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Copyright under Maltese Law

Copyright is probably one of the most well-known intellectual property rights (“IPRs”) and in Malta, it is regulated under the Copyright Act (Chapter 415 of the Laws of Malta). 

Copyright confers defined exclusive rights over a creative and original work. These rights include the right to authorise or prevent third parties from commercially reproducing a work or a substantial part of it, the right to alter the work or to adapt it and the right to distribute or communicate the work to the public. Essentially, such authorship rights can be summed up as the author’s exclusive right to prevent third parties from commercially exploiting the creative work.

In tandem, the author of a work is bestowed a parallel set of rights under copyright, known as “moral rights”. Moral rights are in addition to commercial rights and in a nutshell can be described as the right to claim attribution of a work, rights to publish anonymously or pseudonymously and the right to the protection of the integrity of the work and author’s reputation.

Copyright is owned by the author of the work as the default position at law. Exceptions apply to the said default position and it is also possible to depart therefrom through a contract in writing.

Broadly similar rights are also bestowed to performers including singers, musicians, dancers, actors or other artists in respect of their performances or exhibitions. These rights are commonly known as “related” or “neighbouring” rights. Rights of producers (such as of a sound recording) and of broadcasters also fall within this separate category. The Maltese Copyright Act also contains the concept of sui generis rights in databases and semiconductor topography.

Copyright Eligibility

For a creative work to be conferred copyright protection, it must be a type of work which qualifies for copyright protection. In this respect, there are four broad categories of works which are covered by the scope of copyright protection, namely:

Artistic Works

Works such as paintings, drawings, prints, plans, sculptures, architecture and similar works of craftsmanship fall under the category of “artistic works”. Photographs fall within this category insofar as they are not captured in an audiovisual work. An artistic work is deemed to fall within this category irrespective of its artistic quality per se.

Audiovisual Works

The Copyright Act defines “audiovisual works” as works consisting of a series of related images which impart the impression of motion, with or without sound, susceptible of being made visible and, where accompanied by sounds, susceptible of being made audible. Films, for instance, would be an example of an audiovisual work.

Databases

A “database” is deemed to be a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. It is however not necessary for such materials to have been physically stored in an organized manner. The scope of a database does not capture computer programs used in the making or operation of the database itself.

Literary works

Literary works covers a broad category of works including novels, textbooks, stories, poetry, plays, choreography, stage directions, letters, reports, memoranda and similar works of literature. It should be noted that computer programs are considered to fall within this category. Similarly, to artistic works, copyright protection is conferred to a literary work irrespective of its literary quality per se. Additionally, laws, law reports and judicial decisions are not protected notwithstanding that they are literary works.

Musical Works

Musical works are considered to capture any type of musical work, irrespective of its musical quality, and includes musical works composed for accompaniment.

Additionally, it should also be noted that irrespective of the category of eligible works, a work is not considered ineligible for copyright protection by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright of some other work.

Copyright Protection Criteria

In turn, eligible works must satisfy three criteria to be bestowed copyright protection, namely the criteria of qualification, originality and fixation.

Qualification

Copyright is qualified by whether the author (or joint authors) is at the time when the work was made a citizen of, or domiciled or resident in Malta, or else a citizen, domiciled or resident in another State in which copyright is protected under an international agreement to which Malta is a party (such as the Berne Convention). Largely the same principle applies with respect to legal persons. Additionally, copyright is conferred to every work which is made or first published in Malta or in a State in which copyright is protected by an international agreement to which Malta is a party and which is not already conferred protection by the previous criterion.

Originality

For a work to be afforded copyright protection, the work must have an original character. In simplistic terms, this means that the work must be the result of the author’s own intellectual input and efforts. As such, it should be noted that “originality” as a requirement for copyright protection does not equate with the threshold of originality typically envisaged when the term is used in common parlance.

Fixation

A work will be protected by copyright only if it is either written down, recorded, or else otherwise reduced to a material form. In other words, it is the creative expression of the work which is protected, and not the idea behind it. Similarly, procedures, methods of operations and mathematical concepts are not conferred copyright.

Once the above criteria have been satisfied, copyright protection in Malta is conferred “automatically”, in the sense without the need of any further formality. Indeed, a formal registration system form conferment of copyright protection is not simply not a requirement in Malta, but as such not even available per se.

Term of Protection

Copyright protection is not granted forever, on the contrary it is given for a definite period and once such period expires, the work becomes available to the public as part of the public domain, whereby it can be distributed and reproduced without the right-holder’s consent.

As such, there are various specificities on the applicable term of protection for copyright. However, the rule of thumb is that copyright typically lasts for 70 years from the author’s death, whereas, performers rights generally expire 50 years from the publication of the performance.

Infringement

Infringement of copyright in Malta leads to exposure from both a civil and criminal perspective. Indeed, under the Criminal Code (Chapter 9 of the Laws of Malta), copyright infringement carries both the possibility of fines as well as imprisonment. From a civil perspective, cases are litigated before the First Hall of the Civil Court at first instance. Increasingly, the Maltese courts are also recognizing damages not just for material and actual damages but also for moral damages.

This article forms part of GTG Advocates’ series “Basics of Maltese Intellectual Property Law”, authored by Dr Terence Cassar and Dr Bernice Saliba.

For more information on Intellectual Property Law and related areas please contact Dr Ian Gauci on igauci@gtgadvocates.com, Dr Terence Cassar on tcassar@gtgadvocates.com, and Dr Bernice Saliba on bsaliba@gtgadvocates.com.

Disclaimer: This series is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.