MALTA_2_copyright_2003_en.pdf
COPYRIGHT [CAP. 415. 1
CHAPTER 415
COPYRIGHT ACT
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 and IX of 2003.
1. The short title of this Act is the Copyright Act. Short title.
PART I
DEFINITIONS
Interpretation.
Amended by:
IX. 2003.92.
2. 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:
(a) paintings, drawings, etchings, lithographs, woodcuts,
engravings and prints;
(b) maps, plans, diagrams and three-dimensional works
relative to geography, science or topography, but
excluding semiconductor product topographies;
(c) works of sculpture;
(d) photographs not comprised in an audiovisual work;
(e) works of architecture in the form of buildings or
models; and
(f) works of artistic craftsmanship, including pictorial
woven tissues and articles of applied handicraft and
industrial art;
“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;
“broadcasting” means the transmission by wireless means for the
2 [CAP. 415. COPYRIGHT
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
c a b l e r e t r a n s m i s s i o n o f w o r k s e l i g i b l e f o r c o p y r i g h t o r
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
by wire or wireless means 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:
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;
“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
r e c e p t i o n b y t h e p u b l i c i n t o a n u n i n t e r r u p t e d c h a i n o f
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:
COPYRIGHT [CAP. 415. 3
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
4 [CAP. 415. COPYRIGHT
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:
(a) novels, stories and poetical works;
(b) plays, stage directions, choreographic works or
entertainment in dumb show, film scenarios and
broadcasting script;
(c) textbooks, treatises, histories, biographies, essays and
articles;
(d) encyclopaedias and dictionaries;
(e) letters, reports and memoranda;
(f) lectures, addresses and sermons;
(g) computer programs,
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:
(a) severe or total impairment of sight or hearing or the
inability to focus or move one’s eyes;
COPYRIGHT [CAP. 415. 5
(b) the inability to hold or manipulate a book; or
(c) an impairment relating to comprehension.
“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, actors or other artists
who sing, deliver, declaim, play in, act in 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;
“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 subjectmatter
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
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;
6 [CAP. 415. COPYRIGHT
“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 subjectmatter,
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 subjectmatter
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 subjectmatter
or a copy control mechanism, which achieves the protection
objective;
Cap. 460.
“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 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;
(b) where in the first instance a part only of a work is
published, that part shall be treated for the purposes of
this Act as a separate work;
(c) a publication in any country shall be treated as being a
first publication notwithstanding that there has been an
earlier first publication elsewhere, if the two
publications took place within a period of not more
than thirty days.
PART II
COPYRIGHT
Works eligible for
copyright.
3. (1) Subject to the provisions of this article the following
works shall be eligible for copyright:
(a) artistic works;
COPYRIGHT [CAP. 415. 7
(b) audiovisual works;
(c) databases;
(d) literary works;
(e) musical works.
(2) A literary, musical, or artistic work shall not be eligible for
copyright unless the work has an original character and it has been
written down, recorded, fixed or otherwise reduced to material
form.
(3) A work shall not be ineligible for copyright 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 in some other
work.
(4) A database shall not be eligible for copyright unless by
reason of the selection or arrangement of its contents, it constitutes
the author’s intellectual creation. Moreover the copyright conferred
to a database shall not extend to its contents and shall be without
prejudice to any rights subsisting in such contents themselves.
Qualification for
copyright
protection by
virtue of authors.
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
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
(3) In the case of an anonymous or pseudonymous literary,
musical or artistic work, or in the case of a collective work, the
Type of Work Date of Expiration of Copyright
(i) Literary, musical
o r a r t i s t i c w o r k s a n d
database
Seventy years after the end of the
y e a r i n w h i c h t h e a u t h o r d i e s ,
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.
8 [CAP. 415. COPYRIGHT
copyright in the work subsists until the end of the expiration of 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 when the pseudonym adopted by the author
leaves no doubt as to his identity or in the event of the identity of
the author becoming known during the period referred to in the
preceding paragraph of this sub-article or where in the case of
collective works by a body of persons the natural persons who have
created the work are individually identifiable in the versions of the
work made available to the public the terms of copyright protection
shall be calculated in accordance with the provision of paragraph
(i) of the last preceding sub-article.
(4) In the case of joint authorship reference in the preceding
table to the death of the author shall be deemed to refer to the joint
author who dies last, whether or not he is a qualified person in
terms of article 4(1).
