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Some features of national copyright law have been influenced differently by civil law and common law traditions, resulting in significant differences between civil law and common law copyright law:
In civil law jurisdictions, Protection of authors is a cornerstone of copyright law. Copyright law is therefore intended to protect the economic interests of authors and the reputation of authors against unauthorized use or alteration of their works. To this end, authors are granted certain non-transferable rights and retain copyright in their work, without any explicit assignment of rights even in the case of an employment contract.
In common law jurisdictions, Copyright law promotes the progressive and economic interests that arise from works. Authors are thus considered transferors of rights that constitute a source of economic interest for the community. Therefore, all the rights of the author are transferable, and the employer or client can benefit from the automatic transfer of the rights of the work to facilitate the investment and utilization of rights.
The UAE is a civil law jurisdiction heavily influenced by French law and Islamic law. Accordingly, the provisions of UAE copyright law differ fundamentally in some respects from the copyright laws of common law jurisdictions such as the United Kingdom (UK), Ireland, the United States, Australia and New Zealand.
However, it is common practice for many companies operating in the UAE to assume that the principles set out in the UAE Federal Copyright Law (“UAE Copyright Law”) are the same as those applicable in common law jurisdictions. This is not the case. This false belief can have a significant impact on business as it can result in authorial rights arising from corporate activities not being effectively passed on to the company and remaining in the hands of the individuals who created them, with consequences detailed below.
As the UAE is attracting an increasing number of businesses from all walks of life, it is vital for these companies to hire people and/or commission work in the UAE to understand the difference between UAE copyright law and common law copyright law jurisdictions. .
This article highlights some typical key differences between UAE copyright law and common law copyright law that any business operating or wishing to operate in the UAE should be aware of.
No automatic transfer of copyright
In civil law and common law countries, the general rule is that copyright initially belongs to the author of the work.
However, in common law countries, copyright may initially belong to the employer or other person/entity for which the work was prepared.
In the United States, under the “works for hire” doctrine, copyright in works created by an employee within the scope of his or her job vests automatically (without a written assignment) and initially with the employer. In some cases, a client may also own the copyright in a work produced by an independent contractor as a work for hire.
The doctrine is premised on the principle of promoting investment and development.
English and Irish law have similar provisions for works created by employees in the course of their employment.
However, in civil law countries, title to copyright in a work belongs to the author of such work until copyright is transferred by a written instrument of assignment.
Thus, contrary to what is commonly believed, an employer or commissioning party does not automatically own copyright in works produced by an employee in the course of their employment or commissioned to an independent contractor. This rule applies in the UAE and is a public order rule.
According to UAE copyright law, if there is no written assignment of copyright in an employment contract or commission agreement, copyright will not transfer to the employer or client of the work, but will remain with the employee or independent contractor (unless the work may comply with section 1 of the UAE copyright law collective works under Article, which may be difficult to prove in practice). Confirmation of the assignment may also have to be in place for the assignment of copyright to the employer or commissioner to be effective under UAE law, as described in Section II below.
Therefore, companies must ensure that they have proper assignment agreements in place with their employees and independent contractors in the UAE to ensure the effective transfer of rights to the company.
This is crucial for all companies in the UAE, especially those with research and development (R&D) departments in the UAE (laboratories, cosmetics companies, etc.), design offices (fashion brands, etc.) or content creation in the UAE (advertising agencies, Design/branding agencies, etc.) include in their standard employment contracts an express assignment in their favor of copyright in works created by their employees during their employment. We also strongly recommend that companies and their employees have a system in place to confirm the assignment of copyright in works created during the contract of employment (see section II below).
Likewise, any company, regardless of its field of activity, should ensure that its agreements instructing third-party contractors and governed by UAE law contain relevant assignment clauses allowing the transfer of copyright in the delivered deliverables ordered to the company (e.g. logos, web pages design, retail design, packaging, software, architectural structures, etc.). A clause merely referring to the transfer of all rights in the work as a work “made for hire” would be irrelevant and void.
It is important to note that a copyright assignment is only valid under UAE copyright law if a number of conditions are met, including that the assignment should be: in writing, clearly specify the rights being assigned, and include a statement of the purpose of the assignment as well as the assignment Geographical area of rights. Furthermore, it must be noted that assignments of copyright for more than four future works are void under UAE law, as stated in Section II.
