[Intellectual Property] Significant damages award for software programmer in Jamaican copyright claim – plain English article

The Jamaican High Court has awarded significant damages, equivalent to approximately US$4+ million, to a software programmer. The bulk of the award? Interest!

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Background to the matter

In Paymaster (Jamaica) Ltd. v Grace Kennedy Remittance Services Ltd. (mirror), the underlying grouse of the claimant was that it had copyright in a computer program that it had engaged one of the defendants – a software developer – to create. The claimant also complained that when the developer tried to sell the software to a competitor of the claimant – the other defendant – a breach of confidence occurred.

The matter came alive when an ex parte injunction was granted against the developer in the year 2000. That is over 20 years ago; when humans still used curios like this and the Billboard chart was dominated by what have since become a series of karaoke favourites.

Eventually, the matter was decided by the High Court in favour of the programmer and the other defendant (the claimant did not own the copyright to the software; there was no breach of confidence by the software developer or the competitor to the claimant). This High Court decision was made in 2010, 10 years after the injunction was granted. The High Court’s decision was partially overturned by the Court of Appeal (no copyright ownership, but there was a breach of confidence by the claimant’s competitor) in 2015.

The matter eventually made its way to the Privy Council – the final court of appeal for Jamaica. The Privy Council basically read the Court of Appeal’s determination on the breach of confidence issue and concluded:

The Privy Council’s decision was handed down in 2017. We are now 17 years deep in litigation at this point. Stay with me.

Having held that the claimant had no copyright in the software and that there was no breach of confidence, the Privy Council’s decision meant that the matter had to revert to the High Court to determine damages. The High Court came back with its decision in 2020. That’s 20 years worth of litigation (so far)!

High Court damages decision

The High Court was asked to determine the amount of damages due to the developer flowing from an undertaking in damages given by the claimant when it obtained the injunction in 2000. For this to make sense, it is necessary to explain both injunctions and undertakings.

Injunctions

An injunction is an order from a court forcing someone to either do something (mandatory injunction) or to refrain from doing something (prohibitory injunction). The claimant in the Paymaster matter obtained a prohibitory injunction to prevent the software developer from selling the software to anyone else. Injunctions, like the kind obtained in the Paymaster matter, typically last until the dispute is determined at trial.

Undertakings

Simply put, undertakings are promises to do something. Undertakings typically arise in the context of injunctions. The party asking the court for the injunction will usually be asked to give the undertaking in return for the court granting the injunction.

A party giving an undertaking in damages to a court essentially agrees that, if the matter goes to trial and they lose, they will pay any damages due to the other party. This is significant, as injunctions are often granted at the beginning of court proceedings and typically prevent parties from engaging in activities that would otherwise be beneficial to them (for example, operating a business, leasing property or purchasing shares) until the dispute between the parties is settled at the trial.

Why are undertakings a good idea you ask? Keep in mind that injunctions tend to stay in place until the court has had an opportunity to determine the underlying dispute between the parties at trial. The idea behind the undertaking is this: if someone is prevented from doing something that was beneficial to them for a period of time and it turns out there was no good reason to have prevented them from doing it, then it is only fair (equitable) that they are compensated for the loss of the beneficial activity they were prevented from engaging in.

What the court found

The High Court in Paymaster conducted its enquiry and concluded that the developer should receive damages of J$282,259,386.80 (approximately US$2,025,512.363). The Court also determined that interest should be awarded and…. (cheap pun alert!)… this is where it gets interesting. The judge concluded that the programmer should also get interest on the damages award from August 25, 2000 to June 11, 2020. Yes, you read that right, just under 20 years worth of interest at 6% per annum!

In essence, the judge awarded interest on damages from the time of the injunction to the date of its determination. By my maths, that translates to J$335,463,347.93 (US$2,407,316.9950). As you can see, the interest on the damages award was more than the award itself.

Implications

Bespoke software solutions are actually still fairly popular at the enterprise level in the Caribbean. This means that circumstances are ripe for this kind of claim between other developers and clients to occur. Thankfully, there are a number of ways to minimise the circumstances which led to the unfortunate Paymaster litigation in the first place. I have included some of them in this note.

If you are unable to stave off this kind of litigation, the Paymaster decision holds a significant lesson, whether you are a software developer or hired one. If one of the parties has secured injunctive relief, it is important to explore practical means of resolving the underlying claim quickly.

