Global Divergence in AI Copyright Liability: A Comparative Analysis of Fair Use, Text and Data Mining, and Fair Dealing in the US, EU, and Caribbean (2025),

 Global Divergence in AI Copyright Liability: A Comparative Analysis of Fair Use, Text and Data Mining, and Fair Dealing in the US, EU, and Caribbean (2025),

 

By. Dr. Abiola Inniss Ph.D. LLM, ACIArb.

 

Abstract

This article analyzes the diverging legal frameworks governing AI training and copyright in the United States, European Union, and Caribbean as of late 2025. In the United States, the judiciary has established a "conditional fair use" doctrine (Bartz v. Anthropic, Kadrey v. Meta), where training is transformative but liability arises from illicit data sources ("shadow libraries") or market substitution. The European Union enforces a statutory compliance regime under the AI Act, permitting text and data mining (TDM) only where rights holders have not exercised machine-readable opt-outs (e.g., C2PA). In the Caribbean, notably Barbados, legislative reforms prioritize creator sovereignty, rejecting broad TDM exceptions in favor of collective licensing. The analysis concludes that global AI liability is fractured: permitted as fair use in the US (with caveats), conditional on protocols in the EU, and largely infringing in the Caribbean, creating a complex compliance landscape for global AI development.

Executive Summary

As the global digital economy transitions into late 2025, the legal frameworks governing the intersection of Artificial Intelligence (AI) training and copyright law have fractured into distinct, often competing, regulatory paradigms. This report offers an exhaustive analysis of the judicial, legislative, and regulatory developments in the United States, the European Union, and the Caribbean regarding the legality of ingesting copyrighted works for the purpose of training generative AI models.

In the United States, 2025 has been a year of judicial refinement rather than legislative overhaul. The U.S. Copyright Office, in its pivotal Part 3 Report, declined to recommend a statutory blanket license, leaving the courts to define the boundaries of Section 107 "Fair Use".¹ The resulting case law, specifically the summary judgment rulings in Bartz v. Anthropic and Kadrey v. Meta, has established a "bifurcated" liability model. While the act of intermediate copying for the purpose of pattern recognition is generally viewed as transformative and fair, this defense collapses if the underlying data source is illicit (e.g., "shadow libraries"). Thus, US liability is increasingly defined by data provenance and output substitution rather than the training process itself.²³

In the European Union, the focus has shifted from judicial interpretation to strict regulatory compliance following the full implementation of the AI Act in August 2025. The EU regime is predicated on a statutory "Text and Data Mining" (TDM) exception under the Digital Single Market (DSM) Directive, which is heavily conditioned on a "machine-readable opt-out" mechanism. The legal battleground in Europe has moved to the technical layer, with German courts ruling in late 2025 that AI training is permitted under TDM exceptions unless rights holders have strictly adhered to emerging technical protocols like C2PA and TDM Reservation Protocols, as identified by the EUIPO.⁴⁵

In the Caribbean, the region is navigating a complex transition between colonial-era "Fair Dealing" statutes and the urgent need for digital sovereignty. Barbados has emerged as the legislative vanguard, passing the Copyright Bill, 2025 to empower Collective Management Organizations (CMOs) and extend protections, signaling a pro-creator stance that implicitly rejects a broad US-style fair use for AI.⁶⁷ Conversely, Jamaica and Trinidad and Tobago have focused on judicial regulation, issuing Practice Directions to curb AI "hallucinations" in court while retaining conservative copyright frameworks that likely classify unlicensed commercial AI training as infringement.⁸⁹

This article explores these diverging paths, analyzing the economic and legal ripple effects of a world where data training is "fair use" in California, a "conditional exception" in Berlin, and potentially "infringement" in Bridgetown.

 

1. The United States: The Judicial Refinement of Fair Use

The United States legal system, relying on the flexibility of common law, spent 2025 rigorously testing the applicability of the "Fair Use" doctrine (17 U.S.C. § 107) to the mass ingestion of copyrighted works. Unlike other jurisdictions that sought statutory fixes, the US approach has been defined by high-stakes litigation in federal courts, primarily the Northern District of California and the Southern District of New York.

1.1 The Policy Baseline: The US Copyright Office Part 3 Report

On May 9, 2025, the U.S. Copyright Office released its long-awaited report, Copyright and Artificial Intelligence: Part 3 – Generative AI Training. This document serves as the foundational policy text for the US government's stance on AI and copyright in 2025.¹

The Report effectively ended speculation regarding an immediate legislative "fix" such as a compulsory licensing scheme. Instead, the Office reaffirmed that existing copyright principles, specifically the fair use doctrine, should govern the training of AI models. However, the Office’s analysis was far from a blanket endorsement of the AI industry's practices. The Report emphasized that fair use is a context-specific, fact-intensive inquiry that cannot be determined in the abstract.¹

Crucially, the Report questioned the "transformativeness" of generative AI models in instances where the model's purpose is to generate content that competes directly with the training data. The Office noted that while the technical act of copying for analysis (intermediate copying) has historically been protected, the "purpose and character" analysis for Generative AI is complicated by the fact that the output often serves the same intrinsic purpose as the input—creative expression.¹ This "market substitution" concern became the central theme of subsequent litigation.

1.2 The "Bifurcated" Fair Use Doctrine: Bartz and Kadrey

The most significant legal development of 2025 was the emergence of a "bifurcated" fair use analysis, crystallized by two summary judgment rulings in June 2025: Bartz v. Anthropic PBC and Kadrey v. Meta Platforms, Inc. These cases dismantled the monolithic view of "AI training" and instead separated the act of training from the source of the data.

1.2.1 Bartz v. Anthropic: The Piracy Exception

In Bartz v. Anthropic, Judge William Alsup of the Northern District of California addressed whether Anthropic's use of copyrighted books to train its Claude models constituted fair use. The plaintiffs alleged that Anthropic utilized "The Pile," a massive dataset that included "Books3," a constituent dataset sourced from "shadow libraries" (pirated ebook repositories like Bibliotik).²

The court’s ruling on June 23, 2025, was nuanced. Judge Alsup agreed with Anthropic on the technical aspect of training, finding that the computational analysis of texts to extract statistical correlations and linguistic patterns was "highly transformative." This use served a fundamentally different purpose than the original books (which were meant for human entertainment), thus satisfying the first factor of fair use regarding the training process itself.¹⁰

However, the court denied summary judgment on the issue of the data source. Judge Alsup ruled that "Anthropic had no entitlement to use pirated copies for its central library" and that "Creating a permanent, general-purpose library was not itself a fair use excusing Anthropic's piracy".² This ruling established a critical precedent: Fair use cannot cleanse the taint of piracy. Even if the use (training) is transformative, the possession and ingestion of illicitly acquired data remains an infringing act. This decision forced AI developers across the US to audit their datasets and purge components derived from shadow libraries to avoid liability.²

1.2.2 Kadrey v. Meta: The "Market Competition" Theory

Two days later, on June 25, 2025, Judge Vince Chhabria issued a ruling in Kadrey v. Meta Platforms, Inc. that further tightened the fair use defense. Similar to Bartz, the plaintiffs (authors) alleged that Meta trained its LLaMA models on copyrighted books without permission. Meta argued that its use was transformative and therefore fair use as a matter of law.¹¹

While acknowledging the transformative nature of extracting information from books to build a language model, Judge Chhabria introduced a "market competition" theory that expanded potential liability. The court denied Meta's motion for total exoneration, explicitly noting that "fair use... typically doesn't apply to copying that will significantly diminish the ability of copyright holders to make money from their works".¹¹

The court emphasized that if an AI model creates a "substitute" for the original work, the transformative defense is weakened. This ruling shifted the burden of proof onto AI companies to demonstrate that their models do not negatively impact the market for the original works—a difficult bar to clear given the capability of LLMs to generate summaries, sequels, or stylistically similar prose that could theoretically displace the original author.¹¹

1.3 The "Substitution" Frontier: NYT v. OpenAI and Perplexity

Following the precedents set in the summer of 2025, the legal focus in late 2025 shifted from the training phase to the output phase, specifically regarding news and non-fiction content where the risk of substitution is acute.

1.3.1 The New York Times v. OpenAI

As of December 2025, this case remains in a contentious discovery phase. The core allegation is that ChatGPT regurgitates New York Times articles verbatim, serving as a direct market substitute for the newspaper's subscription service. In a significant development in late 2025, Judge Ona Wang ordered OpenAI to produce 20 million chat logs.¹² This discovery order aims to empirically test the "regurgitation" rate of the model. If the plaintiffs can prove that the model consistently outputs substantial portions of copyrighted articles, the "fair use" defense likely fails under the fourth factor (market effect), regardless of how transformative the training process was.

