An Overview of
Maltese Copyright Law
In respect of
Literary, Musical and Artistic works
Section 1 – Definitions Section 5 – Nature
and effects
Part
I – Literary works
Part I – Material rights
Part II – Musical works
Part II – Moral rights
Part III – Artistic works
Section 2 – Eligibility
Section 6 – Infringement and liability
Part
I – Qualification
Part II – Originality
Part III – Fixation
Section 3 – Entitlement
Section 7 – Exceptions
Part I – Works
entitled to copyright
Part II – Persons entitled to copyright
Section 4 – Terms of protection
Section 8 – Dealings
Section 1 – Definitions
The definitions of literary, musical and artistic works
contained in the Act are specialised and differ to some extent from the
ordinary usage of such terms. It is therefore essential, first and foremost, to
examine these special meanings.
The term
“literary work” shall include, irrespective of literary quality, any of the
following, or works similar thereto:
(a)
novels, stories and
poetical works;
(b)
plays, stage directions, choreographic works or entertainment in dumb show,
film scenarios and broadcasting script;
(c)
textbooks, treatises, histories, biographies, essays and articles;
(d)
encyclopaedias and dictionaries;
(e)
letters, reports and memoranda;
(f)
lectures, addresses and sermons;
(g)
computer programs*,
but does not include any written law, law report or judicial decisions.
It is important to note that
this is not an exhaustive list. Any works similar to these may also be
considered “literary works”. Moreover, any other work, even if not similar to
the above, could potentially be a literary work, as the definition provided in
the Act merely “includes” the above-listed works.
Of what quality must a literary work be? It is
clear from the above definition that any work, irrespective of literary quality, shall be considered a literary work.
This is so because the law is not there to decide the quality of works – thus a
court may never refuse to recognise a work simply because it has no literary
merit. In the eyes of the law, a novel by Hardy, a play by Shakespeare and an
essay written by a student for homework are all, equally “literary works”. This
also applies to musical and artistic works.
It
has been held that a literary work should provide some element of either
information or pleasure, though this need only be minimal. Examination papers,
trade catalogues and coupons have in various cases been found to be literary
works.
For copyright to
subsist in a work, it must be more than de minimis. Single words and
short phrases cannot qualify for copyright as they are the building blocks of
language and must thus remain in the public sphere.
The term
“musical work” means any musical work, irrespective of musical quality, and
includes works composed for musical accompaniment.
Song lyrics may be protected as literary works.
The term “artistic work” shall include, irrespective of artistic quality, any of the following, or works similar thereto:
(a) paintings,
drawings, etchings, lithographs, woodcuts, engravings and prints;
(b) maps, plans, diagrams
and three-dimensional works relative to geography, science or topography, but
excluding semiconductor product topographies;
(c) works of
sculpture (including the cast or mould);
(d) photographs not
comprised in an audiovisual work;
(e) works of architecture
in the form of buildings or models; and
(f) works of artistic craftsmanship, including pictorial woven tissues and articles of applied handicraft and industrial art.
Some works may fall under two or more definitions. For
instance, a plan may be considered both an artistic and a literary work.
“Computer program” includes computer
programs whatever may be the mode or form of their expression including those
which are incorporated in hardware, interfaces which provide for the physical
interconnection and interaction or the interoperability between elements of
software and hardware and preparatory design material leading to the
development of a computer program: Provided that the nature of the preparatory
design material is
such that a computer program can result therefrom at a later stage. [Back]
Section 2 – Eligibility
Not any work may be copyrighted. A work will only be
eligible for copyright if it satisfies three criteria, namely – qualification,
originality and fixation.
Part I – Qualification
The following works shall
be eligible for copyright:
(a) literary works;
(b) musical works;
(c) artistic works.
A work shall be eligible
for copyright even if the making of that work, or the doing of any act in
relation to the work, involved an
infringement of copyright in some other work. Thus, for instance, an unlawful
translation of a particular work would be in breach of copyright. However, such
translation would, nevertheless, be in itself eligible for copyright, as its
making would have required some degree of additional skill or labour.
The first criterion, therefore, is that the literary, musical or artistic work falls within the special definitions stated above. If it does not fit such definitions, then it does not qualify for copyright protection under this Act.
Part II – Originality
A literary, musical, or artistic work shall not be eligible for
copyright unless the work has an original character.
