Copyright and Neighbouring Rights
Revision No.
77 -
Last Updated : 11-04-2002
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Quick Reference: (Click on any link in the table to go straight to the relevant paragraph) |
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Sui generis rights in respect of semiconductor
product topographies |
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In line with Malta’s present commitment to proceed with EU accession, the new copyright legislation is not only TRIPS-compliant but is also in line with the Acquis Communautaire*.
Malta is a member of the World Intellectual Property Organisation, the Patent Convention, the Berne Convention, the Paris Convention for the Protection of Industrial Property and the Universal Copyright Convention. Moreover, in 1995, Malta signed the World Trade Agreement that incorporated the TRIPS Agreement.
Works eligible for copyright protection
The following works are eligible for copyright protection:
· artistic works;
· audiovisual works;
· databases;
· literary works; and
· musical works.
There are also sui generis rights in respect of:
· databases; and
· semiconductor product topographies.
In whom does copyright vest?
Subject
to any agreement to the contrary, copyright will normally vest in the author or
joint authors.
However,
in the case of computer programs, topographies and databases that
are made in the course of employment and in the execution of the author’s
duties following instructions given by the employer, copyright shall vest in
the employer subject to any agreement to the contrary.
Specific requirements to qualify
for copyright protection
To
qualify for copyright an artistic, literary or musical
work must:
·
have
an original character; and
·
be
written down, recorded, fixed or otherwise reduced to material form.
A database must constitute the author’s intellectual creation by reason of the selection or arrangement of its contents. Any such copyright shall not extend to its contents.
Formalities
The
only formality required by law for a work to qualify for copyright protection
or for neighbouring and sui generis rights to apply is that the author,
performer, producer, broadcaster or creator, as the case may be, of the work,
at the time when the work was made, be either:
·
a
citizen of Malta; or
·
a
person domiciled in Malta; or
·
a
person who is permanently resident in Malta; or
·
a
person who is a citizen, or is domiciled or permanently resident in a State in
which copyright and neighbouring rights are protected under an international
agreement to which Malta is a party; or
·
a
body of persons or a commercial partnership constituted, established, registered
and vested with legal personality under the Laws of Malta; or
·
a
body of persons or a commercial partnership constituted, established,
registered and vested with legal personality under the Laws of a State in which
copyright and neighbouring rights are protected under an international
agreement to which Malta is a party.
Irrespective of the above, copyright is granted to any work which is eligible for copyright and neighbouring rights shall apply to any work which is made, first published, broadcast or communicated to the public, as the case may be, in Malta or in a State in which such works are protected under an international agreement to which Malta is a party.
Copyright
is also granted on every work eligible for copyright and neighbouring rights
apply to any work made by or under the direction or control of the Government
of Malta and also such governments of other States, international bodies or
other inter-governmental organizations as may be prescribed.
Duration of Copyright Protection
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Type of work |
Duration |
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Artistic works, databases,
literary and musical works |
70 years commencing from the end of the year when
the author (or, in the case of joint authors, when the last surviving author)
dies |
|
Audiovisual works |
70 years commencing from the end of the year in which the last of the following dies: · the
principal director; ·
the author of the screenplay; ·
the author of the dialogue; and the composer of music specifically created for use
in the work. |
In the case of
anonymous or pseudonymous artistic, literary or musical
works, and in the case of collective works, copyright shall
subsist for 70 years from the end of the year in which it was made available to
the public or in which it was created, as the case may be.
Where any such work
is published in volumes, parts, installments, issues or episodes, such term
shall run for each item separately.
A person who, for
the first time, lawfully publishes or communicates to the public a previously
unpublished work the copyright protection of which has expired, shall be
granted copyright protection for a period of 25 years from the time when the
work was first published or communicated to the public.
Rights of copyright holder
The
holder of a copyright shall have the exclusive right to authorize or to prohibit
the doing in Malta in respect of the protected material, either in whole or in
part and either in its original form or in any form recognizably derived from
the original, any of the following acts:
·
direct or indirect, temporary or permanent, reproduction
by any means and in any form, in whole or in part;
·
rental and lending;
·
distribution;
·
translation in other languages
(including different computer languages);
·
adaptation, arrangement and
any other alteration and the reproduction, distribution, communication,
display or performance to the public of the results thereof;
·
broadcasting or rebroadcasting
or communication to the public or cable retransmission; and
·
display or performance to
the public.