1.3.2 The New York Times v. Perplexity

On December 5, 2025, the New York Times opened a new front in the AI copyright war by suing Perplexity AI.¹³ This lawsuit differs from the OpenAI case as it targets "Retrieval-Augmented Generation" (RAG) rather than just model training. The Times alleges that Perplexity's search engine creates "substitutes" for its journalism by scraping real-time content and summarizing it for users, bypassing the paywall and depriving the publisher of ad revenue and subscriptions.¹³

This case challenges the "fair use" status of RAG systems. While search engines have historically enjoyed fair use protection (e.g., Authors Guild v. Google), the Times argues that Perplexity does not just index content but replaces it. A ruling against Perplexity could imperil the business models of AI search assistants that rely on real-time web summarization.¹³

1.4 Visual Arts and Compressed Copies: Andersen v. Stability AI

In the realm of visual arts, the case of Andersen v. Stability AI proceeded toward a September 2026 trial date, but significant rulings in 2025 shaped the landscape.¹⁴ The court allowed claims to proceed regarding "compressed copies," accepting the plausible theory that the AI model's weights might contain compressed representations of the training images, thereby constituting a derivative work or a form of storage infringement.¹⁴

This theory attacks the "abstraction" defense used by AI companies (which argues that models only store mathematical patterns, not images). If plaintiffs can prove that the model can reconstruct the original training images (memorization), the "fair use" defense for training becomes significantly harder to maintain, as it resembles storage and distribution rather than just learning.¹⁴

1.5 Synthesis of US Jurisprudence

By the end of 2025, the US legal position on AI training and fair use can be summarized as Conditional Fair Use:

1. Training Process: The intermediate copying of data for the purpose of pattern recognition is generally considered transformative and fair use.¹⁰
2. Data Source: The use of illicitly acquired data (e.g., shadow libraries) is infringement and is not shielded by fair use (Bartz).²
3. Market Effect: If the AI model generates outputs that serve as market substitutes for the original works (e.g., verbatim regurgitation, detailed summaries), the fair use defense is likely to fail (Kadrey, NYT).¹¹¹³

 

2. The European Union: The Statutory Compliance Regime

While the US navigated the nuances of common law, the European Union spent 2025 operationalizing a comprehensive statutory framework. The EU's approach is characterized by explicit legislative exceptions for "Text and Data Mining" (TDM) coupled with rigorous transparency and opt-out obligations mandated by the AI Act.

2.1 The AI Act and the DSM Directive: A Regulatory Pincer

The EU AI Act entered into full force in mid-2025, with key provisions regarding General-Purpose AI (GPAI) models becoming applicable on August 2, 2025.¹⁵ The AI Act does not create a new copyright exception; rather, it enforces the existing framework established by the Directive on Copyright in the Digital Single Market (DSM Directive) (2019/790).

The interaction between these two laws creates the EU's unique "Opt-Out" regime:

• Article 3 (DSM): Provides a mandatory exception for TDM for the purposes of scientific research by research organizations and cultural heritage institutions. This exception cannot be overridden by contract or opt-outs.¹⁶
• Article 4 (DSM): Provides an exception for TDM for any other purpose (including commercial AI training), unless the rightsholder has expressly reserved their rights in an "appropriate manner, such as machine-readable means".¹⁶

The AI Act bridges the gap by mandating that providers of GPAI models must (a) put in place a policy to comply with EU copyright law, and specifically (b) identify and respect the opt-outs exercised under Article 4(3) of the DSM Directive.¹⁷

2.2 The "Machine-Readable" Standard and Technical Protocols

The critical legal battleground in the EU in 2025 was the definition of "machine-readable means." Because Article 4 allows commercial TDM unless an opt-out is present, the technical validity of the opt-out determines the legality of the training.

In July 2025, the European Commission published the GPAI Code of Practice, which established the standards for compliance. Simultaneously, the EUIPO (European Union Intellectual Property Office) Study on Generative AI and Copyright provided the technical blueprint for these standards.⁴

The EUIPO study and the subsequent consultation identified a hierarchy of protocols:

1. Robots Exclusion Protocol (robots.txt): While widely used, the study noted its limitations (lack of granularity). However, the GPAI Code of Practice explicitly requires signatories to respect robots.txt as a baseline.¹⁷
2. TDM Reservation Protocol (TDM Rep): A W3C community group specification designed specifically for Article 4 compliance, allowing granular rights reservation at the file level.⁴
3. C2PA (Coalition for Content Provenance and Authenticity): A cryptographic standard for asserting provenance and rights, endorsed as a "state-of-the-art" method for expressing opt-outs in media files.⁴
4. Rights Reservation Databases: The study proposed "federated rights reservation databases" (e.g., via the Liccium Trust Engine or Valuenode) to allow rights holders to register opt-outs centrally, addressing the difficulty AI crawlers face in parsing every individual website.⁴

Implication: In 2025, an EU rightsholder who merely states "No AI Training" in a footer or Terms of Service without implementing a machine-readable protocol (like robots.txt or C2PA metadata) has arguably failed to validly opt-out under Article 4(3). Consequently, scraping their content for AI training would be legal under the TDM exception.⁴⁵

2.3 Judicial Validation: Germany as the Testbed

Germany, often the bellwether for EU copyright jurisprudence, provided the first major court rulings interpreting these provisions in late 2025.

2.3.1 Kneschke v. LAION (Hamburg Regional Court, September 2025)

In this landmark case, a photographer sued LAION (a non-profit that compiles datasets for AI training) for including his images in the LAION-5B dataset. The Hamburg Regional Court ruled in favor of LAION, finding that the creation of the dataset qualified as TDM for scientific research under Section 60d of the German Copyright Act (which implements Article 3 of the DSM Directive).¹⁸

Crucially, the court held that the creation of a dataset for AI training is intrinsically an act of "text and data mining." This validated the legal basis for non-profit research organizations to aggregate data for AI development without needing licenses, provided they fall under the scientific research definition.¹⁸

2.3.2 GEMA v. OpenAI (Munich Regional Court, November 2025)

In November 2025, the Munich Regional Court issued a ruling in GEMA v. OpenAI. GEMA, the German music collecting society, argued that OpenAI's use of lyrics constituted infringement. The court affirmed that the TDM exception (Article 4) generally covers the ingestion of data for AI training.¹⁹

However, the court introduced a critical caveat: Memorization equals Infringement. The court ruled that if the AI model is capable of reproducing the training data (e.g., outputting full song lyrics), it has exceeded the scope of the TDM exception. TDM allows for the extraction of patterns, not the reproduction of the work itself. Therefore, "overfitting" (where a model memorizes its training data) strips the developer of the TDM protection, rendering them liable for reproduction infringement.¹⁹

2.4 Synthesis of EU Jurisprudence

By late 2025, the EU position is a Statutory Opt-Out Regime:

1. Commercial Training: Permitted by default under Article 4 DSM, provided the developer respects machine-readable opt-outs (robots.txt, C2PA).⁵¹⁷
2. Scientific Research: Permitted unconditionally under Article 3 DSM for qualifying institutions.¹⁶
3. Liability Trigger: Liability attaches if the developer ignores valid opt-outs OR if the model generates infringing outputs (memorization/reproduction).¹⁹
4. Penalty: Violations are subject to the AI Act's massive fines (up to 7% of global turnover) and copyright damages.¹⁵

3. The Caribbean: Fair Dealing and Digital Sovereignty

In the Caribbean, the legal landscape in 2025 is marked by a tension between the legacy of colonial "Fair Dealing" laws and the modern necessity of digital sovereignty. Unlike the US "fair use" (which is open-ended and flexible) or the EU "TDM exception" (which is specific and statutory), Caribbean copyright laws generally require specific statutory exceptions for any use that is not authorized by the copyright holder.

3.1 The Regional Context: Fair Dealing vs. Fair Use

Most Caribbean jurisdictions (including Barbados, Jamaica, and Trinidad & Tobago) operate under a "Fair Dealing" framework derived from UK law. Fair dealing is traditionally limited to specific purposes: research, private study, criticism, review, and news reporting. It does not typically include a broad "transformativeness" test, nor does it automatically extend to commercial data processing.²⁰

In 2025, the lack of a specific "Text and Data Mining" exception in most Caribbean laws means that commercial AI training likely falls outside the scope of fair dealing, rendering it potentially infringing absent a license.²⁰

3.2 Barbados: The Legislative Vanguard

Barbados distinguished itself in 2025 by passing significant copyright reform, positioning itself as a leader in protecting creator rights in the digital age.

3.2.1 The Copyright Bill, 2025

Passed in October 2025, the Copyright Bill, 2025 replaced the outdated 1998 legislation. The bill was explicitly designed to address "digital content and streaming" and to "strengthen penalties for infringement".⁶²¹

Key provisions impacting AI and data rights include:

• Empowerment of CMOs: The Act formally empowers Collective Management Organizations (like COSCAP) to take direct legal action against infringers on behalf of their members. Previously, CMOs lacked the locus standi to sue, leaving individual creators to fight costly legal battles. This change significantly increases the litigation risk for AI companies that might ingest Barbadian music or literature without a license.⁶²¹
• Extension of Term: The Act extends copyright protection by 20 years, aligning with international trends and ensuring a longer period of exclusivity for rights holders.²¹
• No TDM Exception: Notably, despite global trends, the Bill did not introduce a broad fair use or TDM exception for AI training. By strengthening enforcement without creating an AI loophole, Barbados has effectively signaled a "permission-first" regime. AI developers wishing to train on Barbadian works (e.g., the extensive catalog of soca and calypso) must negotiate licenses.²⁰

3.3 Jamaica: Judicial Regulation and "Originality"

Jamaica has focused its 2025 regulatory efforts on the application of AI in the justice system rather than amending copyright law to facilitate AI development.

