Cuba and Copyrights: Share or Pay?

By Eileen Sosin Martinez   (Progreso Semanal)

HAVANA TIMES — They say that people at Yara cinema stood up, clapping wholeheartedly, when an announcement was made by author Leonardo Padura at the last Havana Film Festival that the movie Mario Conde (based on the lead character in several of his novels) would soon be available in the Weekly Package of audiovisual materials distributed in Cuba. And I’m sure there are other examples to illustrate this “everything for everyone” philosophy.

However, there are some hints at the fact that it won’t always be that way. For example, Cuba and the United States had their first official meeting about intellectual property in September last year. We know very little about what happened there: “both parties exchanged their ideas about regulations in force in their respective countries,” and they of course talked about the epic law suit for ownership of the Havana Club rum and Cohiba cigar brands.

According to the only information we have about the meeting, published by Cubaminrex.cu, Cuban representatives underlined the fact that mutual protection of brands and patents will be a key aspect of improving bilateral relations. This took place just a year after Sony and EGREM signed a music distribution agreement, the terms of which we also have no knowledge about.

We can list other facts to the list of “what’s brewing”. In 2016, a delegation of BMI (Broadcast Music, Inc.) reps, the second most important artists’ community in the United States, visited the Cuban Agency of Music Copyright (ACDAM), “with the aim to strengthen ties, exchange experiences and to reach an agreement so they can sign mutual representation contracts in the future,” notes the ACDAM Annual Report.

According to Brett Perlmutter, the Head of Strategy and Operations at Google for Cuba, good quality Cuban content is the rationale behind Cuba being connected to the Internet. And of course, “there is a lot of hunger” in the United States for this good quality content. So much so, that Cuba Max TV is now broadcasting national programs to US viewers ever since last June.

That’s been the developments so far. Then we have to ask, what is the situation today when copyright laws in Cuba? Are the Weekly Package and disc vendors on the brink of extinction? What will the Multivision TV channel do since most of their programming is based on pirated US series and movies? And what about the Saturday night movies on national TV, which are almost always from the US? For now, the answers to these questions seem to be more unknown than certain.

A priori

This story could start, like so many others, in the ‘60s. When Cuba realized that it needed professionals, and it couldn’t pay for the books they needed to study, they gave rise to Revolutionary Editions: “plagiarize” in good faith, but not for commercial purposes, because it helped us with our moral right.

“We have nationalized part of the land, the subsoil, banks, foreign trade, education, medicine… Well, today we declare that culture, science, art and all of the literature needed to drive the new University forward have also been nationalized,” these were Fidel Castro’s words, according to what professor Julio Fernandez Bulte recalls.

This standpoint takes precedence in Article 14 of the Cuban Copyright law, which stipulates that such rights are subordinated to the greater interests of the broadest possible dissemination of science, technology, education and culture on the whole. However, this law dates back to December 1977: when there wasn’t any Internet or digital technologies, when the Soviet Union still existed and we didn’t have any relations with the United States.

In the mid-’90s, there were attempts to amend this legislation, which in the end went nowhere. In 2012, the vice-minister of Culture Abel Acosta announced that regulations were being developed to tackle pirating and to regulate the circulation of music and audiovisual materials. However, five years later we haven’t seen results in this legislation process either.

Meanwhile, some contradictions are emerging: the sale of burned discs as a legal activity – which generates taxes -; and on the other hand, the government’s stand against pirating. Government voices are crucifying the Weekly Package, while the Communist Party’s Youth organization’s computer clubs (Joven Club) are pushing the “Mochila” forward, a smaller tailored version of the Package.

Otherwise, most music and foreign movies and series that are consumed in this country come from the US, both from what circulates on informal networks, as well as on the radio and TV. This, of course, because we are sitting opposite the largest cultural industry in the world.

Everything without paying anything. Researcher, Hamlet Lopez points out the absence of normal economic relations with the United States, which don’t allow Cuba to meet the requirements contracted with copyright owners in the US even if it wanted to.

Like hotcakes

“When we began with rap, and reggaeton also began in Santiago, many producers came, they took our music and sold it,” remembers Isnay Rodriguez, DJ Jigue. Because they knew that Cuban artists didn’t have the tools they needed to defend themselves. That used to happen a lot: music was being distributed, and the artist wouldn’t earn a dime, because he didn’t sign a contract.”

For a lot of Cuban musicians, the geographic North is also the Mecca for personal and economic fulfillment. “It’s always been like this, this isn’t just now. The dream of most artists is to reach the greatest number of people they can, to become more visible; and one of the most direct ways of achieving this is to sign with a big record label.”

If sometimes we talk about the “Buena Vista Social Club effect”, now we could say that we are witnessing the sequel to this phenomoenon: the “Gente de Zona effect”. “There is already a result, a model of success,” explains DJ Jigue. People think: if some guy can make it this way, so can I. In fact, there are people who are already saying: let’s make a song with such and such a sound, let’s see if it catches on in the Latin market in the United States and makes it big.”

However, they hardly focus on the things working against them. “Even artists who have made it big this learned blow by blow: when they sign a contract and realize that they were slaves to a record label for five years; they lost their power over their own work. Many Cuban musicians have gone through this, maybe more than any other musicians, because we have been so disconnected from the world when it comes to information, about how these things work…

“Furthermore, here in Cuba, there are very few lawyers who specialize in the music industry,” notes Isnay. “So it’s really easy for a businessman to come and paint a picture for an artist. They say: “brother, this is the contract, take it or leave it.” You read it a thousand times over, you don’t understand a word – because musicians haven’t been trained in this way; and you sign it, and that’s when the troubles begin.”

And then… 

Cuba and the United States both signed UNESCO’s Universal Copyright Convention, the Bern Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). When the time comes, this will be a common framework they can take as a starting point.

However, the conflict here is also deeply-rooted: the Island upholds its own paradigms about culture, art and science as rights; while the US industry has taken copyrights to absurd extremes, even depriving creators of access to their own work, and has become very limiting in its use and consumption.

“When we have to sit down at a table and begin to adhere to what has been established, the interrelationship won’t be to scale, just as it is with them and every other country in the world,” assesses a copyright lawyer, who preferred to remain anonymous.

As if that wasn’t enough, the Internet and information and communication technologies have changed everything: the format of work, access and consumption methods. And digital content implies sharing, reproducing. There is an anti-copyright debate currently taking place on a global level, which questions them as pure rights belonging to capitalist, individualist and outdated property.

What would some possible scenarios be? “If we want to watch series and movies, we’d have to open TV to advertising because we don’t have any money to pay for them. If we don’t, what other options do people have who are used to having these?” the lawyer put forward.

Should we wait for a flood of lawsuits because of pirating? “If a DJ puts on music at parties, and he’s earning 10 bucks here and 20 bucks there, a company won’t get involved, it’s insignificant,” claims Isnay Rodriguez. “They know that people do this, not only in Cuba, in many other parts of the world. These lawsuits come about when there are great profits, like in radio and TV.”

“Put yourself in the State’s shoes: would it really be worthwhile for them to create a special police force to go after CD sellers or “Package” sellers? A lot of countries have criticized their governments’ decision to make the police work for Hollywood producers. It’s absolutely ridiculous,” claims Fidel Alejandro Rodriguez Fernandez, a professor from the Communications Department at Havana University.

Canadian anthropologist Alexandrine Boudreault-Fournier, summarizes this as Cuba fighting an ideological battle with its access models, and maybe it doesn’t know how to position itself when it comes to international copyright laws, because they go against this idea of universal access.

Ultimately, the “standardization” of this sector will depend on transcendental concepts. “You have to think about culture as a common resource for society, which works towards national progress,” concludes Rodriguez Fernandez. “It’s a part of the ethical definition of the social model we want to achieve.”

Note: High-level officials from the National Copyright Center (CENDA), the Cuban Agency of Music Copyright (ACDAM) and the marketing company for Radio and Television, RTV Comercial, refused to give interviews for this article.

(1) Foreword to “Derecho de ¿autor? El debate de hoy”, by Lilian Alvarez Navarrete. Editorial de Ciencias Sociales, Havana, 2006.