Lynette Eastmond Attorney-at-Law

A Whiter Shade of Pale

2008-06-16T17:10:00.000-07:00

This song is considered one of the all time greatest hits. It is a Procol Harum song that was recorded back in 1967. This song had been exploited over the years on the basis that Gary Brooker wrote the music and that the publising and record company to which he sold the rights, and its successors possessed and controlled the copyright. By an Order of the High Court Blackburne J. made a declaration to the effect that (1) Matthew Fisher is the co-author of the music as recorded by Procol Harum; (2) he is a joint owner of the musical copyright in the work, assessed at 40%; (3) the licence of the defendants to exploit the work was revoked on May 31, 2005 when Matthew Fisher started his case against Gary Brooker and Onward Music Limited.

Permission to appeal was granted on the basis of (1) the unusual length of time that had elapsed in making the claim (2) the insistence of the defeated defendants of the widespread and dire effect that the decision would have on the way that the music industry operated in the past.

In 1967 Gary Brooker composed the music of "A Whiter Shade of Pale" around lyrics written by Keith Reid. The dispute is about the authorship of the arrangement of the song. In the course of rehearsals improvised changes were made to the song: the words were shortened from 4 verses to 2 and the instrumental sections were all played by Matthew Fisher on the Hammond Organ. The single issued on May 12th 1967 was a recording of a performance by the band. In August 1969 Matthew Fisher left Procol Harum. The band's partnership was dissolved with the understanding that Fisher would not be liable for the band's debts of $60, 000. He signed a release but not with respect to a share of copyright or publishing royalties for his compositions.

Blackburn J. found in the High Court that "Mr. Fisher's instrumental introduction (i.e. the organ solo as heard in the first eight bars of the Work and as repeated) is sufficiently different from what Mr. Brooker composed on the piano to qualify in law, and by a wide margin, as an original contribution to the Work".

On appeal it was found that the judge was entitled to find that Matthew Fisher made a creative contribution to the Work and he was right to grant a declaration as to co-authorship. This decision therefore stood. He however dismissed the appeal on the joint ownership of the musical copyright and the finding that the implied licence to exploint the work had been revoked when Matthew Fisher filed his action. Lord Justice Mummery found that Matthew Fisher was guilty of "excessive and inexcusable delay" and that his acquiesence made it "unconscionable and inequitable" for him to seek to control commercial exploitation of the work after 38 years. No damages were awarded and no right to exploit the work in the future was granted.

Salus Populi Est Suprema Lex

2008-06-12T17:55:00.000-07:00

This phrase is based on the implied agreement of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good.

Companies Act Cap 308

2008-06-06T04:40:00.000-07:00

The Companies Act of Barbados is a piece of legislation passed in 1982 with several subsequent amendments to keep pace with corporate developments. Essentially anyone can incorporate a business. The person must be over 18, must be of sound mind and must be solvent. The Corporate Affairs and Intellectual Property Office is the government agency responsible for the administration of the Act and therefore is the office through which documents can be sourced and filed http://www.caipo.org.bb/ . Generally speaking the word “limited”, “corporation” or “incorporated or the abbreviation “ltd.”, “corp.” or “inc.” must be a part of the name of every company.

Owning a Company

In most cases a company has the capacity, the rights, powers and privileges of an individual. Shares are issued in order to designate ownership in a company. The Act does not allow for the issue of bearer shares. The return on investing in the shares of a company is made through the payment of dividends. The payment of a dividend must not however, result in the company not being able to meet its liabilities; neither must the capital of the company be eroded.

Directors and Officers

The Directors of a company are appointed by the shareholders. Shareholders can also be directors. The Directors exercise the power of the company. Directors can be found personally liable for certain acts of the company. Directors must take their responsibilities seriously and avoid conflicts of interest. Where they exist they should be declared. Officers may be appointed by the Directors.

Every director and officer of a company is required to act honestly and in good faith with a view to the best interests of the company. They must exercise the care, diligence and skill of a reasonably prudent person.

Meetings

There must be an Annual General Meeting of the Company, not later than 18 months after the company comes into existence and not later than 15 months after the last AGM. Directors may hold meetings as determined by the by-laws of the company or as they see fit that would allow them to exercise their duty in the best interests of the company.

There are a number of obligations that must be met at the AGM:

Comparative financial statements duly signed by a Director must be presented
Audited Financial Statements must be presented if the company is a public company or if the gross assets or revenue exceeds $1,000,000
An Auditor is to be appointed where there is a requirement for audited Financial Statement.
Directors are appointed.

Dissolution

The company can be dissolved by a special resolution of the shareholders and by filing the required documents with the corporate registry. If the company is bankrupt the insolvency legislation would apply.

