In late 2021, the UAE Government adopted the largest legislative changes in its history by issuing 50 new laws which coincided with the 50th Anniversary of the founding of the UAE. One of these new laws, was the long anticipated UAE Copyright Law.
The UAE has issued a new Federal Law No. 38 of 2021 concerning Copyright & Neighbouring Rights (New Copyright Law) that replaced the old Federal Law No. 7 of 2002 (Old Copyright Law), where it has introduced significant changes to take account of the fast-moving digital world we now live in. The New Copyright Law came into force on 2 January 2022. However, as at the date of writing, we are still waiting for the publication of the Implementing Regulations, which will add some further clarity to certain aspects of the New Copyright Law. These are expected to be published and come into force later in 2022.
-
An interesting and long-awaited addition to the New Copyright Law is the concept of "work made for hire" which is a work created by an employee, commissioned by an employer and which the employer compensates such employee for the same. The employer will be considered the legal author of such work (unless otherwise agreed) under the New Copyright Law (which is a departure from the Old Copyright Law). This concept applies in the following two scenarios: (1) if the author creates the work for the benefit of another person, the copyright belongs to the latter; and (2) if the author creates the work within the scope of employment using the employer's resources, tools, information etc., the copyright belongs to the employer. Situations where the employee will remain the copyright holder are the following: (1) if the author creates the work outside the scope of employment and not related to the business or activities of the employer and (2) if the author creates the work without using the employer's resources, tools, information etc.
-
Under the Old Copyright Law, there were restrictions around transfer of future copyright works, where only 5 or less future works could be assigned. While there remains restrictions in relation to the transfer of future copyright works, the expectation is that the number will increase from 5 works. The law does not specifically state how many future works a copyright holder will be able to validly transfer contractually, as this will be provided in the Implementing Regulation of this law. The expectation is that it could be at least 10 future works. This is an improvement on the current position, but will still mean that care will be taken when dealing with third parties who may be creating multiple works for you.
-
The law still prevents the assignment or waiver of moral rights.
-
There are provisions for an author (or successors) to withdraw copyrighted work from circulation based on justified reasons. However, such withdrawals expressly exclude the possibility of withdrawing smart applications, computer programmes and applications from circulation, which in turn provides third parties with a further incentive to securely invest in the field.
-
With respect to joint works where a number of individuals collectively create a work, where it is not possible to separate the share of the work, all joint authors will equally co-own such a work and will be considered joint creators (unless otherwise agreed). No author can individually exercise the copyright, without prior agreement. In the event any of them dies leaving no heirs, his/her respective share shall go to the other joint creators.
-
With respect to a copyright holder that does not have any heirs, the rights of such works will be taken over by the Ministry of Economy which will continue to exercise the relevant moral rights with the aim of preserving such works.
-
There is greater clarity around copyright works for software related entities, with the introduction of a specific copyright work to protect smart applications, computer programmes and applications, databases, and similar works as determined by the Ministry of Economy. With such areas being of key importance in the UAE's fast-paced development in the tech and innovations space, it is a significant step in offering this clear protection to such works. Software companies, and entities commissioning software developers should ensure that these new works are included in any agreements relating to the commercialisation of such rights.
-
The New Copyright Law also makes clear the ownership around Architectural Designs, which is of importance in the UAE, given that it is the home of so many unique and iconic buildings. Under the new law, it has been expressly stated that the ownership of the copyright in architectural designs vests in the owner of the property, rather than the original author who created the architectural design (unless otherwise agreed). Again, this is an important factor for rights holders in iconic buildings, particularly with the emergence of the Metaverse and more real estate companies looking to commercialise or enforce rights in landmark buildings.
-
As with the Old Copyright Law, there remains strong protection around photographs, but also the subject matter of any photograph. The general theme remains protection of an individual's rights. For example, where a photograph or sound or visual recording involves an individual, it will not be possible for the works to be published, exhibited, distributed or kept, without the permission of the person. There are some exceptions around public events, but only where the publication or circulation will not prejudice the honour, reputation or standing of the person. It will be important for any media company, or company commissioning photographs or other forms of recording, to ensure that consent of all individuals is obtained in order to validly use and exploit such works.
- The New Copyright Law also added the concept of "fair use" with respect to reproduction of the copyrighted work in limited circumstances. This law now permits reproduction of a copyright work without infringing an author's intellectual property rights in certain situations, some of which are briefly outlined below. Please note, that there are further restrictions and qualifications around these limited areas, so please seek legal advice before considering any "permitted uses":
-
reproduction of a copyrighted work as a single copy for purely personal use (noting there are exceptions to certain works for personal use);
-
reproduction is an incidental and integral part of the process of digitally transmitting the work between different parties;
-
reproduction is made by a person authorised by the rightful owner or by law to carry out the transmission or broadcast of the relevant work;
-
reproduction is inevitable and incidental in order to accomplish a lawful action and in a manner that ensures that the copy is automatically erased without being able to be retrieved.
-
People with visual or physical impairments will be permitted to use an accessible format or copy of a work for personal use. Also, there are provisions for accredited non-profit entities to also have limited rights to reproduce works in an accessible format, for non-profit purposes. There will be further guidance around these provisions in the Implementing Regulations.
-
There are provisions for the creation of a new committee by the Ministry of Economy under the name "The Grievances Committee for Copyrights & Neighbouring Rights". This will be the competent authority to hear and decide all disputes related to copyright or neighbouring rights.
-
The New Copyright Law also introduces increased sanctions and penalties in case of violations and infringements of copyrights. The penalties for infringements have been increased to AED 100,000 (approximately USD 27,500). For example, the sanction for infringing one of the moral or financial rights of the author has been increased to AED 100,000 from AED 50,000 (in the Old Copyright Law). Further, the penalties for using a computer program or applications without obtaining a license from the author or successors could lead to fines of at least AED 100,000 to AED 1,000,000 (USD 275,000). Previously the fine was AED 30,000 (USD 8,175) under the Old Copyright Law.
The new laws go a long way to removing and addressing concerns under the Old Copyright Law - particularly around ownership of employee created rights.
However, in a number of areas, the default position in the New Copyright Law is clear, but with the qualification of "unless otherwise agreed", or similar wording. Due to this, and also restrictions around assignment of future rights etc, we recommend that employers and also companies entering agreements around the creation of copyrights, ensure that the ownership position is clearly addressed in any and all such agreements. This will remove any ambiguity and will help ensure the rights are transferred to your business. It will also be good practice to continue with confirmatory assignments on creation of works, especially commercially important rights, in order to ensure the ownership of the works is clear and you have supporting written proof of transfer of such ownership.
We will provide an update once the Implementing Regulations are issued, as these will provide further guidance on the above, and other areas under the New Copyright Law.