3.3.1 Practice Directions and "Hallucinations"

Chief Justice Bryan Sykes issued the Practice Direction on the Use of Artificial Intelligence in 2025. This regulation strictly prohibits the use of AI to draft affidavits, witness statements, or expert evidence to prevent the submission of "hallucinations" (fabricated case law or facts) to the court. While this regulates the legal profession, it reflects a broader judicial skepticism toward generative AI's reliability.⁸

3.3.2 Copyright Law and Originality

Jamaica continues to operate under the Copyright Act with traditional fair dealing exceptions (Sections 52-55) limited to "research or private study".²²

A critical jurisprudential barrier to AI in Jamaica is the "originality" requirement. The Jamaican Supreme Court, in Cabel Stephenson v. Doreen Hibbert, reiterated that originality requires "skill and labour" from a human author.²³ This precedent implies that:

1. Inputs: Training on Jamaican works for commercial purposes is not "private study" and is likely infringement.
2. Outputs: AI-generated works are likely not copyrightable in Jamaica, as they lack the requisite human "skill and labour".²³

Additionally, Jamaica amended its Copyright Act to accede to the Marrakesh Treaty (facilitating access for the blind), showing a willingness to create humanitarian exceptions, but has notably refrained from creating commercial AI exceptions.²⁴

3.4 Trinidad and Tobago: The "Human Author" Stance

Trinidad and Tobago remains the most conservative of the three jurisdictions regarding AI copyright reform.

• Legislative Status: The Copyright Act contains no express exception for text and data mining or AI training. Section 24 lists specific exceptions, none of which broadly cover machine learning.²⁵
• Judicial Rulings: In May 2025, Justice Westmin James sanctioned attorneys for submitting AI-generated fictitious case law, reinforcing the judiciary's view of AI as a tool requiring strict human oversight.⁹
• Policy Stance: The prevailing legal consensus, supported by the UNESCO/CARICOM AI Policy Roadmap, is that the region must "safeguard intellectual property rights" rather than dilute them. Legal experts in Port of Spain emphasize that a "human hand" is required for copyright, and that the mass scraping of data for commercial gain infringes on the moral and economic rights of creators.²⁶

3.5 Regional Oversight: The Caribbean Court of Justice (CCJ)

The CCJ, the final appellate court for Barbados and other CARICOM states, issued Practice Direction No. 1 of 2025 regarding Generative AI. This direction mandates that any use of AI in court proceedings must be disclosed and verified. This high-level judicial oversight reinforces a regional norm: AI is a high-risk tool that must be subordinated to human verification and legal accountability, a stance that aligns with a restrictive view of AI's copyright privileges.²⁷

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4. Comparative Analysis: The "Compliance Fracture"

The divergence in legal frameworks across these three regions creates a complex global compliance landscape for AI developers. The following table illustrates the "Compliance Fracture" as of December 2025.

Table 1: Comparative Liability for AI Training (Dec 2025)

 

Feature	United States	European Union	Caribbean (Barbados/Jamaica/T&T)
Primary Legal Doctrine	Fair Use (17 U.S.C. § 107) - Common Law	TDM Exception (DSM Arts 3 & 4) - Statutory	Fair Dealing - Statutory (Closed List)
Legality of Training (Open Web)	Likely Fair Use, provided the source is lawful and use is transformative (Bartz).10	Permitted by default, unless rightsholder opts out via machine-readable means.5	Likely Infringing for commercial use. No general TDM exception exists.20
Legality of Training (Shadow Libraries)	Infringement. Fair use does not apply to illicitly acquired data (Bartz).2	Infringement. Requirement for "lawfully accessible" source (DSM Art 4).16	Infringement.
Opt-Out Requirement	Voluntary. No legal obligation to respect opt-outs (though often respected for PR).	Mandatory. Must respect machine-readable protocols (robots.txt, C2PA).17	N/A. Permission is required by default (Opt-In regime).
Liability Focus	Provenance & Output (Did you steal the data? Does output substitute the original?)	Process & Compliance (Did you check for opt-outs? Did you record the training data?)	Authorization (Did you obtain a license from the CMO?)
2025 Key Development	Bartz & Kadrey bifurcated fair use; NYT discovery on regurgitation.12	Full application of AI Act; German courts define "memorization" as infringement.19	Barbados Copyright Bill 2025 empowers CMOs; Jamaica/T&T regulate AI in courts.69

4.2 Second-Order Insight: The "Data Laundering" Risk and Regulatory Arbitrage

The stark difference between the EU's "Opt-Out" regime and the US "Conditional Fair Use" creates a significant risk of regulatory arbitrage.

• The "Havana" Harbor: AI developers might be tempted to move training operations to jurisdictions with broad TDM exceptions (like Japan, Singapore, or potentially Israel) to avoid the EU's strict transparency requirements or the US's litigation risks.²⁰
• The "Shadow Library" Trap: However, the US ruling in Bartz acts as a global restraint. Since the court ruled that the possession of an illicit dataset (like Books3) negates fair use, a company cannot simply "wash" pirated data in a permissive jurisdiction and then deploy the model in the US. The "fruit of the poisonous tree" doctrine effectively extends US copyright standards to the global supply chain of any AI model intended for the American market.²

4.3 The "North-South" Divide in AI Copyright

The Caribbean's resistance to adopting US-style fair use or EU-style TDM exceptions highlights a growing "North-South" divide.

• The Global North (US/EU): Generally favors exceptions that allow their massive tech industries to ingest data at scale, viewing data as a "raw material" for innovation.
• The Global South (Caribbean): Views their cultural output (music, literature, art) as a primary economic asset. By rejecting TDM exceptions and strengthening CMOs (as Barbados did), these nations are asserting that their data is a "finished product" requiring compensation.⁶²¹
• Economic Implication: This creates a barrier to entry for local Caribbean AI startups, who cannot rely on "fair use" to train models on local content. They face high transaction costs (licensing) that their Silicon Valley competitors (who might ignore Caribbean jurisdiction or claim fair use in the US) do not. This could ironically entrench the dominance of foreign AI models in the Caribbean region.

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5. Future Outlook (2026 and Beyond)

As we look toward 2026, the legal conflict is evolving from "Can we train?" to "What can we output?"

• The "Substitution" War: The filing of NYT v. Perplexity in late 2025 signals that the next great legal battle will be over Retrieval-Augmented Generation (RAG). If courts rule that summarizing real-time news is "substitution" and not "fair use," the entire business model of AI search could collapse or be forced into a licensing model.¹³
• Technical Standardization: In the EU, the focus will be on the adoption of the TDM Reservation Protocol and C2PA. We expect 2026 to be the year where "machine-readable rights" become a standard part of file metadata, forcing a technological overhaul of how content is published on the web.⁴¹⁷
• Caribbean Licensing Markets: With Barbados empowering CMOs, we expect to see the first test cases of Caribbean collective management organizations demanding royalties from global AI platforms for the use of Caribbean music and literature. This could lead to new cross-border licensing agreements or, alternatively, the "geoblocking" of Caribbean content from AI training sets.⁶

6. Conclusion

In 2025, the answer to "Does AI training constitute Fair Use?" depends entirely on where the server—and the lawyer—is located.

• In the US: Yes, it is Fair Use, if you didn't steal the data and your AI doesn't plagiarize the output. The courts have carved out a space for innovation but fenced it off from piracy and direct market competition.¹⁰¹¹
• In the EU: Yes, it is a TDM Exception, if you respect the technical "No Trespassing" signs (opt-outs) and follow the bureaucratic map of the AI Act.⁵
• In the Caribbean: No, it is likely Infringement. The region has chosen to prioritize the economic rights of its creators over the unbridled expansion of AI training, betting that strong copyright enforcement will ultimately yield better economic returns than permissive open-ended exceptions.⁶

The "Fair Use" consensus of the early 2020s has shattered. In its place is a complex, fragmented global map of compliance, where data provenance, technical protocols, and jurisdictional boundaries define the legality of artificial intelligence.

