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Intellectual and copyright laws in the digital age.

In order to control the use and licensing of copyright protected digital works, owners often adopt technological measures such as encryption. Faisal Daudpota from Al Tamimi & Company expands on protecting the rights of authors, performers and phonogram producers in the digital context.

Technological measures provide safeguards against the unauthorised use of works, and against the removal or alteration of "rights management information" used for the management (licensing, collecting and distribution of royalties) of the protected copyrights.

Realising that technological measures needed legal cover, the World Intellectual Property Organisation (WIPO) instigated two treaties, namely: (1) the WIPO Copyright Treaty of 1996 (WCT), and (2) the WIPO Performances and Phonograms Treaty of 1996 (WPPT). The key obligations set out in these treaties may be briefly summarised as follows:

Member states should provide legal protections for the technological protection measures that copyright owners may employ to prevent unlawful use of works of authorship.

Member states should protect electronic rights management information against knowing and unauthorised removal or tampering that induces or enables infringement of economic or moral rights.

Where the phrase "rights management information" mutatis mutandis stands for information which identifies the work/performance/phonogram, the author/performer/producer, the owner of any right, or information about the terms and conditions of use, and any numbers or codes that represent such information, when any of these items of information is attached to a copy or appears in connection with the communication of a work/performance/phonogram to the public.

This article attempts to collate, highlight, and then briefly assess the alignment of the sanctions available in the individual GCC countries (i.e. Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE) against circumventions of technological measures protecting rights of authors, performers, and phonogram producers in the digital context.

Bahrain

Bahrain acceded to both WCT and WPPT on 15th December 2005. Accordingly, it also transposed the WCT and WPPT mandates into its national laws when it enacted its Law No. 22 of 2006 with respect to Authors' Rights and Attendant Rights Law (B-CL 22/2006).

The legal protection to technological measures protecting rights of authors, performers and phonogram producers in the digital context has been entrenched in Article 45 of B-CL 22/2006, which states the following:

(1) Any person shall be prohibited from breaking or rendering defective any effective technical measure without obtaining its owner's permission.

(2) Any person shall be prohibited from displaying to the public, performing, manufacturing, importing, distributing or trading in any media, products or components or displaying or providing any services to the public in the following events:

(a) Promoting, advertising or marketing any services to overcome any effective technical measure

(b) Any services with insignificant commercial use other than those services to break or defect any effective technical measure

(c) Any services that are mainly designed, produced or performed to facilitate any breaking or rendering defective of any effective technical measure.

(3) Any person shall be prohibited from doing the following without obtaining permission:

(a) Deliberately deleting or altering any information on the management of rights

(b) Distributing or importing any information on the management of rights for distribution purposes although he is aware that such rights have been deleted or altered without permission.

(c) Distributing or importing for distribution purposes or broadcasting or transmitting to the public copies of artistic works, or phonorecords although he is aware that such rights have been deleted or altered without permission.

(4) Any person shall be prohibited from manufacturing, collecting, altering, importing, exporting, selling, leasing or distributing any system or tangible or intangible device whether he is aware or believes that such systems or devices are used without the owner's permission to decode a programme's signal transmitted by satellites.

(5) Any person shall be prohibited from deliberately receiving or distributing a programme's signal such as a coded signal transmitted by satellites if he is aware that it is decoded without the owner's permission to distribute such signal.

(6) The provisions of Paragraphs 1 and 3 of this Article shall not apply to legal activities carried out by civil servants or government contractors in implementation of the Law or investigating crimes or public security or for any similar official purposes.

(7) Violating the provisions of subparagraphs from 1 to 5 of this Article shall result in creating a criminal or civil liability, as the case may be, which is separate and independent from any infringement of the prescribed rights according to the provisions of this Law.

Kuwait

Kuwait has not acceded to either WCT or WPPT. Thus, with no international treaty obligation in the nature of WCT or WPPT, Kuwait's Law No. 64 of 1999 Concerning Intellectual Property Rights (K-CL 64/1999) accordingly lacks any reference to the legal protection of the technological measures protecting rights of authors, performers, phonogram producers, and broadcasters in digital the rights context.

Oman

Oman acceded to both WCT and WPPT on 20th September 2005. Accordingly, it also transposed the WCT and WPPT mandates into its national laws when, on 4th May 2008, it enacted its Sultani Decree No. 65 of 2008 Relating to the Law of Author's Copyrights and Related Rights (O-SD 65/2008).

In order to grant legal protection to technological measures protecting rights of authors, performers and phonogram producers in a digital context, Article 40 of O-SD 65/2008 maintains that:

The committal of the following acts shall be considered prohibited:

(1) Suspending or marring a technical protection measure without the permission of the title holder

(2) Manufacturing, importing, distributing or circulating any devices, products or components; presenting them to the public or providing or offering any services to the public in any of the following cases:

(a) If their promotion, advertising, display or circulation is for the purpose of committing a fraud in respect of a technical protection measure

(b) If they have a commercial purpose or use with a limited importance in addition to suspending or marring of a technical protection measure.