There
are a number of exceptions to these rights as, for example, in the case of the
doing of acts for purposes of research, private use, criticism or review
provided that, if such use is public, it is accompanied by a sufficient
acknowledgement; the doing of any of the said acts by way of parody, pastiche
or caricature; reproduction for face-to-face teaching; reading or recitation to
the public of a work if accompanied by a sufficient acknowledgement etc..
Copyright
in a work of architecture shall also include the exclusive right to authorize
or prevent the erection of any building which reproduces the whole or a
substantial part of the work either in its original form or in any form
recognizably derived from the original.
Moral rights of authors
Without
the author’s consent, it is not permissible for any person (including the
assignee of the copyright or a licensee thereunder) to:
·
mutilate;
·
modify;
·
distort;
·
subject to any derogatory action;
any
work during its term of copyright in a way that is prejudicial to the honour or
reputation of the author.
Until expiry of the copyright, the author of
a work also has the right to:
·
claim authorship of his work and, in particular, the
right that his name be indicated in a prominent way on the copies and in
connection with any public use of his work; or
·
request that his name be not indicated or, instead,
that his pseudonym be so indicated.
Sui generis rights in respect of databases
The
maker of a database who can show that there has been qualitatively or quantitatively
a substantial investment in either the obtaining, verification or presentation
of the contents of the database has, irrespective of the eligibility of that
database or its contents for protection by copyright and subject to certain
exceptions, the right to authorize or to prohibit acts of
extraction or re-utilisation of its contents, in whole or in substantial part
evaluated qualitatively or quantitatively.
Duration of right. 15 years from the first of January of the
year when the database was made or, if made available to the public in whatever
manner before the expiry of this term, 15 years from the first of January of
the year when the database was first made available to the public.
Sui generis rights in respect of
semiconductor product topographies
Creators of semiconductor product topographies which are the result of the creator’s own intellectual effort and are not commonplace in the semiconductor industry have, subject to certain exceptions, the exclusive right to authorize or to prevent in Malta the:
reproduction of the topography;
its
commercial exploitation; or
the
importation for the purpose of commercial exploitation of the topography
or of a semiconductor product manufactured by using the topography.
Any
such sui generis rights shall not extend to any concept, process,
system, technique or encoded information embodied in the topography.
Duration of right. 10 years from the end of the year in which
the semiconductor product topography was first commercially exploited anywhere
in the world or 15 years from this fixation or encoding of the semiconductor
product topography if it has not been commercially exploited.
Neighbouring rights
Performers
Performers
have the exclusive right to authorize or to prohibit the doing in
Malta of any of the following acts:
·
fixation of their
performance;
·
direct or indirect, temporary or permanent, reproduction
by any means and in any form, in whole or in part, of a fixation of their
performance;
·
rental and lending
of their fixed performances;
·
distribution of the original
performances fixed in phonograms and of copies thereof;
·
making available to the public of the fixation of
their performances, by wire or wireless means, in such a way that individuals
may access them from a place and a time chosen by them; and
·
broadcasting and communication
to the public of their performances unless
the performance is itself already a broadcast performance or is made
from a fixation.
Term
of protection -- 50 years from the
end of the year in which the fixation of the performance was first lawfully
published or first lawfully communicated to the public, whichever is the
earlier.
In the absence of such publication or communication, the protection shall be of 50 years from the end of the year when it was first performed.
Moral
rights – A performer has the moral right to claim, when reasonably
practicable, to be identified as the performer of his performance and to
prohibit any distortion, mutilation, or other modification of his performance
that would be prejudicial to his reputation.
Producers
of sound recordings and producers of first fixations of audiovisual works
Producers
of sound recordings and producers of the first fixation of audiovisual works
have the exclusive right to authorize or to prohibit the doing in
Malta of any of the following acts:
·
direct or indirect, temporary or permanent, reproduction
by any means or form in whole or in part;
·
rental and lending;
·
distribution; and
·
making available to the public, by wire or
wireless means, in such a way that individuals may access them from a place
chosen by them.