7. References

 

Ref ID	Title / Jurisdiction	Description / Source
1	US Copyright Office Part 3 Report	Copyright and Artificial Intelligence: Part 3 – Generative AI Training (May 9, 2025). Defined US policy on fair use for AI training. 11
2	Bartz v. Anthropic (Ruling)	Bartz v. Anthropic PBC, No. 24-cv-05417 (N.D. Cal. June 23, 2025). Ruled that training on pirated "shadow library" data (Books3) is not fair use. 3
3	Bartz v. Anthropic (Settlement)	Settlement details ($1.5 billion) following the class certification and summary judgment ruling.
4	EUIPO GenAI Study 2025	Study on Generative Artificial Intelligence and Copyright (2025). Identifies protocols like TDM Rep and C2PA for EU opt-outs. 2828
5	EU TDM Protocols	European Commission consultation on TDM opt-out protocols under the AI Act and GPAI Code of Practice. 2925
6	Barbados Copyright Bill 2025	Copyright Bill, 2025 (Passed Oct 2025). Updates copyright law, empowers CMOs, does not include broad AI/TDM exceptions. 87
7	Barbados Senate Passage	Confirmation of the Copyright Bill's passage in the Barbados Senate (Oct 2025). 30
8	Jamaica AI Practice Direction	Practice Direction on the Use of Artificial Intelligence (2025) issued by Chief Justice Bryan Sykes. 9
9	Trinidad AI Court Ruling	Justice Westmin James sanctions attorneys for submitting AI-generated fake cases (Nexgen Pathology Services Ltd v Darceuil Duncan).31
10	Bartz v. Anthropic (Training)	Ruling that the act of intermediate copying for pattern recognition is transformative and fair use. 313
11	Kadrey v. Meta	Kadrey v. Meta Platforms, Inc. (N.D. Cal. June 25, 2025). Denied summary judgment for Meta based on "market substitution" theory. 1432
12	NYT v. OpenAI (Discovery)	Order compelling OpenAI to produce 20 million chat logs to test for regurgitation (Judge Ona Wang, Dec 2025). 16
13	NYT v. Perplexity	The New York Times v. Perplexity AI (Filed Dec 5, 2025). Lawsuit targeting RAG and AI search as market substitution. 1817
14	Andersen v. Stability AI	Andersen v. Stability AI (2025 Rulings). Allowed claims regarding compressed copies and model weights to proceed. 3319
15	EU AI Act Timeline	Implementation dates for GPAI models (August 2, 2025). 21
16	EU DSM Directive Arts 3 & 4	Analysis of the Text and Data Mining exceptions and the machine-readable opt-out requirement. 2523
17	GPAI Code of Practice	EU Code establishing robots.txt and other protocols as standards for AI Act compliance (July 2025). 2434
18	Kneschke v. LAION	Kneschke v. LAION e.V. (Hamburg Regional Court, Sep 2025). Ruled creation of datasets for AI training is TDM for scientific research. 355
19	GEMA v. OpenAI	GEMA v. OpenAI (Munich Regional Court, Nov 2025). Ruled memorization/reproduction of lyrics exceeds TDM exception. 265
20	Caribbean Fair Dealing Analysis	Analysis of "Fair Dealing" vs "Fair Use" in Commonwealth Caribbean jurisdictions and lack of TDM exceptions. 3637
21	Barbados CMO Powers	Legislative details on empowering COSCAP (Barbados CMO) to sue for infringement. 7
22	Jamaica Copyright Act	Sections 52-55 of the Copyright Act regarding fair dealing for research/private study. 38
23	Jamaica Originality Case	Cabel Stephenson v. Doreen Hibbert (2022). Supreme Court ruling on "skill and labour" and human authorship. 39
24	Jamaica Marrakesh Treaty	Amendments to Jamaica's Copyright Act for the visually impaired (Marrakesh Treaty) without broader AI exceptions. 40
25	Trinidad & Tobago Copyright	Copyright Act lack of TDM exception and Section 24 limitations. 41
26	Caribbean AI Policy	UNESCO/CARICOM AI Policy Roadmap emphasizing protection of IP rights. 42
27	CCJ Practice Direction	Practice Direction No. 1 of 2025 on the Use of Generative AI Tools in Court Proceedings (Feb 2025). 1010

 

Works cited

1. Copyright and Artificial Intelligence | U.S. Copyright Office, accessed December 5, 2025, https://www.copyright.gov/ai/
2. Copyright Office Issues Key Guidance on Fair Use in Generative AI Training - Wiley Rein, accessed December 5, 2025, https://www.wiley.law/alert-Copyright-Office-Issues-Key-Guidance-on-Fair-Use-in-Generative-AI-Training
3. Two California District Judges Rule That Using Books to Train AI is Fair Use, accessed December 5, 2025, https://www.whitecase.com/insight-alert/two-california-district-judges-rule-using-books-train-ai-fair-use
4. Fair Use and AI Training: Two Recent Decisions Highlight the Complexity of This Issue, accessed December 5, 2025, https://www.skadden.com/insights/publications/2025/07/fair-use-and-ai-training
5. GEMA, Getty and beyond: AI and copyright litigation in the EU and the UK - Taylor Wessing, accessed December 5, 2025, https://www.taylorwessing.com/en/interface/2025/online-and-ai-generated-content/ai-and-copyright-litigation-in-the-eu-and-the-uk
6. EXECUTIVE BRIEFING The Development of Generative Artificial Intelligence from a Copyright Perspective - EUIPO, accessed December 5, 2025, https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/observatory/documents/reports/2025_GenAI_from_copyright_perspective/2025_GenAI_from_copyright_perspective_executive_brief_en.pdf
7. New copyright law gives creators legal bite in protecting works - Barbados Today, accessed December 5, 2025, https://barbadostoday.bb/2025/10/22/new-copyright-law-gives-creators-legal-bite-in-protecting-works/
8. Copyright Bill hailed as milestone for creative future - Barbados Today, accessed December 5, 2025, https://barbadostoday.bb/2025/10/22/copyright-bill-hailed-as-milestone-for-creative-future/
9. Jamaica becomes regional leader with new rules for AI use in courts - CNW Network, accessed December 5, 2025, https://www.caribbeannationalweekly.com/news/jamaica-becomes-regional-leader-with-new-rules-for-ai-use-in-courts/
10. PRACTICE DIRECTION NO. 1 OF 2025 THE USE OF GENERATIVE ARTIFICIAL INTELLIGENCE TOOLS IN COURT PROCEEDINGS This Practice Directio - Caribbean Court of Justice, accessed December 5, 2025, https://ccj.org/wp-content/uploads/2025/02/PRACTICE-DIRECTION-NO.-1-OF-2025-THE-USE-OF-GENERATIVE-ARTIFICIAL-INTELLIGENCE-TOOLS.pdf
11. Copyright and Artificial Intelligence, Part 3: Generative AI Training Pre-Publication Version, accessed December 5, 2025, https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-3-Generative-AI-Training-Report-Pre-Publication-Version.pdf
12. Bartz v. Anthropic - BakerHostetler, accessed December 5, 2025, https://www.bakerlaw.com/bartz-v-anthropic/
13. From Books to Bots: Key Takeaways from the Anthropic Fair Use Decision for AI Developers and Copyright Holders | Insights | Ropes & Gray LLP, accessed December 5, 2025, https://www.ropesgray.com/en/insights/alerts/2025/06/from-books-to-bots-key-takeaways-from-the-anthropic-fair-use-decision-for-ai-developers
14. Kadrey et al v. Meta Platforms, Inc., No. 3:2023cv03417 - Document 598 (N.D. Cal. 2025), accessed December 5, 2025, https://law.justia.com/cases/federal/district-courts/california/candce/3:2023cv03417/415175/598/
15. What Business Lawyers Can Learn from the First AI Copyright Fair Use Rulings, accessed December 5, 2025, https://www.americanbar.org/groups/business_law/resources/business-law-today/2025-september/ai-copyright-fair-use-rulings-business-lawyers/
16. OpenAI forced to release 20 million chat logs in NYT lawsuit - Windows Central, accessed December 5, 2025, https://www.windowscentral.com/artificial-intelligence/openai-chatgpt/judge-forces-openai-to-produce-20-million-chat-logs-in-copyright-lawsuit
17. The New York Times sues Perplexity AI for ‘unfair usage’ of its content: What the lawsuit says, accessed December 5, 2025, https://timesofindia.indiatimes.com/technology/tech-news/the-new-york-times-sues-perplexity-ai-for-unfair-usage-of-its-content-what-the-lawsuit-says/articleshow/125792040.cms
18. New York Times sues AI startup for 'illegal' copying of millions of articles - The Guardian, accessed December 5, 2025, https://www.theguardian.com/technology/2025/dec/05/new-york-times-perplexity-ai-lawsuit
19. Andersen v. Stability AI: The Landmark Case Unpacking the Copyright Risks of AI Image Generators - NYU Journal of Intellectual Property & Entertainment Law, accessed December 5, 2025, https://jipel.law.nyu.edu/andersen-v-stability-ai-the-landmark-case-unpacking-the-copyright-risks-of-ai-image-generators/
20. Top Takeaways from Order in the Andersen v. Stability AI Copyright Case, accessed December 5, 2025, https://copyrightalliance.org/andersen-v-stability-ai-copyright-case/
21. Implementation Timeline | EU Artificial Intelligence Act, accessed December 5, 2025, https://artificialintelligenceact.eu/implementation-timeline/
22. New EU Code of Practice for General-Purpose AI Models: What impact will it have on copyright? - Dentons, accessed December 5, 2025, https://www.dentons.com/ru/insights/articles/2025/september/19/new-eu-code-of-practice-for-general-purpose-ai-models
23. The New Copyright Directive: Text and Data Mining (Articles 3 and 4) - Wolters Kluwer, accessed December 5, 2025, https://legalblogs.wolterskluwer.com/copyright-blog/the-new-copyright-directive-text-and-data-mining-articles-3-and-4/
24. The General-Purpose AI Code of Practice | Shaping Europe's digital future, accessed December 5, 2025, https://digital-strategy.ec.europa.eu/en/policies/contents-code-gpai
25. EUIPO study on generative AI and copyright: Technical solutions for opt-out declarations and transparency measures - Taylor Wessing, accessed December 5, 2025, https://www.taylorwessing.com/en/insights-and-events/insights/2025/05/euipo-study-on-generative-ai-and-copyright
26. EUIPO study highlights legal gaps and policy needs in AI and copyright governance - CADE, accessed December 5, 2025, https://cadeproject.org/updates/euipo-study-highlights-legal-gaps-and-policy-needs-in-ai-and-copyright-governance/
27. text and data mining opt-out in Article 4(3) CDSMD: Adequate veto right for rightholders or a suffocating blanket for European artificial intelligence innovations? | Journal of Intellectual Property Law & Practice | Oxford Academic, accessed December 5, 2025, https://academic.oup.com/jiplp/article/19/5/453/7614898
28. Development of Generative Artificial Intelligence from a Copyright Perspective - EUIPO, accessed December 5, 2025, https://www.euipo.europa.eu/en/publications/genai-from-a-copyright-perspective-2025
29. Commission launches consultation on protocols for reserving rights from text and data mining under the AI Act and the GPAI Code of Practice | Shaping Europe's digital future, accessed December 5, 2025, https://digital-strategy.ec.europa.eu/en/consultations/commission-launches-consultation-protocols-reserving-rights-text-and-data-mining-under-ai-act-and
30. Senate passes new copyright law - Nation News, accessed December 5, 2025, https://nationnews-brb.newsmemory.com/?publink=2482e3d5b_134fbac
31. Agentic AI and the Law: Preparing Trinidad and Tobago for the Next Digital Leap, accessed December 5, 2025, https://polanc.com/agentic-ai-and-the-law-preparing-trinidad-and-tobago-for-the-next-digital-leap/
32. Meta Wins on Fair Use for Now, but Court Leaves Door Open for “Market Dilution”, accessed December 5, 2025, https://www.authorsalliance.org/2025/06/26/meta-wins-on-fair-use-for-now-but-court-leaves-door-open-for-market-dilution/
33. Copyright and AI: the Cases and the Consequences | Electronic Frontier Foundation, accessed December 5, 2025, https://www.eff.org/deeplinks/2025/02/copyright-and-ai-cases-and-consequences
34. European Commission receives final version of General-Purpose AI Code of Practice | IAPP, accessed December 5, 2025, https://iapp.org/news/a/european-commission-receives-final-version-of-general-purpose-ai-code-of-practice
35. Germany: landmark court decision deals with AI training and copyright | Global law firm, accessed December 5, 2025, https://www.nortonrosefulbright.com/en/knowledge/publications/218a3079/germany-landmark-court-decision-deals-with-ai-training-and-copyright
36. Copyright and AI in the UK: Opting-In or Opting-Out? | GRUR International | Oxford Academic, accessed December 5, 2025, https://academic.oup.com/grurint/article/74/11/1055/8209765
37. compliance of the fair use clause in the South African copyright amendment bill with the three-step test and the constitution of South Africa | Journal of Intellectual Property Law & Practice | Oxford Academic, accessed December 5, 2025, https://academic.oup.com/jiplp/article/20/7/447/8128929
38. Jamaica Copyright Act, ss. 52-55 (fair dealing) | H2O - Open Casebooks, accessed December 5, 2025, https://opencasebook.org/casebooks/405-copyrightx-jamaica/resources/9.3-jamaica-copyright-act-ss-52-55-fair-dealing/
39. AI: sufficiently recognized by the laws in the music industry? - Myers, Fletcher & Gordon, accessed December 5, 2025, https://myersfletcher.com/ai-sufficiently-recognized-by-the-laws-in-the-music-industry/
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41. Research Exceptions in Comparative Copyright Law, accessed December 5, 2025, https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1074&context=research
42. Caribbean Artificial Intelligence Policy Roadmap - UNESCO, accessed December 5, 2025, https://www.unesco.org/en/articles/caribbean-artificial-intelligence-policy-roadmap