This criterion is less
stringent under British law than it is on the continent. In England
“originality” merely means that the work originates from the author –
that he or she has created it and not copied it off someone. If a painter, for
instance, skillfully copies the Mona Lisa, he may never acquire copyright over
such painting as it is merely a copy* and thus the element of originality is
missing.
On the
continent, some form of intellectual or physical effort on the part of the
author is also required. The work must show a minimum of creativity for it to
be copyrightable. The general rule is that the less creative a work, the less
protection it is afforded.
Though Maltese copyright
law is largely based on British doctrine; because of Malta’s adherence to
various international conventions, and because of the influence of EU
legislation, it would be safe to conclude that, even in Malta, for a work to be
copyrightable, a modicum of creativity would be required.
Part III – Fixation
The final
criterion is fixation. A literary, musical, or artistic work shall not be
eligible for copyright unless it has been written down, recorded, fixed or otherwise reduced to
material form.
“Fixation”
means the embodiment of sounds, images, or both, or digital representations
thereof, in any material form, from which they can be perceived, reproduced or
communicated through a device.
Writing includes any form of notation or code, whether by hand
or otherwise. Musical notation and computer code are both considered writing. A
copyright work comes into existence as soon as it is fixed. Fixation moreover
confers upon the work a degree of certainty.
Section
3 –Entitlement
Any
literary, musical or artistic work that satisfies the above three criteria is
eligible for copyright. However, not all works and not all persons are entitled
to copyright. There must be some connection between the work in question and
the Maltese islands for the work to be entitled to copyright under the Act.
Moreover, there must be some further connection between the work and the person
claiming copyright for such person to be entitled to copyright protection. This
section examines these connecting factors.
Part I – Works entitled to copyright
Copyright is conferred by the Act on every work of
which the author or, in the case of a work of joint authorship*, any of the joint authors, is, at the time when the
work is made:
(a)
an individual who is a citizen of, or is domiciled or permanently resident in
Malta or in a State in which copyright is protected under an international
agreement to which Malta is also a party;
(b) a body of persons or a
commercial partnership constituted, established, registered and vested with
legal personality under the laws of Malta or of a State in which copyright is protected under an international agreement
to which Malta is also a party.
Copyright
is conferred automatically on every eligible work. This means that the
work need not be registered anywhere for it to be copyrighted*.
Nor need there be any indication on the work itself that it is copyrighted
(though it would always be advisable to have this). Copyright is conferred ipso jure on any eligible work by
virtue of the Act as soon as the work is created.
But, clearly, the ambit of the Act per se is limited by territory and cannot apply to works that do not bear some connection to the Maltese islands. The most obvious connection is when the work is made by a Maltese citizen or a person domiciled in Malta. Section 4 mentions other possibilities, such as when a work is made by a company established in Malta. The Maltese citizenship, domicile, or other connecting factor, must exist at the time when the work is made.
If copyright were limited
territorially, its scope would largely be defeated, as anyone would be able to circumvent
the law by going abroad; thus states, including Malta, have sought to enter
into international agreements in order to secure, as far as possible, the
universal recognition and protection of copyrighted works.
Copyright shall moreover be conferred on
every work which is eligible for copyright and which is made or first published
in Malta or in a State in which such works are protected under an international
agreement to which Malta is also a party.
Thus, whereas in the first case copyright is conferred on the basis of
the nationality, domicile, etc., of the author of the work, in the second case,
copyright is conferred depending on where the work was made or first published.
The distinction between these is important. In the former case, a Maltese
citizen may write a novel in Antarctica. This novel would be entitled to
copyright under the Act for the sole reason that its author was a Maltese
citizen (even though there are no copyright agreements between Malta and
Antarctica).
In the
latter case, a Cuban person may come to Malta to make or first publish a book
here. Though there are no international copyright agreements between Cuba and
Malta, his book would nevertheless be entitled to copyright under the Act for
the sole reason that it has been made or first published within Maltese
territory.
It may be very hard
to establish where a work has been made. It is possible, for instance, to begin
writing a script in one country and complete it in another.
The following provisions
shall apply with respect to publication:
(a) a work shall be
deemed to have been published if copies thereof have been made available in a
reasonable quantity for sale, rental, lending or in any other manner sufficient
to render the work accessible to the public;
(b) where in the
first instance a part only of a work is published, that part shall be treated
for the purposes of this Act as a separate work;
(c) a publication in
any country shall be treated as being a first publication notwithstanding that
there has been an earlier first publication elsewhere, if the two publications
took place within a period of not more than thirty days.