Term of protection – 50 years from
the end of the year in which the sound recording or the first fixation of the
audiovisual work was first lawfully published or lawfully communicated to the
public, whichever is the earlier.
In
the absence of such publication or communication to the public, the protection
shall be of 50 years from the end of the year in which the first fixation was
made.
Remuneration -- If a sound
recording published for commercial purposes (or a reproduction of such sound
recording) is used, directly or indirectly, for broadcasting by wireless means
or for any communication to the public, the user must pay to the producer of
the sound recording and to the performer a single equitable remuneration to be
shared equally between them. This
remuneration shall be paid to a collecting society or, in the absence of one,
to the producer of sound recordings who would then distribute half such
remuneration to the performer.
Broadcasting organisations
Broadcasting
organisations have the exclusive right to authorize or to prohibit
the doing in Malta of any of the following acts:
·
fixation of their
broadcasts or initial cable transmissions;
·
direct or indirect, temporary or permanent, reproduction
by any means or form, in whole or in part, of fixations of their broadcasts or initial
cable transmissions;
·
distribution of fixations of
their broadcasts or initial cable transmissions;
·
rebroadcasting of their broadcast
as well as the communication to the public of their broadcasts if such
communication is made in places accessible to the public against payment of an
entrance fee; and
·
the making available to the public of fixations of
their broadcasts or initial cable transmissions, by wire or wireless means, in
such a way that individuals may access them from a place and at a time chosen
by them.
Term of protection – 50 years
from the end of the year in which the broadcast was first transmitted, whether
by wire or over the air, be it by cable or satellite.
Remedies in case of infringement
Damages or payment of fine and restitution
of profits. In case of infringement, the
rightholder has either one of 2 courses of action against the infringer, namely,
either:
·
to
institute a civil action suing the infringer for damages; or alternatively
·
to
institute a civil action requesting the Courts to condemn the infringer to pay
a fine to be determined by the same Court and to return all the profits he
derived from the infringement of the copyright, neighbouring rights or sui
generis rights.
Defence in case of request to return
profits. If the infringer proves to the Court’s
satisfaction that, at the time of the infringement, he was not aware and could
not reasonably have been expected to be aware of the fact that copyright,
neighbouring rights or sui generis rights subsisted in the work to which
the civil action relates, the Court will not condemn the infringer to the
restitution of the profits.
Additional damages. Having regard to all the circumstances of the case (in
particular, to the flagrancy of the infringement and any benefits accruing to
the infringer by reason of the infringement), the Courts may condemn the infringer
to pay such additional damages as the justice of the case may require.
Return of infringing articles. The Courts may also order that all the infringing articles still
in possession of the infringer be delivered to the rightholder.
Liability for infringement of moral rights. Any such infringer shall be condemned by the Court:
·
to
pay a fine and damages to be determined by the Court; and
·
to
destroy all the infringing articles still in his possession provided the Court
is satisfied that the prejudice caused is so serious as to justify such
measure.
Criminal Penalties
In
addition to the civil remedies, violation of copyright entails criminal penalties.
Accordingly,
whosoever violates the rights of the copyright owner shall be liable, on
conviction, to a fine of up to 5,000 Malta liri and/or to imprisonment of up to
1 year. Moreover, conviction shall
entail termination of a trader’s licence to run a retail shop. The licence cannot be transferred or
renewed.
Transfer of copyright and neighbouring
rights
Copyright
and neighbouring rights are transmissible by:
·
assignment;
·
operation
of law; or
·
testamentary
disposition.
An assignment or testamentary disposition of copyright or neighbouring rights may be limited by reason of:
·
the
rights transferred;
·
a
specified country or geographical area; or
·
for
a specified period only of the copyright or neighbouring rights.
Any such assignment must result by agreement in writing between the parties.
An
assignment, licence or testamentary disposition of copyright or neighbouring
rights may be effected in respect of a future work or in respect of an existing
work in which copyright or a neighbouring right does not yet subsist.
In
a testamentary disposition of the material on which a work is first written or
recorded, any copyright or neighbouring rights shall also be deemed to be
included, unless the testator provides otherwise.
· This Document in PDF Format.