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Caribbean Creatives Mapping the Creative Industries Mapping the Trade in the Creative Industries

The Story of Royalties

Caribbean Fashion Industry

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Industrial Design & Competitiveness

Creative & Intellectual Property

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The Calabash Review PAGE 22

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Issue 1 Volume 4: July - September 2012 Available online www.creativeindustriesexchange.com www.shridathramphalcentre.org


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PRODUCTION TEAM

Contents

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Editorial

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Mapping the Trade in Creative Industries ! Trade in Services & the Creative Industries

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The Story of Royalties

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Music Industry and Local Content

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Caribbean Fashion Industry!

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Promoting Caribbean Animation

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Capitalizing on Geographical Indications

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Industrial Design & Competitiveness

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Creative & Intellectual Property: Four Cases

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The Calabash Review

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Dr. Keith Nurse - Editor Sanya Alleyne - Research Consultant Stephanie Bishop - Communications Consultant Shridath Ramphal Centre for International Trade Law Policy & Services CARICOM Research Building University of the West Indies Cave Hill Campus St Michael, BARBADOS, BB11000 246.417.4805/246.471.4553 Email: src@cavehill.uwi.edu Website: www.shridathramphalcentre.org

On the cover:

What is the Creative Industry Exchange? The CIE is an outreach project of the Shridath Ramphal Centre for International Trade Law which was initially funded by the UNESCO, Kingston office. The CIE is a web portal that provides a regional mechanism for the collection, collation, analysis and dissemination of data and information on the cultural/ creative industries. What are the aims and objectives of CIE? The principal objective of the CIE is to document the economic impact and contribution of the cultural/creative industries to the Caribbean. The CIE aims to facilitate a stronger national and regional framework for the strategic management of the cultural/ creative industries. The CIE aims to enhance the image and profile of the Caribbean cultural/ creative industries sector in the regional and international context.

Caribbean Art Festival 2010 Cecilia Art

Editorial This fourth issue of the Caribbean Creatives, sponsored by the World Trade Organization (WTO) Chair, University of the West Indies, explores the intersection between intellectual property and the creative industries as well as the key issues in relation to mapping the creative economy. The first article by Lydia Deloumeaux of UNESCO looks at the current status of data collection and mapping for the creative sector in the Caribbean. Andreas Maurer and Joscelyn Magdeleine of the WTO follow up by reporting on the recently concluded WTO/CARICOM workshop on data collection for international trade in cultural services. The focus of the magazine then shifts onto sector specific issues. Erica Smith of the Copyright Society of Composers Authors and Publisher Inc. (COSCAP) relates the story of royalty collections and its impact upon the development of the regional music industry. Shalisha Samuels adds to the debate by discussing the importance of expanding the share of local and regional content on the airwaves as a strategy for growth of the region’s music industry. Daenia Ashpole looks at the efforts of fashion designers to assure the protection of their intellectual property within the industry. Maritza Aguilar discusses the need for a more effective intellectual property regime for the promotion of the Caribbean animation industry. The next section of the magazine examines the opportunities for the exploitation of creativity through intellectual property. Marsha Cadogan discusses the utilization of geographical indications for deepening the competitiveness of the regional agri-food business whilst Malcolm Spence addresses the area of industrial design and delves into the novel concept of biomimicry. Sanya Alleyne picks up on this thematic and highlights four Caribbean success stories that have combined creativity and intellectual property to foster innovation and global competitiveness. The magazine concludes with a critical review by Ingrid Persaud of the recently held Calabash International Literary festival. Keith Nurse, Ph.D World Trade Organization Chair at the University of the West Indies Co-ordinator, Creative Industries Exchange Former Director, Shridath Ramphal Centre for International Trade Law, Policy and Services

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Mapping the Trade in the Creative Industries Lydia Deloumeaux Assistant Programme Specialist/Economist/Analyst United Nations Educational Scientific and Cultural Organisation “The culture sector, encompassing cultural heritage, creative or cultural industries, cultural tourism and cultural infrastructure, generates substantial economic benefits, including job creation� - UN General Assembly, Culture and Development A/66/187/2011 The role of creative or culture industries has been recognized as factor of economic growth by the international community. Creative industries have exhibited a dynamic pattern of growth despite the current economic crisis as exemplified by the global spending on entertainment and media (E&M) which rose at 4.9 percent in 2011 (Price Water House Coopers, 2012). At the heart of the creative economy lie the cultural or creative industries which are quite important in the Caribbean region. Tourism is a key contributor to the economy in the region for which culture is a key driver as reflected by the numerous festivals such as CARIFESTA or the Trinidad and Tobago carnival. Nevertheless, this fact is not reflected in the data collected which are still scarce or not detailed enough. Few if any surveys of cultural activities are carried out in the region. An important path towards the enhancement of cultural statistics is raising awareness on this issue and developing a framework for evidence-based regional and national cultural policies. One of the roles of the UNESCO Institute of Statistics (UIS) is advocacy among member states for improving cultural statistics as well as providing technical support. To this end, the UIS published the 2009 UNESCO Framework for Cultural Statistics (FCS) that establishes a conceptual model for defining culture for statistical purposes. The UNESCO FCS is a tool for organizing cultural statistics internationally and nationally. In 2009 in Jamaica, UIS organized the first regional training workshop on the 2009 UNESCO FCS in order to provide capacity building to Member States to support the development of cultural statistics for the Caribbean region. One of the issues highlighted during this workshop was the need to be able to measure the economic value of cultural industries and the contribution of culture to development and convey the results to governments and policymakers. Another objective was to create synergies within the country to enhance collaboration between different institution such as ministries of culture and national statistical offices to produce cultural statistics. Key cultural policy areas in the Caribbean region were identified such as intangible cultural heritage, festivals and cultural diversity. This issue was reflected into policy as a result of the COTED meeting in April 2011, where it was agreed that the region needs to improve the availability of statistics from the creative economy in the Caribbean. In this context, the WTO Secretariat organized at the request of CARICOM, a workshop on Statistics of International Trade in Services with a special focus on Creative Industries in Barbados, in March 2012 (see following article by A. Maurer, J. Magdeleine). This workshop was organised in partnership with other organisations such as UIS, the UN Statistical Division and the World Intellectual Property Organization (WIPO). International trade in services: key component of the creative economy Statistics on international trade in cultural or creative products is a key component to assess the creative economy. Statistics in international trade are comprised of two components -- trade in goods and trade in services. The situation of each in the region differs, however. On the one hand, trade in goods statistics has usually been available for most countries for some time. On the other hand, cultural services statistics are scarce in the region and need to be developed. Trade in goods data is mandatory via administrative data collection through customs statistics. Nevertheless, trade in goods data cannot capture fully the range of cultural flows due to several limitations of these statistics since cultural goods encompass artistic, aesthetic, symbolic and spiritual values and thus differ from other products by their system of valorisation, including an irreproducible characteristic, linked to its appreciation or pleasure. Most of these goods and services are subject to copyright. In the Harmonized Commodity Description and Coding System (HS), goods are classified by their observable physical characteristics and not according to the status of national content, cultural value or other similar criteria. Customs data do not capture the symbolic value of cultural goods and only consider goods that physically enter or leave the country. The actual market value of cultural goods is often considered far more important than the declared value at customs. The limitations of trade in goods statistics are also due to the changing characteristics of cultural flows due to advances in technologies such as new forms of cultural products via the Internet like music downloads. The digitization process is at the heart of the transformations in the Entertainment and Media industry which contributes significantly to the creative economy of the region. The shift in cultural consumption is reflected with the rise of spending on digital media which continues to drive growth in this sector. continued on page 4