“Work of joint authorship” means a work produced by the collaboration
of two or more authors in which the contribution of each author is not
separable from the contribution of the other author or authors. [Back]
Though
registration of a work is neither necessary nor possible in Malta (as there is
no copyright registry), it would always be advisable to have some written
record of the authorship and date of creation of the work. Various associations
offer their members a service of copyright registration. The traditional way of
recording copyright in a work is the “Poor Man's
Copyright” method, where the author seals and posts the work to himself.
However, this method has largely been discredited. Nowadays, it is possible to replicate
a postmark with high-resolution scanners or other devices and change (forge)
the date. In fact, this method is referred to as “Poor Man’s” not because it is
cheap, but because people who go to Court with only this kind of evidence are unlikely
to succeed (acknowledgment: Antonio
Olivari). [Back]
Part II – Persons entitled to copyright
Copyright shall vest initially in the author or in the joint authors*. The “author” is the natural person or group of natural persons who created the work eligible for copyright. He is the person who has expended the necessary skill and labour in creating the work.
The
presumption is that:
a) the name on a work purporting to be the name of its
author shall be considered as such, unless the contrary is proved;
(b)
in the case of an anonymous or pseudonymous work, the publisher whose name is
indicated in the work as such shall be deemed to be, unless the contrary is
proved, the legal representative of the anonymous or pseudonymous author and
shall be entitled to exercise and
protect the rights belonging to the author under the Act.
Authorship and ownership of a work do not necessarily coincide. For instance, if I buy a copy of the novel “Sons and Lovers” by D H Lawrence, though I become the owner of this novel, D H Lawrence remains its author.
It is possible to have two or
more joint authors of a work so long as the contribution given by each cannot
be distinguished from that of the others. Therefore, in an anthology of poems,
for example, the various poets are not joint authors as their individual
efforts are distinguishable. Where, on the other hand, two researchers prepare
a joint paper, so long as their individual contributions are inseparable, they
may be joint authors, depending on the extent of skill and effort each has
expended.
Provided that in the case of computer programs and databases where a work is made in the course of the author’s employment, in the execution of his duties or following the instructions given by his employer, the economic rights conferred by copyright shall be deemed to be transferred to the author’s employer, subject to any agreement between the parties excluding or limiting such transfer. In respect of other works eligible for copyright, in such circumstances, subject to any agreement to the contrary between the parties, the copyright shall always vest in the author or joint authors. [Back]
Section
4 – Terms of protection
If a work
is entitled to copyright under the Act, the following term of protection shall
apply:
Copyright
shall subsist in the work for seventy (70) years after the end of the
year in which the author dies (irrespective of the date when the work is made
available to the public). This is in compliance with the EU Copyright Term
Directive.
In the
case of an anonymous or pseudonymous literary, musical or artistic work,
copyright therein shall subsists until the end of the expiration of seventy
(70) years from the end of the year in which it was made available to the
public or after the end of the year in which the work was made if it has not
been made available to the public: Provided that when the pseudonym adopted by
the author leaves no doubt as to his identity or in the event of the identity
of the author becoming known during this seventy-year period or where in the case
of collective works by a body of persons the natural persons who have created
the work are individually identifiable in the versions of the work made
available to the public, copyright shall subsist in the work for seventy
(70) years after the end of the year in which the author dies.
Therefore, a
distinction must be drawn between a work whose author is identifiable and a
work where the author is anonymous. In the former instance, copyright subsists in
the work for a period of seventy years after the end of the year in which the
author dies (thus, it subsists for the whole lifetime of the author plus 70
years). In the latter instance, where the author is unknown, copyright subsists
in the work for a period of seventy years form the end of the year in which it
was made available to the public or after the end of the year in which the work
was made, if it has not been made available to the public.
In the case of joint authorship, reference to the death of the author
shall be deemed to refer to the joint author who dies last.
In the case of a person who for the first time
lawfully publishes or lawfully communicates to the public a previously unpublished
work the copyright protection of which has expired, he shall benefit from a
protection equivalent to the economic rights covered by copyright but
limitedly for a period of twenty-five years from the time when the work was
first lawfully published or lawfully communicated to the public.