The Paymaster case demonstrates that the longer the matter drags on, the greater the potential exposure to substantial interest for the losing claimant. Effectively, the longer the litigation continues, the less commercially pragmatic it becomes to fund it. Also, if a party obtains an injunction, but subsequently loses the substantive claim after many years, that exposure to interest on damages, in addition to legal fees and cost awards will be sizeable. Depending on the circumstances, this could prove financially ruinous.

Exploring options for short-circuiting litigation include prioritising genuine settlement talks or sending the matter to mediation. If those options aren’t viable, it may be useful to see about getting the claim determined by the court expeditiously. Many jurisdictions have mechanisms in their court rules that allow for speedy-trials. Discuss with your lawyer whether this may be appropriate for your matter.

Read the decision here (mirror)

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BVI tables cyber laws

Credit: Alan Copson/Getty Images

The Government of the British Virgin Islands has tabled a number of bills in its parliament aimed at enhancing the digital economy. The suite of proposed legislation covers data privacy, the facilitation of electronic filings via government institutions, electronic commerce (electronic transactions, documents and signatures) and digital payments.

Public comments were invited in the first quarter of 2020, as a precursor to a final reading of the bills in the House of Assembly. It is unclear when the bills will be passed into law.

You can review a copy of the proposed laws below:

  • Data Protection Act, 2019 bill (link, mirror)
  • Electronic Filing Act, 2019 bill (link, mirror)
  • Electronic Transactions Act, 2019 bill (link, mirror)
  • Electronic Transfer of Funds Act, 2019 bill (link, mirror)

List of E-Commerce Laws in the Caribbean

Caribbean Map. Credit: Active Caribbean

I was recently interviewed for an article in the Barbados Business Authority. The article touched on the value of executing contracts electronically in the midst of the COVID-19 pandemic and the legal framework supporting e-contracting in Barbados.

After issuing my comments for that article, I was curious about the state of play across the wider Caribbean. I, therefore, researched which countries in the region have e-commerce laws and the results are listed below:

JurisdictionName of e-Commerce Law
AnguillaElectronic Transactions Act, Revised Statutes of Anguilla, Chapter E38
Antigua and BarbudaElectronic Transactions Act, No 24 of 2013
Bahamas (Commonwelath of)The Electronic Communications and Transactions Act, 2003
BarbadosElectronic Transactions Act, 2001;
BelizeElectronic Transactions Act, Chapter 290:01
BermudaElectronic Transactions Act 1999
British Virgin IslandsElectronic Transactions Act, 2001 (No 5 of 2001)
Cayman IslandsElectronic Transactions Law (2003 Revision)
CubaNo law
DominicaElectronic Transactions Act, 2013
Dominican RepublicLey de Comercio Electrónico, Documentos y Firmas Digitales No. 126-02
French GuianaFrench Civil Code
GrenadaElectronic Transactions Act, 2013
GuyanaNo law
GuadeloupeFrench Civil Code
HaitiDécret portant sur la signature électronique (Decree on Electronic Transactions)
JamaicaElectronic Transactions Act, 2006
MartiniqueFrench Civil Code
MontserratElectronic Transactions Act 2009, No 7 of 2009
Netherland AntillesLandsverordening overeenkomsten langs elektronische weg (P.B. 2000, 186)
Puerto RicoLey de Firmas Electronicas de Puerto Rico, Ley numero 359 de Septiembre 16, 2004
Saint Kitts and NevisElectronic Transactions Act 2011, No 9 of 2011
Saint LuciaElectronic Transactions Act, 2011 (not yet in force)
Saint Vincent and the GrenadinesElectronic Transactions Act 2015, No 6 of 2015 (repealing and replacing Electronic Transactions Act, Cap 145)
SurinameWET van 24 september 2017, houdende regels inzake het rechtsverkeer langs elektronische weg (Wet Elektronisch Rechtsverkeer) [LAW of September 24, 2017, containing rules on legal transactions by electronic means (Electronic Traffic Act)]
Trinidad and TobagoElectronic Transactions Act, 2011
Turks and CaicosElectronic Transactions Ordinance 2000, Cap 2.14
As at April 10, 2020, 27 Caribbean jurisdictions surveyed.

