To make new provision in respect of copyright and neighbouring rights and certain “sui generis” intellectual property rights in substitution of the provisions of the Copyright Act, Cap. 196.
14th August, 2000; 1st January, 2001
ACT XIII of 2000, as amended by Acts VI of 2001, IX of 2003 and IX of 2009.
1. The short title of this Act is the Copyright Act.
PART I
DEFINITIONS
2. (1) In this Act, unless the context otherwise requires
“European Union” means the European Union referred to in the Treaty;
“artistic work” shall include, irrespective of artistic quality, any of the following, or works similar thereto:
“audiovisual work” means a work that consists of a series of related images which impart the impression of motion, with or without accompanying sounds, susceptible of being made visible and, where accompanied by sounds, susceptible of being made audible;
“author” means the natural person or group of natural persons who created the work eligible for copyright but in the case of an audiovisual work it includes the principal director but excludes the producer of the first fixation of the audiovisual work;
“Board” means the Copyright Board established under article 45;
“body of persons” means any company or association of persons whether corporate or unincorporated, whether vested with legal personality or not, and includes any other body however called having legal personality;
Short title.
Interpretation.
Amended by:
“broadcasting” means the transmission by wireless means for the public reception of sounds or of images and sounds or of the representations thereof, including transmission by satellite. Broadcast does not include a rebroadcast;
“broadcasting authority” means the Broadcasting Authority established by article 118 of the Constitution;
“broadcasting organization” means any broadcaster whether licensed under the Broadcasting Act or under any other law, and includes a broadcasting contractor operating in Malta;
“cable retransmission” means the simultaneous, unaltered and unabridged retransmission by a cable or any other material carrier for reception by the public of an initial transmission by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public, from within Malta or from a State in which the exclusive right to authorize cable retransmission of works eligible for copyright or neighbouring rights is protected under an international agreement to which Malta is also a party;
“collecting society” means any organization which manages or administers copyright or neighbouring rights as its sole purpose or as one of its main purposes as regulated by the provisions of this Act;
“collective work” means a work which has been created by two or more physical persons at the initiative and under the direction of a physical person or legal entity with the understanding that it will be disclosed by the latter person or entity under his or its own name and that the identity of the contributing physical persons will not be indicated in the work;
“commercial exploitation” in relation to semiconductor product topographies means the sale, rental, leasing or any other method of commercial distribution, or an offer for these purposes:
Provided that where exploitation takes place under conditions of confidentiality to the extent that no further distribution to third parties occurs there shall not be deemed to have been “commercial exploitation”;
“communication to the public” means the transmission of a work or performance or sound recording by wire or wireless means to the public and for the purpose of article 7 includes the making available to the public of the work in such a way that members of the public may access the work from a place and at a time individually chosen by them:
Provided that the mere provision of physical facilities for enabling or making of a communication does not in itself amount to an act of communication to the public:
Provided further that for the purposes of article 19, communication to the public also includes making the sounds or the representations of sounds fixed in a sound recording audible to the public;
“communication to the public by satellite” means the act of introducing, under the control and responsibility of a broadcasting organization, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth and the State where such an act takes place shall be deemed to be the place of origin of that act of communication to the public by satellite:
Provided that if the programme-carrying signals are encrypted, then there is communication to the public by satellite if the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent:
Provided further that if the act of communication to the public by satellite takes place in a State other than Malta or other than a State in which the exclusive right to authorize or prevent the satellite broadcasting of a work eligible for copyright or neighbouring rights is protected under an international agreement to which Malta is also a party, if the programme-carrying signals are transmitted to the satellite from an uplink station situated in Malta, that act of communication to the public by satellite shall be deemed to have occurred in Malta so that the rights provided for by this Act shall be exercisable against the person operating the uplink station, or else in the absence of an uplink station in Malta, if a broadcasting organisation established in Malta has commissioned the act of communication to the public by satellite, that act shall be deemed to have occurred in Malta and the rights provided for by this Act shall be exercisable against that broadcasting organisation;