Where a
work is published in volumes, parts, instalments, issues or episodes and the
term of protection runs from the time when the work was lawfully made available
to the public, the term of protection shall run for each such item separately.
Section
5 – Nature and effects
Copyright
endows the author of a literary, musical or artistic work with two categories
of rights – material and moral. The former further divide into reproduction and
distribution rights, and performance rights. The latter are personal rights and
arise from the fact that, in creating a work, the author exercises a certain
amount of intellectual or physical creativity.
Part I – Material
rights
Copyright
in a literary, musical or artistic work shall be the exclusive right to authorise
or prohibit the doing in Malta in respect of the protected material in
its totality or substantial part thereof, either in its original form or in any
form recognisably derived from the original of any of the following:
(a)
the direct or indirect, temporary or permanent reproduction by any means and in
any form, in whole or in part;
(b)
the rental and lending;
(c)
the distribution;
(d)
the translation in other languages including different computer languages;
(e) the adaptation, the arrangement and any
other alteration and the reproduction, distribution, communication,
display or performance to the public of the results thereof;
(f)
the broadcasting* or rebroadcasting or the
communication to the public or cable retransmission; and
(g)
the display or performance to the public.
These acts shall hereinafter be termed “prohibited
acts”.
The first sale in
Malta of the original work enjoying copyright, or of a copy*
thereof, when such sale is effected with the consent of the copyright owner
himself, shall exhaust the exclusive distribution right in respect of that work
or its copy.
Copyright in a work of
architecture shall also include the exclusive right to authorize or prevent the
erection of any building which reproduces the whole or a substantial part of
the work either in its original form or in any form recognisably derived from
the original.
Copyright endows the author with two categories of rights,
namely, reproduction and distribution rights, and performance rights.
Reproduction and distribution rights include the exclusive right to authorise
or prevent reproduction, distribution,
and translation or adaptation of the work. The copyright owner has the right to
issue copies of his work to the public for the first time. This right is
however exhausted as soon as the first lawful sale of the original work
is effected in Malta.
Performance
rights include the exclusive right to authorise or prevent the broadcasting,
display, performing, or other communication of the work to the public. The
copyright in a work is breached as soon as this work is performed in public
without the author’s prior authorisation. Performance may be by any mode of
visual or acoustic presentation or broadcast.
A recent judgment
by the Court of Appeal, (Dingli v Aquilina, 23/04/2001), held that a company did
not infringe copyright by tolerating its employees to listen to “copyrighted”
songs on their radios, in the company’s premises. The court noted that, though
a company was a public place, no authorisation from the copyright owner was
necessary where the company itself did not “cause” its employees to play the
copyrighted works. Tolerating workers to switch on their radios in the
workplace did not amount to “causing.”
“Copy” means a reproduction in written or graphic form including
digital reproduction, in the form of a recording or audiovisual work, or in any
other material form. [Back]
Part II – Moral rights
It shall not be
lawful for any person, without the author’s consent, to mutilate, modify,
distort or subject to any other derogatory action any work during its term of
copyright in a way prejudicial to the honour or reputation of the author.
The author of a work eligible for copyright shall, until the expiry of
copyright, in addition to copyright conferred in relation to that work, and also
in those cases where copyright shall have been transmitted by assignment or by
testamentary disposition enjoy the moral right:
(a)
to claim authorship of his work, in particular, the right that his name as far
as practicable, be indicated in a prominent way on the copies, and in
connection with any public use of that work; or
(b)
that his name be indicated on the copies, and in connection with any public
use, of his work, or that his pseudonym be so indicated: Provided that during
the lifetime of the author of a work it shall not be lawful to transmit any of
the aforesaid moral rights.
The copyright
owner need not necessarily be the author of the work, as copyright may be
transmitted from one person to another. And, as soon as copyright is
transmitted, the author may lose all or most of his economic rights in such
work. Unscrupulous companies often cause inexperienced authors to sign
contracts transmitting copyright. Thereby,
authors lose their rights over the work they themselves created. For
this reason, the law seeks to protect certain “basic rights” authors acquire as
soon as they create a work, such as the right to be identified as the author of
such work and for it not to undergo any form of mutilation or derogatory
treatment. These basic rights are “moral rights”.
