1. When does copyright infringement occur?
Copyright infringement occurs whenever a right in a work protected by copyright is infringed.
2. When is a copyright infringement lawsuit possible?
In order to institute a successful copyright infringement lawsuit the following elements must exist;
1. A right protected by copyright has been infringed;
2. The applicable copyright protection term has not expired;
3. And the action is not prescribed.
3. Rights protected by copyright
A copyright serves as a safeguard to material and moral rights. For copyright infringement to occur, one of these rights necessarily has to be breached.
3.1. Material rights
Material rights consist in the exclusive right to authorize and/ or prohibit acts such as;
· Distribution;
· Rental and Lending;
· Translation into other languages (including different computer languages);
· The adaptation, arrangement, alteration or reproduction;
· Broadcasting or performance rights.
Consequently material rights shield the economic value of a copyright since the rights protected influence income generation capability.
3.2. Moral rights
Moral rights consist in;
· The attribution of the author as being the creator of the work and the right to be properly indicated as such.[1]
· The right not to subject his work to change without his prior consent.[2]
Therefore moral rights provide protection for the honour and reputation of an author.
4. Term in which infringement may occur
Since copyright protection is not perpetual, for infringement to subsist, it must occur within the copyright’s expiration term.
Copyright protection expiration terms vary according to the type of work and type of right protected.
4.1. Authorship rights
Literary, musical or artistic works and database[3]
70 years 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.
Audiovisual works[4]
70 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
Pseudonym or anonymous literary, musical, artistic, audiovisual, collective works[5]
70 years from the end of the year in which it was lawfully made available to the public or after the end of the year in which the work was made if it has not been made available to the public:
Provided that if the pseudonym used leaves no doubt as to who the author is or the author later becomes known, the term will be 70 years 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.
Joint Authorship[6]
term starts as of the day the last author dies
Publisher of previously unpublished works, the copyright of which has expired[7]
protection for 25 years as of the date of publishing for economic rights only
Published in volumes/ episodes/ parts etc[8]
term runs from the day they are made available to the public, and the term of protection of each shall run separately
4.2. Neighbouring rights
Performer[9]
50 years 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 to the public from the end of the year in which it was first performed.
Producer (sound recording, audiovisual works)[10]
50 years 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 to the public from the end of the year in which the first fixation was made
Broadcaster[11]
50 years 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.
4.3. Sui generis rights
Databases[12]
15 years from the 1st of January of the year following the date of completion of the making of the database, or if made available to the public in whatever manner before expiry of the said period, such a right shall expire 15 years from the 1st of January of the year following the date when the database was first made available to the public: Provided that if a change to the database is substantial enough, it will qualify for a separate term on its own.
Semiconductor product topographies[13]
10 years from the end of the year in which the semiconductor product topography was first commercially exploited anywhere in the world or for 15 years from the first fixation or encoding of the semiconductor product topography if it has not been commercially exploited
5. Prescription
Copyright infringement may lead to either;
1. Civil liability only or
2. Both civil and criminal liability
The type of liability which the particular infringement attracts regulates the applicable prescription term and when such term starts running.
5.1. Prescription for an Action involving Civil Liability
When an offence gives rise exclusively to civil liability, it is barred by the lapse of two years.[14] These two years start running as of the day one has knowledge of the breach.[15]
5.2. Prescription for an Action involving Criminal Liability
If an offence gives rise to both civil and criminal liability, the civil action will be prescribed the same way as the criminal action.[16]
The applicable prescription term is calculated according to the severity of the applicable penalty.[17] As a result the maximum applicable prescription time is 2 years as from the day one has knowledge of the tort.[18]
6. When does Liability arise and what are the Applicable Penalties?
6.1. Civil Liability
Civil liability arises whenever there is a breach of any of the rights protected by copyright. The proceedings take place in the Civil Court First Hall and the penalties which this court may award are;[19]
1. Restitution of the profit derived from the infringement and
2. Payment of damages and/or
3. Payment of a fine.
6.2. Criminal Liability
A copyright infringement attracts criminal liability only in two instances;
1. When a person fraudulently indicates that any work is subject to a copyright. In such case the applicable penalty is imprisonment for a term of 4 months to 1 year.[20]
2. When a person infringes copyright for gain or by way of trade. In such case the applicable sentence is imprisonment for a term not exceeding 1 year or to a fine not exceeding €11,646.87.[21] In such case, proceeding may not be instituted ex officio.[22]
For criminal liability to subsist the damage must not only be done in Malta but one of the following elements must exist:
· Offence occurred in Malta
· Gain received in Malta
· Breach carried out via the assistance of a person in Malta
· Offender is a citizen or domiciled or permanently resident in Malta and the offence also constitutes an offence where it took place.
6.3. Primary and Secondary Infringement
Court practice has provided a distinction between primary and secondary infringement. Primary infringement occurs when a person directly infringes any right protected by copyright, while secondary infringement occurs when a person deals with copyright infringing goods/ services.
This distinction is not present at law and the remedies available are the same in both types of infringement.
[1]Chapter 415 of the Laws of Malta, Copyright Act, article 12(2)(a)
[2] Ibid. article 12(1)
[3] Ibid. article 4(2)(i)
[4] Ibid. article 4(2) (ii)
[5] Ibid. article 4(3)
[6] Ibid. article 4(4)
[7] Ibid. article 4(5)
[8] Ibid. article 4(6)
[9] Ibid. article 14
[10] Ibid. article 16
[11] Ibid. article 18
[12] Ibid. article 27
[13] Ibid. article 40
[14] Chapter 16 of the Laws of Malta, Civil Code, article 2153
[15]First Hall Civil Court, Helen Schembri et v. Anthony George Zahra noe (29th April 2005) wherein the court held that prescription starts to run as from the day the action could be instituted.
First Hall Civil Court, John Grech v. Ivan Mifsud (26th February 2007) wherein the court noted that in tort prescription starts running as of the moment one has knowledge of the tort while in contract it starts running immediately.
[16]Chapter 16 of the Laws of Malta, Civil Code, article 2154(1)
[17] Chapter 9 of the Laws of Malta, Criminal code, article 688
[18]Ibid. article 688(e)
[19]Chapter 415 of the Laws of Malta, Copyright Act article 43(1)
[20] Ibid. article 298(1)(e)
[21] Ibid. article 298B(1)
[22] Ibid. article 298B(2)
