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The Protection of One’s Own Work: Copyright Deciphered

by Dr Rebecca Mercieca – Junior Associate

Copyright grants protection to the author –the party who creates the work and the one who translates an idea into a fixed, tangible expression- against unauthorized usage of such author’s work.

For the author to be the ‘owner of copyright’ s/he must be the first owner, assignee or one who is an exclusive licensee of a copyright. Whereas in case of a collective work, the first owner of copyright shall be the natural or legal person under whose initiative and direction the work has been created.

Owners of copyright gain a widespread list of rights over their work, and on becoming aware that their work has been modified and/or reproduced by others without their permission, they may take action to stop the publication of the copied work and to seek the appropriate remuneration for such a copyright infringement. Such work by a Maltese national, originating or first published in Malta is given the same protection in each other Berne Convention member countries.

Yellow Pages (Malta) was granted €192,357.33 representing damages in the form of loss of profits suffered by the publication of the 5th edition of the ‘Malta Business Directory’ as in its 2015 Judgement, the First Hall Civil Court declared that the Malta Business Directory had made use of and re-produced segments of the 2004 edition of the ‘Yellow Pages’ without seeking express approval and authorisation from Yellow Pages to do so.

In this judgement, the court also considered that Malta Business Directory did not prove that it wasn’t aware or that it couldn’t have known about Yellow Pages’ rights. Neither did it prove that it had no intention to copy the 2004 edition of Yellow Pages or that this occurred without negligence on the part of the defendant.

This protection extends to different works, including, but not limited to sculptures, paintings, photographs, directories, textbooks, computer programs and architecture works in the form of buildings and models. More so, the works eligible for copyright under Maltese Law are grouped into the following categories:

(a) artistic works;

(b) audiovisual works;

(c) databases;

(d) literary works;

(e) musical works.

Article 3(2) of Chapter 415 of the Laws of Malta, clearly portrays the important characteristic of originality when considering the eligibility for copyright, as states that “A literary, musical, or artistic work shall not be eligible for copyright unless the work has an original character”.

The collective European understanding of the term ‘original’ may be observed in EU Council Directive 93/98/EEC of the 29th October 1993. This directive states that a “photographic work within the meaning of the Berne Convention is to be considered original if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.”

Moreover, the requirement of originality assumes that the author of the work has created such work independently, as was highlighted in Bleistein v Donaldson Lithographing Co. [1903] decided by the US Supreme Court, 188 US (US Supreme Court). The court held that the work must be “one man’s alone”. This, however, does not mean that originality includes in its definition, “novelty, ingenuity or aesthetic merit”.

Moreover in the Painer case ( C-145/10 ), the Court of Justice of the European Union held that the creator’s ‘personal touch’ is what defines the work as an original piece and thus for a photograph to be considered original, the photographer’s creative abilities should be expressed through his free and creative choices in the production.

An important amendment to our law was Article 3 of Chapter 415, introduced by Act IX of 2009. This proviso highlights the importance to distinguish between an idea, and the expression of that idea. The author further opines that this contributes to the proof of copyright as the proviso states that “copyright protection shall not extend to ideas, procedures, methods of operations or mathematical concepts as such” and thus Maltese copyright law only extends its protection to the expression of the idea and not to the idea itself.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rebecca Mercieca on rebecca@abalegal.eu.