Copyright is a proprietary right which subsists in a number of different types of works. The works which form the subject-matter of copyright will depend of the relevant jurisdiction. Within the European Union (including Malta), the following works are generally protected under copyright law:

  • artistic works;
  • audiovisual works;
  • sound recordings;
  • databases;
  • literary works;
  • musical works;
  • computer programmes (generally as literary works).

A work is usually not eligible for exclusive rights unless the work has an original character and it has been written down, recorded, fixed or otherwise reduced to material form. Therefore, mere ideas cannot be protected under copyright – only the manner in which they were expressed in writing is eligible for protection.

Copyright gives the owner the right to control certain activities, mostly relating to the commercial exploitation of the work – therefore in addition to the traditional concept of preventing the ‘copying’ of the work, it also prevents other rights such as the distribution or adaptation of the work, the display or performance to the public and even the rental and lending. This list is not exhaustive and the activities prevented can differ depending on the nature of the work being protected. The carrying out of restricted activities without the permission of the copyright owner will result in an infringement, which at times can carry criminal liability. Permission of the owner takes the form of the sale of the copyright or a licence to use the copyrighted work, limited in accordance with the owner’s wishes.

In essence, copyright exists in order to give its author a return on the investment made in creating the work, thus rewarding such creativity. The right, however, is limited in time (it only exists for a number of years – depending on the type of work being protected) and in scope (in that the law allows a number of ‘permitted uses’ of a copyright work to be carried out without the owner’s prior consent).

The owner of the work is in most cases the author of the work (unless, of course, this has been alienated to a third party); however in the case of an audio-visual production, such as a film, the ‘default’ owner at law will be the principal director.

Successful attempts have been made to harmonise the protection of exclusivity rights on an international level through the Berne Convention for the Protection of Literary and Artistic Worksof 1886 and the Universal Copyright Convention of 1952. These conventions lay down minimum standards of protection to be attained by the signatories to the conventions. At the European level, a number of Directives have dealt with copyright. These mandate a level of harmonisation across the European Union. In Malta, the copyright law provisions can be found in the Copyright Act, Chapter 415 of the Laws of Malta.

A database is generally eligible for exclusivity rights only if the selection or arrangement of its contents constitutes an original creation on the part of the author. It should be noted that the copyright conferred to a database does not extend to its contents.

Notwithstanding the limitations of copyright in the protection of databases as mentioned above, 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 can claim a sui generis database right, that is, the right to authorise or prohibit acts of extraction or re-utilisation of a substantial part of the contents of the database.

Performers have rights to control the fixation of their performances as well as the reproduction of that fixation in whole or in part, the rental, lending and distribution thereof and the broadcasting or communication to the public of the performance. This right, while not being a copyright, is nonetheless a proprietary right and can be sold or licenced for financial consideration.

The rights given to performers recognise the artistic value of the performance itself and thus give the performer rights therein, independently of the copyright in the performed work. This would be important where, for example, the unauthorised recording of a musical performance has been carried out but the owner of the musical work does not want to take action for infringement. In such a case, the performer has the right to take action for breach of the performer’s rights.

For more information about our Copyright Law services, please contact us here.