(5) In the case of a person who for the first time lawfully
publishes or lawfully communicates to the public a previously
unpublished work the copyright protection of which has expired, he
shall benefit from a protection equivalent to the economic rights
covered by copyright but limitedly for a period of twenty-five years
from the time when the work was first lawfully published or
lawfully communicated to the public.
(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.
Qualification for
copyright
protection by
reference to
country where
work is made or
published.
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.
Copyright works of
Government and
international
bodies.
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.
(2) Copyright conferred by this article on databases or on a
literary, musical or artistic work shall subsist until the end of the
expiration of seventy years from the end of the year in which it was
first published.
(3) Copyright conferred by this article on an audiovisual work
shall have the same duration as is provided for by article 4 in
relation to the same type of work.
COPYRIGHT [CAP. 415. 9
(4) Article 4(5) shall apply in like manner to works eligible for
copyright to which this article applies which, having been
unpublished, are lawfully published or lawfully communicated to
the public for the first time after copyright protection has expired.
(5) Articles 4 and 5 shall not be deemed to confer copyright on
works to which this article applies.
Nature of
copyright in an
audiovisual work,
database, literary,
musical and artistic
work.
Substituted by:
IX. 2003.93.
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:
(a) the direct or indirect, temporary or permanent
reproduction by any means and in any form, in whole
or in part;
(b) the rental and lending;
(c) the distribution;
(d) the translation in other languages including different
computer languages;
(e) the adaptation, the arrangement and any other
alteration and the reproduction, distribution,
communication, display or performance to the public
of the results thereof;
(f) the broadcasting or rebroadcasting or the
communication to the public or cable retransmission;
(g) display or performance to the public:
Provided that the right to authorise or prohibit the cable
retransmission of a television broadcast shall be exercisable only
through a collecting society.
(2) The right to authorise or prohibit cable retransmission shall
not apply when the transmission is made in Malta:
Cap. 350.
(a) if the retransmission is in pursuance of a “must carry”
requirement as per article 40 of the Broadcasting Act;
and
(b) if and to the extent that the transmission is made for
reception in the area in which the cable retransmission
may be received.
(3) The right to authorise or prohibit the cable retransmission
of a television broadcast shall be exercisable only through a
collecting society.
(4) In the case provided for in subarticle (2) where a
rightholder has not transferred the management of his rights to a
collecting society, the collecting society which manages rights of
the same category shall be deemed to be mandated to manage his
rights. Such rightholder shall have the same rights and obligations
resulting from the agreement between the cable operator and the
collecting society which is so deemed to be mandated to manage
his rights as the rightholders who have mandated that collecting
10 [CAP. 415. COPYRIGHT
society and he may claim such rights within a period of three years
from the date of the cable retransmission which includes his work
or other protected subject-matter.
(5) Where no agreement is concluded regarding authorization
of the cable retransmission of a broadcast, either party may call
upon the assistance of one or more mediators appointed by the
chairman of the Malta Arbitration Centre, unless otherwise agreed
to by all the parties. The tasks of the mediators shall be to provide
assistance with negotiation. They may also submit proposals to the
parties. It shall be assumed that all the parties accept a proposal as
referred to in this subarticle if none of them expresses its
opposition within a period of three months. Notice of the proposal
and of any opposition thereto shall be served on the parties
concerned by judicial act, unless otherwise agreed to by the parties.
The mediators shall be so selected that their independence and
impartiality are beyond reasonable doubt.
Exhaustion of the
distribution rights.
Substituted by:
IX. 2003.94.
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.
Restriction with
regard to certain
works.
Substituted by:
IX. 2003.95.
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 -
(a) temporary acts of reproduction, which are transient or
incidental and an integral and essentail part of a
technological process and whose sole purpose is to
enable:
(i) a transmission in a network between third parties
by an intermediary, or
(ii) another lawful use of a work or other subjectmatter
to be made, and which have no
independent economic significance;
(b) reproductions on paper or any similar medium,
effected by the use of any kind of photographic
technique or by some other process having similar
effects, with the exception of sheet music, provided
that the rightholders received fair compensation;
(c) reproductions on any medium made by a natural
person for private use and for ends that are neither
directly nore indirectly commerical, on condition that
the rightholders receive fair compensation which takes
account of the application or non-application or
technological measures referred to in article 42(3) and
(4) to the work or subject-matter concerned;
(d) specific acts of reproduction made by publicly
accessible libraries, educational establishments or
COPYRIGHT [CAP. 415. 11
museums, or by archives, which are not for direct or
indirect economic or commercial advantage;
(e) ephemeral recordings or works made by broadcasting
organisations by means of their own facilities and for
their own broadcasts:
Provided that any reproduction of a work made
under this paragraph may, if it is of exceptional
documentary character be preserved in official
archives;
(f) reproduction of broadcasts made by social institutions
pursuing non-commercial purposes, such as hospitals
or prisons, on condition that the rightholders receive
fair compensation;
(g) the performing, playing or showing of a work in a
place where no admission fee is charged in respect of
such an act by any club whose aim is not profitmaking;
(h) the reproduction, translation, distribution or
communication to the public of a work for the sole
purpose of illustration for teaching or scientific
research only to the extent justified by the noncommercial
purpose to be achieved, and as long as the
source, including the author’s name, is, unless this is
impossible, indicated;
(i) the reproduction, translation, distribution or
communication to the public of a work for the benefit
of people with a disability, which are directly related
to the disability and on a non-commercial nature, to
the extent required by the specific disability;
(j) the reproduction by the press, translation, distribution
or communication to the public of published articles
on current economic, political or religious topics or of
broadcast works or other subject-matter of the same
character, in cases where such use is not expressly
reserved, and as long as the source, including the
author’s name, is indicated, or use of works or other
subject-matter in connection with the reporting of
current events, to the extent justified by the
informatory purpose and as long as the source,
including the author’s name, is, unless this is
impossible, indicated;
(k) the reproduction, translation, distribution or
communication to the public of quotations for
purposes such as criticism or review, provided that
they relate to a work or other subject-matter which has
already been lawfully made available to the public, as
long as, unless this is impossible, the source, including
the author’s name, is indicated, and that their use is in
accordance with fair practice, and to the extent
required by the specific purposes;
(l) the reproduction, translation, distribution or
12 [CAP. 415. COPYRIGHT
communication to the public of a work for the
purposes of public security or to ensure the proper
performance or reporting of administrative,
parliamentary or judicial proceedings;
(m) the reproduction, translation, distribution or
communication to the public of political speeches as
well as extracts of public lectures or similar works or
subject-matter to the extent justified by informatory
purposes and provided that the source, including the
author’s name, is, except where this is impossible,
indicated;
(n) the reproduction, translation, distribution or
communication to the public of a work for use during
religious celebrations or official celebrations
organized by a public authority;
(o) the reading or recitation in public by a person of any
reasonable extract from a published literary work if
accompanied by a sufficient acknowledgement;
(p) the inclusion in a communication to the public, the
making of a graphic representation and the making of a
photograph or film, of a work of architecture or
sculpture or similar works made to be located
permanently in public places;
(q) the incidental inclusion of a work or other subject
matter in other material;
(r) the reproduction, distribution or communication to the
public of a work for the purpose of advertising the
public exhibition or sale of artistic works, to the extent
necessary to promote the event, excluding any other
commercial use;
(s) the reproduction or communication to the public of a
work by way of caricature, pastiche or parody;
(t) the reproduction, translation, distribution or
communication to the public of a work in connection
with the demonstration or repair of equipment;
(u) the reproduction, distribution or communication to the
public of an artistic work in the form of a builidng or a
drawing or plan of a building for the purposes of
reconstructing the building;
(v) the communication to the public, for the purpose of
research or private study, to individual members of the
public by dedicated terminals on the premises of
establishments referred to in paragraph (d) of works
and other subject-matter, not subject to purchase or
licensing terms, which are contained in their
collections;
(w) in the case of a database, the performance of those acts
which are normally necessary in order that the licensed
user obtains access to the contents of the database and
normal use thereof, in respect of the whole or part of
COPYRIGHT [CAP. 415. 13
the database which the user is licensed to use; and any
contractual provisions running counter to what is
prescribed in this paragraph shall be null and void.
(2) Copyright in a computer programme shall not include the
right to authorize or prohibit:
(a) the observation, the study or testing of the functioning
of the program by the licensed user in order to
determine the ideas and principles which underlie any
element of the program if this is done whilst
performing any of the acts of loading, displaying,
running, transmitting or storing the program which he
is entitled to do;
(b) the reproduction by the licensed user of the code and
translation of its form where this is indispensable to
obtain the information necessary to achieve the
interoperability of an independently created computer
program with other programs, provided that these acts
are confined to the parts of the original program which
are necessary to achieve interoperability and the
information necessary to achieve interoperability has
not previously been readily available to the licensed
user:
Provided that any information obtained from the
reproduction of the code and the translation of the
form of a computer program made under this
paragraph shall not:
(i) be used for purposes other than to achieve the
interoperability of the independently created
computer program;
(ii) be given to other persons, except when
necessary for the interoperability of the
independently created computer program;
(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.