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The 2012 PricewaterhouseCoopers study anticipated that “during the next five years, digital spending will increase at a 12.1 percent compared with just 2.8 percent for non-digital spending. 67 percent of total Entertainment and Media spending growth to 2016 will be generated by digital (Price Water House Coopers, 2012)”. Music has been deeply affected by these shifts in consumption and production processes. Global music revenues from digital trade increased by 8% from 2010 to 2011 and represented 5.2% billion US$ revenues (IFPI, 2012). Services statistics are therefore needed to capture the new digital flows despite some limitations. International trade in creative services is mostly collected via the Balance of Payments data (BOP). Nevertheless, there are still some data gaps and inconsistencies in BOP data for the region. Only 25% of the countries in the region are currently reporting at the level of detail necessary to obtain culture data from the BOP. These limitations emphasize the need to use complementary data sources which could help determining the revenues of musicians or performers in the region. These statistics are collected by the Copyright collective agencies. Global royalty collections reached 7.545 billion € in total domestic collections of the 232 CISAC member societies in 2010. Caribbean region accounted for 5,004 thousands euros representing almost exclusively music royalties’ collection with 4,984 thousands euros in 2010 (CISAC, 2012). Another component of services statistics are Foreign Affiliates statistics (FATS), which could help in assessing the activities of affiliates of foreign companies in the creative economy. To this end, these statistics need to be developed in the region. Use of international instruments with some regional adaptations Two key elements are crucial for the development of statistics on the creative economy for the region: a consistent definition of the sector and the existence of appropriate classification tools. The different international organizations such as WTO and UIS have put in place several instruments to support the development of these statistics. The 2009 UNESCO FCS provides guidance for a better definition in culture that has been recognized as a reference for the region at both the UIS 2009 and WTO 2012 workshops. Another key element for improving these statistics is the development of relevant classifications. Trade in services statistics are based upon the new Extended Balance of Payment classification which was updated in 2010 in the Manual on Statistics of International Trade in Services (MSITS) for which WTO was a major contributor. Cultural services are better characterized in this new classification. It is hoped that when the data collection will start more accurate data will be collected. However, this classification may need to be adapted to better fit the regional perspective. The UNESCO Institute for Statistics with the WTO Secretariat has written a proposal to CARICOM for adapting the EBOPS classification to the Caribbean region. The proposal introduces new subcategories on three items of the services MSITS 2010 namely; travel, charges for the use of intellectual property and personal, cultural and recreational services. The proposal could serve to better evaluate key components of the creative economy in the region such as the number of musicians who are producing their albums abroad or the cultural activities undertaken by the travelers in the Caribbean region. This proposal shall serve to initiate discussions on this topic to generate accurate international trade in services statistics in the region. In order to measure the importance of the creative economy in the region, efforts will be required to improve the coverage and the availability of cultural statistics. One of the efforts is to obtain better synergies on the different source of data and on data collection instruments. These initiatives such as the ones described above and new ones involving regional cooperation with CARICOM among different national stakeholders, with the support of international and regional organizations and political support may provide elements for the improvement of cultural statistics in the coming years References CAGR: Compound Annual Growth Rate. CISAC, Authors’ Royalties in 2010: An Unexpected Rebound, Global Economic Survey of the Royalties Collected by the CISAC Member Authors’ Societies in 2010, January 2012. IFPI, Digital Music Report 2012. PricewaterhouseCoopers, Global entertainment and media outlook: 2012-2016, 2012. UN General Assembly, Culture and development A/66/187, para 6, 26 July 2011. 4

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International Trade in Services and the Creative Industries Andreas Maurer and Joscelyn Magdeleine International Trade Statistics Section, World Trade Organisation

Box 1: Setting up the Statistical Frames

"‌creative industries are among the most dynamic emerging sectors in world trade‌ the interface among creativity, culture, economics and technology, as expressed in the ability to create and circulate intellectual capital, has the potential to generate income, jobs and export earnings while at the same time contributing to social inclusion, cultural diversity and human development"-UNCTAD 2010. CARICOM trade ministers gathering in a 2011 COTED meeting recognised the importance of creative industries for their economic development and the diversification of their economies, in particular when it comes to international trade. However it was also put forward that lack of data makes it difficult to judge the industry's potential. Ministers recognized that their national statistical systems were lacking information enabling an assessment of the importance of the economic contribution of creative industries to their respective economies and for the region as a whole. Against this background, the WTO Secretariat was approached by CARICOM member countries to organize a regional workshop on the measurement of statistics of international trade in services with a special focus on creative industries. This workshop was organised from 13 to 16 March 2012, in Bridgetown, Barbados. The main aim of the workshop was to help raise capacity of the region to improve measurement of trade in services, in particular for creative industries.

Concepts and definitions as described in the Balance of Payments 6th Edition (BPM6), the Manual on Statistics of International Trade Services (MSITS 2010), and International recommendations on Tourism Statistics (IRTS 2008) should be adapted in the context of the Caribbean experience for respective sectors of interest (i.e. creative). It is also necessary to investigate what classification should be used to identify creative activities. 1.

First, it is advocated to focus on MSITS 2010 recommendations such as the implementation of BPM6 guidelines, in particular for services. Based on the Extended Balance of Payments Classification (EBOPS 2010), detail should be compiled where relevant (using CPC Version 2 as guide), including information on trade flows by partner (bilateral, at least for the main ones). This should especially be done for personal, cultural and recreational services. For identifying industries, ISIC, Rev.4 should be implemented. This would also help in developing full-fledged FDI statistics by activity and main partner. Foreign Affiliates Statistics (FATS) should focus on basic variables such as sales/output, number of employees, or number of enterprises; Long-term, EBOPS 2010 should be fully implemented, followed by more detail on FATS, trade between related parties, information on modes of supply and the number of persons moving under the GATS mode IV regimes.

2.

Second, for more detail at national level, creative services should be mapped to the relevant BOP service items, using in particular the 2009 UNESCO framework. "What to measure" needs to be clearly defined -- in this context the necessity was highlighted of having a regional coordination (CARICOM) for defining classifications beyond international guidelines in a consistent manner for the Caribbean. The resource agencies agreed to assist in defining such a classification so as to (i) ensure that such classifications can be comparable to eventual other classifications developed in other regions, and (ii) ensure its compatibility with international recommendations. UNESCO and WTO prepared in June a proposal to initiate a discussion on a possible relevant future classification within a group of experts of the region to be coordinated by the CARICOM Secretariat.

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Third, implement the compilation of the EBOPS 2010 complementary grouping "cultural transactions". Given the importance of the provision of creative services through mode II (consumption abroad) and mode IV (presence of natural persons), the workshop also recommended to identify possibilities to use tourism sources for collecting relevant information. The forthcoming UNSD workshop on statistics on international trade in services with a special focus on tourism/travel (planned for October 2012) will be following up this recommendation.

In this workshop participants improved their knowledge on statistics of international trade in services and the link to the development of statistics of relevance for creativity and culture. In particular they were asked to identify priorities and best practices for compiling relevant international trade in services statistics. The main changes included in the new UN Manual on Statistics of International Trade in Services as well as other international statistical standards were introduced. One of the outcomes of the workshop was to develop a strategy for the implementation of these new guidelines in parallel to the development of statistics relevant for analysing cultural industries (see below). To make the workshop comprehensive, the WTO Secretariat, in cooperation with the CARICOM Secretariat, organized the event as an inter-agency effort involving UNESCO, the United Nations Statistical Division, and WIPO. Involvement of these organizations allowed not only to benefit from their respective approaches and expertise, but also to involve private consultants to help in the execution of the workshop. These were Marion Libreros as an expert on tourism statistics and Prof Vanus James to report on WIPO's approach on assessing the contribution of copyright-based industries to an economy. The workshop also benefited from the input of Keith Nurse from the University of the West Indies (UWI). continued on page 6

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Another key issue identified was the importance of appropriate business registers. These could be built from professional associations with the use of additional sources such as parish associations, big companies supporting cultural events, radio stations, etc., however, the guarantee for an efficient update and maintenance of registers or list of other sources is paramount. To reduce costs, existing sources such as establishment surveys should be exploited by amending/adding questions that allow retrieving additional information on the establishments' activities. In this respect, WIPO's experience was underlined as it already assesses for a number of economies in the region the economic contribution of copyright-based industries, e.g. in Jamaica, Trinidad and Tobago and in the member states of the Organisation of Eastern Caribbean States (OECS). For all these activities to succeed, coordination should take place at regional level, especially for FATS. There is a need to offer the possibility to gather information on regional head offices of multinational companies, possibly aiming in a few years at establishing a Caribbean business register. Discussions were very lively and the presentations by groups at the end of the workshop revealed that the participants had identified where statistics needed to be improved. Based on these discussions it was possible to draw a "roadmap" for countries to begin compiling more appropriate statistics relating to trade in creative services. The participating agencies (CARICOM Secretariat, UNESCO, UNSD, WIPO and WTO) agreed that it was necessary to follow-up with countries of the region to ensure a sustainable implementation of the workshop's results. As a consequence, a second workshop planned by UNSD later this year, focusing on trade in services and tourism statistics, will include a special session on trade in cultural services statistics. Within this session, an expanded classification for collecting relevant trade in cultural services statistics will be discussed. The results of the WTO workshop are summarised in Box 1. They focus on identifying the sector's functioning, statistical frames that allow compiling respective statistics, and institutional settings to support the implementation. The workshop concluded that it was necessary to design a regional approach to the measurement and analysis of the activities in the creative industries sector, from a trade perspective, but not only limited to this as it is also necessary to look at this from an industry and product perspective. Mode IV (e.g. provision to other countries of services through the physical movement of artists (e.g. participation of foreign artists in carnivals/festivals, bands/singers/dancers touring abroad) is an important component of trade in creative services. Before developing mode IV-related information on trade flows, it is important to fully implement the BPM6 category of personal, cultural and recreational services and then to explore ways and means to separate international transactions relating to mode IV from the ones that are mode I (cross-border supply). For mode IV, information on the number of persons crossing borders under GATS regimes are also needed. Sources such as those used for tourism should be explored. Other sources such as migration or labour statistics should also be explored. A phased implementation and amendment of surveys taking into account human and technical resources is recommended. Institutional arrangements The implementation of these statistical aspects to measure international trade of creative industries need however be bound into institutional arrangements. To foster the exchange of information, it is recommended to implement an electronic forum of exchange. This will help to improve communication and the exchange of information between different stakeholders including between industry and government but also within the government such as ministries, central banks, statistical offices, etc. One source for said information would be the Shridath Ramphal Centre’s Creative Industries Exchange (CIE): www.creativeindustriesexchange.com. In addition, where possible, countries/governments should exchange information with the objective to learn from each other and facilitate data sharing exercises. Capacity training and building should be implemented through long-term efforts. For example, the follow-up with the forthcoming UNSD workshop on statistics on international trade in services with a special focus on tourism/travel should carry on the momentum. "Knowing what to do differs from what is doable". Priorities need to be clarified by policy-makers. Human and technical resources need to be planned to guarantee the phased implementation of above recommendations. The CARICOM Secretariat as a regional body should coordinate these efforts and international institutions agreed to support this long-term development strategy

