The law constantly changes and evolves as society itself does. In life, we see how the most rapid changes occur in the field of technology with new digitisation born to replace older technology. Lawyers, academics and legislators involved in the intellectual property law realm are finding it increasingly harder to keep up with the onslaught of new media and the new uses traditional content is being put to.
Our traditional concepts of trade mark and copyright use are being remoulded, and it is with increasing alarm that we are realising that the law as it stands cannot cater for every eventuality, and that it is a struggle to keep up with the times.
With this is mind we turn our attention to the Bill currently being discussed in Parliament amending the Copyright Act and which aims to make the Act compatible with Malta's obligations arising from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Of note is the fact that our Copyright Act never contained any provision on what constitutes "uncopyrightable" material. These rules are normal in patent legislation, but are a new addition to copyright legislation. The Bill now contains an article to the effect that, copyright protection shall not extend to ideas, procedures, methods of operations or mathematical concepts as such.
We are thus incorporating the list of works not capable of copyright protection as contained in the WCT.
Until now, the Maltese courts were guided by the philosophy that ideas per se can never be protected unless they have been recorded or fixed in a tangible format. This general rule of copyright thought has now become codified in our legislation.
The Bill also proposes to incorporate the WPPT rules on publication, creating a new sub-article which holds that when a sound recording is made available to the public, by wire or wireless means, in such a way that members of the public may access it at a time and place individually chosen by them, it shall be considered as if it had been published for commercial purposes.
The WPPT also discusses the rental right and provides that producers of sound recordings shall enjoy the exclusive right of authorising the commercial rental to the public of the original and copies of their phonograms, even after their distribution by the producer himself. The WPPT applies the same rule to performers, however the Bill has only incorporated the rule for producers and not for performers.
The definitions section sees the introduction of the definition of a producer of a sound recording: "The legal entity who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds or the representation of sounds". The definition echoes that in the WPPT, with one difference - the WPPT applies the definition to a "person or legal entity" whereas the Maltese Bill only mentions the "legal entity".
A number of the proposed amendments widen the field of application of some already-existing provisions in the Act, making them applicable to sound recordings.
This brush stroke was applied to many definitions, one being the definition of "communication to the public" which from being the "transmission of a work" is now the "transmission of a work or sound recording".
This gains increased importance in the light of the European Commission's recent plans to lengthen the duration of copyright for producers of, and performers in, sound recordings to a period of 95 years from one of 50 years.
An interesting proviso to the definition of communication to the public reads that the mere provision of physical facilities for enabling or making a communication does not in itself amount to an act of communication to the public.
This ties in with the provisions on mere conduit and hosting under the E-Commerce Act, which provide a safe-harbour to those offering services connecting the general public to networks of communication. This is interesting in the present scenario of the Pirate Bay case, and other cases dealing with file sharing - where communication to the public and making available the work are key instances in the sharing of a work over peer-to-peer networks.
The latest news is that of the court's decision in the Pirate Bay case, which was out on April 17. The four people tried in Sweden have been found guilty of criminal copyright infringement. They have been sentenced to a year in jail and were ordered to pay circa €3.5 million in damages.
The four plan to appeal the decision, and have stated that they have no intention of paying the damages.
One of their main arguments for the appeal is that the judge is a noted member of pro-copyright societies, a fact which they feel is a clear conflict of interest on the judge's part.
The author specialises in intellectual property law and art and antiquity law at Fenech & Fenech Advocates.
www.fenechlaw.com