“computer program” includes computer programs whatever may be the mode or form of their expression including those which are incorporated in hardware, interfaces which provide for the physical interconnection and interaction or the interoperability between elements of software and hardware and preparatory design material leading to the development of a computer program:
Provided that the nature of the preparatory design material is such that a computer program can result therefrom at a later stage;
“copy” means a reproduction in written or graphic form including digital reproduction, in the form of a recording or audiovisual work, or in any other material form, so however that an object shall not be taken to be a copy of an architectural work unless the object is a building or model;
“copyright” means copyright under this Act;
“database” means a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means without it being necessary for these materials to have been physically stored in an organized manner but does not extend to computer programs used in the making or operation of a database accessible by electronic means comprised within the term “computer program”;
“distribution” means the making available to the public by sale or other transfer of ownership;
“fixation” means the embodiment of sounds, images, or both, or digital representations thereof, in any material form, from which they can be perceived, reproduced or communicated through a device;
“lawful” means done in compliance with provisions of this Act, and “lawfully” shall be construed accordingly;
“lending” means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public:
Provided that even when lending by such an establishment gives rise to payment of an amount, as long as this amount does not go beyond what is necessary to cover the operational costs of the establishment, there is no direct or indirect economic or commercial advantage within the meaning of this Act;
“licence” means a lawfully granted licence permitting the doing of an act controlled by copyright or neighbouring rights;
“literary work” shall include, irrespective of literary quality, any of the following, or works similar thereto:
but save as provided in article 12 of the Statute Law Revision Act, 1980, does not include any written law, law report or judicial decisions;
“Malta” shall have the same meaning as assigned to it by article 124 of the Constitution of Malta;
“Member State” means a state which is a member of the European Union;
“Minister” means the Minister responsible for the protection of copyright and neighbouring rights and includes to the extent of the authority given, any person authorised by the Minister in that behalf for any purpose of this Act other than for the purpose of article 59;
“musical work” means any musical work, irrespective of musical quality, and includes works composed for musical accompaniment;
“owner of copyright” means the author who is first owner, an assignee or an exclusive licensee, as the case may be, of a copyright and in the case of a collective work, the first owner of copyright shall be the natural or legal person under whose initiative and direction the work has been created;
“perceptual disability” means a disability that prevents or inhibits a person from reading or hearing a literary, musical, dramatic or artistic work in its original format, and includes such a disability resulting from:
“performance” means the direct rendition of the work to a public which takes place under such circumstances that the works performed can be perceived by the public without any intermediate communication;
“performers” includes singers, musicians, dancers, actors or other artists who sing, deliver, declaim, play in, act in, interpret or otherwise perform literary, musical and artistic works or expressions of folklore and includes also singers, musicians, actors or other artists who sing, play in or perform in variety, circus and folklore shows or exhibitions;
“person” includes a body of persons;
“prescribed” means prescribed by regulations made under article 59;
“producer of a sound recording” means the legal entity who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds or the representation of sounds;
“rebroadcast” means simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization not under its control, whether situated in Malta or abroad, and “rebroadcasting” shall be construed accordingly:
Provided that “later rebroadcast” shall mean only any such subsequent broadcast and “later rebroadcasting” shall be construed accordingly;
“rental” means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage;
“reproduction” means the making of one or more copies in any material form of a literary, musical or artistic work, audiovisual work or sound recording and includes storing such work in any medium by electronic means;
“rights-management information” means any information provided by rightholders which identifies the work or other subject-matter referred to in this Act, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information;
“satellite” means any satellite operating on frequency bands which, under international telecommunications law are reserved for the broadcast of signals for reception by the public or which are
Cap. 460.