Moral
rights cannot be transmitted during the lifetime of the author. They
subsist until the expiration of copyright in a work, even if such copyright has
been transmitted by assignment or by will.
There are two
classes of moral rights, namely – (a) rights of paternity, and (b) rights of integrity.
The author has paternity rights over his work, i.e., the right to claim
authorship of the work and the right to demand that his name be indicated on
the copies. He also has integrity rights, i.e. the right to demand that his
work be not subjected to mutilation, modification, distortion or any other
derogatory treatment prejudicial to his honour or reputation.
Moral
rights must be asserted by the author himself – he must sue the offender.
Moreover, he may consent to their being waived. Therefore, it would still be
possible for unscrupulous companies, after having appropriated the copyright
over a work, to cause the author to agree to a waive his moral rights.
The legal remedies
for infringement of moral rights exist over and above the remedies for breach
of copyright.
“Broadcasting” means the transmission by wireless means
for the public reception of
sounds or of images and sounds or of the representations thereof, including transmission
by satellite [Back].
Section
6 – Infringement and liability
Copyright
is infringed by any person who does, without a licence from the copyright owner,
any of the prohibited acts listed above. A licence is an express or implied
authorisation by the copyright owner to do one or more of such acts.
Copyright is also infringed by any person who, without a licence from
the copyright owner, imports into Malta (otherwise than for private and
domestic use), or distributes therein by way of trade, hire or otherwise, or by
way of trade exhibits in public or is in possession or manufactures in the
course of business or offers or exposes for sale or hire an article in breach
of copyright, in respect of which copyright has already been infringed.
There are
two classes of infringement: primary and secondary infringement. Primary
infringement is when a person, without the necessary authorisation, performs
any of the prohibited acts that are the exclusive competence of the author. For
instance, he reproduces or translates the work without the author’s consent.
Secondary infringement is when someone deals in articles that have already
breached copyright. For instance, someone who sells pirate CDs. If the seller
has himself copied the CDs, he would be guilty of both primary and secondary
infringement. He would be guilty of copying the material (primary infringement)
and of selling such material in Malta (secondary infringement). In secondary
infringement, it would be necessary to show that the alleged offender knew or
had reason to know that the articles in which he was dealing were infringing
copyright.
Copyright
is also infringed by any person who without a licence from the copyright owner
makes, imports into Malta, possesses in the course of trade or sells or lets
for hire, or offers or exposes for sale or hire an article the sole
intended purpose of which is to facilitate the unauthorized removal or circumvention
of any technical device which may have been applied to protect a work or other
subject matter eligible for copyright under this Act against being copied, seen, viewed,
heard or otherwise perceived.
To
establish primary infringement, it is not enough to prove a similarity between
the original and offending works, one must also establish a causal
connection – one must show that the original work is the source of the
offending work. One must prove that the author of the offending work has copied
or unlawfully “borrowed”, not the ideas, but the expression of such ideas, from
the original. Therefore, if I read Romeo and Juliet, and like the idea of
having a love story between two persons from rival families, I can write my own
story based on this theme, without infringing copyright (as this is merely an
idea). If, however, I copy excerpts or situations from the play itself, I would
be infringing copyright, as I would be unlawfully “borrowing” the original
expression of ideas from the play. In this case, the causal connection is my
having read the play – having had access to it.
If two works have been created independently, i.e. without one having
been the source for the other, even if by an uncanny coincidence or other
circumstance, they would end up being very similar to each other, there would
be no infringement of copyright, as there would exist no causal connection
between the two works. Thus, for instance, if two researchers, working
independently, were to use the same source for their research, they would very
probably end up with the same results. Nevertheless, neither work would
infringe copyright as none would have served as the source for the other (they
were both derived from a common source), thus there would exist no causal
connection between the two.
Copying may be direct or indirect. Direct copying is
the taking of protected material in its original form. For instance, if I copy
a chapter of a book word for word, I would be directly copying a substantial
part of the book, thus breaching copyright. Direct copying also includes
storing the work in any medium by mechanical or electronic means, for example,
storing a poem in computer memory. Indirect copying, on the other hand, is the
taking of the protected work in a form recognisably derived from the original.
Thus, if I see a painting and decide to make a sculpture of its subject, I
would be copying the painting indirectly. In indirect copying, the author of
the offending work may not even be aware of the existence of the original. It is
possible, for instance, to copy indirectly through the provision of
intermediary instructions, where such instructions are sufficiently precise to
cover the salient features of the original work.
