Author: Al Safar Partners

Copyright is the exclusive right that is granted to authors or artists for the literary or artistic works they create to publish, broadcast, assign or sell their work for a fixed period of time. Copyright protection is granted for the expression of ideas and not for the ideas themselves. A person having an idea regarding a flying horse communicates the idea to another who creates a sketch of the same. Here the copyright protection is given to the second person who expressed the idea of a flying horse through a sketch and not to the first person even though the original idea regarding the flying horse had emerged out of him. Also every different form of expression is granted a separate protection.

In the above mentioned example, if a third person looks at the sketch of the flying horse and writes a poem describing the same then again this third person is granted a separate copyright protection for his work. Here it is noticed that the idea of the flying horse is one but the manner and form of expressing it varies from person to person. Two people may get inspired by the same idea and express it in their own original ways. It is essential that the expression should be original.

In the above mentioned example, a fourth person getting inspired by the painting also composes a poem describing the flying horse, he is also granted copyright protection. The mode of expression of the third and the fourth person is the same and they both got inspiration for the poem from the sketch of the flying horse but their expression is original and emerges out of their own mind. Had it been that the fourth person copied the poem of the third person then it would amount to infringement and he would not be granted any copyright protection. The reason for granting protection only to expressions of ideas and not ideas themselves is that if a person is granted monopoly in ideas then it would greatly hinder the various creative expressions. Also, there is no way to record and evidence the emergence of an idea in a person and hence it would create confusion and would result in more infringements.

According to the Berne Convention all “literary and artistic works” are given copyright protection. The expression “literary and artistic works” according to article 2 of the Berne Convention includes every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic-musical works; choreographic works and entertainments in silent show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

The Berne Convention also further provides that it is the matter of the country’s legislations to decide the exact scope and extension of the copyright protection it shall grant. The present article discusses the scope of copyright protection granted by UAE through its federal law no. 7 of 2002 (hereinafter referred to as ‘the law’).

Article 2 of the law provides for a list of works created by authors that shall enjoy copyright protection. This protection is enjoyed by authors, the assignees and licensees as the case may be. The list provided by the law goes as follows:

1. Books, pamphlets, articles, and other written works.

2. Computer programs and applications, databases, and similar works as determined by a ministerial decision.

3. Lectures, speeches, sermons, and any other works of similar nature.

4. Theatrical works, musical shows and pantomime.

5. Musical compositions with or without words.

6. Audio, visual or audiovisual works.

7. Architectural works, and engineering drawings and layouts.

8. Works of drawing in lines or colors, sculpture, engravings, lithography, printing on textiles, wood and metals, and any similar works of fine arts.

9. Photographic and analogous works.

10. Works of applied arts and plastic arts.

11. Illustrations, geographical maps, sketches, and three – dimensional works relative to geography, topography or architecture and others.

12. Derivative works (works derived from other works, the poem that was inspired from the painting in the example discussed is considered as a derivative work). The protection granted to derivative work in no way prejudices the protection to the original work.

13. Title of the works when they have innovation and creativity in them.

14. Written innovative broadcast programs.

Article 3 further defines the scope of copyright protection by specifying the works that are excluded from the protection. It provides that the protection is not granted to ideas, procedures, work methods, mathematical concepts, abstract principles and facts themselves. The copyright protection is however granted to the innovative expression of the same.

There are certain works that are meant for the use of the public and therefore allowing any monopoly rights to anyone over such works would prove to be prejudicial to the public at large. Such works are enlisted by the law as under:

1. Official documents regardless of their original language or the language in which they were reproduced such as texts of laws, regulations, decisions, international conventions, court decisions, arbitral awards, and decisions issued by administrative committees having judicial competence.

2. News and reports about incidents and current events which constitute mere information releases.

3. Works that have fallen into public domain.

The information or content in such work cannot be granted copyright protection but the creative expression of the same maybe granted protection. Creative expressions may be in the form of compilation, arrangement or any such innovative method.

The copyright protection is granted from the date of the first publication of the work. There is no necessity for the work to be registered with the Ministry of economy for receiving protection. But the registration of the work has better evidentiary value and therefore recommended.

———————————————————————————————————————–
For legal advice regarding the subject, please call +971 4 4221944, or call 800-LAWYER (529937).

The term ‘Fair Use’ in the context of copyright law refers to the use of material subject to copyright protection without permission or authorization from the copyright owner, in a way that would not infringe the copyright of the owner. The rationale behind the provision of the ‘Fair Use’ concept is to allow the general public to reap the benefits of the literary or artistic work in a way that would not be prejudicial to the moral and financial rights of the author. It allows the public to analyze, comment and criticize the works and helps in creating and sustaining a healthy environment for the growth of art and literature in the society.