reserved for closed, point-to-point communication. In the latter case, however, the circumstances in which individual reception of the signals takes place must be comparable to those which apply in the first case;
“semiconductor product” means the final or an intermediate form of any product consisting of a body of material which includes a layer of semiconducting material, having one or more layers composed of conducting, insulating or semiconducting material, the layers being arranged in accordance with a predetermined three-dimensional pattern and intended to perform, exclusively or together with other functions, an electronic function;
“semiconductor product topography” means a series of related images, however fixed or encoded, representing the three dimensional pattern of the layers of which a semiconductor product is composed and in which series, each image has the pattern or part of the pattern of a surface of the semiconductor product at any stage of its manufacture;
“sound recording” means the fixation of a sequence of sounds or of a digital representation of sounds capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with an audiovisual work;
“technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or neighbouring right or the sui generis rights as provided for by this Act. Technological measures shall be deemed “effective” where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective;
“the Treaty” has the same meaning assigned to it by the European Union Act;
“work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors.
(2) For the purposes of this Act the following provisions shall apply with respect to publication:
(a) a work or a sound recording shall be deemed to have been published if copies thereof have been made available in a reasonable quantity for sale, rental, lending or in any other manner sufficient to render the work accessible to the public:
Provided that in the case of a work, the making available to the public had taken place with the consent of the author or other owner of copyright, and in the case of a sound recording, with the consent of the producer of the sound recording or his successor in title;
PART II
COPYRIGHT
3. (1) Subject to the provisions of this article the following works shall be eligible for copyright:
4. (1) Copyright shall be conferred by this article on every work eligible for copyright of which the author or, in the case of a work of joint authorship, any of the joint authors, is, at the time when the work is made:
(a) an individual who is a citizen of, or is domiciled or
Works eligible for copyright.
Amended by:
IX. 2009.3.
Qualification for copyrightprotection by virtue of authors.
permanently resident in Malta or in a State in which copyright is protected under an international agreement to which Malta is also a party;
(b) a body of persons or a commercial partnership constituted, established, registered and vested with legal personality under the laws of Malta or of a State in which copyright is protected under an international agreement to which Malta is also a party.
(2) The terms of copyright protection conferred by this article shall be calculated according to the following table:
TABLE
Type of Work Date of Expiration of Copyright
(i) Literary, musical Seventy years after the end of the or artistic works and year in which the author dies, database irrespective of the date when the work
is lawfully made available to the public. (ii)Audiovisual works Seventy years after the end of the year in which the last of the following person 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 audiovisual work.
(6) Where a work is published in volumes, parts, instalments, issues or episodes and the term of protection runs from the time when the work was lawfully made available to the public, the term of protection shall run for each such item separately.
5. (1) Copyright shall be conferred by this article on every work which is eligible for copyright and which is made or first published in Malta or in a State in which such works are protected under an international agreement to which Malta is also a party and which has not been the subject of copyright conferred by article 4.
(2) Copyright conferred on a work by this article shall have the same duration as is provided for in article 4 in relation to the same type of work.
6. (1) Copyright shall be conferred by this article on every work which is eligible for copyright and which is made by or under the direction or control of the Government of Malta and also such governments of other States, international bodies or other intergovernmental organisations as may be prescribed by the Minister responsible for the Industrial Property Office.
7. (1) Copyright in an audiovisual work, a database, a literary, musical or artistic work shall be the exclusive right to authorise or prohibit the doing in Malta 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 of any of the following:
Qualification for copyrightprotection by reference to country where work is made or published.
Copyright works ofGovernment and international bodies.
Nature of copyright in anaudiovisual work, database, literary,musical and artistic work.
Substituted by:
IX. 2003.93.
Cap. 350.
Exhaustion of the distribution rights.
Substituted by:
IX. 2003.94.
of the results thereof;
Provided that the right to authorise or prohibit the cable retransmission of a television broadcast shall be exercisable only through a collecting society.
8. (1) The first sale or other transfer of ownership in the market of the original work enjoying copyright or copies thereof, when such sale is effected by or with the consent of the copyright owner himself, shall exhaust the exclusive distribution right in respect of that work or its copy.