 

 

The Architect of a Caribbean IP Identity: An Analysis of the Major Contributions of Dr. Abiola Inniss to Intellectual Property Law and Policy

Introduction: Establishing the Preeminent Authority on Caribbean IP

In the complex and evolving landscape of international intellectual property (IP) law, the contributions of Dr. Abiola Inniss represent a pivotal and transformative force, particularly within the Caribbean region. An examination of her extensive body of work reveals a figure whose expertise is not merely declared but demonstrated through a profound and multi-faceted engagement with the subject.1 She is widely recognized as the leading analyst, scholar, and architect of a modern, region-specific discourse on intellectual property in the Caribbean.2 Her career signifies a paradigm shift away from the passive adoption of international legal norms toward the active, strategic development of a bespoke regional framework tailored to the unique economic, cultural, and social realities of the Caribbean.

Dr. Inniss’s authority is built upon a unique convergence of roles. As an academic researcher, she holds a Doctor of Philosophy in Public Policy and Administration with a specialization in Law and Policy from Walden University, providing a rigorous empirical foundation for her work.2 As an institution-builder, she is the Founding Director of the Caribbean and Americas Intellectual Property Organization (CAAIPO), the only non-governmental organization singularly dedicated to the education, research, and practical development of IP rights and policies in the region.2 This role institutionalizes her vision for a Caribbean-led approach to IP strategy. Furthermore, as a prolific author, she has produced foundational books such as Essays in Caribbean Law and Policy, numerous scholarly articles, and practical legal guides that demystify the complexities of the regional IP system for stakeholders.7 Finally, as a public intellectual, she actively shapes policy debates through direct engagement with national governments, public commentary on contemporary issues, and educational outreach via modern media platforms.3

This report will demonstrate that the major contributions of Dr. Abiola Inniss are best understood not as a discrete list of achievements, but as a "consistent and coherent intellectual project".1 This project is systematically constructed, with her peer-reviewed publications and doctoral research providing the empirical and theoretical foundation for the broader advocacy and concrete policy recommendations present in her other writings and institutional work. The analysis will proceed thematically, examining the core tenets of her intellectual framework: the foundational thesis for a bespoke Caribbean IP system, her trenchant critique of the regional and international status quo, her pragmatic proposals for building new institutional and judicial architecture, her defense of cultural sovereignty through the protection of traditional knowledge, and her impactful role as a public intellectual translating scholarship into tangible change.

Part I: The Foundational Thesis - The Case for a Bespoke Caribbean IP Framework

The intellectual project of Dr. Abiola Inniss is anchored in a central, unifying thesis: the imperative for the Caribbean to develop its own intellectual property framework, meticulously designed to serve its unique developmental needs. This thesis is not merely a theoretical proposition but is substantiated by rigorous empirical research that diagnoses the failures of existing models and provides the evidence base for a new strategic direction.

A. The Central Argument: Rejecting the Transposition of Western Models

The most consistent thread across Dr. Inniss's entire body of work is a powerful and sustained argument against the "simple transposition of IP models from developed nations onto the unique legal, cultural, and economic landscape of the Caribbean".1 She contends that this conventional approach, often encouraged by international bodies, is not only ineffective but can be actively "detrimental to regional development".1 The core of this argument is that IP regimes are not neutral, universally applicable tools. Instead, they are products of specific historical and economic contexts. The models developed in the Global North are designed to protect and incentivize the forms of innovation—primarily capital-intensive, patent-driven research and development—that characterize those economies.

Dr. Inniss posits that applying this model wholesale to the Caribbean is fundamentally misguided. The region's unique cultural diversity, its complex history, and its distinct path of economic evolution present IP challenges that are different from any other place in the world.14 Consequently, a legal framework that does not account for these specificities is destined to be misaligned with the region's actual innovative activities and developmental priorities. This critique moves the regional conversation beyond a simple focus on compliance with international agreements like the WTO's TRIPS Agreement and toward a more sophisticated strategic consideration of how IP can be harnessed as a genuine tool for local economic growth and social welfare.