The Berne Convention through its Article 10 permits the making of quotations from a work with appropriate details as to the source from where the quotation is taken and the author of the said quotation provided that the following conditions are met:

1. The work should have been made lawfully available to the public. This rule clarifies that only the work that is published (made available to the public through any of the modes of communication) lawfully can be subject to fair use. The word ‘lawfully’ included in the above rule stresses on the fact that fair use shall not rise from unauthorized publications.

2. The making of the quotations must be compatible with the fair practice. Every country has the right to provide the limitation regulation for the extent and purpose of the fair use of a work that is permissible. The use of a work should be compatible to the said regulations.

3. The extent of the quotations must not exceed the extent that is justified by purpose. There may be various reasons that justify fair use such as critic, comment, parody, education etc., and thus for each the extent of use varies. A parody may require much more use than a critic, and therefore it is essential to limit the use only to the extent of requirement.

The UAE provides for ‘Fair Use’ through its articles 22, 23 and 24 of the Federal law no. 7 of 2002 regarding Copyrights and Related Rights (herein after referred to as ‘the law’).

Article 22 of the law provides for the use of the copyrighted work in the following ways and circumstances provided that two conditions namely 1) the moral rights of the author are not being prejudiced and 2) the work has been lawfully published, must be satisfied:

1. The reproduction of a single copy of the work for the purpose of personal, non-profit and non-professional use. Works of fine or applied arts are an exception to this rule and they are subject to fair use only when they are exposed in a public place with the consent of the right owner or his successor. Architectural works are also an exception to the concept of Fair Use and would be subject to Fair Use only when they permanently exist in public places.

2. The Fair Use of computer programs, applications or databases is allowed only for making a single copy with the knowledge of the legitimate possessor for the following purposes:

a) For a purpose that falls within the licensed purpose.

b) For the purpose of saving or substitution in case the original copy is lost, damaged or becomes unfit for use, on a condition that the spare of extracted copy be destroyed when no more necessary.

3. Reproduction of protected works for use in judicial proceedings, or their equivalent, within the limits prescribed by such procedures, with mention of the source and the name of the author.

4. Making a single copy of the work through the non-profit archives, libraries or authentication offices, either directly or indirectly, in one of the two following instances:

a) Reproduction is made for the purpose of preserving the original copy or of substituting a lost, damaged copy or one unfit for use, if it has become impossible to obtain a substitute thereof under reasonable conditions.

b) The purpose of reproduction is the satisfaction of a request made by a physical person, to use it in a study or research provided it is done only once and on different intervals in case it was impossible to obtain a license for reproduction pursuant to the provisions of the present Law.

5. For citations of short paragraphs, excerpts, or analyses, within the customary limits of the work, for the purpose of criticism, discussion or information, with mention of the source and name of the author.

6. Performance of a work in meetings with family members or by pupils in an educational institution, so long as such performance has not been made for direct or indirect consideration.

7. Exhibition of works of fine, applied, plastic or architectural arts in broadcasts, if such works permanently exist in public places.

8. Reproduction within justified and reasonable limits, of short abstracts of a work in the form of manuscripts or audio, visual, or audiovisual recordings, for the purposes of cultural or religious education, or vocational training. The name of the author and the title of the work are to be mentioned whenever possible. The reproduction should not be made for the purpose of direct or indirect profits. Such reproduction is allowed only in case the license for the same cannot be availed.

Further, article 23 of the law brings under the scope of ‘Fair Use’ the reproduction of the work in such a way and limit that it justifies the objective behind the reproduction which is done through newspapers, periodicals or broadcasting organizations. This provision of the law applies to the following works:

1. Extracts of the works regarding current incidents that have been lawfully made available to the public. The source and author of the work must be mentioned.

2. Published articles relating to discussions of issues, which have preoccupied public opinion at a certain time. Here too, the source and name of the author of the article used must be mentioned. The articles that are prohibited upon publication cannot be used.

3. Speeches, lectures, and addresses delivered in the course of public sessions of the Parliament, judicial councils and public meetings; so long as such speeches, lectures and addresses are addressed to the public, and are reproduced within the framework of reporting current news.

This also provides that ‘Fair Use’ is allowed while using works that are protected under the title of ‘related rights’ of copyright. Thus even the owners of such related rights cannot complain of infringement if the use of the work falls within the scope of ‘Fair Use’ as provided for by the law.

———————————————————————————————————————–
For legal advice regarding the subject, please call +971 4 4221944, or call 800-LAWYER (529937).

Copyright being the exclusive right of the owner to exploit the work through publication, broadcasting, printing, making copies etc., any such act done by a person who is not the owner of the copyright and has not been assigned the copyright in a given work by the owner of the rights or without the written authorization from the copyright owner amount to copyright infringement and shall be liable to the owner of the copyright to provide for damages that owner suffers due to the said infringement of his copyright.

