critical role of intellectual property in trade relations, efforts to modernize outdated laws and engage with the international framework of IP rights protection gained momentum. The participation of other Caribbean nations at forums such as WIPO increased considerably, paving the way for the WIPO Ministerial Level Meeting for Caribbean Ministers with responsibility for Intellectual Property hosted by the Government of Jamaica in June 1999.6 This meeting had several objectives including developing a regional strategy for collective management of copyright which led to the formation of the Caribbean Copyright Link (CCL) providing support services to national collective management organizations (CMOs).7
By then, Jamaica had two indigenous CMOs, the Jamaica Association of Composers Authors and Publishers (JACAP) representing the rights of authors, composers and publishers in their musical works, and the Jamaican Copyright Licensing Agency (JAMCOPY) representing authors and publishers of printed published works, both established in 1998.
In the ensuing years, with WIPO's technical assistance, Caribbean countries began to transition trademarks, designs and patent administration from companies and corporate government registries, even the registry of births and deaths, to dedicated IP offices.8 Indeed, these aspects of IP were hitherto treated as distinctly separate activities, and it is fair to say that copyright administration was largely considered a private concern, thus no need for a government office dealing specifically with copyright. Jamaica stood out with its emphasis on copyright and related rights.
By the turn of the century, Jamaica had revamped its Copyright Act (via amendments in 1999), updated its Trade Marks Act (via amendments in 1999 and 2001), passed a new Layout-Designs (Topographies) Act, and consolidated copyright, industrial designs, layout designs, geographical indications, trademarks and patent administration under one office, namely, the Jamaica Intellectual Property Office (JIPO) (2001).9
The establishment of JIPO, for which I served as the coordinator, marked another milestone in my career. It signalled my transition from being a government expert and special advisor on IP, to heading up our IP Department at our boutique law firm, Foga Daley. The firm was co-founded by my law partner Nicole Foga who was the former government advisor on Telecommunications and also played a key role in the establishment of JIPO.
Staying on top of developments in IP has been essential to our law practice and my early involvement on the JIPO Advisory Board provided a unique opportunity to continue pioneering work that merged the broad governmental perspectives with practical insights as a practitioner.
The WIPO Ministerial Level meetings would become a regular feature in the coming years with WIPO partnering with national IP Offices around the world to set the agenda for collaboration between governments for the progressive development of IP. The achievements are too numerous to mention here but I was honoured to be a part of the earlier Ministerial meetings which helped to shape cooperation between Caribbean Governments and WIPO and set the stage for future collaboration.10
As the Caribbean Community (CARICOM) began to respond collectively to the requirements of the TRIPS Agreement, the FTAA, bilateral agreements and other IP related trade negotiations11 the CARICOM Treaty was updated by the Revised Treaty of Chaguaramas to include the CARICOM Single Market and Economy. Concluded in the Bahamas on July 5, 2001, the Revised Treaty mandated a regional approach to intellectual property policy and administration and set CARICOM Countries on a path to strengthen their IP regimes by joining the critical IP treaties, pursuing regional administration of industrial property and embarking on a process of modernization and harmonization of IP laws.12
The region would cooperate again with the negotiations of the Economic Partnership Agreement with the European Union and, post-Brexit, the United Kingdom.13 The EPAs set even higher standards of IP protection than the TRIPS Agreement, challenging CARIFORUM countries to enter new international arrangements including the Patent Cooperation Treaty (1978) and the Madrid Protocol Concerning the International Registration of Marks (1989).14
While Jamaica was TRIPS compliant with respect to copyright, trademarks and geographical indications, having passed the Protection of Geographical Indications Act in 2004, it was lagging on patents and designs. This landed Jamaica on the US Special 301 watchlist for inadequate IP rights protection opening Jamaica to possible trade sanctions from the US. Work had started on a draft patent and designs act shortly after signing the WTO Agreement, but that draft went through several iterations between 1996 and 2019 until finally, the Patents and Designs Act (also covering Utility Models) was passed. The Patents and Designs Act was the first law to be enacted in 2020, resulting in Jamaica's removal from the US Special 301 watchlist. The Act implements the Paris Convention and the PCT and as of February 2022 when the Act came into operation, international applicants have been able to designate Jamaica.
The year 2022 was also significant to trademark practitioners as a substantive update to the Trade Marks Act was accomplished through the promulgation of comprehensive Trade Marks Rules; this time to implement the Madrid Protocol to which Jamaica acceded three months prior to its entry into force on March 27, 2022.15 Jamaica did not enter the Madrid Protocol unprepared, thanks to the thoughtful intervention of local trademark attorneys who urged a cautious approach and lobbied for the proper groundwork be laid for implementation through robust amendments to the Trade Marks Act. Trademark attorneys aimed to temper the expectations of local proprietors, who perceived the Madrid Protocol as a universal solution for global brand protection and enforcement. Interestingly, to date only a handful of local proprietors have gone the Protocol route.