Therefore, a causal connection may take various forms. It may be the
reading, hearing or seeing of the original work. It may take the form of
intermediary instructions. It may also be a subconscious connection. The author
of the offending work may not be immediately conscious that he is copying
another work – such copying may have occurred at a subconscious level. This
would be sufficient to establish a valid causal connection.
In order to prove infringement, one must therefore
prove:
1)
an objective similarity
between the original and offending works;
2)
the antecedence
of the original work; and
3)
a causal connection – that the offender had access to the original work.
Once
the above has been proven, a prima facie presumption of infringement arises.
There is no need for the author of the original work to show that he has
suffered prejudice from the offending work. Copyright confers upon the author
property rights over his work and as soon as this copyright is breached, there
is infringement, irrespective of any resulting prejudice or damage.
Once copying has been proven, it will moreover be
necessary to prove that the protected material has been copied in its totality
or substantial part thereof. Totality is clear and easy to prove.
Substantiality, on the other hand, is not as straightforward, for it relates to
quality not quantity. What is copied is far more important than how
much. Any literary, musical or artistic work has distinguishing features that
serve to render it original. If one or more of these particular features is
copied, a substantial part of this work would possibly have been copied. If,
for instance, in a song, only the refrain is copied, though quantitatively,
only a fraction of the song would have been copied, qualitatively, a
substantial part of the song would have been copied as the refrain may well be
the most important feature of that song.
The copied features must constitute a substantial part of the original
work, not the offending work. Therefore, it is useless to argue that in the
offending work the copied features do not occupy a substantial part; if, in the
original work, they occupied a substantial part, then copyright would have been
infringed.
Where it
is found that a person has infringed the copyright in a work, he shall be
liable, at the suit of the copyright owner, to be condemned by the Civil Court,
to the payment of damages or to the payment of a fine and to the restitution of
all the profit derived from the infringement of the copyright: Provided that
where the defendant proves to the satisfaction of the Court that at the time of
the infringement he was not aware and could not reasonably be expected to be
aware that copyright subsisted in the
work to which the action relates, the Court shall not condemn him to the
restitution of the profit.
Ignorance is no excuse. The offender may not argue that he was not aware that copyright subsisted in the work he copied. The law expects him to make reasonable inquiries. In the case, however, where he could not reasonably be expected to be aware that copyright subsisted in the work, the Court would not condemn him to return the profits derived from the offending work (he would still be liable to pay damages or a fine).
The Civil
Court may in an action for infringement of copyright, having regard to all the
circumstances and in particular to the flagrancy of the infringement and
any benefit accruing to the defendant by reason of the infringement, award such
additional damage as the justice of the case may require.
The Court
may, moreover, in a suit instituted under this article, on the application of
the plaintiff, order that all the infringing articles still in possession of
the defendant be delivered
to the
plaintiff.
In an
action for infringement of copyright in respect of the construction of a building,
no prohibitory injunction or other order shall be made:
(a)
after the construction of the building has been begun, so as to prevent it from
being completed; or
(b)
so as to require the building, in so far as it has been constructed, to be
demolished.
Any person who infringes the moral rights of the author of a work, shall be liable, at the suit of the author, to be condemned by the Civil Court to the payment of a fine and damages.
The Court shall moreover
order the destruction of all the infringing articles still in possession of the defendant where it is satisfied that the
prejudice caused to the author is so serious as to justify such measure. This,
however, shall not apply where the infringing article is a building.
Section
7 – Exceptions
The
copyright owner’s exclusive right to authorise the doing in Malta of the
prohibited acts suffers certain exceptions, in those instances where the public
interest overrides the private interest of the copyright owner. No
authorisation from the owner is required for the doing of the following acts:
(a)
other than in the case of a computer program, the doing of any of the acts by way
of fair dealing for purposes of research, private use, criticism or review, or
the reporting of current events, provided that, if such use is public, it is
accompanied by an acknowledgement of the title of the work and its authorship,
except where the work is incidentally included in a broadcast or rebroadcast or
communication to the public or cable retransmission.