14 [CAP. 415. COPYRIGHT
Copyright in a
work of
architecture.
10. Copyright in a work of architecture shall also include the
exclusive right to authorize or prevent the erection of any building
which reproduces the whole or a substantial part of the work either
in its original form or in any form recognisably derived from the
original:
Provided that the copyright in any such work shall not
include the right to authorise or prevent the reconstruction, in the
same style as the original, of a building to which that copyright
relates or the right to authorize or prevent the rental or lending of
buildings or works of applied art.
First ownership of
copyright.
11. (1) Copyright conferred by articles 4, 5 and 6 shall vest
initially in the author or in the joint authors:
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-
(a) the name on a work purporting to be the name of its
author shall be considered as such, unless the contrary
is proved;
(b) in the case of an anonymous or pseudonymous work,
the publisher whose name is indicated in the work as
such shall be deemed to be, unless the contrary is
proved, the legal representative of the anonymous or
pseudonymous author and shall be entitled to exercise
and protect the rights belonging to the author under
this Act.
PART III
MORAL RIGHTS OF AUTHORS
Author’s right to
prohibit the
mutilation,
modification,
distortion or
subjecting to
derogatory
treatment of any
work.
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 -
(a) to claim authorship of his work, in particular, the right
that his name as far as practicable, be indicated in a
prominent way on the copies, and in connection with
COPYRIGHT [CAP. 415. 15
any public use of that work; or
(b) that his name be not indicated on the copies, and in
connection with any public use, of his work, or that his
pseudonym be so indicated:
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 -
(a) the right passes to such person as he may by
testamentary disposition specifically direct, provided
that on this person’s death the right passes to his
successor;
(b) if there is no such direction but the copyright in the
work in question forms part of his estate, the right
passes to the person to whom the copyright passes;
(c) if or to the extent the right does not pass under
paragraph (a) or paragraph (b) it would be exercisable
by the owners of the copyright.
PART IV
NEIGHBOURING RIGHTS
Nature of
performer’s rights.
13. Performers shall have the exclusive right to authorise or
prohibit the doing in Malta any of the following acts:
(a) the fixation of their performances;
(b) the direct or indirect, temporary or permanent
reproduction by any means and in any form, in whole
or in part of a fixation of their performances;
(c) the rental and lending of their fixed performances;
(d) the distribution of the original performances fixed in
phonograms and of copies thereof;
(e) the making available to the public of the fixation of
their performances, by wire or wireless means, in such
a way that members of the public may access them
from a place and a time individually chosen by them;
(f) the broadcasting and the communication to the public
of their performances, except where the performance
is itself already a broadcast performance or is made
from a fixation.
Term of protection
for performers’
rights.
14. The rights conferred by this article shall have the duration
of fifty 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.
Nature of
producer’s rights.
15. Producers of sound recordings shall, in respect of their
sound recordings, and producers of the first fixations of audiovisual
works, in respect of the original and copies of their audiovisual
works, have the exclusive right to authorize or prohibit:
16 [CAP. 415. COPYRIGHT
(a) the direct or indirect, temporary or permanent
reproduction by any means or form in whole or in part;
(b) the rental and lending;
(c) the distribution;
(d) the making available to the public by wire or wireless
means in such a way that members of the public may
access them from a place and a time individually
chosen by them.
Term of protection
for producers’
rights.
16. The rights conferred by this article on sound recordings
and audiovisual works shall have the duration of fifty 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.
Nature of
broadcasters’
rights.
17. (1) Broadcasting organisations shall have the exclusive
right to authorize or prohibit the doing in Malta of any of the
following acts:
(a) the fixation of their broadcasts or initial cable
transmissions;
(b) the direct or indirect, temporary or permanent
reproduction by any means or form in whole or in part
of fixations of their broadcast or initial cable
transmissions as set out in paragraph (a) above;
(c) the distribution of fixation of their broadcasts or initial
cable transmissions as set out in paragraph (a) above;
(d) the rebroadcasting of their broadcasts as well as the
communication to the public of their broadcasts if such
communication is made in places accessible to the
public against payment of an entrance fee;
(e) the making available to the public, of fixations of their
broadcast or initial cable transmissions as set out in (a)
above, by wire or wireless means, in such a way that
members of the public may access them from a place
and at a time individually chosen by them.
(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 protection
of broadcasters’
rights.
18. The rights conferred by this article on broadcasts shall
have the duration of fifty 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.
Remuneration for
performers and
producers of sound
recordings.
19. Where a sound recording published for commercial
purposes or a reproduction of such sound recording is used directly
or indirectly for broadcasting by wireless means or for any
communication to the public a single equitable remuneration shall
be paid by the user to the performers and to the producers of the
sound recording concerned to be shared equally between them.
Such payment shall be made to a collecting society representing
COPYRIGHT [CAP. 415. 17
both performers and producers of sound recordings or, in the
absence of such a collecting society, to the producer of sound
recordings who shall be obliged to distribute half of the
remuneration to the performers.
Exhaustion of
distribution rights.
Substituted by:
IX. 2003.96.
20. (1) The distribution right in respect of fixations of
performances, sound recordings, original and copies of audiovisual
works and fixations of broadcasts conferred by the preceding
articles of this Act on performers, producers of sound recordings,
producers of the first fixations of audiovisual works and
broadcasting organisations respectively, shall be exhausted by the
first sale or transfer of ownership in the market of the originals or
copies of such works in regard to that particular original or copy,
when such sale is effected by the neighbouring right owner or with
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.
Exceptions to
neighbouring
rights.
Substituted by:
IX. 2003.97.
21. The provisions of article 9 shall apply mutatis mutandis to
the neighbouring rights conferred by this Act in like manner as they
apply to copyright in a literary, musical or artistic or audiovisual
work, or database.
Qualification for
neighbouring
rights protection.
22. Neighbouring rights conferred by this Part shall apply only
in respect of works -
(a) of which the performer, the producer or broadcaster
is -
(i) an individual who is a citizen of, or is domiciled
or permanently resident in Malta or in a State in
which such works are protected by neighbouring
rights under an international agreement to which
Malta is also a party;
(ii) 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 such works are protected by
neighbouring rights under an international
agreement to which Malta is also a party;
or
(b) which are made, first published, broadcast or
communicated to the public in Malta or in a State in
which such works are protected by neighbouring rights
under an international agreement to which Malta is
also a party;
or
(c) which are 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.
PART V
18 [CAP. 415. COPYRIGHT
MORAL RIGHTS OF PERFORMERS
Performer’s rights
to be identified and
to prohibit the
distortion,
mutilation and
modification of
performances.
23. (1) Independently of a performer’s economic rights, and
even after the transfer of those rights, the performer shall until the
e x p i r y o f t h e e c o n o m i c r i g h t s , a s r e g a r d s h i s l i v e a u r a l
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 -
(a) the right passes to such person as he may by
testamentary disposition specifically direct, provided
that on this person’s death the right passes to his
successor;
(b) if there is no such direction but the copyright in the
work in question forms part of his estate, the right
passes to the person to whom the copyright passes.
PART VI
TRANSFER OF COPYRIGHT AND NEIGHBOURING RIGHTS
Assignment and
licences.
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.
(2) An assignment or testamentary disposition of copyright or
neighbouring rights may be limited so as to apply to some only of
the acts which the owner of the copyright or neighbouring rights
has the exclusive right to authorize or prevent, or to a part only of
the period of the copyright or neighbouring right, or to a specified
country or other geographical area.
(3) When an author in relation to the original or copy of his
work or a performer in relation to the fixation of his performance
assigns his exclusive right to authorize or prevent the rental thereof
to the producer of the sound recording or the producer of the
audiovisual work containing the author’s work or the performer’s
fixed performance, that author or performer shall retain the right to
obtain individually or through a collecting society an equitable
remuneration for the rental of the said sound recording or original
or copy of the said audiovisual work from the producer concerned
and such right may not be waived. In the absence of agreement on
the remuneration payable under this sub-article, the amount of such
remuneration shall be determined by the Board.
(4) Subject to the provisions of article 52 no assignment of
copyright or neighbouring rights and no licence to do an act the
doing of which is controlled by copyright or by neighbouring rights
shall have effect unless it is effected by an agreement in writing
between the parties:
COPYRIGHT [CAP. 415. 19
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
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.