(c) If they are chiefly designed, produced or provided for the purpose of suspending or facilitating the suspension or marring of a technical protection measure.

(3) Committing any of the following acts without a written authorisation from the title holder:

(a) Omission or alteration of the information on the management of the rights deliberately

(b) Distribution of information on the management of rights or its import for the purpose of distribution despite being aware that it has been modified or changed.

(c) Distribution, import for distribution, broadcasting, transmission or supply to the public of copies of works, performances or sound recordings while being aware that the information on the management of rights pertaining to them has been omitted or changed.

In all cases, the perpetrator of the act shall be aware or shall have valid reasons to be aware that his acts shall inspire, facilitate or conceal an infringement of the rights of the author or related rights.

Where the term "Information on Management of Rights" means: "Information accompanied by a copy of a work, recorded performance, sound recording or radio programme or information that appears while transmitting any of these or making it available to the public, pinpointing the following:

(a) Introduction to the work, recorded performance, sound recording or radio programme

(b) Author of the work, performance artist, producer of sound recording or broadcasting organisation

(c) Holder of a title related to the work, recorded performance, sound recording or radio programme

(d) Provisions and conditions for the use of the work, recorded performance, sound recording or radio programme

(e) Any numbers or codes that represent this information"

Qatar

Qatar acceded to both WCT and WPPT on 28th October 2005. Accordingly it also transposed the WCT and WPPT mandates into its national laws when it enacted its Law No. 7 of 2002 on the Protection of Copyright and Neighbouring Rights (Q-CL 7/2002).[i]

The legal protection to technological measures protecting rights of authors, performers and phonogram producers in the digital context has been entrenched in Article 51 of Q-CL 7/2002, which states:

The following acts shall be considered illegal acts and infringements of the rights protected under this Law:

(1) Manufacture or imports of any devices or instruments with an intention of using them through sale, rental or other means, if they were designed or meant to deactivate any devices or instruments preventing or limiting the reproduction of a work, a sound recording, or a broadcast, or if meant to undermine the quality of the work.

(2) Manufacture or import of any devices or instruments with the intention of using them through sale, rental or other means, if they can enable the reception of codified programmes broadcast or communicated to the public in any other way, including programmes communicated through satellite, or if they facilitate such transmission to persons not entitled to receive such programmes.

(3) Remove or modify any electronic data relating to copyright administration, without authorisation

(4) Distribute works, performances, sound recordings or broadcasts, or import such works for distribution, transmission or communication to the public, or provide them to the public without authorisation, knowing that electronic data relating to copyright administration were removed or modified without authorisation.

Any person who commits any of the preceding infringement shall be punished by imprisonment for a period not less than six months and not more than one year.

Saudi Arabia

Saudi Arabia has not acceded to either WCT or WPPT. However, in spite of the absence of any international treaty obligation in that nature, Saudi Arabia's Royal Decree No. M/41, 2 Rajab, 1424 (30.08.2003) on Copyright Law (SA-RD M/41) read with the Minister of Culture and Information's Decision No. (1688/1) dated 10/04/1425H (29 May 2004) as amended by His Excellency's Decision No. (1640) dated 15/05/1426H (22 June 2005) on Implementing Regulations of Copyright Law (SA-IR 1688/1-1640) does lay down the references to the legal protection of the technological measures of rights of authors, performers, phonogram producers, and broadcasters in the digital context. The relevant provisions of SA-RD M/41 and SA-IR 1688/1-1640 are highlighted below.

The following acts shall be deemed infringements on the rights protected by the Law:

(1) Publishing a work not owned by the publisher, publishing it under the pretence of its ownership or without obtaining a written authorisation or a contract with the author of the work, his heirs or their representatives

(2) Amendment of the contents of a work, its nature, subject or title without the knowledge of the author and his prior written consent thereof, whether the amendment is made by the publisher, the producer, distributor or anyone else.

(3) Reprinting the work by the producer, the publisher or the printer without obtaining prior written consent of the copyright owner, or having the documents authorising the reprint.

(4) Removal of any written or electronic information that may lead to forfeiting the owner's copyrights

(5) Removing and cracking any protective electronic code that guarantees the use of the original copies of the work, such as coding or data recorded by the use of laser or other means.

(6) Commercial use of intellectual works through deception, which is not permitted by the owners of the copyright, such as using copied software or receiving coded broadcasting programmes through illegal means.

(7) Manufacturing or importing tools, for the purpose of sale or rental, of any means which facilitate receiving or exploiting works through means other than those determined by the owner of the rights.

(8) Copying or photographing parts of a book or a collection of books or parts of any work, with or without compensation, without obtaining the written consent of the copyright owners and the competent authorities of the Ministry, with the exception of cases of lawful copying specified in Article (15) of this Law.

