COPYRIGHT, NEIGHBOURING RIGHTS AND SUI GENERIS RIGHTS

Works Eligible for Copyright Protection 

 

Malta, by being a member of the World Trade Organization, has its laws on copyright in line with its obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods or ‘TRIPs’ Agreement. Moreover, copyright legislation is also in line with the EC’s legislative measures which have been adopted in this field. 

 

By virtue of the Copyright Act the works that are eligible for copyright protection are: 

 

The exclusive rights which are controlled and restricted by copyright are: 

 

 

in respect of the protected material in its totality or substantial part thereof, either in its original form or in any form recognisably derived from the original. 

 

No Formalities 

 

No formalities are required to entitle a work to copyright protection but for a literary, musical or artistic work to be eligible for copyright, the work must have an original character and it must have been written down, recorded, fixed or otherwise reduced to material form. In respect of databases, this work is not eligible for copyright protection unless by reason of the selection or arrangement of its contents, it constitutes the author’s intellectual creation. Moreover, the copyright conferred to a database does not extend to its contents, without prejudice to any right subsisting in such contents themselves. 

 

 

Duration of Protection 

 

The term of copyright protection is generally seventy years which commences after the end of the year in which the author dies, irrespective of the date when the work is lawfully made available to the public. 

 

Civil Remedies for Infringement of Copyright 

 

There are three ways in which copyright may be infringed under the Copyright Act: 

 

(i) there is an infringement of copyright where a person does or causes any other person to do, without a licence from the owner thereof, an act the doing of which is controlled by copyright, as specified above; 

 

(ii) copyright is infringed also by any person who, without the licence of the copyright owner, imports into Malta otherwise than for private and domestic use, or distributes therein by way of trade, hire or otherwise, or by way of trade exhibits in public or is in possession or manufactures in the course of business or offers or exposes for sale or hire an article in respect of which copyright is infringed under (i) above; 

 

(iii) a third way in which copyright is infringed is where a person, without the licence of the copyright owner, commits any of a number of actions listed down in the law which lead or amount to the circumvention of an effective technological measure or an electronic rights-management information. 

 

A person who is deemed to have infringed copyright by a Court shall be liable to the payment of damages or to the payment of a fine and to the restitution of all the profit derived from the infringement of the copyright. The infringing articles in possession of the defendant may, on application, be also delivered to the plaintiff. 

 

Criminal Sanctions for Infringement of Copyright 

 

In 1991, through an amendment to the Criminal Code (Chapter 9 of The Laws of Malta), Parliament introduced criminal penalties for the violation of copyright. Thus, whoever, for gain, or by way of trade prints, manufactures, duplicates or otherwise reproduces or copies, or sells, distributes or otherwise offers for sale or distribution, any article or other thing in violation of the rights of copyright enjoyed by an other person and protected by Maltese law is liable to criminal sanction for violation of copyright. Criminal penalties for violation of copyright include fines of up to EUR11,646.87 and/or to imprisonment of up to 1 year. Moreover, if found guilty of having violated copyright, a person’s licence to keep a retail shop will be deemed to have automatically expired upon such contravention and shall not be transferred or renewed in terms of the Police Licences (Protection of Copyright) Regulations 1992. 

 

Neighbouring Rights 

 

The related rights which are protected by the Copyright Act are the following: 

 

(i) Performers’ rights which are protected for a period of fifty years which start to run 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 or in the absence of such publication or communication, from the end of the year in which it was first performed. The exclusive rights protected are the fixation, reproduction, rental and lending, distribution, making available to the public, broadcasting and communication to the public rights; 

 

(ii) Producer’s rights in sound recordings and audiovisual works which are protected for a period of fifty years which start to run 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 or in the absence of such publication or communication, from the end of the year in which the first fixation was made. The exclusive rights protected are the reproduction, rental and lending, distribution and making available to the public rights; 

 

(iii) Broadcaster’s rights which are protected for a period of fifty years starting 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. The exclusive rights protected are the fixation, reproduction, distribution of fixation, rebroadcasting and communication to the public of their broadcasts, and making available to the public rights. 

 

 

Sui Generis Rights 

 

The Copyright Act provides also for the protection of sui generis rights in respect of both databases and semiconductor product topographies: 

 

(i) Notwithstanding the protection given by the provisions of the Copyright Act dealing with the copyright protection given over a database as a work per se, the Act provides also that 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 shall have, irrespective of the eligibility of that database or its contents for protection by copyright or by other rights, the right to authorize or prohibit acts of extraction or re-utilization of its contents, in whole ort in substantial part, evaluated qualitatively or quantitatively; 

 

(ii) Basically, the Act provides that creators of semiconductor product topographies and their successors in title shall have the exclusive right to authorise or prevent in Malta the reproduction of the topography and the commercial exploitation or the importation for the purpose of commercial exploitation of the topography or of a semiconductor product manufactured by using the topography. 

 

Other Matters 

 

Moral Rights 

 

The Copyright Act prohibits any person, including the assignee of the copyright or a licensee thereunder, without the author’s consent, to mutilate, modify, distort or subject to any other derogatory action any work during its term of copyright in a way prejudicial to the honour or reputation of the author. Though not transferable during the lifetime of the author, the moral rights of the author pass to the person as may by testamentary disposition be directed, provided that on this person’s death the right passes to his successor. Otherwise, the moral rights pass to whom the copyright passes. 

 

Assignment and Licencing of Copyright 

 

Copyright and neighbouring rights are transmissible by assignment, operation of law or by testamentary disposition as movable property. The licensing of copyright may be made according to the general commercial and civil practices.