Catastrophe Fund Act 2007

2008-06-05T18:06:00.000-07:00

As many of you may know the entire Caribbean region is vulnerable to natural disasters, especially hurricanes.[1]

Barbados itself has not felt the full brunt of a hurricane in several years. However the housing stock of the country, especially that comprising chattel houses does suffer when the high winds and heavy rains from weather systems brush this country.

In these circumstances the Government is usually called upon by the public to provide support to families that have suffered loss or damage to their homes. In order to address this matter in a more efficient and transparent fashion the Owen Arthur piloted through Parliament legislation for the establishment of a Catastrophe Fund.

Purpose of the Fund
According to the insurance industry, the susceptibility of the region to catastrophes contributes to relatively high re-insurance premiums that are then passed on to consumers. The purpose of the Fund is to provide financial assistance to low income earners who own and occupy chattel houses. In setting up this Catastrophe Fund there are some individuals that might question the propriety of this initiative. Questions might be raised as to whether individuals should not have the responsibility of insuring their own premises.

The truth is that in the aftermath of a disaster the public as a whole does not wish to enquire into the circumstances of the victims and rather expresses the view that Government should take substantial responsibility for reinstating the homes of Barbadian families. In addition some of the houses that will fall under the purview of this new legislation are not considered to be insurable by insurance companies in Barbados. Finally sometimes individuals live in circumstances that the payment of insurance premiums might in fact, be a luxury.

Criteria for Assistance
The provision of this assistance is however circumscribed by certain criteria:
1. There must have been a catastrophe and that catastrophe could have been caused by fire, earthquake, storm, hurricane, flooding, a storm or sea surge, lightning, or by some other force of nature.

2. The house must have been damaged or destroyed by a catastrophe and must be valued at under $125, 000.

3. The recipient must earn less that $22,500 annually.

4. The individual must both own and occupy the house.

5. The house must be a chattel house, which means a house where 75% or more of that house is made of wood.

It should be noted however that agencies through which Government usually provides assistance will remain operational so that assistance can be provided in deserving cases where the criteria can not be fully met. For example a pensioner that owns a house valued in excess of $125, 000 but the level of his income and family assistance does not allow him to effect the necessary repairs.

The Fund
For a period of five years a sum of $2.5 million will be voted by the Parliament. In addition, monthly contributions will be made through the National Insurance Scheme. The contribution is 0.1% of the earnings of both employed and self employed people. It will also consist of amounts realised by investment proceeds and proceeds from the operation of the fund. The National Insurance Office will be responsible for the management and investment of the fund.

The Committee
The legislation also proposes a committee that is responsible for the consideration, the assessment of claims and the issue of grants. The members are:

The Supervisor of Insurance
The Director of National Insurance
The Chief Fire Officer
The Accountant General
Two other persons appointed by the Minister of Finance

All of this is subject to the appropriate governance principles including proper accounting, auditing and reporting requirements.

[1] While we have done our best to ensure accuracy , it is always best to refer to the specific piece of legislation.

Computer Misuse Act 2006

2008-06-04T05:55:00.000-07:00

Computer use in on the rise in Barbados and hence the need to enhance the legislative framework. This technology legislation comes some time after the passage of the Electronic Transactions Act in 2001. The legislation can be placed within the context of the increasing use of computers in Barbados and the need to provide adequate protection for electronic information residing on computer systems. The legislation is intended to penalise persons that misuse computers, computer systems and information contained in those systems. The legislation at its core deals with (i) unauthorised access by persons and (ii) abuse by persons that do have authorised access.

Background

This is an elaboration of the criminal law in Barbados to take into account the advances in science and technology that the world is now experiencing. In the United Kingdom for example an attempt was made by lawyers to use existing pieces of legislation such as those dealing with criminal damages and fraud. Eventually it became clear that existing legislation was not enough to cover all the crimes involved in computer hacking.

In an English case individuals, who used unauthorised passwords to access mailboxes without permission were tried under legislation for forgery and counterfeiting. The decision was overturned on appeal to the House of Lords and the prosecution roundly rebuked for trying to “force the facts of the present case into language of an Act not designed to fit them.”

In Barbados there is a clear need to ensure that the appropriate safeguards are put in place for the many computers and computer systems in Barbados. This Government has been enthusiastic about embracing information technology. There are big projects such as the edutech programme, the Smart stream programme to keep account of revenues and expenditures in the public sector, the aseycuda system in the Customs Department, the computerisation of the land tax department, the National insurance department, many government agencies have websites so the people have easier access to web information. Parliament has its own website. Information Communications Technology Policy has now been developed which will encourage the wide use of Internets and Intranets within organisations

The Offenders

In the definition there has not been any attempt to define computer as the technology changes so rapidly that it was determined to be better to frame the Act by its objectives.

The legislation addresses both acts and failure to act by persons.

