Published January, 2019
In most common law jurisdictions such as the United Kingdom, the copyright in original works made or created by an employee in the course of employment is owned by such employee’s employer. However, this is not the case in the UAE. This article explores certain significant differences in the ownership and protection of copyright in the UAE as compared to common law jurisdictions.
Author’s Rights under UAE Law
The legislation which regulates copyright in the UAE is Federal Law No. 7 of 2002 on Copyrights and Related Rights (as amended) (“UAE Copyright Law”). The primary purpose of the UAE Copyright Law is to protect authors of original works which include books, computer programs and applications, plays and musicals, audio works, architectural designs, photographic works and derivative works, amongst others. Therefore, employers in these and similar fields of endeavour should be particularly concerned about the ownership of copyright.
Under the UAE Copyright Law, an author enjoys the following rights:
The moral rights of an author include (i) the right to publish the work for the first time; (ii) the right to claim authorship/ownership of the work; (iii) the right to object to any alteration of the work if such alteration will cause distortion or mutilation to the work, or be prejudicial to the standing of the author; and (iv) the right to withdraw the work from circulation in case serious justifiable reasons occur.
Employee as the First Owner of Copyright
In the UAE, the author of an original work is the first owner of copyright in the work. The author is “the person who creates the work. Unless otherwise established, shall be considered the author of the work, any person whose name is mentioned thereon or if, upon publication, the work is attributed to him as being the author thereof”. Therefore, copyright in works made or produced by an employee during the course of employment is owned by such employee as the “author” of such works, and the employee would enjoy all the rights stated above as the first owner of the copyright in the works.
By contrast, while the general rule in the United Kingdom is that the first owner of copyright is the author of the works, the Copyright, Designs and Patents Act 1988 (the “UK Copyright Law”) makes an express exception that if the works are made by an employee in the course of employment then the employer would be the first owner of any copyright in the work, subject to any agreement to the contrary (“Employee Exception”). There is no such Employee Exception in the UAE Copyright Law and in order for the employer to acquire copyright in an employee’s work, such employee must expressly transfer the copyright to the employer.
Transfer of the Employee’s Copyright
An employee as the author of an original work may validly transfer economic rights (as contrasted with moral rights) in such work to a third party (such as an employee’s employer) through a written agreement which satisfies the following conditions prescribed in the UAE Copyright Law:
Ownership of all rights which are not validly transferred will remain with the author.
It is noteworthy that the UAE Copyright Law further provides that any general assignment of future works of an author or any assignment of more than five (5) future works is void. Therefore, a general assignment clause which is unlimited in time in the employment contract of an employee risks being unenforceable if tested before the UAE courts in the event of a dispute. An alternative would be for an employer to establish a system which requires an employee to sign a simple and standard assignment agreement (which complies with the conditions stated above) to transfer the rights in the specific work made by such employee to the employer, each time such work is created. As an example, an advertising company which engages employees to produce creative designs may establish a system which requires each designer to sign an assignment agreement as part of the process of submitting each completed design or other work. While it is appreciated that the practicalities of ensuring compliance with this process on a daily basis (or multiple times each day) may be daunting, it is a process well worth implementing by an employer.
Waiver of Moral Rights
In the UAE, an author’s moral rights exist independently of the economic rights in a work and it is a general principle that moral rights cannot be assigned. This principle applies in the UK as well as in most civil law and common law jurisdictions. However, in the UK and in most common law jurisdictions waiver of moral rights to the works created by an author is permitted. The importance of waiver of moral rights is that where a person acquires the right to exploit the economic rights in works, such person is at liberty to exploit the works without recognizing the author’s moral rights such as identifying the author every time the work is published.
The UAE Copyright Law states that moral rights are perpetual and inalienable, and the law is silent on the waiver of moral rights of authors. Clearly, in the UAE, moral rights cannot be taken away from, or given away by, the author. However, there exists an argument that a waiver of moral rights which complies with the conditions set out above for an assignment of copyright could validly waive an author’s moral rights. While the validity of this argument remains to be tested in court, an employer will do well to ensure that its employee expressly transfers copyright in the works made or produced by such employee during the course of employment in the manner stated above.
Olabisi Omotunde, Partner (email@example.com)
Edward Macharia, Associate (firstname.lastname@example.org)
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