Swift technological advancements, rapid communication, social media and the internet in general have all contributed to the transformation of the manner in which artistic, literary works and other creative arts are created, produced, distributed and exploited. New business models and novel protagonists continue to appear.
All this has obviously affected the creatives industry. It is a fact that applicable legislation needs to be nimble and future-proof so as not to stifle technological and artistic expansion. Even though the basic and fundamental objectives and principles within the copyright framework remain sound and strong, yet legal uncertainty remains. All within the creativity spectrum and both right holders and users are many times baffled as to the manner in which traditional copyright concepts can be applied cross-border and within the digital environment.
Malta Copyright: Introduction
Chapter 415 of the Laws of Malta, enacted in 2001, has been the Act that has regulated copyright and the protection of such artists in the last few decades (“the Copyright Act” or “the Act”). Since its inception it has been amended every few years with the aim of incorporating novel protection to various works, generated following the constant and never-ending advancement in technology. The constant and regular evolution of innovative concepts has become inevitable, with copyright protection becoming intertwined with changes brought about by the current fast-paced digital era. As a result, copyright law is now faced with much more challenges than it was originally acquainted to.
Essentially, copyright covers a range of specifically defined exclusive rights that are owned by individuals or organisations in respect of creative and original work. This includes the right to authorise or prevent third parties from reproducing a work or a substantial part of it, the right to alter it or to adapt it and the right to distribute or communicate it to the public. Broadly speaking, similar rights are given to performers, producers of sound recordings, producers of audio-visual works and to broadcasters in respect of the exploitation and dissemination of their performances, sound recordings, audio-visual works or broadcasts.
Concurrently, the author of a work is conferred a set of corresponding rights recognized as “moral rights”. Moral rights move together with commercial rights. In a few words the former can be defined as the privilege to receive acknowledgment for a work, benefits to publish anonymously or pseudonymously and the to the protection of the integrity of the work and author’s reputation. Generally, in Malta, if one is a citizen, permanent resident or domiciled in Malta; or citizen, permanent resident or domiciled in a state in which copyright is protected under an international agreement to which Malta is also a party, then one is automatically protected by copyright as soon as all of the essential elements of copyright coexist.
Malta Copyright: Elements
Generally, in Malta, if one is a citizen, permanent resident or domiciled in Malta; or citizen, permanent resident or domiciled in a state in which copyright is protected under an international agreement to which Malta is also a party, then one is automatically protected by copyright as soon as all of the essential elements of copyright coexist.
The elements of copyright centre around the fact that the work needs to be original in character and certain works must also be written down, recorded, fixed or otherwise reduced to material form. If these elements exist, then such work would be automatically protected by Maltese copyright legislation and there is no need for registration.
Malta Copyright: Legislation
The latest version of the Malta Copyright Act brings together all international and European standards, rules and obligations into the local legislation, bringing Maltese law in line with international and European standards. From an international point of view, works are protected also under the Berne Convention (as revised), the TRIPs Agreement, the Paris Convention, the Universal Copyright Convention, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
With regards to the tackling of novel techniques, processes and artistic works, current legislation provides the following:
Article 9 of the Copyright Act deals with restrictions with regards to certain works such as photographic techniques and computer programs among others which are popular issues that crop up with regards to digital copyright infringements.
With regards to the latter, computer programs are dealt with under the exception provided for in Article 9(2) of the Copyright Act, which allows for copies of computer programs by the licensed user as a back-up copy. This back-up copy may not be restricted or excluded by contract, given that it is required for the use of the computer program.
Article 9(1)(b) of the Act deals with the reproduction of any kind of photographic techniques or other processes that have similar effects, and states that copyright of the sort is only permitted provided that the rights holders are given fair compensation for their works. For example, issues concerning the copyright of images usually has to do with pictures posted on social media websites, and the copyright clauses of such websites are usually regulated by their own ‘Terms of Use’. These terms usually allow such mediums to license images from their site to others, therefore selling images of users posted to the site to third-party companies, however, this is not usually done as such behaviour might alienate users. The moment a person uploads an image taken by him/herself to social media, the copyright to the image is created and retained. As a result, when neither the social media website nor the user who posted the image has given permission for the usage of such image, copyright infringement would have taken place and the owner of the photograph in question would have had his/her copyright rights infringed.