It covers persons residing in Barbados as well as persons aboard a ship or aircraft registered in Barbados or by a person who is outside of Barbados if the person is a national of Barbados and the offence would also be one in the country where the offence was committed. The Act therefore seeks to ensure that the persons involved in hacking inside Barbados and from outside Barbados are caught by the legislation.

Offenders include those who are not entitled to access the computer information, those who do not have permission to access the information, persons that have exceeded their rights to access the information and persons that have without authority received information.

The Offences

There are several offences that have been identified in the legislation concerning unauthorised access or abuse of access to information including (1) gaining access to the whole or any part of a computer system (2) causing a computer programme be executed (3) using a programme to gain access to data (4) copying or moving a programme or data (5) hindering the proper functioning of a computer system by, for example, preventing the supply of electricity to the computer, corrupting the computer system or adding, deleting or altering computer data (6) interfering with a computer system or a person using a computer system and (7) intercepting by technical means transmissions or information from a computer system.

Recipients are also guilty of an offence

If a person who is not entitled to do so is given access to data or a programme, that recipient is guilty of an offence.
In addition where the person is authorised to receive information but it comes from an unauthorised source that person is also guilty of an offence.

Restricted Computer Systems

There are special provisions and stiffer penalties for what are considered to be “restricted computer systems”. These systems are considered to be critical to the security of the country. Some of the institutions that would have restricted computer systems are:

The Archives Department
The Barbados Defence Force
The Electoral and Boundaries Commission
The Financial Intelligence Unit
The Queen Elizabeth Hospital

The Forensic Laboratory
The Inland Revenue Department
The Royal Barbados Police Force
The Licensing Authority
The National Library Service
Entities providing utility services

The penalty for simple unauthorised access is $50, 000 or five years imprisonment,

Accessing the system with the intent to commit an offence such as destroying or manipulating data results in a fine of $100,000 or seven years imprisonment. It is however a complete defence that access was inadvertent, with no intention of committing an offence.

Child Pornography

The Bill addresses child pornography specifically and makes it an offence to publish, produce or possess pornography on a computer system or a data storage medium for the purpose of publication. This not includes representations of minors but individuals that look like minors.

Malicious Communications

The Bill further addresses those instances where individuals send messages, letters or other communications which cause the recipient or others, annoyance, inconvenience, distress or anxiety. The letters that are covered are those that are indecent, obscene, constitute a threat or are menacing in character to the recipient or others. We have already had situations in Barbados where there is the irretrievable break down of a relationship between a man and a woman that the man would send put the head of the lady in question on the nude body of the woman in question and e-mail it to her workmates. This can now be dealt with under the legislation.

Enforcement

The police are given the necessary powers of search and seizure through the Courts.

The Act also provides that assistance can be rendered by the person who possesses or is in control of the system.

The standard used with respect to the offences is whether the person knowingly or recklessly and without lawful justification or excuse committed the particular offence.

Fines lie between $25, 000 and $200,000, while imprisonment of 2 years to 7 years is also possible.

Profile

2008-06-01T20:52:00.000-07:00

Lynette Eastmond is a Barbados Attorney-at-Law who started practice back in 1988 after she finished her studies at the University of the West Indies and the Hugh Wooding Law School. She worked in private practice for a short period of time. In 1989 she started to work with the accounting firm of Price Waterhouse and remained there for about nine years. When she left the firm she had reached the level of Senior Manager, Internatinal Taxation.

Ms. Eastmond's tenure at PriceWaterhouse gave her the opportunity to gain experience in a number of areas especially taxation and corporate law that focussed on international business clients.

Lynette Eastmond then pursued a Master of Laws Degree with the University of London. During that period of time she won an opportunity to be a Research Fellow with the International Fiscal Association. She carried out her research work with the International Bureau of Fiscal Documentation in Amsterdam, the Netherlands.

In 1998 Ms. Eastmond became Director of International Business with the Government of Barbados. She was responsible for the development of the international business sector, especially for the legislation such as the International Business Companies Act. During her tenure as Director she was Lead Negotiator for Trade in Services, Double Taxation Agreements and Bi-lateral Investment Treaties. Ms. Eastmond was also responsible for leading Barbados' efforts in the matter of the OECD Harmful Taxation initiative at the officials level.

Lynette Eastmond was last a Minister of Government up until January 2008 responsible for business development, science and technology, insolvency, consumer protection, utilities regulation and standards.

Establishment of Practice

2008-06-01T20:29:00.000-07:00

Lynette Eastmond has established her practice at Charlton Chambers which is headed by Sir Richard Cheltenham Q.C. Charlton Chambers is a pratice of seven lawyers. Ms. Eastmond has a varied practice. Her expertise however lies in contract, trade, taxation and corporate law.