(2) For the purposes of this article “market” means the market in Malta and as from the 1st May 2004 the European Union.
9. (1) Copyright in an audiovisual work, a database, a literary work other than in the case of a computer programme, a muscial or artistic work shall not include the right to authorise or prohibit
Restriction with regard to certainworks.
Substituted by:
matter in other material;
(2) Copyright in a computer programme shall not include the right to authorize or prohibit:
Provided that any information obtained from the reproduction of the code and the translation of the
Copyright in awork of architecture.
First ownership ofcopyright.
form of a computer program made under this paragraph shall not:
(iii) be used for the development, production or marketing of a computer program substantially similar in its expression to the original program or for any other act which infringes copyright;
(c) the making of a copy or a back-up copy, the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, in so far as this is necessary for the licensed user to make proper use of the program in accordance with its intended purpose, including the correction of errors; and the right of the licensed user to make a back-up copy of a computer program may not be restricted or excluded by contract in so far as it is necessary for the use of that computer program.
(3) The exceptions and limitations provided for in this article shall only be applied in such particular cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably rejudice the legitimate interests of the rightholder.
Provided that in the case of computer programs and databases where a work is made in the course of the author’s employment, in the execution of his duties or following the instructions given by his employer, the economic rights conferred by copyright shall be deemed to be transferred to the author’s employer, subject to any agreement between the parties excluding or limiting such transfer. In respect of other works eligible for copyright, in such circumstances, subject to any agreement to the contrary between the parties, the copyright shall always vest in the author or joint authors.
(2) Subject to the provision of the last preceding sub-article
PART III
MORAL RIGHTS OF AUTHORS
12. (1) It shall not be lawful for 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.
(2) The author of a work eligible for copyright shall, until the expiry of copyright, in addition to copyright conferred in relation to that work, and also in those cases where copyright shall have been transmitted by assignment or by testamentary disposition enjoy the moral right
Provided that during the lifetime of the author of a work it shall not be lawful to transmit any of the aforesaid moral rights.
(3) On the death of the author
Author’s right to prohibit themutilation, modification, distortion or subjecting to derogatorytreatment of any work.
Nature of performer’s rights.
Term of protection for performers’rights.
Nature of producer’s rights.
Amended by:
IX. 2009.5.
Term of protection for producers’ rights.
Nature of broadcasters’ rights.
PART IV
NEIGHBOURING RIGHTS
13. Performers shall have the exclusive right to authorise or prohibit the doing in Malta any of the following acts:
following acts:
(2) A broadcasting organisation shall not have the right provided in sub-article (1)(a) above when it merely retransmits by cable the broadcasts of broadcasting organisations.
Term of protectionof broadcasters’ rights.
Remuneration for performers and producers of sound recordings.
Amended by:
IX. 2009.6.
Exhaustion of distribution rights.
Substituted by:
IX. 2003.96.
Exceptions toneighbouring rights.
Substituted by:
IX. 2003.97.
Qualification for neighbouring rights protection.
Performer’s rights to be identified and to prohibit thedistortion, mutilation and modification of performances.
his consent.
(2) For the purposes of this article, “market” means the market in Malta and as from the 1st May 2004 the market in any othe Member State.
(a) of which the performer, the producer or broadcaster is
or
PART V
MORAL RIGHTS OF PERFORMERS
23. (1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall until the expiry of the economic rights, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performances, and to prohibit any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation:
Provided that during the lifetime of the performer it shall not be lawful to transmit any of the aforementioned moral rights.
(2) On the death of the performer
PART VI
TRANSFER OF COPYRIGHT AND NEIGHBOURING RIGHTS
24. (1) Subject to the provisions of this article, copyright and neighbouring rights shall be transmissible by assignment, operation of law or by testamentary disposition as movable property.