(5) An assignment or licence of copyright granted by a joint
author or an assignment or licence of a neighbouring right granted
by a joint rightholder shall have effect as if granted by the other
joint authors or joint rightholders respectively:
Provided that, where any other joint author in the case of
copyright or joint rightholder in the case of neighbouring rights is
not satisfied with the terms on which such assignment or licence
has been granted, he may, within three months from the day on
which the said terms have been communicated in writing to him,
apply to the Board for the determination by it of such terms as the
Board may consider fair and reasonable.
(6) An assignment, licence or testamentary disposition may be
effectively granted or made in respect of a future work or an
existing work in which copyright or a neighbouring right does not
yet subsist, and the prospective copyright or prospective
neighbouring right in any such work shall be transmissible as
movable property:
Provided that in the case of copyright such assignment or
licence shall not be deemed to include a copyright which in terms
of article 11(1) vests in the author’s employers, unless the parties
expressly include it.
(7) A testamentary disposition of the material on which a work
is first written or otherwise recorded shall, unless the testator has
provided otherwise, be deemed to include any copyright or
neighbouring right or prospective copyright or prospective
neighbouring right in the work which is vested in the deceased.
PART VII
SUI GENERIS RIGHT IN RESPECT OF DATABASES
20 [CAP. 415. COPYRIGHT
Nature of 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
w h o l e o r i n s u b s t a n t i a l p a r t , e v a l u a t e d q u a l i t a t i v e l y o r
quantitatively.
Exceptions to the
sui generis right in
respect of
databases.
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 reutilization
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) extraction for private use in the case of a nonelectronic
database;
(b) extraction for the purposes of illustration for teaching
or for scientific research to the extent justified by the
non-commercial purpose to be achieved provided the
source is indicated;
(c) extraction or re-utilization for the purposes of public
security or an administrative or judicial procedure.
Term of protection
of sui generis right
in respect of
databases.
27. The right provided for in article 25 shall expire fifteen
years from the first 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 fifteen years from the first of January of
the year following the date when the database was first made
available to the public:
Provided that any substantial change, evaluated
qualitatively or quantitatively, to the contents of a database,
including any substantial change resulting from the accumulation
of successive additions, deletions or alterations, which would result
in the database being considered to be a substantial new
investment, evaluated qualitatively or quantitatively, shall give rise
to the creation of a new database, which shall be entitled from that
COPYRIGHT [CAP. 415. 21
moment to its own term of protection of fifteen years.
Assignment and
licences.
28. Such a right which may be assigned or granted under
contractual licence subject to the provisions of article 24 shall be
without prejudice to rights existing in respect of the contents of the
database.
Qualification for
protection sui
generis right in
respect of
databases.
29. The right conferred by this article shall only apply to a
database -
(a) whose maker or rightholder is at the time when the
database is made -
(i) an individual who is a citizen of, or is domiciled
or permanently resident in Malta or in a State in
which such a sui generis right in respect of
databases is protected under an international
agreement to which Malta is also a party;
(ii) 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 such a sui generis right in
respect of databases is protected under an
international agreement to which Malta is also a
party;
or
(b) which is made or first made available to the public in
Malta or in a State in which such a sui generis right in
respect of databases is protected under an international
agreement to which Malta is also a party;
or
(c) 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.
Definition of
extraction and reutilization.
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.
Exhaustion of
resale right.
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
22 [CAP. 415. COPYRIGHT
Nature of sui
generis right in
respect of
semiconductor
topographies.
32. Creators of semiconductor product topographies and their
successors in title shall have the exclusive right to authorize or
prevent in Malta the reproduction of the topography and the
commercial exploitation or the importation for the purpose of
commercial exploitation of the topography or of a semiconductor
product manufactured by using the topography.
Exceptions to the
topography right.
33. The right conferred by article 32 shall not prevent:
(a) reproduction of a topography privately for noncommercial
aims;
(b) reproduction for the purpose of analyzing, evaluating
or teaching the concepts, processes, systems or
techniques bodied in the topography or the topography
itself;
(c) any act in relation to a topography meeting the
requirements of article 35 and created on the basis of
an analysis and evaluation of another topography
carried out in conformity with the preceding paragraph
(b).
Exhaustion of
topography right.
34. When the topography or the semiconductor product has
been put on the market in Malta by the rightholder or with his
consent the exclusive right to authorize or prevent the commercial
exploitation or the importation of that topography or of that
semiconductor product shall be exhausted.
Application of
topography right
only in respect of
creator’s own
intellectual effort.