A few notes on the list:

  • In preparing the list, it was apparent that there was a significant level of disparity in the scope of rights and obligations in the different statutes. In future updates, I’ll be looking at some of the more important areas of nuance that exist in the e-commerce frameworks across the region.
  • For the purpose of this list, ‘Caribbean’ jurisdictions were defined as: i) all the island-states in (or in the direct vicinity) of the Caribbean Sea as well as ii) those jurisdictions on the South or Central American mainland with sufficiently strong and continuing cultural, historical, economic and/or political commonalities with island states in the Caribbean Sea.
  • Only 2 of the 24 jurisdictions surveyed appear to be without laws targeted at e-commerce: Cuba and Guyana (as of April 2020).
  • If you’ve spotted an error or are aware of an update to any of the jurisdictions listed above, please let me know: contact {at} bartlettmorgan.com .

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ITU publishes guidelines on national emergency telecommunications plans

In the midst of a global pandemic and a number of recent natural disasters affecting the region, an interesting conversation point has arisen in ICT and telecommunications spaces: how to best utilise telecoms infrastructure to assist in managing inevitable national disasters.

The International Telecommunications Union has recently published guidelines for national emergency telecommunications plans (NETPS).

Per the ITU:
“These guidelines​ assists national authorities and policymakers to develop a clear, flexible and user-friendly framework that guide countries on how to develop a strategic plan to support and enable the continued use of telecommunication and information and communication technology (ICT) networks and services in all four disaster management phases. It not only describes the main elements that an NETP should consider, but also highlights its potential benefits. It includes a step-by-step guide to the development of an NETP, it serves as a useful resource based on ITU recommendations and concepts, as well as expertise from other global bodies and organizations.”

Quote from the ITU website.

The NETPS Guidelines are fairly in-depth and covers all four phases of disaster management: mitigation, preparedness, response, and recovery.

The ITU has been instrumental in aiding several countries who have put national emergency telecommunication plans in place. This has included early warning systems, monitoring systems and emergency telecommunications equipment.

Link: ITU Guidelines on NETPS (pdf)

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Majority of CARICOM states back controversial United Nations resolution on Cybercrime

What

A resolution at the United Nations – Countering the use of information and communications technologies for criminal purposes – was put to a vote and passed on November 18, 2019. The resolution is geared at creating an

“open-ended ad hoc intergovernmental committee of experts, representative of all regions, to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes…”.

Draft Resolution – Agenda item 107 – Countering the use of information and communications technologies for criminal purposes (link)

In plain-speak: the resolution could result in an eventual UN convention on cybercrime.

How they voted

There were 88 votes for the resolution, 58 against and 30 abstentions.
According to the note of the votes, 14 of the 15 full CARICOM member countries voted on the Resolution. This is the breakdown of CARICOM votes on the resolution:

YES: Antigua & Barbuda, Dominica, Jamaica, Suriname, Saint Vincent, Saint Kitts and Saint Lucia

NO: Belize

ABSTAIN: Bahamas, Barbados, Grenada, Guyana, Haiti and Trinidad & Tobago

Why the Controversy?

The countries sponsoring the resolution were: Algeria, Angola, Azerbaijan, Belarus, Bolivia, Burundi, Cambodia, China, Cuba, North Korea, Egypt, Eritrea, Iran, Kazakhstan, Laos, Libya, Madagascar, Myanmar, Nicaragua, Russian Federation, Sudan, Suriname, Syria, Tajikistan, Uzbekistan, Venezuela and Zimbabwe.

A number of these countries are authoritarian regimes and/or enjoy a less than stellar reputation in respect of human rights violations.

The resolution has come in for criticism from the United States and the Europe Union as well as civil society bodies. The key points are:

  • The language of the resolution appears to be very vague and, per APC’s open letter to the UN, “opens the door to criminalizing ordinary online behaviour that is protected under international human rights law.”
  • There is already an existing, robust de-facto international convention on cybercrime – the Budapest Convention with just under 70 signatories.
  • In the blunt words of David Ignatious “[Russia], the country that hacked the 2016 U.S. presidential election and various European campaigns is now leading the process to write international rules about hacking.”

The underlying fear of many of the resolution’s critics is that this proposed convention is an attempt to use an international law instrument to legitimize the repression of free speech online. Naturally, the question becomes: if this is the case, have the majority of CARICOM states unwittingly helped lay the foundation for the erosion of fundamental human rights online?

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[Panel discussion] The Barbados Data Protection Act – SMART Barbados Week 2019

I was honoured to be part of a panel discussion on the newly passed Barbados Data Protection Act at the inaugural Smart Barbados Week 2019.