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The Story of Royalties Erica Smith Chief Executive Officer Copyright Society of Composers Authors and Publisher Inc. Barbados The global music industry has experienced significant changes in the forms of commercialization of creative assets, with a shift to digital platforms due to advances in technology. As a result of these changes, which promote digital distribution, there has been an explosion of content and in the variety of forms of the exploitation of music. According to the International Federation of the Phonograghic Industry (IFPI) digital sales now account for 32% of the revenue of record companies globally and over 50% in the USA. These new forms of exploitation are heavily reliant on the licensing of rights as it is no longer necessary for the individual listener and commercial entities which use music (in applications such as film, television, advertising and games), to own the music but simply to have access to it. The movement from sales to licensing means that royalty earnings, which have always been an important source of revenue is quickly becoming the main source. In keeping with this shift of emphasis, the role of the Collective Management Organisation (CMO) as a distributor of revenue is becoming ever more important. In terms of collections, music copyright societies reported earnings of over 6 billion Euros in 2009 while related rights societies reported just over US$1 billion. In fact, worldwide there is a growth in the number of CMOs and as there are multiple rights and rights-owners which exist in music, it is possible to have multiple CMOs representing these various interests. For example, a song might have multiple writers, composers and publishers, who in turn have CMOs representing their rights (copyright). Additionally, the performers and producers who own rights in the recordings of songs (related rights) are represented, usually, by separate CMOs. So, how is all of this relevant to the Caribbean? As with the rest of the world, physical sales in Barbados have plummeted to the extent that distribution points for legitimate product are very few. Given that we have good telecommunications technology and high Internet use, we can assume that there has been a shift in distribution to digital platforms. Similarly, in most Caribbean islands, there is now at least one CMO, and in the majority of cases, these

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organisations have been around for at least 10 years and represent a sizable portion of local rights-owners. A second assumption would be that, the regional CMOs represent an important source of revenue for rights-owners, as is the case with other CMOs. In addition to the above, Caribbean Governments have identified the creative sector as a priority area with a focus on specific subsectors including music. As a result, a number of initiatives have been implemented including the development of various strategies, the completion of numerous studies and through the offering of programmes by a number of support institutions. There are also multiple fonts of international development funding programmes, which focus on the creative sector. Based on the foregoing it can be reasonably argued that there is now more support than ever for the regional music industry. A third assumption therefore, is that the regional music industry is thriving. None of the above assumptions hold true, however, if we use the collection of royalties as a measure of success. In the first instance, the royalties collected for digital exploitation for most regional rights-owners is negligible, as Caribbean music has failed to make any significant impact in the global digital economy. This is also true for royalties generated locally and imported. This situation can largely be explained by the fact that regional attempts to develop digital platforms have not been very successful. The fundamental challenge lies in the characteristics of the industry in the Caribbean – it is very fragmented and informal which makes the clearance of rights very difficult. It may also be as a result of the need to expend substantial marketing budgets to build awareness of the availability of music on Caribbean sites or global companies such as iTunes, coupled with the fact that low numbers of people in the region buy music online. This latter situation may be as a result of: a)

an economic sub-culture that promotes pirating rather than purchasing music, or

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there being too few people who engage in electronic commerce, for a variety of reasons.

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In the second instance, even though the regional CMOs have generally experienced tremendous growth in collections, this growth has not been in favour of regional rights-owners but rather their international counterparts. This is because most of the music performed outside of national carnival seasons is international in origin with low levels of local content on radio, television and cable. Moreover, at least in Barbados, there has been the negative impact of the economic climate with the closure of nightclubs and the decrease of live music in other premises such as hotels. Most live events outside of the Crop Over carnival feature international music and on average, at least 70% of royalties collected outside of Crop Over, are exported. Finally, in spite of an export thrust, an analysis of imported royalties generally, shows that there has actually been a drop. In the case of Barbados, 2011 collections from overseas were about one-quarter of those in 2008 and prior years. This drop has also been experienced with regional markets although not as steep. Artists complain that there are fewer international opportunities and the number of engagements has diminished considerably. It is unclear why the market is declining but it appears that the lack of international “hit� songs has had a negative impact. Taking all the above into consideration, the assumptions made have been debunked and it can easily be concluded that the Caribbean music industry is lagging in terms of global trends. It is also possible to conclude that the strategies thus far employed have been unsuccessful to the extent that there seems to be a regression. Perhaps, this is because as we focus on export strategies, we have failed to address fundamental issues in our domestic market, which affect development. It is recommended that greater attention needs to be placed on securing greater entry in the digital economy by rights-owners and in particular working with them to allow for the facilitation of the clearance of rights and overcoming the challenges of fragmentation. The issue of the space afforded to local content needs to be addresses as a matter of priority. Recognising that being net exporters of royalty might serve to discentivise locals, we need to determine how we will position local content, even though it is desirable to allow for the performance of music from around the world. This will also serve to discourage cultural hegemony and minimise the loss of foreign exchange reserves. The final and perhaps the most difficult issue to address is that of successful international market entry. While there has been technical and financial support offered to music creators to assist with this objective, the requisite level of export-readiness has not been yet attained. This can however be accomplished by a greater focus on the development of fundamental skills such as song-writing, publishing and marketing

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The Music Industry and Local Content Shalisha Samuel Managing Director Brown Mint Productions Inc. The Music industry’s business model for success has evolved; the traditional bricks and mortar model has declined while there are increased channels for the marketing and commercialization of content through social media and digitization, for example, ringtones and downloads. Ironically, given the upward shift in new technology, live performances and corporate sponsorship (e.g. product placements in music videos) have become the life support for many recording artists, especially in the developing world. One element that has contributed to the growth of artists in other regions is the provision of local content regulation on the airwaves. The hope is that stimulation in this area would aid the Caribbean music industry by making more accessible Caribbean content to Caribbean audiences thereby generating increased royalties for authors and composers. This article investigates the benefits of local content requirement and suggests it as a tool to propel the Caribbean music industry. One of the causes for this change is the rapid advancements in technology. These changes in the music industry have made the copying of recorded material without permission extremely easy. Often times this has been done for financial gain also known as piracy. Consequently, while our regional collection societies have documented significant collections from license fees the majority of royalties are exported to foreign copyright societies for distribution amongst their membership. This scenario is the unfortunate story for the Caribbean which not only plays out in other sectors but which is actually a prime reason why the music industry is not reaching its potential. Policy makers and scholars have therefore proposed legislation requiring local content on the airways; a system which requires broadcasters in both television and radio to play a percentage of local music. In return, broadcasters may be entitled to tax breaks or other incentives via agreed times for the airplay of local content. Secondly, local content may be required in order to be granted an operations license. The broadcast regulators and other personnel in the music industry must agree on criteria for local content, which would list the incentives for local broadcast. Discussions on local content requirements (LCR) have led many to contemplate and debate its compatibility with WTO laws.

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At first glance, it would appear that compulsory local radio content would be in breach of the National Treatment (NT) principle of the World Trade Organisation (WTO). According to Article XVII of the General Agreement on Trade in Services (GATS), nationals should not be offered more favourable treatment than non-nationals. Specifically it states, “In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.” Musicians, producers and songwriters, to name a few, are part of the creative process. The final product offered on the radio is a service; entertainment. Furthermore, discussions on local content relates specifically to the supply of a service across borders. An examination of each member’s scheduled commitments is necessary to determine whether local content requirement would be contrary to WTO rules. Assessment of actions to determine compatibility with Article XVII on national treatment must be evaluated according to the commitments that were scheduled by the member state. In the event that a state did not liberalise a given sector, then the state is free to make changes in this area. Local radio content requirements would fall under the audio-visual sector because it relates to the supply of a service via radio (WTO, 1998). To date, no CARICOM member states have made offers in this sector. In fact, countries generally appear unwilling to make any commitments in this area (Bernier, 2003). While governments are allowed to implement LCRs there are a few caveats that are often recommended when implementing these policies. Measures must be taken to ensure that listeners or artists are not of the view that LCR equates to guaranteed airplay. Programme producers should maintain strict standards to ensure the highest quality of music. Lastly, it is recommended that local content be practical and effective in its implementation (Bernier, 2003).

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Governments in developed countries have made strides in this area by implementing quota restrictions on radio stations. Legislation requiring French radio stations to play 40% of local music came into effect on January 1, 1996 and an opinion poll showed that 83% of the population approved of the government’s decision. Even the Australian policy-makers, according to Code of Practise 4 of the Australian Broadcast Act 1992, have seen LCRs as being instrumental in, “...promoting the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity, by prescribing minimum content levels of Australian music.” (The Music Council of Australia, 1992) The Australian model is broken down to supplement the areas in their music industry in need of development. The requirement for local content varies according to the genre. According to 4.3 (a) of the Code of Practise 4, five categories of music are granted a certain percentage of airplay. In other words, stations must play at least X% of rock and Y% of local jazz. Specifically, the requirement for mainstream rock is 25% while the classic rock, mainstream contemporary and country genres have a requirement of 20%. These requirements are applied to meet the needs of the listening Australian society. LCR in the Caribbean can be modeled upon the Australian policy and legislation so that higher levels of LCR can be achieved over a period of time. With an already small market, coupled with the high export of royalties, legislation mandating that a portion of the music played to be of local content is critical for redressing the imbalance in content. Furthermore, radio content would not only aid with royalty collections, it is also an avenue to showcase local talent and encourage production, as Mason notes, “...it can be established that radio airplay has a clear effect on the production and consumption of music and as such, requirements for the broadcast of local music can be used as an efficient means of stimulating and maintaining local musical practice.” (Mason, 2003) Although quotas can increase the local content played and increase the amount of royalties distributed locally, the radio stations need to be monitored such that compliance is assured. One may question whether quotas for local radio in a digital world are a worthy venture; while a relevant question, radio is not a thing of the past in the Caribbean and it also remains the one medium that copyright societies can capture in their monitoring systems. Therefore, policy makers, regulators and music industry participants should not steer away from content in this sector simply due to digitized forms of radio broadcasting. LCRs can be found in other countries (see Table 1 below) such as Canada; the Canadian Radio-Television Telecommunications Commission refers to such a policy as local content development. The Copyright Music Organization of Trinidad and Tobago (COTT) had put forth their rationale for local content to the Telecommunications Authority of Trinidad and Tobago (TATT) in 2008 (COTT, 2008). In Barbados, the Copyright Society of Composers, Authors and Publishers Inc. (COSCAP), has also made submissions to the relevant broadcast authority. In the Eastern Caribbean the Eastern Caribbean Copyright Organization also endorses efforts to develop LCRs. As of July 2012, no local broadcast quota legislation exists in these territories Table 1: Countries with Radio Content Quotas Argentina

Australia

Bulgaria

Canada

France

55%

25%

50%

35%

40%

Netherlands

Nigeria

50%

80%

Hungary Latvia 30%

Malaysia

40%

80%

Philippines Slovenia S. Africa Sweden 60%

55%

20%

33%

A critical component of the collective management’s campaign for LCRs is having the support of those in copyright-based sectors. It is no longer enough for artists to advocate single-handedly, as the advertising, photography, film, fashion sectors, amongst others, are related industries that would benefit from the expansion of the music industry. References COTT and B.C. Music and Consulting. Support and Quota Options for Music in Trinidad and Tobago. A Report Prepared for the Telecommunications Authority of Trinidad and Tobago. October 29, 2008. Ivan Bernier. “Local Content Requirements For Film, Radio and Television as a Means of Protecting Cultural Diversity: Theory and Reality.” Nov/December 2003. Paul Mason. Accessing the impact of Australian music requirements for Radio. October 2003.

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Caribbean Fashion Industry Daenia Ashpole Executive Assistant to the Minister of National Security, Jamaica Among the diverse sectors encapsulated in the now well-promoted creative industries is the fashion industry. Concerned with the production of apparel, footwear and accessories, the fashion industry is estimated to be worth US$1,306 billion, accounting for approximately 2.1% of the global gross domestic product (Keymeulen, 2011). In recent years the fashion industry (and the wider creative industries) has gained widespread traction as it pertains to development policy across the Caribbean region. This is due, in large part, to the contraction of other traditional sectors as a result of the global economic downturn, on the one hand, and to the resilient nature of these industries even in the hardest of times, on the other. Consequently, there has been a shift towards more non-traditional sectors to diversify the economies of the region, and in respect of the latter, a classic example of resilience may be found within the fashion industry itself where statistics show that the industry grew in worth from US$900 billion at the peak of the recession in 2008 to over US 1000 billion in 2012 (Raustiala, 2006). During this time, traditional industries such as agriculture and manufacturing saw minimal growth and in some cases even experienced stagnation or negative growth. Like all other aspects of the creative industries, creativity and fresh new innovations stand at the epicenter of the fashion industry. However, the seasonal cycle of fashion calls for these ideas and elements of creativity to be produced even at a more rapid pace than in most of the other industries. In the European market-widely considered the mecca of fashion-these ideas or elements of creativity are fiercely protected by intellectual property rights. These rights can manifest in various forms such as, trademark, copyright, patents, trade secret and business models safeguard, or geographical indicators and traditional knowledge protection, and can be used solely or cumulatively to protect the particular product. The reason for this aggressive protection stems from the argument that copying stifles creativity and reduces the incentive for the production of new ideas.

scholars refer to as the “piracy paradox”( Raustiala, 2006) . In their article entitled the “Piracy Paradox: Innovation and Intellectual Property in Fashion Design” Kal Raustiala and Christopher Sprigman refer to the fashion industry as an anomaly within the creative industries as it pertains to intellectual property. The writers contend that despite the low level of protection for articles of fashion and the rampant cases of copying, the industry remains vibrant (Ellis, 2010). They further highlight that while copying is thought to stifle innovation in other industries, design copying is often celebrated as paying ‘homage’ to the original (Raustiala, 2006), and in some cases may make the original more desirable (Ellis, 2010). This viewpoint may seem to hold credibility when one considers the North American fashion market which accounts for approximately $352 billion of the overall fashion industry, representing the second largest market in the industry after Europe, of course, which accounts for $443 billion (Ellis, 2010). Given the tremendous success of these two markets, even with their opposing views, it may be confusing to the Caribbean fashion industry in deciding which model is best suited for our sector. In the Caribbean context the relationship between fashion and intellectual property rights exploitation is largely underdeveloped. In Jamaica for example, fashion designers have not yet been able to capitalize on the “Brand Jamaica” or construct a link between the areas of excellence such as sports and the fashion industry. While the nexus between fashion and sports is not the aim of this article, the argument does point to the potential for the region of linking these two lucrative sectors and capitalizing on the appeal of world athletics’ mega star, Jamaica’s Usain Bolt who has achieved unparalleled distinction in his field.

The Caribbean fashion industry is made up of small networks of designers whose businesses can best be defined as small, upcoming enterprises. The very nature of these businesses warrants the need for strong intellectual property protection; if they are to be successful in the international sphere. This is so as while famous brands like Louis Vuitton and Gucci have strong brand presence and have a clientele that will remain loyal to their brand regardless of the ‘knockoffs’ available, copying will be damaging to This aggressive nature of protection of the fashion small designers, whose brands may already have industry, however, is not replicated in the United difficulty carving out a niche for themselves in States as there is widespread consensus among international markets. scholars and industry professionals alike that continued on page 12 copying actually aids the fashion industry. This most Volume 4: July - September 2012

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Furthermore, the top clients of these multi-million dollar firms can afford to access authentic products from the manufacturers. On the other hand, if the design of a small designer is copied there is no incentive to seek out the authentic product. This is especially so if the design is copied by a brand that has an established name in international markets. These ‘design thieves’ have proved and continue to prove to be lucrative businesses even if designers manage to file a lawsuit against them. For example, notable design copycats such as Forever 21, H&M and Topshop among others, continue to be viable even in the face of a stream of lawsuits. Forever 21 for instance, faced fifty lawsuits between 2006 and 2009 alone (Keymeulen, 2011). Some writers may even contend that the production of counterfeits is equally as damaging to big brands as this may ‘cheapen’ the original product. The existence of the knockoffs also reduces the customer’s feeling of exclusivity and may deter them from associating with authentic product since knockoffs are popular and may closely resemble the real product. Additionally, intellectual property protection is becoming increasingly important in a technologically advanced world where copies can be made in a matter of seconds after the original is showcased. In the Caribbean context, for example, a design shown at Caribbean Fashion Week or at any other fashion show in the Caribbean can be transmitted by any technological platform to manufacturers in Asia who can produce an identical design before the original designer themselves can put it on the shelves. As outlined by van Keymeulen and Nash, today’s reality is that “technological advancements such as digital photography and computerized pattern-making have made copying nearly instantaneous”( Keymeulen, 2011). The aforementioned therefore illustrates that if a lucrative fashion industry is to be developed in the Caribbean region, strong intellectual property platforms must be put in place not only to guard against design copying but also the use of indigenous materials in the production of these products and the processes involved in same. The use of sea-island cotton in the production of garments from the Caribbean, for example, may provide a comparative advantage for marketing products made from this material to the international arena. This product (seaisland cotton) is considered to be the finest quality of cotton in the world, and can only be produced at its highest grade when grown in the Caribbean region. Attaching strong intellectual property rights to designs made of this material through the right trademarks, copyright, design and geographical indication protection combination will benefit the region in two ways: 1) Attract investment to the region in the seaisland cotton industry 2) Create a niche market for these product in international markets. The strength of applying comprehensive intellectual property laws to the fashion industry is also supported by Europe’s dominance in the industry, based largely on the application of intellectual property protection to the industry. To make this case, van Keymeulen and Nash points to the fact that three out of Europe’s top five wealthiest individuals are fashion industry moguls. They further point out that on the contrary, “not a single US fashion brand owner appears in Forbes top 100”( Keymeulen, 2011). Given the aforesaid, there are some clear lessons for the region in terms of the selection of models to emulate References Sarah Ellis. (2010), Copyrighting Couture: An examination of fashion design protection and why the DPPA and the IDPPPA are a step towards the solution to counterfeit chic. 78 Tennessee Law Review 163, 186. Kal Raustiala and Christopher Sprigman (2006), The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. The Virginia Law Review. 92(8) 1687-1777. Eveline Van Keymeulen and Louis Nash (December 2011/January 2012), “Protecting fashion designs: Fashionably Late”: Intellectual Property Magazine. Retrieved from: http://www.cov.com/files/Publication Judgements Louis Vuitton Malletier v Dooney& Borke, WL 1222589(S.D.N.Y) Apr. 24, 2007.