In relation to copyright, by 2015 the government revamped its Copyright Act of 1993, implementing the WIPO Internet Treaties and introducing an unprecedented copyright term extension of up to life plus 95 years, albeit met with mixed reviews. There are now three local CMOs - JACAP, JAMCOPY and the Jamaica Music Society (JAMMS) representing the rights of Record Producers and Performers incorporated in 2006 - and the Caribbean Reproduction Rights Organisations' Agency (CARROSA) formed in 2018, by the five Caribbean RROs led by JAMCOPY - The Trinidad & Tobago Reproduction Rights Organization (TTRRO), The Barbados Copyright Agency Inc (BCOPY), The Belize Copyright Licensing Agency (BECLA) and The Eastern Caribbean Copyright Licensing Association, (ECCLA), incorporated in St Lucia to serve the OECS Member States.
Despite setbacks and challenges, like some of its Caribbean counterparts, Jamaica now boasts a suite of modern IP laws, an upgraded intellectual property office, a strong cadre of IP legal professionals supporting its robust framework, an organized system of collective management, and a more engaged and discerning public.
With the opportunities and challenges presented by the growing use of Generative Artificial Intelligence and anticipated amendments to the Copyright Act, including plans to reduce the 95-year copyright term, the next decade for IP is poised to be undeniably transformative.
Footnotes
1. Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization (the WTO Agreement) was concluded on April 15, 1994, and entered into force on January 1, 1995.
2. Layout-Designs (Topographies) Act (1999). Protection for Layout Designs (Semi-Conductor Chips) was mandated by Article 6 Part II of the TRIPS Agreement.
3. Jamaica acceded to the Rome Convention on July 26, 1989, and the Berne Convention on September 28, 1993.
4. For example, Barbados joined the Berne and Rome Conventions in 1983. Trinidad and Tobago joined Berne in 1988 and Rome in 2019. St Lucia joined Berne in 1993 and Rome in 1996, St Kitts & Nevis and St. Vincent & the Grenadines, joined Berne in 1995 but are not members of Rome. Dominica joined the Berne and Rome Conventions in 1999, and Belize joined Berne in 2000.
5. Jamaica acceded to the WIPO Internet Treaties on March 12, 2002, and Trinidad & Tobago on August 28, 2008. Belize (2018), Barbados (2019), St Lucia (2019), St Vincent & the Grenadines (2023) and most recently St Kitts (2024) are also members of the WIPO Internet Treaties.
6. At an earlier meeting of Caribbean Ministers with responsibility for Intellectual Property held in 1996, the Ministers called on WIPO to conduct a feasibility study on a regional collective management system for the Caribbean. That cause was furthered at the Ministerial Level meeting in 1999, leading to the formation of CCL in 2000.
7. CCL was subsequently replaced by Association of Caribbean Copyright Societies (ACCS) and represents the four performing rights CMOs, Copyright Music Organization of Trinidad and Tobago (COTT) (1984), the Jamaica Association of Composers Authors and Publishers (JACAP) (1998), the Copyright Society of Composers, Authors and Publishers (COSCAP) established in Barbados in 1998 and the Eastern Caribbean Collective Organisation for Music Rights (ECCO) which serves music rights owners in the Eastern Caribbean Countries established 2000.
8. The Corporate Affairs and Intellectual Property Office was established in Barbados in 1988, however, the Intellectual Property Office of Trinidad and Tobago established in 1997, was the first government office in the Caribbean solely dedicated to IP, followed by JIPO in Jamaica. Other countries including Dominica, St. Lucia, Antigua and Barbuda, St. Vincent & the Grenadines, subsumed IP under their Corporate/Companies Offices between 1999 and 2003. The Intellectual Property Office of St. Kitts and Nevis (IPOSKN) became a standalone department in 2011.
9. The Jamaica Intellectual Property Establishment Act, 2001.
10. WIPO Ministerial Level Meetings have been held around the Caribbean, including in Suriname, St. Lucia, Barbados, Antigua & Barbuda, Trinidad and Tobago, and, most recently, St. Kitts and Nevis (2023).
11. US-Jamaica Agreement Concerning the Protection and Enforcement of Intellectual Property Rights was signed on March 17, 1994.
12. See Article 66 of the Revised Treaty of Chaguaramas. The Revised Treaty signed in 2001 updated the Treaty of Chaguaramas, of 1973.
13. The EPA between the European Community (EC), its Member States, and the Caribbean Forum of African, Caribbean and Pacific (ACP) States (CARIFORUM) (2007), Chapter 2. The CARIFORUM-UK EPA came into effect on January 1, 2021.
14. Jamaica became bound by the PCT on February 10, 2022, and joined the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks on December 27, 2021, in force on March 27, 2022. Antigua & Barbuda, Belize and Trinidad & Tobago are the other English-Speaking Caribbean Countries that have joined the Protocol.
15. Jamaica's Trade Marks Act of 1999 was last amended in June 2021 making way for Jamaica's accession to the Madrid Protocol on December 27, 2021. The Trademark (Amendment) Rules of 2022 implemented the procedural aspects of the Protocol including applicable fees to facilitate the examination and processing of international applications. JIPO began to process Madrid Protocol applications as of September 30, 2023, when the Amended Rules took effect.
Originally published by The Caribbean IP Annual Magazine 2025.
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