B. The Empirical Bedrock: The 2017 Dissertation

This central thesis is not based on abstract reasoning alone; it is grounded in the detailed empirical findings of her 2017 Ph.D. dissertation, "Examining Intellectual Property Rights, Innovation and Technology Within the Caricom Single Market and Economy".2 This study stands as a landmark piece of research, providing the data that substantiates her broader policy arguments. The qualitative case study examined the effects of IP policies on firms in four of the largest CARICOM economies: Guyana, Barbados, Trinidad & Tobago, and Jamaica.3

Key Findings Analyzed:

• "Paucity of data": A critical initial finding was the severe lack of empirical evidence on how IP policies actually affect the decisions of local firms to innovate. Her research was designed to fill this significant gap in regional scholarship, which had left policymakers operating without a clear evidence base.6

• Policy Disconnect: The study revealed a widespread "lack of clear IPRs policies" across the sample countries. This absence of clear direction at the highest levels of government created an environment of uncertainty and ambiguity, hindering the development of a coherent innovation strategy.3

• The Innovation Paradox: Perhaps the most startling and consequential finding of the dissertation was the discovery of an inverse relationship between the strength of formal IP regimes and the level of innovation. The study found "high levels of innovation where policies were weakest".6 The case of Guyana was particularly illustrative; it exhibited the "highest level of innovation among small- and medium-sized enterprises while having the lowest level of IPR laws, enforcements, and policies" in the CARICOM region.15 This counterintuitive result directly challenges the orthodox view that stronger IP laws automatically lead to greater innovation.

• Firm Reluctance: Corroborating the paradox, the research also uncovered a "general reluctance by firms... to invest in innovation and technology," even in those countries that had placed a greater emphasis on formal IPRs.3 This suggested that the existing IP systems were not providing the incentives they were theoretically supposed to.

Theoretical Grounding:

Importantly, Dr. Inniss’s critique is not an argument against intellectual property itself. Her study is framed by Landes and Posner's utilitarian exposition, a theory which posits that the justification for IPRs should be their ability to maximize social welfare.6 By adopting this framework, she establishes that her goal is not to dismantle IP protections, but to reorient them toward a system that demonstrably serves the public good and contributes to the economic and social welfare of Caribbean communities, which international rankings have shown to be negatively impacted by the status quo.6

The dissertation's findings provide a powerful diagnostic tool for understanding the deep-seated issues within Caribbean IP policy. The "Innovation Paradox" is particularly revealing. The fact that innovation was found to be thriving in Guyana, in the near-absence of a formal IP system, directly contradicts the conventional narrative promoted by many international development organizations. This suggests that the primary drivers of innovation in the Caribbean may not be the formal, patent-centric R&D models of developed nations. Instead, innovation in the region is more likely to be endogenous, necessity-driven, adaptive, and rooted in informal economic activities and cultural practices.

From this perspective, the observed "reluctance" of larger firms to invest in formal IP-driven innovation is not necessarily a sign of a lack of entrepreneurial spirit. It can be interpreted as a rational business response to a formal IP system that is perceived as irrelevant, ineffective, too costly, or poorly suited to the types of incremental and adaptive innovations they actually pursue. This exposes a fundamental disconnect between the theory of how intellectual property is supposed to function and the reality of how innovation actually occurs within the CARICOM Single Market and Economy (CSME). This empirically-backed insight effectively invalidates the "one-size-fits-all" approach to IP policymaking and lays the groundwork for a radical reorientation. If innovation is happening outside the formal IP system, then policies focused solely on strengthening that system are destined to fail. This implies that the first step for Caribbean policymakers is not to simply copy foreign laws, but to understand, map, and support these existing, often informal, innovation ecosystems. The ultimate objective of a "bespoke" Caribbean IP framework, therefore, is not merely to have different statutes, but to create a system that recognizes, validates, and provides relevant protections for the actual innovative and creative activities of Caribbean people and businesses.

Table 1: Synthesis of Dr. Abiola Inniss's Major Publications and Intellectual Contributions
Title of Work	Type	Core Argument/Contribution	Key Source(s)
Examining Intellectual Property Rights, Innovation and Technology Within the Caricom Single Market and Economy	Ph.D. Dissertation	Provides the foundational empirical evidence for a bespoke Caribbean IP framework. Identifies the "innovation paradox" where innovation is highest in the presence of the weakest IP laws, demonstrating the failure of transposed Western models.	2
The making of policy on intellectual property, innovation, and technology within Caricom	Journal Article	Critiques three decades of CARICOM policy failure, highlighting a lack of clear direction and the ineffectiveness of "bottom-up" international interventions. Calls for an evidence-based, top-down regional strategy.	17
Essays in Caribbean Law and Policy: A Comprehensive Discourse	Book	Broadens the critique beyond IP to other areas of law, arguing for the development of a distinctive legal and regulatory framework that addresses the unique challenges of the region, including the protection of traditional knowledge.	7
Copying, Copyright and the Internet	Book	Examines the specific challenges of copyright enforcement in the digital age, analyzing EU, American, and English systems to propose solutions applicable to the Caribbean context.	7
A Comprehensive Guide to Trademark Registrations in the Caribbean	Practical Guidebook	A pragmatic tool designed to demystify the fragmented trademark registration process across Caribbean jurisdictions, empowering businesses and legal practitioners to navigate the system effectively.	5
Proposal for the CCJ as a Court of First Instance for IP Matters	Policy Proposal	A novel judicial innovation proposed to solve issues of enforcement and lack of expertise in national courts by creating a specialized, regional forum for IP dispute resolution.	19
Strategic Intellectual Property Plan for Guyana	Policy Proposal	A detailed, country-specific plan that serves as a blueprint for a holistic IP strategy, encompassing legal reform, institutional capacity-building (e.g., collective management), and human resource development.	3

Part II: A Critique of the Status Quo - Diagnosing Policy Failures in CARICOM and Beyond

Building upon her foundational research, a significant portion of Dr. Inniss's work is dedicated to a sharp and incisive critique of the prevailing intellectual property policy environment. This critique is two-pronged, targeting both the internal policy failures within the Caribbean Community (CARICOM) and the flawed, often counterproductive, interventions by external international organizations.

A. Internal Challenges: Policy Stasis and Lack of Direction within CARICOM

Dr. Inniss presents a compelling case that, for over three decades, IP policymaking within CARICOM has been "fraught with issues".15 Her analysis points to a chronic "lack of clear direction on the development of science, technology, and innovation" emanating from the highest levels of regional governance, including the CARICOM heads of government.17 This has resulted in a state of policy stasis, where the region has failed to proactively develop and implement a coherent and unified IP strategy that could drive global competitiveness and help address critical challenges like food security and climate change.17

She highlights a significant institutional failure on the part of CARICOM to demonstrate the necessary leadership in this area.22 While the Revised Treaty of Chaguaramas contains provisions calling for the promotion and protection of intellectual property, including indigenous culture and folklore, these mandates have not been translated into a robust, harmonized regional regime.23 A key structural issue she identifies is that, unlike the European Union, CARICOM does not have an overarching legal and regulatory system that binds its member states on all aspects of IP. Each country retains its "policy and legislative autonomy," leading to a fragmented landscape with varying levels of implementation and enforcement of IPR laws.15 This inconsistency creates significant barriers for businesses and innovators seeking to operate across the CSME and undermines the very concept of a single market and economy.

Her analysis of the Caribbean Patent Convention serves as an illustrative example of this critique. While she acknowledges its creation as a "long awaited and most welcome development," she simultaneously cautions against viewing it as a panacea.9 She argues that a patent convention, while important, is merely a "standalone part of the IP productivity equation".24 For the region to truly succeed, CARICOM must facilitate the creation of a comprehensive IP portfolio that includes harmonized approaches to trademarks, industrial designs, and trade secrets, rather than pursuing piecemeal legislation. A patent, she notes, "does not an IP portfolio make".24

B. External Interventions: The Flawed "Donor Industry" Approach

The second prong of Dr. Inniss's critique is aimed at the nature of external interventions in the region's IP development. She scrutinizes the methods employed by international organizations, such as the World Intellectual Property Organization (WIPO) and the European Union, as well as various donor agencies.4 She argues that their advocacy for stronger IPRs is not an act of "pure philanthropy".4 Rather, it is often driven by the considerable economic advantages that can be gained by developed countries by bringing an end to a "lopsided relationship in which billions of dollars in possible revenues... are lost in developing countries" through IP infringement.4

More pointedly, she identifies the "common methodology" of these interventions as a "flawed approach".15 This methodology typically consists of short-term investments in workshops, seminars, and training sessions. Dr. Inniss argues that these initiatives are fundamentally ineffective for several reasons. First, they often target private sector actors and public officials who have "little impact at the level of policymaking," thus failing to influence the strategic direction of governments.17 Second, these programs are not sustained long enough to institutionalize a genuine culture of innovation and fail to produce any "lasting momentum".15 Third, they fail to properly consider that the factors affecting the use of IPRs in the Caribbean often go beyond mere ignorance and may be deeply embedded in cultural or economic norms.15

Her public commentary on WIPO-hosted regional conferences serves as a sharp case study of this critique. She has called out such forums for failing to ensure wide participation from across CARICOM's 15 member states and for not sourcing the region's leading intellectuals. This results in what she terms "talk shops" that do not reach top policymakers or key decision-makers and therefore "do not make any noticeable contribution to changing the ways in which the Caribbean region treats with intellectual property issues".22

This two-pronged critique reveals a self-perpetuating cycle of policy failure. The state of inertia and lack of a unified strategy within CARICOM creates a policy vacuum. This vacuum, in turn, invites interventions from international organizations and donor agencies. However, these external interventions are often superficial, designed to align the region with an external agenda rather than to solve endogenous problems. Because these initiatives fail to engage top policymakers or address the root causes of inaction—including the lack of empirical data and region-specific scholarship—they are ineffective at creating systemic change. This failure then reinforces the initial state of policy inertia, creating a justification for yet more flawed interventions. Dr. Inniss’s work is a clear attempt to break this cycle by advocating for an internally-driven, evidence-based strategy.