The exceptions and limitations provided for under Maltese Law are only to be applied in cases which do not prejudice the reasonable and legitimate interests of the right holder. Exceptions and limitations to the reproduction right may be provided for by Member States. This is catered for in Article 2(b) of the current Copyright Act which states the following:
“In respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned.”
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [2001] (“Information Society Directive” (InfoSoc)) forms part of our local Copyright Act. The second article of this Directive provides for reproduction rights in cases where Member States can grant exclusive authorisations or prohibition rights to authors for their works. The right of reproduction is the oldest right to be granted to copyright holders and is still predominantly followed to this day in relation to copyright protection within the digital age.
During the past few years, there has been a drastic increase of copyright infringements involving digital matters, and as a result, owners of artistic works are constantly seeking ways of maximising the economic effectiveness of their intellectual property rights. More often than not, there is the need for this to go beyond the basic protection and rights of exploitation given to the author, therefore, protection of such rights is achieved through licensing and/or sub licensing through strict contractual mechanisms. This brings about restrictions to exceptions which are normally permitted under copyright law outside of the digital scope.
In October 2020, the National Book Council proposed a new legal framework, in line with EU legislation on the matter. The process officially kicked off in the 2019 National Writers' Congress, after the annual consultation meeting with publishers and other stakeholders, resulting in the proposal for a revised Copyright Act and the establishment of the National Book Council Act. The draft proposes to modernize the Copyright Act and bring it in line with contemporary realities of the artistic and cultural industry. Since 2013 the main aim has been to boost the revenue streams of the publishing industry stakeholders, giving priority to publishers and authors. The idea behind all this is to push the transposition of the EU’s Directive on Copyright in the Digital Single Market[1] and by addressing other inconsistencies within our domestic copyright framework.
The proposals introduce a wide range of novel rights for authors and performers, granting them more control over their creations, in particular where such rights have been transferred or licensed to third parties for example publishers, record labels, and online platforms.
Part of the proposals deal with contractual rights, and adjustments. Authors and performers will benefit from heightened clarity, transparency and accountability from licensees or assignees who make use and commercially exploit the creator’s work, which will range from the receipt of fair dues, re-evaluation of existing agreements with such parties and renegotiation of existing contract leading to potential requests of additional remuneration when the owner’s income is disproportionately low when evaluated vis-à-vis the revenues and benefits derived by licensees and assignees from such works. Revocation or termination of agreements by creators is also a possibility in instances where the work is not being commercially exploited by the assignee/licensee in question. Another interesting proposal deals with the right of rightsholders to be fairly compensated by online content-sharing platforms. The latter will now be obliged to remunerate creatives for content which the platform is disseminating and to remove infringing content expeditiously upon receipt of sufficient proof and reasonable request from the relevant rightsholder.
Copyright in Malta: Challenges posed by the Digital World
Originally, the concept of copyright dealt solely with rights controlling copying, adaptations, transmissions, and broadcasting. However nowadays, this scenario has changed due to permutations presented by digital realities. According to Professor Pamela Samuelson, new challenges copyright may face vary between the equivalence and compactness of works in digital form; ease of replication, transmission and multiple use; the relative plasticity of digital media which makes it very susceptible to modifications, as well as the new search and link capabilities. As a result, a balance ought to be kept between these challenges and the rights and expectations of consumers. All stakeholders need to be given their due importance and it is highly recommended that, as with all other technical legislation, proposals and views coming from the experts in the field is sought. [2] It would be a grave mistake if legislative changes are cast aside, not implemented or implemented inadequately due to failure to acknowledge the technical, creative and artistic industry, mainly if such challenges and changes relate to digitisation of this area.
When implementing legal changes or improvement, technological neutrality, irrespective of the typology of any technology, would ensure that any new law can promptly adapt to the frequent changes in innovation. Current law does provide exceptions and specific scenarios that attempt to tackle novel technologies however a revision of the Act, keeping in mind that technological neutrality is paramount, would greatly improve the current situation.
[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance.)
[2] Samuelson, Prof Pamela, Digital Media and the Changing Face of Intellectual Property Law, 1990, Rutgers Computer and Technology Law Journal