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Promoting Caribbean Animation Maritza Aguilar Export Promotion Officer Belize Trade and Investment Development Service (BELTRAIDE) One of the sectors that have shown tremendous growth and potential within the creative industries is animation. According to the 2011 Global Animation Industry Report, the animation market is a multi-billion dollar industry that is growing globally at a rate of 12% per annum, with an estimated worth of US$115 billion. With the demand for animated content steadily on the rise, animation is considered one of the most rapidly growing creative endeavors of technological development in today’s global economy.

How is animation protected? The appreciation of the role of IP in the animation industry first comes from an understanding of how animation can be protected. The entire process of animation production, from inception to completion, encompasses intellectual property rights. The success of any producer of animation is highly dependent on the existence and maintenance of those rights. Using the United States IP legislation as a point of reference, the chart below demonstrates the ways in which animated content can be protected.

The vast potential of animation has not gone unnoticed in the Caribbean, although still in its infancy, the industry has seen substantial investment from regional governments and entrepreneurs. The growth of the sector in the Caribbean has largely been attributed through the initiatives of Toon Boom Animation Corporation, the world’s leading animation software company (Aguilar, 2011). Toon Boom is of the belief that the success of the development of the animation industry in countries such as India and China, can be emulated here in the Caribbean and that the region has the potential to become the next “outsource hub” for animated content (Aguilar, 2011). In the Caribbean, countries such as Trinidad & Tobago, Barbados, Guyana & Jamaica in particular, have recognized the value of animation. Barbados has recently launched the Caribbean Digital Media Center through and with the support of Toon Boom, marking a milestone in the continued development and expansion of the animation industry in the Caribbean (Aguilar, 2011). Trinidad and Tobago, the region’s leader in animation production, is positioning itself to become a prime outsource destination(Invest TT, 2011). The Government of Trinidad and Tobago has recently invested in training over 400 persons in animation, primarily in preproduction and production animation services(Invest TT, 2011). Guyana and Jamaica also have Toon Boom equipped animation studios, with others planned in St. Vincent and St. Lucia. The expansion is expected to create approximately 3000 – 5000 new jobs in the Caribbean over the next few years.

Understanding the value of IP rights Once intellectual property protection has been secured, the question remains as to what can be done with that IP. The value of IP rights to an animation producer can be summarized in three key points:

Arguably, there has certainly been a considerable amount of investment in developing the Caribbean’s animation industry in recent years. One element that has been notably absent however, from these efforts, is the creation of an Intellectual Property (“IP”) regulatory framework. IP is critical to the development of animated content, yet, there has been little progress in improving the Caribbean’s IP regime. This article therefore, wishes to highlight the importance of IP in the animation industry by looking at how animated content is protected and the role& value of IP rights. continued on page 14

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Defensive registration is perhaps the primary reason for safeguarding the protection of animated content. It is to ensure that animated works are protected against infringement by others and ultimately to serve as a defense in the courts for the sole right to use, make, sell or import those works. IP can also be licensed or sold providing an important revenue stream for animation producers. In Japan for example, merchandising is becoming just one piece of a growing pie of revenues for animation producers and distributors. The evolution of new media platforms and the increasing popularity of toon-based video games have made the animation industry, a wave of increasing profitability. Toei animation studios in Japan estimated in 2007 that the character merchandising market is worth $8.4US billion per year (Aguilar, 2011). Animation is increasingly used in video games, and movies are also becoming heavily reliant on animation and computer graphic special effects. Director of Toei’s International Department Kanji Kazahaya, stated that through collaborations with partners such as toy and video game companies have ensured that merchandise and video games are “strong revenue generators”(Aguilar, 2011). In Japan, computer games have made the successful cross over to popular animated television shows for e.g. Pokémon, while similarly animation in return have crossed over into popular video game titles. Dragon Ball, one of Toei’s top earning franchises produced more than 50 game titles for almost every major gaming console and handheld console including Sega, Nintendo, Sony & Microsoft (Aguilar, 2011). An improved IP regime in the Caribbean is necessary not only for ensuring the success of the region’s animation producers but also for attracting major studios looking to outsource. New technologies have transformed the industry in terms of production development, distribution and modes of consumption (e.g. iTunes, social networking sites like Facebook and YouTube, smart phones, iPods etc) therefore making it more challenging to ensure copyright protection and enforcement. The value of IP rights is determined by the scope and duration of those rights as defined by applicable laws. If a country’s laws are drafted or interpreted in ways that limit the extent or duration of IP rights then the ability to generate revenue from IP may decrease, or the cost of obtaining and maintaining those rights may increase. Inadequate laws or weak enforcement mechanisms to protect intellectual property is therefore considered to be a major factor for animation studios when identifying outsource markets and ultimately another reason as to why the Caribbean needs a strong IP regime References Disney Annual Fiscal Report (2011), The Walt Disney Company. Maritza Aguilar (2011), “Is Animation an option? The Creative Industries in the Caribbean”, Masters of Science in International Trade Policy Research Paper. Trinidad and Tobago is in the Business of Animation.2011. Invest TT. Retrieved from https://www.investt.co.tt/en/Media%20Room/News%20Releases/ Investment/Business%20of%20Animation.aspx

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Capitalizing on Geographical Indications Marsha Cadogan PhD Candidate, Osgoode Hall Law School/ York University This article interrogates the linkages between development and conventional intellectual property rights in post-colonial societies and, situates an orientation towards agri-food based geographical indications as a feasible and pragmatic dimension to Jamaica’s intellectual property rights narrative. It analyzes the linkages between development and IPRs in post-colonial societies on the usage of a sui-generis based geographical indication system to re-orientate the conventional narrative associated with IPRs. The first section provides an overview of the theoretical framework which is used to explicate my arguments. Development, Intellectual Property Rights and the Post-Colonial narrative Since the advent of TRIPS through the Uruguay Round Caribbean countries have either adopted or amended their intellectual property legislation to conform to TRIPS (Chimini, 2011). However in comparison to developing countries, there is an evident asymmetrical relationship in TRIPS compliance as developed countries are often not subjected to the same level of accountability for non-compliance with TRIPS. (WT/ DS290/R) Furthermore, key actors and states in the international fora have enabled the imposition of more robust forms of intellectual property rights in developing countries, through forum shifting – the use of regional and bilateral free trade agreements with accompanying lengthy and stringent IP enforcement provisions (Sell, 2008). Termed TRIPs-Plus because of their robust nature, they have negated many of the flexibilities in TRIPS. In effect, developing countries such as the Caribbean are essentially protecting a foreign based right with inherently insubstantial benefits for locals. An interrogation of intellectual property right laws in Caribbean societies further illustrates that the subaltern has been and continues to be marginalized in the global IP system (Girvan, 2010). The expropriation of resources (Chimini, 2011) from post-colonial regions and its commodification as international intellectual property, the continued insistence by the west for the subaltern to increase its IP protection standards including criminal penalties for particular types of copyright infringement (Oguamanam, 2004), the inability of developing countries to increase the standard of protection for non-wine and food based geographical indications through the Doha Round, are all examples that illustrate the asymmetrical dynamics of international law. The dominant epistemic (Alder, 1997) dimensions of intellectual property rights in post-colonial societies continue to be informed by the knowledge structure of the west. It is the west that defines the normative dimensions of intellectual property rights and controls the mechanisms that ultimately determine whether greater protection can be extended to emerging non-conventional forms of IP – geographical indications (GIs). However, international law is a social construction of reality. It is therefore not inconceivable for law to be de-constructible and therefore transformed to more adequately reflect the culture and social dynamics of the Caribbean. Geographical Indications: Moving Beyond the Borders of Conventional IP in Jamaica. Similar to other forms of IPRs, GIs have its origins in Europe. TRIPS defines a GI as an “indication which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin” (TRIPS, 1995). The striking difference between GIs and conventional forms of IPRs is that whereas copyright, trademarks and patents confer exclusive rights upon its owner, GIs are socially inclusive, that is, the right is owned either by the state or by a producer group. The economic benefits derived from the commercialization of the GI agri-product are therefore distributed to the producer group, which is comprised of farmers, manufactures and distributors of the agri-food product. My focus is exclusively on non wine and spirit GIs for two purposes. Firstly, Jamaica has an abundance of agricultural food commodities which are GI registrable and the country has already enacted its GI legislation and corresponding regulation. Secondly, although some benefits have been identified from the economic exploitation of copyright in Jamaica, the overall socio-economic benefits of IPR to Jamaica are ambiguous and arguably insubstantial. continued on page 16 Volume 4: July - September 2012

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Product differentiation is an important aspect of a GI. It is the unique characteristics of the good and its linkage to the geographical area which enables its protection. GI enables symmetry of information in the consumer market and, therefore may have a positive impact on brand preferences and consumer choices. Product differentiation that is based on the historical and unique cultural attributes of a product is likely to be an effective marketing strategy, because of the high imitation costs to competitors. ‘Basmati Rice’ is an example of a food based GI. Although most of the agri-food based GIs are from Europe (Annual Activity Report, 2010), an increasing number of developing countries have exhibited a keen interest in the protection of GIs for agricultural products. There is currently an impasse related to an enhanced level of protection under TRIPS for non wine and spirit GIs in the Doha Round (WT/GC/W/546). With the marked exception of the European Union, pressing demands for increased protection of GI goods are mostly being made by developing and least developed countries. Over the past few decades, the United States has consistently maintained a stringent position on the protection of conventional forms of intellectual property rights in foreign countries yet the country is vehemently opposed to the enhanced protection of rights associated with GIs. This has not reduced the dynamism of stakeholders advocating enhanced protection, but has facilitated the emergence of alternative forums for achieving protection; namely through bilateral and regional agreements. Agri-food based GIs can be used to valorize rural development if, (i) there is a sui-generis legislation for the registration and protection of GIs (ii) there is an effective legal and institutional framework to validate the certification process and to enforce the GI in overseas markets against infringement (iii) there is sufficient interest by farmers and local producer groups to sustain the linkage between the agri-product and the GI (iii) the agri-product is capable of attracting a premium price in overseas markets and (iv) there is an international recognition of the GI right or reciprocity of recognition between the national legal regime and the overseas state.

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European Communities-Protection of Trademarks and GeographicalIndications for Agricultural Products and Foodstuffs – Complaint by Australia, World Trade Organization, WT/DS290/R. available online(docsonline.wto.org). Emmanuel Adler, Seizing the Middle Ground, Constructivism in World Politics. (1997) 3 European Journal of International Relations 319: Martha Finnermore and Kathryn Sikking, Taking Stock: The Constructivist Research Program in International Relations and Comparative Politics (2001) 4 Annual Review of Political Science 391. Norman Girvan, “Sweetification, Technification, Treatyfication-Politics of the Caribbean-EU Economic Partnership Agreement” (2010) 12 Interventions: International Journal of Post colonial Studies 100. Oguamanam “IP in Global Governance”. Boyle, “A Manifesto onWIPO, supra note 84; Peter Drahos “When the Weak Bargain With TheStrong: Negotiations in World Trade Organization” (2003) 8 Int’l Negotiation 79. Susan K. Sell, “The Global IP Upward Ratchet, Anti-counterfeiting and Piracy Enforcement Efforts: The State of Play”, Third World Network, published 2008. Uruguay Round Agreement: Trade Related Aspects of Intellectual Property Rights, Standards Concerning the Availability, Scope and Useof Intellectual Property Rights. Part II, Section 3 Article 22:2. [TRIPS]. World Trade Organization General Council Trade Negotiations Committee: Issues Related to The Extension the Protection of Geographical Indications Provided For in Article 23 of the TRIPS Agreement to Products other than wines and spirits, Note By the Secretariat, WT/GC/ W/546 May 18 2005 available online (docsonline.wto.org).

The global IP order has yet to fully engage with the varied, vibrant and culturally heterogeneous interests of the subaltern. This includes Jamaica and the Caribbean. GIs, if managed effectively and legally recognized internationally have the potential of broadening the parameters of the IP narrative by re-orientating its epistemic dimensions. The pragmatic result is a more socially inclusive IPR, one with a greater likelihood of effecting changes in the development paradigm References Annual Activity Report 2010, Directorate General for Agriculture and Rural Development. Available online (http://ec.europa.eu/atwork/ synthesis/aar/doc/agri_aar.pdf). Background note: 1000th Quality Food name registered, Memo 11/84. Brussels Feb. 15, 2011. Chimni, “Third World Approaches to International Law”, James ThuoGathii, TWAIL: A Brief History of its Origins, its Decentralized Network and tentative Bibliography (2011) 3 Trade Law and Development 26.

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Industrial Design and Competitiveness Malcolm Spence Senior Coordinator, Intellectual Property, Science and Technology Issues Office of Trade Negotiations (OTN) “Industrial design is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of users and manufacturers.� -Industrial Designers Society of America (IDSA) The small open economies of the Caribbean have relied for decades on being able to produce and provide commodity products to proximate markets more competitively in terms of price than producers from further locations. As the decreasing costs of the international production and distribution of similar or substitute commodities decreased the relative competitiveness of Caribbean producers, they began to rely more and more heavily on their competitive position being protected through advantageous market conditions in preference to their competitors. These preferential market conditions have now been eroding for some time and so there is an urgent need to identify new competitive strategies that would differentiate Caribbean products, both goods and services, in ways that would make consumer choices less sensitive to price differences. The creativity of the Caribbean has been recognized globally in many fields, although it is more particularly known in the arts than the sciences. Clear examples of course lie within music and entertainment services, including literature. But in very few fields has this creativity through the use of clear artistic merit been applied to globally competitive industrial output. Those niches where this has occurred have rarely, if ever, expanded beyond the artisanal or small-scale production for local or regional markets. Examples largely arise in the fashion industry in the area of clothing and accessories design and production, including jewelry, handbags and shoes. This limitation in global expansion no doubt also demonstrates, amongst other things, the lack of application of relevant industrial skill to abundant artistic output. Volume 4: July - September 2012

What can be done One globally competitive Caribbean product that has taken advantage of a unique industrial design to create something of a monopolistic global market share is the design of a bottle for a carbonated beverage produced by SM Jaleel & Company Limited from Trinidad and Tobago, called Chubby. But as noted earlier, there are far fewer examples than might be expected from a region that has demonstrated such globally appreciated creativity. Good industrial designs, like other innovations, can be, and often are, copied by other competitors, thus losing the competitive advantage that they provide. Intellectual property laws provide the creators or owners of a design with the legal right to exclude others from using the design without requisite permission. Intellectual property rights therefore broaden the scope of successful commercial possibility for industrial designs from their exclusive use by Caribbean manufacturers to include the licensing of designs to manufacturers globally. The question to address then is how can the Caribbean expand the creation of unique and successful industrial designs for use by either Caribbean or global manufacturers.

There are four or five issues that will need to be addressed in order to improve the use of industrial design by Caribbean firms, both as a competitive tool by manufacturers, and as a weightless product by designers; and, in terms of implementation, they can perhaps be addressed simultaneously. Many are already being addressed.

The first issue, although the one that requires the longest to provide returns, is training industrial designers. This subject should, and can easily, be integrated into the existing curriculae of both the Arts and the Sciences teaching programmes at all levels of the education system. Nevertheless, if one accepts that there is a high level of creativity generally, its introduction at the post-secondary level might bring the fastest returns. The establishment of National Design Centres would serve many needs and should include an Industrial Design component. In the context of small economies relatively advanced in their integration process, it is tempting to consider the establishment of a regional Caribbean Design Centre. The challenge or risk that this would pose, however, is that the work of the Centre then becomes too distant from the regional manufacturers that are its key target clients. One approach to overcome the conundrum that smaller economies might not have the scale or resources for a national Centre would be to use a regional Open Campus to provide this training virtually. Such Centres, whether national or regional, in addition to striving for eventual recognition as Centres of Excellence, should themselves have some distinguishing advantage over others. This will require recognition of, and acceptance of, a unique national or Caribbean sensibility in design, first and foremost by the Caribbean itself. A second issue that needs to be addressed also within the context of education and training, is working with enterprises, particularly micro-, small and medium enterprises (MSMEs), on the use of design as a part of their competitive strategy. Business support organizations must themselves obviously become acquainted with the use of design as part of such strategy in order to include it in their service offering to MSMEs. This understanding of the use and valuation of industrial design by MSMEs will drive the demand for the skills eventually expected to be available from the education effort. But it can nevertheless take advantage of the existing talent. continued on page 18

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that an opportunity is currently presenting itself in an evolving discipline called biomimicry.

A third issue pertains to the establishment of an appropriate legal framework for the protection of intellectual property and an understanding of how it should be used in the enforcement of intellectual property rights.

The Caribbean is recognized as a hot spot of biodiversity for several reasons. In many of the islands the intensity of indigenous biological diversity is high and it is easily accessible. Two of the States within the Caribbean Community (CARICOM), Guyana and Suriname, are part of the ecosystem in and around the Amazon Basin and are Members of the Amazon Cooperation Treaty Organisation (ACTO). As such they have access to a tremendous range of biological diversity. Belize, another CARICOM country, shares a Central American forest that lies at the cross-road between the tropical south and temperate north and as such particularly shelters endangered species from both.

In the context of industrial design, as with other innovations, it must be recognized that several intellectual property rights can be used, depending on different aspects of the industrial design. For the purely aesthetic aspect of original industrial designs, in other words designs not dictated by technical or functional considerations, industrial design rights provide protection. Copyright can also be used to protect this type of aesthetic design, but industrial design generally also includes aspects related to utility that, if they meet the required criteria, can be protected by either utility certificates or patents. Ensuring effective enforcement of industrial design rights, a fourth issue to be considered, requires three components to be in place. One is awareness of how intellectual property rights are used competitively and the demonstrated capacity to use these rights in the internal market. A second is awareness by border agencies and measures that allow for action to be taken by them. The third is to have external market arrangements that allow for easy acquisition of the rights and similar scope of protection to ensure that similar action can be taken in those markets. This harmonisation of legal frameworks and decision-making is already taking place both within regional integration arrangements and multilaterally. Other issues that need to be addressed include having sufficient information and communications capacity to trade heavily in the digital environment; having broad networks and relationships with manufacturers and users of globally competitive industrial designs; having strong digital data protection and trade secret legislation; and having robust competition policies, laws and institutions. Defining Caribbean Creativity Creating the environment for Caribbean creative expression to insert itself into global value chains at a point that provides best returns for input costs is not, on its own, enough. The Caribbean will need to create for itself in the global market a sense of expression that is recognizably from the Caribbean. In this, the diversity of the Caribbean and the knowledge it holds as traditional become both an advantage and a disadvantage. It is an advantage in the sense that its various influences provide fertile ground for innovation, including in creative design expression. In terms of global appeal then, because this diverse expression would be recognizable in globally diverse markets it should readily have global market appeal.

This ready access to a tremendous range of biological diversity provides the Caribbean with an opportunity to examine closely how nature solves problems that are currently germane to the human condition. These include the efficient use and conservation of water, energy and light, all part of what might be called eco-innovation. It may well be that focusing on biomimicry as a key design philosophy will not only help Caribbean design creativity find its unique expression, but could, along with an understanding of the competitive use of intellectual property rights, help leapfrog industry and enterprise in the small States of the Caribbean into a globally competitive frontier References CARICOM Interests in Relation to Biodiversity and Intellectual Property Rights in the context of the FTAA Negotiations, Paolo Bifani, 2001 Websites Industrial Designers Society of America (IDSA): http://www.idsa.org/ content/content1/industrial-design-defined for definition of Industrial Design http://www.asknature.org/ and http://biomimicry.net/ which examines the use of Biomimicry to solve human problems.

On the other hand because many, if not most, of these influences come originally from other places, the resultant expression will struggle to find definition as uniquely Caribbean. It is nevertheless a necessary struggle for differentiation to improve the competitiveness of small Caribbean States. Finding a Competitive Frontier As the unique Caribbean expression is slowly unearthed it may well be strategic to focus design attention on some area in which the Caribbean could join in global leadership. It is this author’s contention

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Creative and Intellectual Property: Four Case Studies Sanya Alleyne Copyright Society of Composers, Authors and Publishers Inc. Research Consultant (COSCAP Barbados); and the Eastern Caribbean Copyright Shridath Ramphal Centre for International Trade Law Policy and Organization for Music Rights Inc. (ECCO-St. Lucia). The associate Services membership is comprised of Organizations from Cuba; Suriname; Belize and Jamaica. First of its kind, this CCL provides support to the The legal regime for Intellectual Property can be sourced from various individual CMOs and assists in the provision of regional amongst six international agreements which focus upon intellectual representation for Caribbean rights holders. Since its(Nurse, 2010) activity in several sectors, notably the industrial, scientific, literary inception in 2000, it has been successful in expanding its royalties and artistic fields. Its principal aim is the safeguard of producer’s collections from US$1.2 million in 1999 to US$2.6 million in rights of control over their intellectual goods and services for a certain 2005(Nurse, 2010). One of its top performing members has been the period of time. This right flows from the intellectual creation and it Copyright Music Organization of Trinidad and Tobago which aims to encourage creativity and transformation of creative products collected TT$13.6 million in the year 2007(Nurse, 2010). The success of into economic goods for market (UNCTAD, 2008). this venture has resulted in marked increase in the growth of key income sources for the regional creative economy. The CCL is proving Intellectual Property has been integral to the growth of the cultural/ to be a useful mechanism for monitoring and ensuring effective creative industries in the global economy. Under the TRIPS collection of royalties and income from the use of Caribbean Agreement, the disciplines covered are Copyright and its related Intellectual products. rights; Patents; Trademarks; Geographical Indicators and Industrial Design. Of these listed, copyright and its related rights have been the primary form of intellectual property through which creative goods and services are protected and commercialized (UNCTAD, 2008). The imposition of Royalties and licensing fees on the use of creative goods and services has been a key source of income for rights-owners. Global trends illustrate that Latin America and the Caribbean receive the least fiscal contribution from the use of intellectual property in the creative sector (UNCTAD, 2008). This data may be a reflection of the limited and ineffective use of intellectual property in the creative sectors within the Caribbean Region. Caribbean cultural/ creative producers have tremendous opportunities to exploit their works for economic gain. Yet, the use of intellectual property by the creative sector to foster creativity and protect the rights of right-holders has been slow in uptake. CISAC data illustrates that Latin America and Caribbean are not very active beneficiaries from royalties based trade. Nonetheless, there are a few dynamic and innovative regional creators who understand the value in asserting and protecting their intellectual rights over their creative productions. This article attempts to briefly showcase some of these leading regional innovators and a few of the policies/strategies which are currently being implemented to use intellectual property for the promotion of the cultural/ creative sector in the region. It is the author’s hope that this article would enlighten other innovators and encourage further work in forging links between the Creative Economy and Intellectual Property. Copyright and its related rights The Caribbean Copyright Link (CCL) is a non-profit initiative that joins four of CARICOM’s Copyright Management Organizations and associate members to enhance the collective rights management within the region and enlarge the royalty-based earnings of rights owners (Nurse,2009). The four primary associations are the Jamaica Association of Composers, Authors and Publishers Ltd (JACAP); Copyright MusicOrganization of Trinidad and Tobago (COTT); Volume 4: July - September 2012

Patents Sacha Cosmetics Ltd. of Trinidad and Tobago has positioned itself as a global pioneer in the development of make-up with yellow undertones to match any skin pigmentation. The company’s innovator, Kama Maharaj, keyed into the global demographic and capitalized on the fact that the vast majority of the global make-up consumers were women of colour. Women of colour , Asian; Black and Latin, have natural yellow undertone to their pigmentation. The owner formulated a yellow undertone foundation which would not create an unsightly demarcation on the consumer’s skin unlike established cosmetic brands. With this innovation Sacha Cosmetics was able to identify a market need; innovate and capitalize on the unique feature of its product. The success of the Company is a testimony to the use of patenting and technology. Currently, the company is the sole patent holder for yellow undertone foundation. The company has asserted their creative right through the production and vigorous marketing of the product’s patented unique selling point.

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The highlight of the company’s success was the awarding of the contract to be the official cosmetics company for the 1999 Miss Universe Pageant, as well as, the 2000 and 2001 Miss USA Pageant. Trinidad and Tobago’s hosting of the Miss Universe Pageant in 1999 provided exposure for the company and aided in the company’s alignment with both the Miss Universe and Miss America Pageants. Another achievement of the company was the success of two Miss Universe contestants in 1998 and 1999 wearing the patented foundation from Sacha Cosmetics while being crowned. The financial success of the company has been equally impressive. It has an annual sales value of approximately US$2.5 million dollars andover 60 distributors worldwide which includes Cuba, Chile, Canada, South Africa, and the Caribbean. The company has even ventured into the American market via Wal-Mart in Puerto Rico but there are aspirations to penetrate the mainstream American market. The company continues to be innovative with its product and services as one of its objectives is to continue research and development so as to maintain creativity and success. Trademarks It has been thirty years since Bob Marley’s passing yet his name, music, aesthetic and likeness continues to thrive till this day. He is considered to be one of the few well-known and influential musicians of the last half-century. A significant contributor to this longevity of the success of his music and persona has been the ambitious use of intellectual property by his heirs to protect their right in succession. The Marley family, via the company FiftySixHope Road, has successfully transformed Bob’s legacy into various other lucrative income-earning streams via the use of trademarks and licenses. They have been able to diversify into a wide range of merchandise and services which almost exclusively uses his image and likeness. Recently, the company granted a license to the Jamaica Tourist Board for the use of the song “One Love” as a national advertisement campaign which is broadcasted throughout the United States. The company has even ventured into the use of a Bob Marley website, which attracts traffic of more than 5 million visitors, for which they have exclusive ownership and control over the content. The licensing of Bob Marley’s identity for merchandise was first undertaken in 1986 and since then 48 licenses have been issued for over 100 products which utilize his identity. These products which bear Bob Marley’s name, image and likeness operate as a trade mark registered under Tuff Gong & Design which is owned by the Marley family company. Under this trademark, the family has licensed to a number of companies the right to use Bob’s image in the design and manufacture of merchandise such as T-shirts; clothing; beach towels and posters. The company has a history of aggressively protecting its trademark against any actual or perceived infringement. Some 400 cease-and-desist letters were issued to individuals and entities engaged in the unauthorized manufacture and sale of merchandise and apparel which featured his image and likeness. Additionally, the company has become quite litigious. It has filed numerous trademarks, copyright and rights of publicity-based suits over its ownership of the Marley Intellectual Property and other intellectual property rights derived from Bob Marley and his legacy. In each instance, the company has been successful in its claim thereby facilitating, on its part, a high degree of policing and enforcement of its rights. This vigilant and proactive use of legal redress has made it quite evident that the Marley rights are owned by the Fifty-Six Hope Road Company and the Marley Intellectual Property functions primarily as a brand. Geographical Indications Grenada, traditionally known as the Spice Isle, is respected in worldwide retail markets for producing the highest quality spices due to its characteristics and qualities which are indigenous to the island. The nutmeg industry has contributed significantly to the GDP of the island with nutmeg representing 80% of the countries’ merchandise exports and employing over 6,000 nutmeg farmers(ITC, 2010). In recent times, the passage of Hurricanes Ivan (2004) and Emily (2005) decimated the industry and retarded the development of the domestic economy. Despite this tragedy, the industry has been fighting to stay alive (ITC, 2010). In 2006, the export of nutmeg generated approximately US$ 3million dollars in foreign exchange earnings(ITC, 2010). The Government of Grenada has acknowledged that much needs to be done in revitalizing the sector since the spice is not only an economic good but a cultural symbol of the island. It is the accepted patriotic mark of the island as it features on the national flag of the country representing the island’s reputation for the spice and its traditional link with the economy.

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Over 50% of the country’s population resides in rural areas and is involved in some form of nutmeg farming activity. The sector impacts approximately 33,000 persons involved in upstream and downstream agro-processes and even tourism services (ITC, 2010) . The Government of Grenada in conjunction with a number of Regional and International Development Agencies has developed a Grenada Nutmeg Sector Strategy. One aspect of this strategy is the application of intellectual property opportunities to the Nutmeg Industry (ITC, 2010). The most pertinent intellectual property opportunity would be the branding of the Grenadian Nutmeg through the use of geographic indicators. The strategy proposes to brand and promote Grenadian Nutmeg as the Original nutmeg and establish it as the world leader in quality (ITC, 2010). According to Light Years IP, a consultancy company commissioned to examine the IP opportunities for the region, there is a need for such a strategy since the Nutmeg Industry provides sufficient opportunities for IP capture which could be exploited to the benefit of the Grenadian economy. Once utilized it would provide the opportunity for market repositioning of the Nutmeg Industry in Grenada whereby value can be added to the product and increase the sectors earnings (Light Years IP, 2010). The Region’s creative economy has much potential to bolster its exports in creative goods and services. What the Region needs at this time is to enhance the buy-in from the creative sector on the use of intellectual property. This can only be achieved upon the strength of the legal, administrative and educational framework put in place by the regional governments. Once the former is properly established, the actors within the creative sector would be more inclined to use intellectual property as a tool to become increasingly innovative. References International Trade Centre, European Union All ACP Commodities Programme Caribbean Region: Grenada Nutmeg Sector Strategy, (Grenada, 2010). Keith Nurse, The Creative Sector in CARICOM: The Economic and Trade Policy Dimensions, CARICOM Secretariat Regional Symposium Services (Antigua& Barbados, 2009). Light Years IP, IP Value Capture: Caribbean Opportunities for Higher Income, 2010 Light Years IP Publication(Washington, 2010). United Nations Conference Trade and Development, Creative Economy Report 2008: The Challenge of Assessing the Creative Economy Towards Informed Policy-Making (Switzerland, 2008). Websites http://www.sachacosmetics.com http://www.alibaba.com http://www.brandchannel.com http://www.bobmarley.com http://www.dfarberlaw.com

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The Calabash Review Ingrid Persaud Writer and Artist

north London and deciding in that moment he could do this writing thing.

My lover-lover, Calabash, she has come back from the dead and my heart glad. I didn’t see her last year after ten, faithful years since 2000 and truth is I thought she gone forever.

Others are less afraid like the sisters Melissa and Sadie Jones, part of London’s Jamaican diaspora. Melissa read from The Hidden Heart of Emily Hudson, historical fiction based on an imagined life of Henry James’s cousin Minny Temple. Sadie Jones, winner of the Costa First Novel Award, read from her latest book, The Uninvited Guests, inspired in part by bedtime stories her father would tell that always ended with the warning, “the Duppys are coming, the Duppys are coming tonight”. You don’t have to be Jamaican to be properly afraid if something named Duppy going to get you.

Producer Justine Henzell, poet Kwame Dawes and novelist Colin Channer, keep her free but that freeness is expensive. They say that hard cash not easy to find in these hard times for Jamaica, land of wood and water. No mind that for ten years she was royal, reigning as the premier literary festival in the Caribbean and a vital part of the calendar of international literary festivals that include big-ass rivals like the Guardian Hay, Prague Writers’, and the Jaipur Literature Festivals. But come back she come for Jamaica’s 50th independence anniversary - her intellect, grace and humour crashing on the shores of the bay outside the south coast Jake’s Hotel. It’s like she never left sleepy Jake’s. For three heady days and nights I share her with crowds that swell to over a thousand as locals and those from foreign gather to lick up her words and inhale her music. We Calabashers are every age, every background, every race - our commonality a longing to sink into Calabash’s sea of writings that say the unsayable. This is not Negrill with words a distant background hum. We are serious. Yet it not a quiet, hushed awe of the white-hot voices that take the stage by the sea. Instead we feed off each other, poets and lovers, our collective energy keen, thoughtful and unafraid. With efficiency and tight organisation Calabash weaves through those that have already made their name – Chimamanda Adichie, Olive Senior, Carolyn Forche and Fred D’Agular - all a privilege to hear. We loved up on rising poets Loretta CollinsKoblah and Shara McCallum whose poems testified to the power of memory and loss. I am high on McCallum’s Psalm for Kingston that begins City of Jack Mandora — mi nuh choose none — of Anancy prevailing over Mongoose, Breda Rat, Puss, and Dog, Anancy saved by his wits in the midst of chaos and against all odds. Calabash also brought us Orlando Patterson, novelist and sociologist in exile as a Harvard professor. He told stories of the poorest ‘sufferers’ first expressed in Children of Sisyphus with it’s bleak portrayal of Kingston slums. We laughed when Patterson recalled taking tea with a successful George Lamming in one little, cold bedsit in deepest

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The Calabash Festival is an international literary festival hosted in Treasure Beach, St. Elizabeth, Jamaica. This annual event has been in existence for a decade. It is three days filled with poetry; spoken word and music set against a relaxed Caribbean background. The festival is usually held within the final week of May.

For further details please visit: http://www.calabashfestival.org

Calabash always surprises. From the democratic Open Mic, where for two minutes anyone can own the stage, an older, white gentleman took his turn and quietly stunned us with the opening line, “By his good grace I have outlived my penis” and it just kept getting harder. We relished Kerry Young’s reading of Pao. Set in the 1940s to 1960s Jamaica, it tells of Pao, a Chinese migrant, blundering through race, class and changing political tides while falling hard for black prostitute Gloria. It is a place where “Marriage is not for celebrating; it is to give your children a name.”

Professor Orlando Patterson listens to a fan and patron during his book signing at the Calabash International Literary Festival

As darkness fell on the arid landscape the breeze swirled between hips swaying to bands like Raging Fyah and No Maddz late Friday night. The Admiral from South Africa created vibes deep into Saturday until just before Sunday hit up the sky. Calabash turned the sadness of goodbye into a goodbye to sadness as we raised our hands in the air and sang the songs of our parents and grandparents. Helped by star cameos the Calabash Ensemble belted out hits including Third World’s 96 Degrees in the Shade, Sammy Dead by Delroy Wilson to Marley’s No Woman, No Cry. When did Calabash bolt away? Was it while I devoured the tiny onsite bookstore for the new collection, Kingston Noir? Or did she make tracks while I munched jerk chicken, washed downed with cold, coconut water to keep me going during the three hour drive back to Kingston? I keep the faith that Calabash will return next year. Jean Rhys in Wild Sargasso Sea wrote that ‘only the magic and the dream are true – all the rest’s a lie’. Calabash is that magic and that dream, no lie Photographs compliments: Jamaica-Gleaner

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A section of the capacity audience at Treasure Beach, St Elizabeth

Businessman and poet Ralph Thompson during his presentation

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For additional information visit our website www.shridathramphalcentre.org Ground Floor CARICOM Research Building University of the West Indies Cave Hill Campus, St Michael, Barbados Telephone: 246.417.4805/4533 Fax: 246.417.4058 Email: src@cavehill.uwi.edu

We are very interested in your feedback. Please email your comments to: src@cavehill.uwi.edu. Visit our website: www.creativeindustriesexhange.com

The production of this magazine was made possible through support from the World Trade Organization Chair at the University of the West Indies

Caribbean Creatives - Issue 1; Volume 4: August 2012  

The Shridath Ramphal Centre (SRC) is pleased to release the fourth edition of our emagazine Caribbean Creatives which is a publication of th...

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