Carnival is a major cultural festival in Trinidad and Tobago (T&T) which is celebrated every year, roughly during the two-month period before Ash Wednesday. The festival incorporates various aspects of T&T’s culture and indigenous artforms such as the steelpan, calypso, soca, stick fighting and traditional mas. Within the realm of intellectual property, these are called traditional cultural expressions (TCEs). Over time, Carnival has evolved into a full-fledged entertainment industry. Local mas bands collaborate with global brands to offer bespoke Carnival experiences to masqueraders. In the past, issues have emerged concerning the ownership and exploitation of these TCEs. For the most part, there is no formal legislation in T&T prescribing the protection afforded to these valuable artforms. However, as innovation and commercialization increases, should stricter laws be implemented in T&T to protect the TCEs underpinning Carnival?

On an international stage, developing nations are now seeking to recover or reclaim their cultural identity amidst arguments of cultural appropriation. This is a complex issue and there is no straightforward answer. Arguably, a strict regulatory regime for TCEs is not appropriate. T&T’s Carnival is a valuable cultural and economic asset. Therefore, a balance must be struck between recognition of, and upholding the sanctity of TCEs on the one hand and permitting the innovation and commercial benefits that Carnival has to offer.

The regional approach to TCE protection should first be considered. The Revised Treaty of Chaguaramas expressly provides in Article 66 for inter alia, the identification and establishment of mechanisms to ensure the preservation of indigenous Caribbean culture, the legal protection of the expressions of folklore, other traditional knowledge and national heritage. On this issue, Caribbean territories do not have a unified position.

Jamaica has taken a robust approach to the protection of its TCEs. In 2012, the Jamaica Intellectual Property Office (JIPO) issued a practice notice prescribing the manner in which the JIPO will assess trade mark applications for elements of TCEs. The fact that a word, imagery, style or design is recognized as a TCE in Jamaica will mean that it will be treated as such, even if it has some other meaning or derivation outside of Jamaica. More recently, the Jamaica Trade Marks (Amendment) Act 2021 was amended so that a trade mark would not be registrable if it is of a nature to misrepresent, misappropriate TCEs of indigenous or local communities.

T&T has adopted a comparatively moderate approach. Legislative provisions have been enacted with the protection of culture in mind. From a copyright perspective, “works of mas” has been expressly included in T&T’s Copyright Act, Chap. 82:80, being protected as a derivative work. It may include the combination of a costume with a particular style of dance or music, such as Sailor Mas and the accompanying dance. However, copyright protects the tangible elements of the works but not the underlying artform, style or tradition (the TCE). In that sense, copyright law does not protect TCEs.

The Trade Marks Act, No. 8 of 2015 provides in Section 8(4) that a trade mark shall not be registered if it is, among other things, contrary to public policy or to morality. Arguably, a trade mark that contains elements of T&T’s TCEs may be captured by this section. However, in practice, the T&T Intellectual Property Office (TTIPO) occasionally accepts trade marks that contain TCEs, for example the word “CALYPSO”, but a proprietor will not have exclusive ownership of the word.

The Government does not have exclusive rights of ownership over the steelpan. This is T&T’s national instrument and is synonymous with Carnival. Under the National Emblems of Trinidad and Tobago (Regulation) Act, Chap. 19:04, the National Flag and Coat of Arms are protected, and copyright is conferred in perpetuity to the State. This is a novel provision which falls outside the scope of traditional copyright ownership, which is generally for life of the author plus fifty years. The steelpan is notably absent from perpetual ownership by the State. Was this simply an oversight by the legislature or an intentional omission?

From a practical standpoint, it will be very difficult to protect TCEs. At a national level, many questions arise including, who will own the TCEs, the Government or the communities from which they emanate? Competing communities may claim the origination of a TCE, but how do these communities prove that they were the creators and how will the Government decide from where it came? Will licenses be required to use TCEs from the Government or the indigenous communities? Concerning Carnival, traditional folklore, cultural dances and characters have been in the public domain for many years. Should we now, after so long, attempt to regulate the use of these TCEs?

The extra-territorial use of TCEs pose a separate issue. Will third parties be permitted to apply for ownership of the same outside of T&T? Practically, there is nothing to stop them, think Michael B Jordan and his business partner’s trade mark application for J’OUVERT before the United States Patent and Trademark Office. Wider buy-in from the international community is critical if trade mark, patent and copyright offices are to uphold extra-territorial TCEs. Nevertheless, the underlying issues still remain, how will countries prove that TCEs are indigenous to them? Caribbean culture is intertwined by shared historical experiences. Carnival for one, is celebrated globally and regionally in Brazil, Trinidad and Tobago, Jamaica and many other countries.

The very essence of Carnival is innovation and creation. Therefore, stringent control over TCEs is not recommended. Over-regulation may stifle the commercialization of Carnival which generates substantial revenue for T&T, a nation already heavily dependent on the oil and gas industry. Local and international companies usually employ elements of Carnival to promote their products during the season. KFC recently introduced its JAB JAB Box and Tommy’s Brewing Company is selling a limited release Jumbie Amber Lager. It is not wise to introduce regimes which would make access to and use of these cultural traditions difficult, such as requiring persons to obtain licenses to use the TCEs. Policies may be implemented to uphold the sanctity of T&T’s TCEs so that they will not be used in a manner which will bring them into disrepute. Beyond that, however, T&T’s current approach is respectful of both the right to innovate and commercialize Carnival and, protect our TCEs through the TTIPO and legislation.