Fundamentally, this critique amounts to a call for intellectual sovereignty in policymaking. The region's over-reliance on external actors and their imported, often inappropriate, models represents a form of intellectual dependency. Dr. Inniss's consistent call for more indigenous Caribbean scholarship on IP 15 and, most significantly, her establishment of CAAIPO as a regional think tank 2, are direct and concrete actions designed to counter this dependency. She argues that the Caribbean must develop its own intellectual and institutional capacity to analyze its unique problems and formulate its own solutions, using empirical data generated from within the region itself, rather than continuing to import pre-packaged and ill-fitting solutions from abroad.

Part III: Building the Framework - Pragmatic Contributions to Law and Practice

Dr. Abiola Inniss's work extends far beyond academic critique; she is equally a pragmatic architect of solutions, having developed a multi-pronged strategy to construct a new, functional IP framework for the Caribbean. Her contributions in this area are not disparate initiatives but form a cohesive system designed to address the key points of failure she identified in her research: the lack of region-specific policy research, the absence of effective judicial mechanisms, and the inaccessibility of the legal system for everyday users.

A. Institutional Architecture: The Caribbean and Americas Intellectual Property Organization (CAAIPO)

The establishment of the Caribbean and Americas Intellectual Property Organization (CAAIPO) stands as Dr. Inniss's most significant institutional contribution and a direct, constructive response to the policy vacuum she diagnosed. As its Founding Director, she created the "only non-governmental organization dedicated to education, research and practical development of intellectual property rights and policies in the Caribbean".2 CAAIPO is the institutional embodiment of her call for intellectual sovereignty. It serves as a regional think tank designed to generate the very scholarship and evidence-based analysis that she found to be critically lacking in the region's policy debates.

The organization's mandate is multifaceted. It promotes research, as exemplified by the case studies Dr. Inniss herself has designed.2 It also functions as a crucial platform for disseminating knowledge and fostering a regional conversation on IP. This is achieved through accessible platforms like the CAAIPO blog, which features articles on timely topics such as strategic planning for Guyana's IP system and the IP implications of cultural events, and the "Insights in Caribbean Intellectual Property" podcast, which discusses pressing issues in innovation, technology, and policy with leading thinkers.10 By creating this dedicated institution, Dr. Inniss has built a permanent home for the development and advocacy of a bespoke Caribbean IP framework.

B. Judicial Innovation: The Caribbean Court of Justice (CCJ) as a Specialized IP Forum

Among her most novel and impactful policy proposals is the idea, first articulated in 2010, of utilizing the Caribbean Court of Justice (CCJ) as a "court of first instance for Intellectual property matters".19 This proposal is a direct and elegant solution to one of the most persistent problems plaguing IP in the region: the lack of effective enforcement. In many Caribbean countries, even where modern IP laws have been enacted, enforcement is weak due to a lack of financial resources and, crucially, a lack of specialized judicial expertise in the highly technical field of IP law.20

The rationale for her proposal is compelling. Granting the CCJ original jurisdiction in IP matters would create a single, expert, and efficient dispute resolution forum for the entire region. This would provide a trustworthy and reliable mechanism for rights holders, thereby increasing confidence in the regional market.19 A key benefit of this centralized approach is that, over time, the CCJ would develop a coherent and harmonized body of regional IP jurisprudence. This would create legal predictability and consistency across the region, even in the absence of perfectly uniform national legislation.

The proposal is not merely aspirational; it is grounded in legal and institutional feasibility. Dr. Inniss argues that the CCJ's existing original jurisdiction to interpret and apply the Revised Treaty of Chaguaramas provides a pathway for this expansion. New protocols could be created at the level of the Treaty to formally grant the CCJ this jurisdiction.20 The enduring relevance and intellectual traction of this idea are evidenced by the fact that it was the subject of a dedicated episode of the CAAIPO podcast in 2025, a decade and a half after she first proposed it.19

C. Practical Guidance for Stakeholders: Demystifying IP Law

Recognizing that a functional IP system must be accessible to its users, Dr. Inniss has also made significant contributions as an author of practical guides for businesses, lawyers, creators, and entrepreneurs. Works such as "A Comprehensive Guide to Trademark Registrations in the Caribbean," and other planned guides on copyright and patents, are essential tools for navigating the notoriously fragmented and complex regional IP landscape.1

The Caribbean is a melange of different legal systems, a legacy of its colonial history, which presents serious obstacles to the efficient management of IP rights.26 These guides are a direct effort to overcome these obstacles by empowering regional and international stakeholders. They translate complex and varied legal requirements into practical, easy-to-use, and actionable information, detailing the necessary procedures for common circumstances like first-time registrations, mergers, and changes of name.5 This work is a crucial bottom-up complement to her top-down institutional and judicial reforms, ensuring that once a better system is in place, people will know how to use it.

Viewed together, these pragmatic contributions form a cohesive, three-pillar strategy for systemic change. The first pillar is intellectual: CAAIPO was created to generate the necessary region-specific research, data, and policy ideas—the "software" of the new system. The second pillar is judicial: the CCJ proposal is designed to create the "hardware"—a robust, centralized enforcement and adjudication mechanism. The third pillar is user-level: the practical guides serve as the "user interface," empowering individuals and businesses to actually engage with and benefit from the system. This demonstrates that Dr. Inniss is not simply a critic; she is a systems builder. She has systematically identified the key points of failure in the Caribbean IP ecosystem—inadequate research, weak adjudication, and poor accessibility—and has created or proposed a specific, tangible solution for each.

This three-pillar system is designed to create a positive feedback loop, the inverse of the "cycle of failure" she critiqued. Accessible guides (Pillar 3) would encourage more businesses and creators to utilize the IP system. This increased usage would inevitably lead to more disputes, which would then be heard by an expert CCJ (Pillar 2). The CCJ's decisions would, in turn, create a clear and predictable body of regional case law. This newfound clarity and predictability would inform the ongoing research and policy advocacy of CAAIPO (Pillar 1), which would then lead to the development of even better policies and more refined practical guidance for users. The ultimate vision is a blueprint for a self-sustaining, continuously improving Caribbean IP ecosystem that is driven by regional needs and expertise, effectively achieving the intellectual sovereignty she has long advocated for.

Part IV: Defending Cultural Sovereignty - The Protection of Traditional Knowledge and Expressions

A cornerstone of Dr. Abiola Inniss's intellectual project is her dedicated work on the protection of traditional knowledge (TK), folklore, and cultural expressions. This focus addresses a critical, yet historically neglected, dimension of intellectual property in the Caribbean, moving beyond conventional categories like patents and trademarks to defend the region's most unique and valuable intangible assets: its culture and heritage.

Her work in this area is animated by a growing awareness within the Caribbean and its diaspora of the immense value of its culture, both from a socio-psychological perspective and as a contributor to world culture.28 She documents a long history of this culture being exploited by non-Caribbean actors for commercial gain, with little or no recompense flowing back to the Caribbean economies or the communities that are the source of this knowledge and creativity.28 This history of appropriation frames the issue not just as a legal challenge, but as one of economic and social justice.

A key conceptual contribution made by Dr. Inniss is her reframing of traditional knowledge itself. She challenges the common perception of TK as being ancient or static. Instead, she defines it as a living, dynamic body of "contemporary knowledge" that is constantly evolving through a "process of periodic, even daily creation as individuals and communities take up the challenges presented by their social and physical environment".28 This redefinition is crucial because it positions TK not as a relic of the past to be preserved in a museum, but as an active, ongoing form of innovation that is relevant to the present and future development of the region.

Based on this understanding, Dr. Inniss advocates for the creation of sui generis legal frameworks—that is, unique systems specially designed for the subject matter—to protect the TK and cultural expressions of specific Caribbean communities. She explicitly identifies groups whose heritage requires such protection, including "Amerindian tribes, Rastafarians, practitioners of certain religions, such as Shango of Trinidad, [and] Jordanites of Guyana," as well as traditional medicines and folklore throughout the region.14 This approach recognizes that a one-size-fits-all law is insufficient and that protections must be tailored to the specific nature of the knowledge and the customs of the communities that hold it.

