The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Copyright Royalties Tribunal’s chairman yesterday expressed “disappointment” that the US government had not given the Bahamas more praise for resolving outstanding multi-million dollar royalties claims, telling Tribune Business: “The matter has been put to rest.”

Attorney Obie Pindling said “much more” progress had been made than Washington gave the Bahamas credit for in the US Trade Representative’s annual Special 301 report, released yesterday.

When it came to outstanding payments owed to royalty rights holders, Mr Pindling said “everything has been agreed”, and settlement completion now awaited HBO, the US’ top pay-TV network, signing a deed of release.

Mr Pindling said the Tribunal had been awaiting the signed release from HBO for two weeks, and added: “We have done all we could.”

He was responding after the US Trade Representative listed the Bahamas among nations that had taken “important steps” to resolve deficiencies in its intellectual property rights regimes.

Its Special 301 report, which effectively ‘blacklists’ countries that Washington deems as failing to protect US royalties rights holders, again spared the Bahamas this fate.

Referring to this nation, the US Trade Representative’s Office said: “The United States welcomes recent action by the Copyright Royalty Tribunal to pay royalties due to US rights holders.

“These royalties had been collected under a now-repealed provision of the 1998 Bahamian Copyright Law which, until 2009 ,allowed the government-owned Cable Bahamas to retransmit and sell pay television programming of S rights holders without their authorisation.”

That was the positive, but as with many US government reports, it came with the veiled ‘big stick’ if countries fail to follow through

“The United States notes, however, that royalties have yet to be paid to representatives of songwriters for the public performance of their works under this regime. The United States looks forward to such action in the near term,” the Special 301 report said.

Contacted by Tribune Business, Mr Pindling responded: “I’m disappointed that’s all they’ve said. There’s much more than that.

“As far as I’m concerned we’re done. We’re only waiting for a signed document from HBO. They’ve already agreed. We drafted a document, and are just waiting for them to sign off on it. Once we receive it, they will be fully paid. We have done all that we could to get this matter settled.”

Disclosing that both the US Embassy in Nassau and their superiors in Washington knew how far the proposed solution had progressed, Mr Pindling added: “There’s nothing left to be done.

“We have done all we could to get the matter settled. Everything has been agreed. We’re at then point of agreement, and are only waiting for HBO to sign the deed of release. We’ve been waiting for that for two weeks.”

HBO had earlier this year used the Special 301 report consultation process to blast the Bahamas for its “persistent failure” to compensate it for copyright violations, despite claiming only 20 per cent of the $3 million Fund created to do this.

Urging Washington to place the Bahamas back on its Special 301 Watch List, the pay-TV network alleged that its inability to obtain the claimed $600,000 from the Bahamas’ Copyright Licensing Fund meant that this nation was in violation of its obligations to the Berne Convention, which protects literary and artistic works, and also non-compliant with World Trade Organisation (WTO) intellectual property standards.

In a February 8, 2013, letter submitted to the US Trade Representative, HBO Latin America’s attorneys said: “The Bahamas Copyright Royalty Tribunal’s (CRT) persistent failure to distribute royalties to HBO LA for the transmission of its programming under the prior compulsory licensing regime constitutes a continuing violation of HBO LA’s intellectual property rights.

While the Bahamas had ended its compulsory TV licensing regime, via amendments to the Copyright Act that were passed on October 1, 2009, HBO Latin America is seeking compensation for Cable Bahamas receiving, decoding and transmitting its signal to Bahamian subscribers prior to that date.

The BISX-listed communications provider and HBO Latin America now have a commercial agreement that deals with all issues going forward, but the premium US TV programmer said Cable Bahamas had only paid a “nominal fee” into the Copyright Royalties Fund despite charging subscribers a ‘full market price’.

Setting this aside, HBO Latin America then detailed to the US Trade Representative how it had attempted to claim against the Fund for more than two years, an effort that had proven “fruitless”.

“On November 17, 2010, HBO LA submitted a royalty claim to the CRT for the transmission of HBO USA’s unlicensed programming in the Bahamas under the prior regime,” its attorneys said.

“Based upon the relative market value of the retransmitted channels, HBO LA requested $600,000 out of the CRT Fund, which reportedly holds just over $3 million.”

HBO Latin America was far from alone, as the American Society of Composers, Authors and Publishers (ASCAP) raised the same issue.

Referring to the Bahamas and its Copyright Licensing Fund, ASCAP told the US Trade Representative: “The Fund, which the Performing Rights Society (PRS) estimates to be in the amount of approximately $3 million, remains undistributed.

“However, there has been no confirmation of the amount being held nor any publication of procedures to make claims against it.”

Mr Pindling, though, yesterday told Tribune Business: “I’m very pleased with the progress made, and as far as I’m concerned that matter has been put to rest.

“I won’t even begin to try to address what happened prior to my appointment. I don’t know why resolution took so long. The fact is that we’re in a very happy position at this point. It’s happily concluded.

“To only get an honourable mention [from the US Trade Representative] is disappointing, given all the positives we’ve been in for the past few weeks.”