The amount of
copyright material that may be taken under “fair dealing” must be proportionate
to the purpose for which it is taken. No general rules regarding this amount
may be set, and each case must be decided on its own merits. Fair dealing
includes making use of the original work for research and private use. If I am
learning a language, I could borrow a “teach-yourself” book from the library
and photocopy its list of irregular verbs. I would not be infringing copyright
as the amount photocopied is reasonable and for private use. If, on the
other hand, I were to photocopy half the book, that dealing would probably be
unfair.
Fair
dealing also includes criticism and review. It may be impossible to criticise
or review a work without borrowing from the work itself. The copyright owner,
however, is unlikely to authorise an unfavourable criticism of his work. This
is why, under fair dealing, such authorisation is not necessary. Criticism and
review may relate to the appearance, style, underlying motif and implications
of the work. Needless to say, it may be positive and negative, constructive or
deconstructive, so long as it does not breach the author’s moral rights. Thus,
I could set out to criticise a poem (as happens continually in schools), and
quote a couplet or two to illustrate my point, without infringing copyright.
The reporting of
current events would also fall under fair dealing, provided the work is
accompanied by a sufficient acknowledgement. There is no copyright in news, but
only in the form in which it is expressed. A report carried out by a newspaper
may be used by a radio station without infringing copyright, so long as it is
used fairly. In Malta, were resources are somewhat limited, it is accepted that
journalists and reporters borrow stories from each other, and then rewrite
them.
(b)
the doing of any of the aforesaid acts by way of parody, pastiche or
caricature;
(c)
the inclusion in an audiovisual work, broadcast or rebroadcast, communication
to the public or cable retransmission of any artistic work situated in a place
where it can be viewed by the public;
If a work has already been lawfully made accessible to the public, the
copyright owner has exhausted his exclusive distribution rights, and such work
may freely be rebroadcast.
(d)
the reproduction and distribution of copies of any artistic work permanently
situated in a place where it can be viewed by the public;
(e)
the incidental inclusion of an artistic work in an audiovisual work, broadcast
or rebroadcast;
Artists who lay
down their easels in art galleries and painstakingly copy the various
masterpieces therein do not breach copyright. Nor do the souvenir shops that
sell postcards and other artefacts depicting famous artistic works.
(f)
the reproduction of a short part of a published work, by way of illustration,
in writings or sound or audiovisual recordings for teaching purposes: Provided
that such reproduction is compatible with fair practice and its extent does not
exceed the extent justified by the purpose and its source and the name of the
author shall, as far as practicable, be indicated;
(g)
the reproduction, for face-to-face teaching in activities do not serve direct
or indirect commercial gain, to the extent justified by the purpose, of a
published article or other short work or short extract of a writing, with or
without illustrations: Provided that on any copy so made there shall be
indicated as far as practicable its source and the name of the author;
Advancement in
society depends upon the education of its people. The public interest therefore
requires that the process of learning should, as far as practicable, be free of
hindrances. This requirement, however, must be balanced against the right of
the author for due acknowledgement and compensation.
(h)
the reading or recitation in public by a person of any reasonable extract from
a published literary work if accompanied by a sufficient acknowledgement;
It is in the interest of society to facilitate the divulgence of
knowledge. It is possible, hence, for a discussion group or members of a philosophical
society to begin the session by quoting an excerpt from a particular literary
work and then proceeding to discuss the significance and implications of such
excerpt.
(i)
the making of single copies of works by public libraries, non-commercial
documentation centres and scientific institutions for the purpose of study,
scholarship or private research, provided no collective licence for such
reproduction is available and no revenue is derived therefrom and no admission
fee is charged for the communication, if any, to the public of the work thus
used;
(j)
the making of single copies of works by public libraries, non-commercial
documentation centres and scientific institutions in order to preserve and, if
necessary, in the event that it is lost, destroyed or rendered unusable, to
replace a copy, or to replace, in the permanent collection of another similar
library or archive, a copy which has been lost, destroyed or rendered unusable:
Provided that it is impossible to obtain such a copy under reasonable
conditions and the act of reproduction is an isolated case occurring, if
repeated, on separate and unrelated occasions;
Non-commercial
institutions such as public libraries may make single copies of works for the
purposes of study and research or for preservation. It is important, however,
that these institutions do not charge admission or other fees as, otherwise,
they would be unjustly enriching themselves from proceeds which, in part,
belong to the author of the work.
(k) the doing of any of the aforesaid acts, at the request of a person with a perceptual disability or for a non-profit organisation acting for his or her benefit: