Digest of Recent Unreported Commonwealth Caribbean Cases

• Pages: 205-236

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Digest of Recent Unreported Commonwealth Caribbean Cases

Bahamas

Copyright
Columbia Pictures Industries Inc., Twentieth Century Fox Film Corporation and Warner Brothers, Inc., v. Bruce Hall and Leonice Hall (trading as Signature Video Tape Sales and Rentals)

No. 717 of 1990 (October 1, 1990) (Supreme Court: Sawyer, J.)

Copyright - Whether works of United States nationals afforded protection in the Bahamas - Whether "videotapes" fell within the category of "protected works" - Copyright Act, Ch. 298 (Bahamas) - Copyright Act, 1956 (U.K.) - Berne Convention for the Protection of Literary and Artistic Works, 1896 - Universal Copyright Convention, 1952.

Practice and procedure - Whether statement of claim discloses reasonable cause of action - Summons to strike out pleadings dismissed - Order 18 rule 19, Rules of the Supreme Court, 1978.

Facts: The plaintiffs, Columbia Pictures Industries Inc., Twentieth Century Fox Film Corporation and Warner Brothers Inc., are all companies incorporated in the United States of America. They claim to be the owners of the copyright in the films "Ghostbusters 11", "Working Girl" and "Batman" respectively. As stated in their statement of claim, the plaintiffs sued the defendants for the alleged infringement of the copyright in those works; such infringement allegedly perpetrated by the reproduction and offering for sale and/or rental of videotaped copies of the respective films, by the defendants without the licence of the plaintiffs.

The defendants, on the other hand, sought to strike out the plaintiffs statement of claim on the ground that it disclosed no reasonable cause of action against the defendants according to Order 18, rule 19(l)(a) of the Rules of the Supreme Court, 1978 (hereinafter called "the Rules").

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It was submitted on behalf of the defendants that the plaintiff's statement of claim disclosed no reasonable cause of action because: (1) the laws of The Bahamas grant no protection of copyright to the plaintiffs; and (2) alternatively, the laws of The Bahamas grant no protection of copyright for videotapes to the plaintiffs. In support of that submission, attention was drawn to the fact that while The Bahamas may have adhered to the Berne Convention for the Protection of Literary and Artistic Works 1896 (as revised), (hereinafter called "the Berne Convention"), and the Universal Copyright Convention, 1952 (as revised) (hereinafter called "the UCC"), the Parliament of The Bahamas had not enacted any legislation to give effect to those conventions in The Bahamas.

No evidence of The Bahamas' having adhered to those conventions was adduced by either side, however the court accepted that for the purpose of the ruling, that The Bahamas was and is a party to those conventions. Assuming then that The Bahamas was bound by adherence to the conventions, that country, in keeping with the terms of those conventions, would have undertaken to give effect to the conventions unless the necessary provisions were already in existence.

The only domestic law of The Bahamas which was then in existence, which could be seen as attempting to fulfill The Bahamas' undertaking under the conventions is the Copyright Act, Ch. 298; a modified version of the Copyright Act, 1956 (U.K.), which was extended to the then colony of The Bahama Islands. However, the Copyright Act, Ch. 298 did not contain the provisions of the Copyright Act, 1956 (U.K.) which allowed the United Kingdom to, inter alia, extend and apply their Copyright Act to countries other than its colonies and protected territories. It was therefore contended that while the plaintiffs would have been entitled to protection for the copyright in their works prior to independence, there is no provision in the post-independence domestic Copyright Act for applying the protections of the Act to non-nationals, except perhaps United Kingdom citizens or British subjects. Alternatively, it was submitted that the laws of The Bahamas do not protect copyright in videotapes.

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Held: (i) it is a rule of construction that that interpretation of a law will be accepted by the courts which saves existing rights which, so far as possible, is consistent with the country's treaty obligations. To hold that the copyright in the films is not protected by the laws of The Bahamas would be tantamount to construing the domestic Act so as to take away rights, to ignore its provisions and contravene The Bahamas treaty obligations.

(ii) an examination of the domestic Act shows that the definition of "cinematograph film", which falls within the category of a "protected work", means not only a sequence of visual images recorded on translucent films, but also such sequences as recorded on "material of any description" which would enable the pictures so recorded to be seen as a moving picture. As videotapes enable films to be seen as movies and as they would fall within the description of "material of any description", it is at least arguable that they could even fall within the meaning of "cinematograph film".

(iii) the pleadings disclosed an arguable and therefore reasonable cause of action and ought not to be struck out.

Criminal Law and Procedure
In the matter of the Mutual Legal Assistance (Criminal Matters) Act, 1988
In the matter of a Request for Assistance by the United States of America

and

In the matter of an Application by the Competent Authority of The Bahamas, the Attorney-General

No. 1348 of 1990 (October 26, 1990) (Supreme Court: Sawyer J.)

Criminal Law and procedure - International law enforcement - Mutual legal assistance in criminal matters - Procedural and substantive requirements - Mutual Legal Assistance (Criminal Matters) Act, 1988, ss. 7(1), 13(1) - Bank and Trust Companies Regulation Act, Chapter 287.

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Facts: By summons dated October 3, 1990, the Attorney-General of The Bahamas sought the following:

"An order directing the Bank of Credit and Commerce International (Overseas) Ltd., Nassau, Bahamas to provide copies of the records of accounts in the names of Yohannes Abraha and Mitzlal Abraha, including -1. all records relating to account no. 11-8590-0, in the name of "Y. Abraha";

2. all records relating to any other accounts, or safe deposit boxes, in the names of Yohannes Abraha, Y. Abraha, or Mitzlal Abraha;

3. all documentation regarding any money orders, cashiers cheques, or other commercial papers purchased by Yohannes

Abraha or Mitzlal Abraha from 1978 to the present; and
4. all documentation regarding a November 29, 1988 payment of CAN$30,000 to Canarim Investments."

The records produced were for the period January 1, 1983 to the present.

Further specific information including original signature cards, periodic statements and wire transfer records, inter alia, on each account was also requested, and an order that the requested documents be provided by the bank to the Attorney-General within four weeks of the grant of the order.

The summons was supported by an affidavit sworn to by M.W. Olander, in which it was verified that there existed a treaty signed on June 12 and August 18, 1987 respectively, between the United States of America ("the U.S.A.") and The Bahamas, which was ratified by both governments on July 18, 1990. Exhibited to Mr. Olander's affidavit was a request from the Central Authority of the U.S.A. (as defined in the Treaty) and a certificate from the Attorney-General, the "Competent Authority" under the Mutual Legal Assistance (Criminal Matters) Act, 1988 (hereinafter called "the Act") and the "Central Authority" for The Bahamas under the Treaty.

By article 1(1) and (2) of the Treaty, the U.S.A. and The Bahamas agreed that each would provide the other with assistance in the investigation, inter alia, of offences, particularly offences connected with

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the traffic in illegal narcotics, and that such assistance would include the provision of documents, records and articles of evidence.

By article 6(1) of the Treaty, the Central/Competent Authority of the requested State (in this case The Bahamas) is to comply with a request promptly, or transmit it to the authority having jurisdiction to comply with the request. Where the latter occurs, the requisite authority must use all legal means within its power to execute the request.

In this case, the Central/Competent Authority of The Bahamas could not itself make the order sought because of the provisions of the Bank and Trust Companies Regulation Act, Chapter 287. The request was therefore made to the court for an order. The court considered, inter alia, sections 7(1) and 13(1) of "the Act" quoted hereunder:

"s.7(l) Where the Competent Authority approves of a request to obtain evidence to be used in proceedings in a foreign state, a court to which any application is made by the Competent Authority for the purpose shall have jurisdiction to entertain the application and to make such order as it sees fit to give effect to the request, having regard to the provisions of the treaty under which the request was made.

S.13(1) Where the execution of a request requires the issue under the laws of The Bahamas of a subpoena or other necessary order by a judge, magistrate or justice of the peace, a certificate given by the Competent Authority that the issue of any such document or order is required for the purpose of a request shall, subject to section 6(3), be sufficient authority for the issue or making of same without further enquiry."

The only issue to be decided was whether on the facts and the law, the order prayed for should be granted.

Held: (i) the request from the U.S.A. indicated that an investigation of Mr. Yohannes Abraha and Mitzlal Abraha was warranted since it stated that the former was convicted on a guilty plea of the offence of conspiracy to distribute cocaine contrary to Title 21, U.S. Code, section 846 (among...