The Smart Barbados Week was a 4-day symposium hosted by Barbados’ Ministry of Innovation, Science and Smart Technology (MIST). Its purpose was to engage the Barbadian public with the knowledge needed to support the country’s transition to ‘smart’ status.

My panel was a useful moment to discuss aspects of the new legislation. It also created an opportunity to make the connection between enabling legislation, like privacy laws, and achieving larger technology-focused developmental outcomes like smart societies.

Links:

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Number portability is now a reality in the Eastern Caribbean

In June, the Eastern Caribbean States witnessed a quiet revolution: the introduction of mobile number portability (“MNP”).

Number portability refers to the ability of a telephone network subscriber to retain use of their telephone number after switching networks. MNP is the cellular telephone-specific implementation of this concept.

MNP is revolutionary to the degree that it potentially opens up a significant degree of consumer choice for mobile subscribers in the EC. The availability of MNP means that a consumer who has maintained a long, valuable association with a particular telephone number, no longer has to be tethered to their mobile service provider in the face of either poor service from that provider or, a better deal from a competitor. The implementation of strategies like MNP by regulators ensure greater choice and, by extension, more competition among mobile service providers for a much more liberated customer-base.

The EC’s implementation of MNP is not without precedent in the Caribbean. Similar developments took place in Cayman in 2012, Jamaica, in 2015 and Trinidad in 2016.

Limitations

  • The implementation of MNP will be island-specific: a Lime mobile subscriber in Grenada will not be able to port his number to Digicel’s network in Saint Lucia, for example.
  • The implementation is mobile-specific and so land line subscribers cannot benefit. ECTEL has indicated that fixed-line telephone porting will be allowed in the future when there is competition for this service.

Highlights

  • There will be no cost to the mobile subscribers for porting. It is, however, possible that subscribers will have to cover the cost of unlocking phones for use on another network.
  • Both post and pre-paid customers in the EC will have access to MNP. Post-paid customers will have to settle their bills as a pre-cursor to switching networks.
  • Mobile subscribers will be able to request a reversal of the number porting within 14 days of the switch. Once this 14-day window has expired, subscribers will not be able to request a further switch for another 46 days.

Implementing number portability is a signal acknowledgment of the importance of a more consumer-centric regulatory framework. It may be seen as a move towards further enabling the ‘invisible hand’ of market forces to work in the various EC jurisdictions. Taken to its logical conclusion, this should result in greater competition among the different telecos operating in that region. Given the relatively small size of the EC markets, however, its left to be seen whether MNP’s impact will be more than negligible.

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[Published] Article in the Business Authority on the Barbados Data Protection Bill*

credit "In 30 Minutes guides" : in30minutes.com
Credit In 30 Minutes guides in30minutes.com

The Business Authority newspaper (Barbados) published an article under my name. The article is based on my written submissions to the Barbados Parliament’s Joint Select Committee on the Data Protection Bill, 2019.

The article zooms in on my comments on the lack of protection offered to the Data Protection Commissioner’s office and the need for a staggered approach to implementation.

A copy of the Business Authority article can be found here (.pdf). For better context, my complete written submissions can be found here.

* Note: shortly after the publication of the article, the Bill was passed by both houses of Parliament.

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[Quoted] Global Data Review article on the Eastern Caribbean States accessing Facebook’s disaster mapping technology

Global Data Review recently reached out for comments on a recently announced collaboration between the Organisation of Eastern Caribbean States and Facebook. Under the initiative, the OECS will have access to Facebook’s Disaster Maps feature in the event of natural disasters.

Links:

Jamaica’s Court declares freestanding constitutional right to informational privacy

Image result for constitution

The Jamaican Constitutional Court in a 3-judge panel decision recently struck down an entire statute. The act – the National Identification and Registration Act 2017 – was being implemented with a view to making registration in a national ID database mandatory.

The complainant in the case had argued that it breached his constitutional rights.

The case is made interesting as the Jamaican Constitution does not include an express broad-based right to privacy and, certainly not informational privacy. In striking down the act, the Court took a weaving path that required an assessment of the degree to which the Jamaican Constitution provided a basis for protecting the right to privacy, despite this.

The Constitutional Court, having reviewed prior case law from throughout the Commonwealth, concluded that given the necessity of the right to privacy as a precursor to the enjoyment of the other rights in the Jamaican Constitution, a general right to privacy must be read into the Jamaican Constitution.

A copy of the case can be found here.