Provided that when a contract is concluded between a performer and a producer of audiovisual works concerning the production of an audiovisual work the performer shall be deemed to have assigned to the producer his exclusive rights on the fixation of his performance, unless agreed otherwise, subject only to the right, which may not be waived, of the performer to an equitable remuneration payable on the conclusion of the contract by the producer to the performer or should he so desire to a collecting society representing him, which remuneration shall, in the absence of agreement between the parties, be determined by the Board.
Provided further that, when a contract is concluded between the author of an audiovisual work or the authors of the
Assignment and licences.
Nature of sui generis right inrespect ofdatabases.
underlying works used as the basis for the audiovisual work and the producer of the audiovisual work concerning the production of that audiovisual work such authors shall be deemed to have assigned to the producer their exclusive rights on their copyright works, unless agreed otherwise, subject only to the right, which may not be waived, of the authors to an equitable remuneration payable on the conclusion of the contract by the producer to the author individually or should the author so desire, to a collecting society representing him, which remuneration shall, in the absence of agreement between the parties, be determined by the Board.
PART VII
SUI GENERIS RIGHT IN RESPECT OF DATABASES
25. Notwithstanding the provisions of article 7, 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 authorise or prohibit acts of extraction or re-utilization of its contents, in whole or in substantial part, evaluated qualitatively or quantitatively.
26. (1) The maker of a database which is made available to the public in whatever manner may not prevent a licensed user of the database from extracting or re-utilizing insubstantial parts of its contents, evaluated qualitatively or quantitatively, for any purpose whatsoever, as long as the licensed user does not perform acts which conflict with the normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database or in any way cause prejudice to the holder of a copyright or neighbouring right in respect of the works or subject matter contained in the database and any contractual provisions running counter to this proviso shall be null and void:
Provided that the repeated and systematic extraction or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.
(2) Notwithstanding article 25, a licensed user may, without the authorization of the maker of a database made available to the public in whatever manner, extract or re-utilize a substantial part of its contents for the following purposes:
(a) whose maker or rightholder is at the time when the
Exceptions to thesui generis right inrespect ofdatabases.
Term of protectionof sui generis right in respect of databases.
Assignment and licences.
Qualification for protection sui generis right inrespect ofdatabases.
Definition of extraction and re-utilization.
Exhaustion of resale right.
Nature of sui generis right inrespect ofsemiconductor topographies.
Exceptions to thetopography right.
database is made
or
30. (1) For the purposes of this Part “extraction” means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form while “re-utilization” means any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission:
(2) Provided that public lending shall not be deemed to be an act of extraction or re-utilization.
31. The first sale in Malta of a copy of a database by the rightholder or with his consent shall exhaust the right to control the resale of that copy.
PART VIII
SUI GENERIS RIGHT IN RESPECT OF SEMICONDUCTOR PRODUCT TOPOGRAPHIES
(a) reproduction of a topography privately for noncommercial aims;
Exhaustion of topography right.
Application of topography right only in respect of creator’s own intellectual effort.
Qualification for protection oftopography right.
Topographies created in course of employment.
Where no right to protection exists.
Assignment and licences.
Term of protection for topography right.
Right of remuneration.
Infringing acts.
Substituted by:
IX. 2003.98.
in Malta or in a State in which such a sui generis right as is conferred by article 32 on semiconductor product topographies is protected under an international agreement to which Malta is also a party, a topography which has not yet been exploited commercially anywhere in the world and has been exclusively authorized to exploit commercially the topography throughout such territory by the person entitled to dispose of it.
Provided that in the case where the term of protection commences from the date of first commercial exploitation in the world rather than from the first fixation or encoding of the topography, the legal remedies provided for by article 43(1) shall also be available in favour of a rightholder who can prove to the satisfaction of the Court that the defendant fraudulently reproduced or commercially exploited or imported for that purpose a semiconductor product topography even though such acts occurred prior to the commencement of the term of protection and the coming into existence of the right conferred by article 32.