The UAE law regarding copyright and its related rights (federal law no. 7 of 2002) (hereinafter referred to as ‘the law’) deals with the various ways in which copyright infringement may take place and has provided for penalties for them. A list of the infringements and the penalties provided for them is as under:

1. Trespassing one of the moral or financial rights of the author or the holder of the related rights provided for in this Law which also includes the publication of any work, performance, sound recording or broadcast that is protected by the law. The publication may be through any means including but not limited to the means of computers, internet, information and communication networks. The offender in this case is sentenced to imprisonment for a minimum period of two months, and to a fine amounting to ten thousand dirhams (AED 10,000) at least to a maximum of fifty thousand dirhams (AED 50,000), or to either penalty. On recurrence of the offence the penalty increases to a six months imprisonment and a minimum fine of fifty thousand dirham (AED 50,000).

2. The selling, renting or offering for circulation, in any manner or by any means, a work, sound recording, or broadcast that is protected by the law is an offence punishable with an imprisonment for a minimum period of two months, and to a fine amounting to ten thousand dirhams (AED 10.000) at least to a maximum of fifty thousand dirhams (AED 50,000), or to either penalty. On recurrence of the offence the penalty increases to a six months imprisonment and a minimum fine of fifty thousand dirham (AED 50,000).

3. The undue manufacture or import, for the purpose of sale, rental or circulation, any counterfeited work or copies thereof, any apparatuses, equipment, devices or materials specially designed or prepared for defrauding protection or technology used by the author or holder of related right for transmitting, offering for circulation, regulating or managing such rights; or preserving a specific standard of purity of the copies is an offence under the law and is subject to a penalty of imprisonment for a minimum period of three months and a fine amounting to a minimum of fifty thousand dirhams (AED 50,000) to a maximum of five hundred thousand dirhams (AED 500,000). In case of repetition of the offence, the increased penalty is imprisonment for a minimum period of nine months and a fine amounting to a minimum amount of two hundred thousand dirhams (AED 200,000).

4. The Undue disruption or impair of any technical protection or electronic data that is aimed at regulating and managing the rights prescribed by the law is an offence that subject to a penalty of imprisonment for a minimum period of three months and a fine amounting to a minimum of fifty thousand dirhams (AED 50,000) to a maximum of five hundred thousand dirhams (AED 500,000). In case of repetition of the offence, the increased penalty is imprisonment for a minimum period of nine months and a fine amounting to a minimum amount of two hundred thousand dirhams (AED 200,000).

5. The downloading or storing in the computer any copy of the computer program or applications thereof or databases, without obtaining a license from the author or right holder or successors thereof is penalized by the law with an imprisonment for a minimum period of three months and a fine amounting to a minimum of fifty thousand dirhams (AED 50,000) to a maximum of five hundred thousand dirhams (AED 500,000). In case of repetition of the offence, the increased penalty is imprisonment for a minimum period of nine months and a fine amounting to a minimum amount of two hundred thousand dirhams (AED 200,000).

6. The using of a computer program or applications thereof or databases, without obtaining in advance a license from the author or successors thereto is penalized with a fine amounting to a minimum of ten thousand dirhams (AED 10,000) upto a maximum of thirty thousand dirhams (AED 30,000) for each program, application or database. In case of recurrence the offence shall be penalized with a minimum of thirty thousand dirhams (AED 30,000). This provision is an exception of the offences number 1 and 2 mentioned above.

Apart from the above mentioned penalties the court may also order the following:

• Confiscation and destruction of counterfeited copies subject of the offence or copies reproduced therefrom.
• The confiscation of the equipment, and devices used in the perpetration of the offence, and which cannot be used for any other purpose.
• Closing of the establishment in which the counterfeiting has been committed; for a period not exceeding six months.
• Publication of the summary of the court ruling in one or more daily newspapers on the expense of the condemned party.

Apart from the penalties for the offences, the law also provides for some intermediate measures for immediate relief to the claimant. The claimant i.e. the author or his successor may request to the President of the Court of First Instance to make any of the following orders along with an injunction order:

1. Making detailed description of the work (subject to infringement).

2. Stopping the publication, exhibition or production of the work.

3. Seizing the original or copies of the work, (whether books, pictures, drawings, performances, photographs, sound recordings or broadcasts, or otherwise); as well as the devices that are used in re-publishing or reproducing such work, provided that such devices are not valid except for re-publishing or reproducing of the work.

4. Establishing public performance as regards playing, acting or reciting a work to the public and preventing the going exhibition or prohibiting it for the future.

5. Computing the income generated from the publication, performance or exhibition, by an expert appointed for this purpose, if necessary, and seize such income in all instances.

6. Establishing the fact of trespassing on any of the rights protected under the law.
In order to execute the Injunction order, the claimant must submit the dispute to the competent court within a period of fifteen days from the date of the issue of the injunction order.

———————————————————————————————————————–
For legal advice regarding the subject, please call +971 4 4221944, or call 800-LAWYER (529937).