Malta has been gripped in Acta fever, or rather by Acta hayfever. I have listened to all sides of the debate, read the agreement time and time again, made my own comparisons, thoughts and arrived at my own conclusions. You will not read them here.
The Berne Convention first signed in 1886 and now signed by over 150 countries lays down the fundamental rules of copyright- Jeanine Rizzo
We have thankfully moved away from the “Acta is evil fullstop” kind of debates, to “Acta is evil because” type of debates. That already allows me to unclench my teeth. The reason for the clenched teeth is that many people out there debating the pros and the cons of Acta are not aware of, or do not understand, the rules contained in Maltese law.
The Maltese situation is such that copyright is the default world creators of content work in. And this is so not only in Malta, but pretty much all over the world. The Berne Convention first signed in 1886 and now signed by over 150 countries lays down the fundamental rules of copyright. The chief and most fundamental rules regulating copyright are that it is automatic, and exists to protect a work as soon as the work is fixed.
This is the basis on which copyright theory is founded on: nobody has a monopoly over an idea. It is the way in which the idea is fixed that is protected. So, everybody can create a novel based on the plot: boy meets girl, their families despise each other, but they still fall in love, and live happily ever after, the end. It’s the way it is written that differs each time. And everybody can create software that takes you from A to B, but it’s the way you get from A to B that can be different every time.
It is the way in which one expresses that idea therefore that is protected. The idea itself is free, and in fact may be expressed in other ways.
Copyright was created in order to give something back to the person creating, and grants exclusive rights over what they have created. Making copies, distributing, public performance, adaptation, translation, and making the work available to the public are acts reserved to the copyright owner. These rights may be assigned or licensed out to others giving them a right to use the work in ways otherwise reserved to the copyright owner. This is done by first seeking the consent of the rights owner.
Downloading and file sharing are infringements of copyright because of the copy being made (from an illegal source) and the making available of the work to others in the network (see my previous articles on the subject). The peer to peer software itself is not infringing, but there have been sites which have been identified as having been exclusively set up to facilitate copyright infringement and have therefore been sued on these grounds before the law courts to be shut down.
Controversially, copyright owners place upon the physical or digital carriers which house their work technological measures designed to allow controlled access to the work. So, for example, a bought CD might have copy-protection written into it. Via European harmonisation, the law has been written to outlaw the circumvention of these technological measures. I have written about this here, years ago now; the arguments remain relevant today: should the technological measures themselves be protected by law?
Importantly, Maltese law, reflecting European Union harmonisation, introduces exceptions to the restricted acts. The exceptions therefore grant use of the work without needing to go for copyright clearance. Out of a list of 23 exceptions, one was labelled as mandatory by the EU to all its member states. The mandatory exception is to allow temporary acts of reproduction which are transient and incidental – such as those that a DVD player makes when playing a DVD in order to produce a seamlessly moving image. The other exceptions were left at the discretion of member states to take up, producing different results in different EU states.
As an example, lets’ take the right of private use. This is invoked when a person, legitimately buys a CD and wants to create a back up copy. That is allowed under Maltese copyright law. The UK has not taken on this exemption in their copyright laws, and has consequently come under harsh scrutiny (see my previous article) because all people who legitimately download music, for example from iTunes, and want to make a backup or have a copy on their computer and on their iPod are caught in a state of infringement because private use is not an exception in the UK.
In reality there is much, much more to be said about copyright law. So much so that I could start writing and never finish. The biggest hurdle facing law makers is to make laws which are technologically neutral. The law cannot forever chase technological progress. Times are a-changing, making this an extremely interesting time for (informed) copyright debate.
(This article is not intended to offer professional advice and one should not act upon the matters referred to in it without seeking specific advice.)
www.fenechlaw.com
Dr Rizzo specialises in entertainment and intellectual property law at Fenech & Fenech Advocates.