41. Notwithstanding article 32 and the provisions of article 42, a person or his successor in title who acquires a semiconductor product shall not be prevented from commercially exploiting that product if at the time of acquisition he was not aware and could not reasonably be expected to be aware that a sui generis right as is conferred by article 32 subsisted in that work:
Provided that, at the suit of the rightholder or his successors in title, the Civil Court, First Hall, shall order that person to pay adequate compensation to the plaintiff in respect of the acts committed by him after he became aware or had reasonable grounds to believe that the semiconductor product is protected by such a sui generis right.
PART IX
INFRINGEMENT
42. (1) Copyright, neighbouring rights and sui generis rights are infringed by:
COPYRIGHT | [CAP. 415. | 25 | ||
---|---|---|---|---|
therein by way of trade, hire or otherwise, or by way of trade exhibits in public or is in possesssion or manufactures in the course of business or offers or | ||||
exposes for sale or hire an article in respect of which copyright, neighbouring rights or sui generis rights are infringed under the preceding paragraph; | ||||
(c) | any person who, without the licence of the copyright owner or rightholder does anything which circumvents any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective; | |||
(d) | any person who, without the licence of the copyright owner or rightholder maufactures, imports, distributes, sells, rents, advertises for sale or rental, or possesses for commercial puposes, devices, products or components which: | |||
(i) | are for the purpose of circumvention of, or | |||
(ii) | have only a limited commerically significant purpose or use other than to circumvent, or | |||
(iii) | are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures; | |||
(e) | any person who, without the licence of the copyright owner or rightholder provides, promotes, advertises or markets a service which serves for the purpose of circumvention of any effective technological | |||
measures; | ||||
(f) | any person who, without the licence of the copyright owner or right holder, knowingly performs any of the following acts: | |||
(i) | the removal or alteration of any electronic rights-management information; | |||
(ii) | the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Act from which electronic rights-management information has been removed or altered without authority, | |||
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any neighbouring right, or of the sui generis rights as provided by this Act: | ||||
Provided that any of these items of electronic rights-management information: | ||||
(i) | is associated with a copy of a copyright work under the terms of this Act, or | |||
(ii) | appears in connection with the communication |
Liability for infringement ofcopyright,neighbouring rights and sui generis rights.
26 | [CAP. 415. | COPYRIGHT | |
---|---|---|---|
to the public of a copyright work under the terms of this Act, or | |||
(iii) | is covered by a sui generis right under the terms of this Act. | ||
(2) | (a) Notwithstanding the provisions of subarticle (1)(c), (d) and (e), where the application of any effective technological measure to a copyright work prevents any beneficiary of an exception provided for in article 9(1)(b), (c), (d), (e), (f), (i), (l) or (h) from benefiting from that exception, the rightholder shall make available to the beneficiary the means of benefiting from that exception, to the extent necessary to benefit from that exception or limitation: | ||
Provided that the beneficiary shall have legal access to the protected work or subject-matter concerned: | |||
Provided further that there is no voluntary measure taken by the rightholder or exclusive licencee or agreement between the rightholder and the other party concerned, the purpose of which is to enable the beneficiary (or persons of a class to which the beneficiary belongs) to benefit from the exceptions specified in the above paragraph. | |||
(b) The provisions of subarticle (2)(a) do not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them. |
43. (1) Where any person infringes the copyright, neighbouring rights or sui generis rights in respect of a work, he shall be liable, at the suit of the copyright owner or right holder to be condemned by the Civil Court, First Hall to the payment of damages or to the payment of a fine to be determined in accordance with a scale of fines to be prescribed by the Minister, as the said Court, having regard to the circumstances of the case, may deem proper and to the restitution of all the profit derived from the infringement of the copyright, neighbouring rights or sui generis rights:
Provided that where the defendant proves to the satisfaction of the Court that at the time of the infringement he was not aware and could not reasonably be expected to be aware that copyright, neighbouring rights or sui generis rights subsisted in the work to which the action relates, the Court shall not condemn him to the restitution of the profit.