If the assignment does not comply with UAE copyright law, the company risks having to defend claims of copyright infringement from the owners (employees or contractors) of the unassigned rights, based on unauthorized use of their work, which could lead to The claimant pays damages and is barred from withdrawing the relevant work (or a product incorporating such a work) from the market (hence the costs of withdrawal and replacement).
If a company attempts to transfer rights to a third party, that third party may also face copyright infringement claims from the rights owner. In such cases, we expect the third-party assignee to bring a contractual liability claim against the company to which the copyright it does not own is transferred.
Furthermore, if a company seeks to enforce its intellectual property against an alleged infringer, the alleged infringer may successfully challenge ownership of such intellectual property, which would result in a significant risk of dismissal of the infringement claim.
Additionally, if a company cannot prove that it owns the copyright, it can have a significant impact on its ability to find investors or the price at which it tries to sell its business.
No general assignment of future copyright
Another major difference between the copyright legal systems of civil law and common law jurisdictions concerns the assignment of copyright in the future.
In common law countries, the contractual assignment of future copyright in works not yet created is not prohibited. Therefore, future copyrights can be assigned, IE Copyright in works yet to be created.
In civil law countries, as a general rule, agreements concerning the totality of future works of an author, or the totality of works of a particular type, are void.
In particular, the UAE copyright law contains a clause that makes any disposition of future intellectual property rights of an author for five or more future works void. But, for example, if an employee works creatively, this could mean that five of his or her pieces are completed within a few hours of signing any deal.
Therefore, in order to overcome such limitations of assigning five or more future jobs, we recommend that companies establish a confirmation assignment system with their employees in the UAE, which should be completed and signed by the employee once created and included in his/her employment agreement Any work delivered within the scope. This means that the employee does not transfer the rights to all future works created during the period of his employment contract, but rather when a particular work is completed.
The same applies to service providers once they have created any deliverables within the scope of the service agreement (involving the delivery of more than four works during the term of the agreement) and have paid for such deliverables under the service agreement. This applies, for example, to design and build agreements between employers and contractors, which often involve the delivery of multiple design documents.
A confirmed transfer system implemented at the time of delivery will ensure efficient assignment of rights among deliverables involving more than four deliverables. More generally, we recommend having a system for confirming copyright transfers with any service provider as good practice, as it clearly identifies deliverables for which copyright has been transferred to the client, thereby limiting any possibility of contracting The vendor successfully challenged the copyright assigned to the company.
We therefore recommend adding a clause to all employment agreements or service agreements governed by UAE law, whereby the employee or contractor undertakes to sign any required documents at any time during the term of the agreement or after its termination, in order to ensure a valid Assignment of Rights in Works/Deliverables.
Strictly limited waiver of moral rights
As a general rule, the moral rights granted to authors include the right to publish the work, the right of authorship (i.e., the right to claim or waive authorship over a work), and the right to integrity (i.e., the right to prevent distortion and modification of a work).
In the United States, however, authors enjoy limited authorship and integrity rights, as such rights exist only within a narrowly defined group of visual arts.
Moral rights are personal and cannot be transferred. However, in most common law jurisdictions, moral rights can be waived. It is therefore common practice to see clauses in which authors waive their moral rights in assignment or license agreements governed by US, UK or Irish law. As a general rule, a waiver of moral rights is only valid if it is in writing and identifies the relevant copyrighted work. This approach is consistent with a functional view of authors’ rights in these countries.
In contrast, in civil law countries, including the UAE, a general waiver of moral rights is generally unenforceable as it amounts to an assignment of moral rights, which is prohibited under traditional copyright approaches in civil law jurisdictions (accordingly, The author’s work is protected as a product of the author’s personality, so the author should be protected from any modification of his work).
An author can only promise in writing not to enforce his/her moral rights against a specific person or entity if the agreement specifies the work and the specific use to which the promise applies. The more detailed the rules, the more likely they will prove valid and enforceable in court if challenged.
The copyright laws of other GCC countries contain provisions similar to the above and are in force in the UAE.
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