The core policy recommendation that emerges from her work is clear and principled. It is rooted in the idea that the life skills and knowledge passed down through generations should be the preserve of the peoples who originated and practiced them. Therefore, any use of such knowledge for commercial purposes must be subject to two conditions: first, it must be done with the permission of the originators, and second, where financial gain is intended, the originating community "should benefit financially as well".28 This principle directly connects to the overarching theme of her doctoral dissertation: that intellectual property systems should be designed to maximize social welfare.6 By ensuring that communities benefit from the commercialization of their own heritage, this approach transforms IP from a potential tool of exploitation into a mechanism for sustainable community development.

This focus on traditional knowledge represents a profound expansion of the very definition of "intellectual property" within the Caribbean context. Traditional IP law, with its emphasis on patents, trademarks, and copyright, is built upon Western legal concepts of individual authorship, novelty, and invention for a limited time. These concepts are often fundamentally incompatible with forms of knowledge that are held communally, transmitted inter-generationally, and considered part of a collective heritage rather than an individual's property. By championing the legal protection of TK and cultural expressions, Dr. Inniss is arguing that the Caribbean legal paradigm must stretch to encompass and validate forms of creativity and knowledge that are central to Caribbean identity but are rendered invisible or unprotectable under conventional IP law. This is an essential component of creating a truly "bespoke" regional framework.

Ultimately, this work frames intellectual property law as a potential tool for cultural and economic decolonization. The historic and ongoing exploitation of Caribbean cultural assets—from music and folklore to traditional designs and knowledge—by foreign commercial interests can be viewed as a continuation of colonial-era patterns of extraction. By advocating for a legal framework that grants Caribbean communities legal control over their own cultural heritage and ensures they are the primary financial beneficiaries of its commercialization, Dr. Inniss's work poses a direct challenge to this legacy. In this context, IP law is elevated from a technical legal field to a powerful instrument for social justice, cultural preservation, and economic self-determination, empowering communities to reclaim sovereign ownership of their most valuable intangible assets.

Part V: The Public Intellectual - Shaping the Regional Discourse

A defining feature of Dr. Abiola Inniss's career is her ability to transcend the traditional boundaries of academia and function as an influential public intellectual. She has deliberately and strategically worked to translate her rigorous scholarly research into accessible formats to shape public opinion, influence policymakers, and empower stakeholders across the Caribbean. This commitment ensures that her intellectual project does not remain confined to academic journals but becomes a driving force for tangible change in the real world.

A. Educator and Advocate

Dr. Inniss is a "highly regarded international speaker" who has leveraged numerous platforms to educate a wide range of audiences on the complexities of Caribbean IP.2 Her role as a keynote speaker and presenter at major conferences, such as "The IPR Gorilla Virtual IP Conference" and the Caribbean Court of Justice Academy for Law's biennial conference, places her at the center of high-level legal and policy discussions.30 Furthermore, her capacity as a special consultant to the World Intellectual Property Organization (WIPO) on Caribbean copyright issues demonstrates her recognized expertise and influence within the primary international body governing intellectual property.11 This work allows her to advocate for a more nuanced, evidence-based approach to IP policy directly to the institutions and individuals responsible for its implementation.

Recognizing the limitations of traditional academic dissemination, Dr. Inniss has embraced modern media to broaden the conversation. The creation of the CAAIPO blog and the "Insights in Caribbean Intellectual Property" podcast are strategic efforts to engage a wider audience beyond legal and policy experts.10 The podcast, as the official voice of CAAIPO, serves as a vital tool for public education, discussing topics such as the "IP Gap" in CARICOM, the need to protect Caribbean heritage, and the economic opportunities being missed by the region.19 Crucially, these platforms are also used to amplify her own specific policy proposals, with episodes dedicated to reviewing her new guidebook on trademarks and debating her long-standing proposal for the CCJ to act as a specialized IP tribunal.19 This creates a dynamic feedback loop where her scholarly work informs public discourse, which in turn builds support for her policy initiatives.

B. Policy Advisor and Commentator

Dr. Inniss has not hesitated to engage directly in national policy debates, moving from theoretical advocacy to detailed, prescriptive advice. Her proposal for "developing a strategic Intellectual Property Plan for Guyana" stands as a prime example of this practical engagement.3 This was not a general recommendation but a comprehensive blueprint for action. It called for the establishment of a working commission composed of scholars and practitioners, the development of a modern and holistic legal framework that incorporates emerging technologies like blockchain for copyright registration, the urgent creation of collective rights management agencies to ensure creators can collect revenues, and a focus on recruiting and resourcing personnel with the necessary advanced skill sets.3 This detailed plan, which was recognized and supported by creative industry stakeholders in Guyana, demonstrates her ability to translate high-level strategic thinking into a concrete, implementable policy agenda.32

In addition to formal policy proposals, she frequently weighs in on contemporary IP issues, making the often-abstract principles of intellectual property relevant and understandable to the general public. Her commentary on the "Kanye West incident," which involved the use of Jamaican national emblems, is a case in point.4 By analyzing such a high-profile cultural event through the lens of intellectual property rights, she effectively illustrates the real-world implications of IP law for national identity and cultural heritage, sparking a broader public conversation on these important issues.

This multifaceted engagement reveals the trajectory of a scholar-activist. Many academics publish their research and consider their work complete. Dr. Inniss, however, follows a clear and deliberate path that leads from foundational research (her dissertation) to critical analysis (her articles), to comprehensive synthesis (her books), to institutionalization (CAAIPO), to broad public advocacy (her podcast and commentary), and finally to direct policy prescription (her plan for Guyana). This demonstrates a career model that sees no division between rigorous academic inquiry and the pursuit of real-world impact. It is a strategic and sustained effort to ensure that her research does not languish in an ivory tower but is actively deployed as a tool to drive legal, institutional, and policy reform.

Through this work, Dr. Inniss is effectively creating a "market" for IP discourse in the Caribbean. A major problem she consistently identifies is the lack of deep engagement with and understanding of IP issues among both policymakers and the public.11 Her comprehensive communication strategy—spanning formal speeches, accessible blog posts, engaging podcasts, and practical guidebooks—is not merely about disseminating information. It is a calculated effort to build the political and social will necessary for the deep, systemic reforms she advocates. By making intellectual property policy a subject of public conversation and demonstrating its profound relevance to culture, economic development, and national identity, she is cultivating the very constituency that can demand, support, and ultimately sustain the implementation of the bespoke Caribbean IP framework she has spent her career designing.

Conclusion: Synthesizing a Legacy of Impact and Influence

The major contributions of Dr. Abiola Inniss to intellectual property law and policy constitute a comprehensive and transformative intellectual project that has fundamentally reshaped the discourse and direction of IP in the Caribbean. Her work, characterized by its empirical rigor, trenchant critique, and pragmatic solutions, has established her as the principal architect of a modern, autonomous, and strategically-minded Caribbean IP identity. She has systematically moved the regional paradigm away from a posture of passive compliance with external, often ill-suited, international norms and toward one of active, evidence-based, and culturally-attuned strategic development.

Her legacy is built upon a coherent and integrated foundation. It begins with the empirical diagnosis presented in her doctoral dissertation, which identified the critical disconnect between conventional IP theory and the reality of innovation in the CARICOM region. This research provided the evidence for her central thesis: the imperative of rejecting transposed Western models in favor of a bespoke framework. This led to a systemic critique of both the policy inertia within CARICOM and the flawed, superficial interventions of the international "donor industry," revealing a cycle of failure that has long stymied regional progress.

Crucially, Dr. Inniss did not stop at critique. Her most enduring contribution lies in the construction of a new intellectual, institutional, and judicial framework designed to break this cycle. Through the establishment of CAAIPO, she created the intellectual engine needed to generate region-specific research and policy. Through her innovative proposal for the Caribbean Court of Justice to serve as a specialized IP tribunal, she offered a powerful solution to the chronic problem of enforcement and judicial capacity. And through her practical guidebooks and public advocacy, she has worked to empower the very stakeholders—creators, entrepreneurs, and businesses—whom the system is meant to serve. Her pioneering work on the protection of traditional knowledge and cultural expressions has further expanded the legal imagination, framing IP as a vital tool for cultural sovereignty and economic decolonization.

In synthesizing these multifaceted contributions, the portrait that emerges is one of a scholar-activist who has built a bridge from academic inquiry to tangible impact. Dr. Abiola Inniss has not only provided the critical analysis needed to understand the shortcomings of the past but has also laid out a clear and actionable blueprint for the future. Her work provides a powerful model, not only for the Caribbean but for other developing regions seeking to create intellectual property systems that are not merely imposed from without, but are genuinely designed to serve their own unique cultural contexts and developmental aspirations.

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