(2) The Civil Court, First Hall may in an action for infringement of copyright, neighbouring rights or sui generis rights having regard to all the circumstances and in particular to the flagrancy of the infringement and any benefit accruing to the defendant by reason of the infringement, award such additional damage as the justice of the case may require.
44. (1) Saving the provisions of the last preceding article, any person who contravenes the provision of article 12(1), shall be liable at the suit of the author or his heirs to be condemned by the Civil Court, First Hall, to the payment of a fine, and for damages to be determined in accordance with a scale of fines to be prescribed by the Minister.
PART X
THE COPYRIGHT BOARD
45. (1) The Minister shall by notice in the Gazette appoint a Copyright Board, consisting of a chairman and two other members for the purpose of performing the functions assigned to such Board by the provisions of this Act.
(4) Every member of the Board shall hold office during the
Liability forinfringement of moral rights.
Appointment of the Board.
Absention and challenge.
Cap.12.
Power to summon.
Cap. 12.
Proceedings.
Right of appeal.
Amended by:
VI. 2001.34.
Cap. 12.
Minister’s pleasure and the Minister may, without assigning any reason, revoke the appointment of any member and appoint a new member whenever he deems it to be necessary.
(5) The members of the Board, with the exception of the Chairman if he is a Magistrate, shall, before entering upon their office, take before the Attorney General the oath to examine and decide any matter referred to them with equity and impartiality.
(2) The Minister may make regulations governing proceedings before the Board and, without prejudice to the generality of the foregoing, may make regulations
49. (1) There shall lie a right of appeal from all decisions of the Board.
prescribing a scale of costs and fees in relation to such appeals.
the Board may direct that, as respects the doing of any act relating to a work with which the collecting society or the owner, as the case may be, is concerned, a licence shall be deemed to have been granted by the collecting society or by the owner at the time the act is done, provided the appropriate fees fixed by such Board are paid or tendered before the expiration of such period or periods as the Board may determine.
(2) The Minister may by regulations order that the provisions of this article shall not remain in force as from the date mentioned in such order.
PART XI
COLLECTIVE ADMINISTRATION OF RIGHTS
52. Authors and other owners of copyright and of neighbouring rights may authorize a collecting society to administer their economic rights.
Costs and fees.
Unreasonable refusal or unreasonable terms in respect of cable retransmission or rebroadcasting.
Authorisation of collecting societies.
Establishment and incorporation ofcollecting societies.
Tasks of collecting societies.
Methods of operation ofcollecting societies.
Obligations ofusers of works towards collecting societies.
Supervision ofcollecting societies.
Dissolution of collecting societies.
PART XII
REGULATIONS
Power to make 59. The Minister may make regulations for the better regulations.
implementation of the provisions of this Act and, without prejudice
Substituted by:
IX. 2003.100. to the generality of the foregoing, may by such regulations:
PART XIII
TRANSITORY PROVISIONS
Application to60. (1) This Act shall apply: works.
(2) (a) The rights of performers in respect of a fixation of their performance on a phonogram to prevent the fixation of their unfixed performance which took place prior to the commencement of this Act and the reproduction of such fixation when undertaken without their authorisation and the rights of performers to prevent the broadcasting by wireless means and the communication to the public of their live performance when undertaken without their authorisation shall be protected under this Act until the end of a period of fifty years computed from the end of the calendar year in which the performance took place. Provided that these rights are exercised through a collecting society.
(b) The right of producers of sound recordings made prior to the commencement of this Act to authorize or prohibit the rental of the said sound recordings shall be protected under this Act for a term of fifty years computed from the end of the calendar year in which the sound recording was made. Provided that these rights are exercised through a collecting society.
(c) The right of the holder of copyright in respect of a literary work consisting of a computer programme to authorise or prohibit the rental of the said programme shall be protected until the end of a period of fifty years computed from the end of the calendar year in which the author of the said computer programme dies.
(3) No action may be taken under this Act in respect of an action which took place prior to the commencement of this Act in respect of rights recognised by this Act but which were not recognised by the Copyright Act repealed by this Act. Cap. 196.