35. The right conferred by article 32 shall apply only in respect
of semiconductor product topographies which are the result of the
creator’s own intellectual effort and are not commonplace in the
semiconductor industry but shall not extend to any concept,
process, system, technique or encoded information embodied in the
topography:
Provided that where the semiconductor product topography
consists of elements that are commonplace in the semiconductor
industry, it shall be protected only to the extent that the
combination of such elements, taken as a whole, fulfils the abovementioned
conditions.
Qualification for
protection of
topography right.
36. The right conferred by article 32 shall apply in favour of a
creator or his successor in title who is an individual who is a citizen
of, or is domiciled or permanently resident 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.
Topographies
created in course of
employment.
37. Where a topography is created in the course of the
creator’s employment, in the execution of his duties or following
the instructions given by his employer the exclusive right conferred
by article 32 shall be deemed to be transferred to the creator’s
employer or his successor in title, subject to any agreement
between the parties excluding or limiting such transfer:
Provided that the creator’s employer or his successor in
title must also satisfy the criteria of article 36 or be a body of
persons or a commercial partnership constituted, established,
registered and vested with legal personality under the laws of Malta
COPYRIGHT [CAP. 415. 23
or of 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.
Where no right to
protection exists.
38. Where no right to protection as conferred by article 32
exists in favour of a creator or his employer in accordance with
articles 36 and 37, the right shall apply in favour of the person or
his successor in title, who, satisfying either of the conditions
mentioned in the proviso to article 37, first commercially exploits,
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.
Assignment and
licences.
39. The right conferred by article 32 may be assigned or
granted under contractual licence subject to the provisions of
article 24.
Term of protection
for topography
right.
40. The right conferred by article 32 shall subsist for ten years
from the end of the year in which the semiconductor product
topography was first commercially exploited anywhere in the world
or for fifteen years from the first fixation or encoding of the
semiconductor product topography if it has not been commercially
exploited:
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.
Right of
remuneration.
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.
24 [CAP. 415. COPYRIGHT
PART IX
INFRINGEMENT
Infringing acts.
Substituted by:
IX. 2003.98.
42. (1) Copyright, neighbouring rights and sui generis rights
are infringed by:
(a) any person who does or causes another person to do,
without a licence from the owner or holder thereof, an
act the doing of which is controlled by copyright,
neighbouring rights or sui generis rights;
(b) any person who, without the licence of the copyright
owner or right holder, imports into Malta otherwise
than for private and domestic use, or distributes
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 subjectmatter
protected under this Act from which
COPYRIGHT [CAP. 415. 25
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
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.
Liability for
infringement of
copyright,
neighbouring
rights and sui
generis rights.
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:
26 [CAP. 415. COPYRIGHT
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.
(3) The Court may, moreover, in a suit instituted under this
article, on the application of the plaintiff, order that all the
infringing articles still in possession of the defendant be delivered
to the plaintiff.
(4) In an action for infringement of copyright in respect of the
construction of a building, no prohibitory injunction or other order
shall be made -
(a) after the construction of the building has been begun,
so as to prevent it from being completed; or
(b) so as to require the building, in so far as it has been
constructed, to be demolished.
Liability for
infringement of
moral rights.
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.
(2) In any proceedings under the last preceding sub-article the
Court shall order the destruction of all the infringing articles still in
possession of the defendant where it is satisfied that the prejudice
caused to the author is so serious as to justify such measure.
(3) The provision of the last preceding sub-article shall not
apply where the infringing article is a building.
(4) Any person who contravenes the provisions of article 12(1)
and (2) and article 23(1) shall be liable at the suit of the author or
the physical person to whom, or the legal entity to which, the right
to exercise the aforesaid moral rights has been transmitted under
the proviso to article 11(2), 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
Appointment of the
Board.
45. (1) The Minister shall by notice in the Gazette appoint a
Copyright Board, consisting of a chairman and two other members
COPYRIGHT [CAP. 415. 27
for the purpose of performing the functions assigned to such Board
by the provisions of this Act.
(2) The Chairman of the said Board shall be a retired Judge or
a retired Magistrate or a person who has practised as an advocate in
Malta for a period of, or periods amounting in the aggregate to, not
less than seven years.
(3) The Minister shall also appoint two other persons to act as
members of the Board, one to replace the chairman and the other to
replace any of the other two members, whenever the chairman or
any of the other members, as the case may be, is, for any reason,
unable to carry out his functions.
(4) Every member of the Board shall hold office during the
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.
Absention and
challenge.
Cap.12.