(9) Import of counterfeit, imitated or copied works

(10) Keeping non-original works at the commercial establishment, its warehouse or any other facility owned by it, whether directly or indirectly and under any pretence.

(11) Infringement on any of the protected rights specified in this Law or violation of any of its provisions.[ii]

Any person who violates a provision of this Law shall be subject to one or more of the following penalties:

a) Warning

b) A fine not exceeding two hundred and fifty thousand riyals

c) Closing the violating establishment or the one which participated in the violation of the copyright, for a period not exceeding two months.

d) Confiscation of all copies of the work along with the materials used or intended for use in the infringement on the copyrights.

e) Imprisonment for a period not exceeding six months[iii]

Upon repetition of the infringement on the same work or any other work, the maximum limit of penalty, fine and closure may be doubled.[iv]

Further, any use beyond that specified by the owner of audio, visual and broadcasting works shall be deemed an infringement of copyright, such as the following:

(1) Communicating the work to the public without obtaining a prior license from the owners of the copyright, such as use of radio, music, video or satellite transmission in shops, restaurants, hotels, clubs, hospitals and other similar places where there are frequent visitors or gatherings.

(2) Breaking of protective barriers for the purpose of presenting broadcasting materials through illegal means

(3) Reproduction of broadcast materials for the purpose of presentation, rental or sale

(4) Addition or removal of electronic chips of display equipment for the purpose of making it exceed its manufactured limits in order to infringe the rights of others.[v]

Finally, it shall be an infringement of copyright if any act results in the removal of the original precautionary information from the electronic equipment produced by the manufacturer, and any person who facilitates this is deemed to be committing an act of infringement, such as:

(1) Removing or adding electronic or non-electronic devices of display and receiving equipment for the purpose of exceeding the limits designed by the manufacturer.

(2) Cancelling the original programme that operates the display and receiving equipment and loading them with forged programmes for the purpose of exceeding the limits and capabilities for which the equipment is designed[vi]

Faisal Daudpota, Associate, IR/IT, Al Tamimi & Company

United Arab Emirates

UAE acceded to WCT on 14th July 2004, and to WPPT on 9th June 2005. Accordingly it also transposed the WCT and WPPT mandates into its national laws when it amended its Federal Law No. 7 of 2002 through the Amendment Law No. 32 for the year 2006 Regarding Copyright & Related Rights (UAE-CL 7/2002).

As for affording legal protection to technological measures protecting rights of authors, performers, and phonogram producers in the digital context, UAE-CL 7/2002, as per its Article 38, provides that:

Without prejudice to any severer penalty provided for in any other law a jail term of not less than 3 months and a fine of not less than AED 50,000 and not more than AED 500,000 shall be the penalty against any person who does any of the following:

(1) Produces or imports, illegally, with the intention of selling, renting out, or distributing a work, fake copies, or any equipment, devices or means specifically designed or adapted to circumvent forms of copy-protection used by the author or the related rights holder to broadcast or distribute or regulate or manage those rights or maintain a specific purity criteria for reproduction.

(2) Unjustifiably delays or damages any copy-protection or electronic information that regulates or manages the rights defined by this Law

(3) Loads or stores on computer a copy of computer software or application or database without a license from the author, the copyright holder, or their successors.

Repeat offenders shall be jailed for at least 9 months and fined not less than AED 200,000.[vii]

[i] Implementing regulations of Q-CL 7/2002 have not yet been issued. Nevertheless, one can file the application for registration of copyrights and obtain a filing certificate from the Copyright and Neighboring Rights Office.

[ii] Article 21 of SA-RD M/41

[iii] Article 22 of SA-RD M/41

[iv] Article 22 of SA-RD M/41

[v] Article 13 SA-IR 1688/1-1640

[vi] Article 15 SA-IR 1688/1-1640

[vii] Article 38 of UAE-CL 7/2002

About

Faisal K. Daudpota joined as an Associate with the firm. His practice covers transactional and contentious matters relating to intellectual property, information technology, telecommunications, competition and anti-money laundering. He is also accredited to appear before the Dubai International Financial Centre (DIFC) Courts. Prior to joining Al Tamimi & Company in 2007, he worked as the External Relations Manager -- Anticounterfeiting, with International Trademark Association (INTA). He has also represented INTA at Interpol Intellectual Property Crime Action Group (IIPCAG), World Customs Organisation's SECURE Working Group, and the Steering Committee of the Global Congress on Combating Counterfeiting. He holds an LLM in Intellectual Property Law from the University of London.

Al Tamimi & Company, originally established in 1989, is today one of the leading law firms in the Arabian Gulf region. It is the largest local, non-affiliated law firm in the United Arab Emirates with offices in the Emirates of Dubai, Abu Dhabi and Sharjah, Riyadh (KSA) and associate offices in Doha, Baghdad and Riyadh. Visit www.tamimi.com for more information.

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Publication:SMB Advisor Middle East
Geographic Code:7UNIT
Date:Feb 9, 2011
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