Broadly speaking, intellectual property rights (“IPRs”) refer to the legal rights which protect intellectual or intangible endeavours and creations and as such, IPRs are the core proprietary rights for any digital, industrial, scientific and creative field. Indeed, in a commercial reality which is increasingly knowledge-based and technology reliant, IPRs are evermore becoming the main business asset – that asset which provides commercial edge vis-à-vis competitors.
IPRs can take various forms and shapes, such as, to mention a few, copyrights, trademarks, design rights, trade secrets and patents. Protection eligibility requirements vary per IPR. Furthermore, the protection conferred by some IPRs is dependent on successful registration such as in the case of patents and (registered) trademarks, whilst protection by other IPRs is conferred “automatically” – in other words without the need of any formality, such as in the case of copyrights.
In turn, the protection conferred thereby is different depending on the IPR at hand. However, an inherently overlapping nature can be observed amongst the various IPRs. For example, the protection conferred by copyright tends to somewhat overlap with that of registered design rights and likewise, rights to registered trademarks typically overlap with rights to unregistered trademarks which arise by way of use under the Commercial Code, Cap 13 of the Laws of Malta as opposed to the registration requirement applicable under the Trademarks Act, Cap 416 of the Laws of Malta.
Crucially, it should be observed that Maltese IP law and IPRs generally, only confer negative rights: rights to exclude or restrain third parties from doing an act covered by IPR protection. Such rights are distinct from the positive right to produce, make or sell the underlying intellectual property. For example, the fact that a right-holder owns a patent, does not mean that the right-holder has the right to produce the underlying invention covered by the patent. The law governing the underlying invention is separate and distinct from the law governing patentability. Therefore, if one for example holds a patent covering a novel process for say “building a house” it does not follow that he also has a right to actually build a house and in turn work/employ his invention. Building permits would be required for such purpose: point being that the ownership of the IPR does not per se equate with any right except that to exclude or restrain others from doing specific acts.
In policy terms, IPRs are generally deemed crucial for two main and interlinked purposes:
- To provide statutory protection to the moral and economic rights of creators and in turn, the rights of the public to access to those creations; and
- To promote and incentivise creativity, dissemination of knowledge and encourage fair trading for economic and social development, as a deliberate act of Governmental policy.
The Intellectual Property (Protection) Ordinance (Chapter 29 of the Laws of Malta) introduced in the 1900 was the very first form of codified IP statute law in Malta, introduced at a time when Malta was a British colony. As a result, historically IP law in Malta has tended to derive principally from the laws of the United Kingdom, with judgements often relying on UK precedents and textbooks in the case of lacunas or lack of precedents under Maltese IP law. Naturally, a European element is also present since European legislation has effect in Malta qua a Member State of the EU.
Malta is also a member of various international treaties, conventions and agreements including the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, the Patent Cooperation Treaty, the European Patent Convention and the Unified Patent Court and Regulation. This series shall however focus solely on Malta’s national level IP laws and in this respect, it should be noted that Malta’s primary IP laws fall under the:
- Copyright Act (Chapter 415 of the Laws of Malta);
- Trademarks Act (Chapter 416 of the Laws of Malta);
- Patents and Designs Act (Chapter 417 of the Laws of Malta);
- Intellectual Property Rights (cross-border measures) Act (Chapter 414 of the Laws of Malta);
- Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488 of the Laws of Malta);
- Trade Secrets Act (Chapter 589 of the Laws of Malta); and
- Commercial Code (Chapter 13 of the Laws of Malta).
The primary authority of relevance with respect to IP in Malta is the Industrial Property Registrations Directorate within the Commerce Department, commonly referred to as the “IP Office”. Its function is primarily to process applications of registrable IPRs. Aside from the IP Office, the Department of Customs is also key with respect of imports and counterfeits and separate procedures are necessary before the Department of Customs as shall be explored later throughout this series. Litigious matters vest with the Civil Court (in first instance), bar some limited exceptions with respect to patents, namely instances which fall within the remit of the (somewhat new) Patents Tribunal, and with respect to certain administrative proceedings which can be heard at IP Office level.
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 firstname.lastname@example.org, Dr Terence Cassar on email@example.com, and Dr Bernice Saliba on firstname.lastname@example.org.
This series is not intended to impart legal advice and readers are asked to
seek verification of statements made before acting on them.
 World Intellectual Property Organization, Introduction. in Wipo (ed), WIPO Intellectual Property Handbook (WIPO 2004)