46. The Chairman or any other member of the Board may
abstain or may be challenged by any of the contending parties for
any of the causes mentioned in article 734 of the Code of
Organization and Civil Procedure. Any question regarding any
cause of abstention or challenge and any question which is a
question of law alone shall be decided by the Chairman of the
Board.
Power to summon.
Cap. 12.
47. The Board shall have the power to summon any person to
give evidence or to produce books or other documents before it,
and the Chairman of the Board shall have, in regard to the
summoning and examining of witnesses before the Board, the same
powers as are by the Code of Organization and Civil Procedure
conferred on the Civil Court, First Hall.
48. (1) Proceedings of the Board shall be held in public and Proceedings.
the Board’s decision shall be notified to the parties by registered
post to their respective business or private addresses and, unless the
contrary is proved, such decision shall be deemed to have been
served on the party concerned not later than the third day
succeeding the day when it was posted to such party.
(2) The Minister may make regulations governing proceedings
before the Board and, without prejudice to the generality of the
foregoing, may make regulations -
(a) prescribing the manner in which any matter may be
referred to the Board;
(b) prescribing the procedure to be adopted by the Board
in dealing with any matter referred to it under this Act
and the records to be kept by the Board;
(c) prescribing the manner in which the Board shall be
convened and the place where the Board shall hold its
sittings;
28 [CAP. 415. COPYRIGHT
(d) prescribing a scale of fines, costs and fees; and
(e) generally for the better carrying out of the functions
assigned to the Board by this Act.
Right of appeal.
Amended by:
VI. 2001.34.
49. (1) There shall lie a right of appeal from all decisions of
the Board.
Cap. 12.
(2) Any appeal shall be brought before the Court of Appeal
composed in the manner provided in article 41(6) of the Code of
Organization and Civil Procedure by application within fifteen
days of service of the Board’s decision.
(3) The Minister responsible for justice may make rules
governing appeals to the Court of Appeal under this Act, and
prescribing a scale of costs and fees in relation to such appeals.
Costs and fees. 50. Costs and fees in respect of proceedings before the Board
and before the Court of Appeal shall be borne by the parties in such
manner as the said Board or Court, as the case may be, shall decide.
Unreasonable
refusal or
unreasonable terms
in respect of cable
retransmission or
rebroadcasting.
51. (1) In any case where it appears to the Board that a
collecting society or an owner of copyright or neighbouring right -
(a) is unreasonably refusing to grant a licence in respect
of cable retransmission or rebroadcasting, or
(b) is imposing unreasonable terms or conditions for the
granting of such licence,
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
Authorisation of
collecting
societies.
52. Authors and other owners of copyright and of neighbouring
rights may authorize a collecting society to administer their
economic rights.
Establishment and
incorporation of
collecting
societies.
53. Repealed by Act IX. 2003.99.
Tasks of collecting
societies.
54. Repealed by Act IX. 2003.99.
Methods of
operation of
collecting
societies.
55. Repealed by Act IX. 2003.99.
COPYRIGHT [CAP. 415. 29
Obligations of
users of works
towards collecting
societies.
56. Repealed by Act IX. 2003.99.
Supervision of
collecting
societies.
57. Repealed by Act IX. 2003.99.
Dissolution of
collecting
societies.
58. Repealed by Act IX. 2003.99.
PART XII
REGULATIONS
Power to make
regulations.
Substituted by:
IX. 2003.100.
59. The Minister may make regulations for the better
implementation of the provisions of this Act and, without prejudice
to the generality of the foregoing, may by such regulations:
(a) prescribe any matter that may be prescribed under this
Act;
(b) introduce changes to extend the protection granted by
this Act to any other form of intellectual property not
otherwise protected by this Act as may be provided by
any international instrument that is binding in Malta;
(c) change and revive the terms of the duration of
protection as may be provided in any international
instrument that is binding in Malta;
(d) alter the rights and limitations thereof as may be
provided in any international instrument that is
binding in Malta;
(e) prescribe the functions of the Copyright Board;
(f) provide for matters relating to collecting societies, in
particular their establishment, tasks, manner of
operation, setting and approval of fees and their
supervision.
PART XIII
TRANSITORY PROVISIONS
Application to
works.
60. (1) This Act shall apply:
(a) in relation to works made after the coming into force
of this Act; and
(b) saving the provisions of sub-article (2), to works made
before the coming into force of this Act where the term
of protection has not, upon the coming into force of
this Act, expired under the Copyright Act repealed by
this Act.
(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
30 [CAP. 415. COPYRIGHT
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.
Cap. 196.
(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.