The New UAE Copyright Law 2021: Key Takeaways – Intellectual Property

In late 2021, the UAE Government adopted the largest legislative
changes in its history by issuing 50 new laws which coincided with
the 50th Anniversary of the founding of the UAE. One of these new
laws, was the long anticipated UAE Copyright Law.

The UAE has issued a new Federal Law No. 38 of 2021 concerning
Copyright & Neighbouring Rights (New Copyright Law) that
replaced the old Federal Law No. 7 of 2002 (Old Copyright Law),
where it has introduced significant changes to take account of the
fast-moving digital world we now live in. The New Copyright Law
came into force on 2 January 2022. However, as at the date of
writing, we are still waiting for the publication of the
Implementing Regulations, which will add some further clarity to
certain aspects of the New Copyright Law. These are expected to be
published and come into force later in 2022.

What are the key changes to the UAE copyright regime brought
about by the New Copyright Law?

• An interesting and long-awaited addition to the New Copyright
  Law is the concept of “work made for hire” which is a
  work created by an employee, commissioned by an employer and which
  the employer compensates such employee for the same. The employer
  will be considered the legal author of such work (unless otherwise
  agreed) under the New Copyright Law (which is a departure from the
  Old Copyright Law). This concept applies in the following two
  scenarios: (1) if the author creates the work for the benefit of
  another person, the copyright belongs to the latter; and (2) if the
  author creates the work within the scope of employment using the
  employer’s resources, tools, information etc., the copyright
  belongs to the employer. Situations where the employee will remain
  the copyright holder are the following: (1) if the author creates
  the work outside the scope of employment and not related to the
  business or activities of the employer and (2) if the author
  creates the work without using the employer’s resources, tools,
  information etc.




• Under the Old Copyright Law, there were restrictions around
  transfer of future copyright works, where only 5 or less future
  works could be assigned. While there remains restrictions in
  relation to the transfer of future copyright works, the expectation
  is that the number will increase from 5 works. The law does not
  specifically state how many future works a copyright holder will be
  able to validly transfer contractually, as this will be provided in
  the Implementing Regulation of this law. The expectation is that it
  could be at least 10 future works. This is an improvement on the
  current position, but will still mean that care will be taken when
  dealing with third parties who may be creating multiple works for
  you.




• The law still prevents the assignment or waiver of moral
  rights.




• There are provisions for an author (or successors) to withdraw
  copyrighted work from circulation based on justified reasons.
  However, such withdrawals expressly exclude the possibility of
  withdrawing smart applications, computer programmes and
  applications from circulation, which in turn provides third parties
  with a further incentive to securely invest in the
  field. 




• With respect to joint works where a number of individuals
  collectively create a work, where it is not possible to separate
  the share of the work, all joint authors will equally co-own such a
  work and will be considered joint creators (unless otherwise
  agreed). No author can individually exercise the copyright, without
  prior agreement. In the event any of them dies leaving no heirs,
  his/her respective share shall go to the other joint creators.




• With respect to a copyright holder that does not have any
  heirs, the rights of such works will be taken over by the Ministry
  of Economy which will continue to exercise the relevant moral
  rights with the aim of preserving such works.  




• There is greater clarity around copyright works for software
  related entities, with the introduction of a specific copyright
  work to protect smart applications, computer programmes and
  applications, databases, and similar works as determined by the
  Ministry of Economy. With such areas being of key importance in the
  UAE’s fast-paced development in the tech and innovations space,
  it is a significant step in offering this clear protection to such
  works. Software companies, and entities commissioning software
  developers should ensure that these new works are included in any
  agreements relating to the commercialisation of such rights.




• The New Copyright Law also makes clear the ownership around
  Architectural Designs, which is of importance in the UAE, given
  that it is the home of so many unique and iconic buildings. Under
  the new law, it has been expressly stated that the ownership of the
  copyright in architectural designs vests in the owner of the
  property, rather than the original author who created the
  architectural design (unless otherwise agreed). Again, this is an
  important factor for rights holders in iconic buildings,
  particularly with the emergence of the Metaverse and more real
  estate companies looking to commercialise or enforce rights in
  landmark buildings.  




• As with the Old Copyright Law, there remains strong protection
  around photographs, but also the subject matter of any photograph.
  The general theme remains protection of an individual’s rights.
  For example, where a photograph or sound or visual recording
  involves an individual, it will not be possible for the works to be
  published, exhibited, distributed or kept, without the permission
  of the person. There are some exceptions around public events, but
  only where the publication or circulation will not prejudice the
  honour, reputation or standing of the person. It will be important
  for any media company, or company commissioning photographs or
  other forms of recording, to ensure that consent of all individuals
  is obtained in order to validly use and exploit such works.




• The New Copyright Law also added the concept of “fair
  use” with respect to reproduction of the copyrighted work in
  limited circumstances. This law now permits reproduction of a
  copyright work without infringing an author’s intellectual
  property rights in certain situations, some of which are briefly
  outlined below. Please note, that there are further restrictions
  and qualifications around these limited areas, so please seek legal
  advice before considering any “permitted uses”:
  

  1. reproduction of a copyrighted work as a single copy for purely
     personal use (noting there are exceptions to certain works for
     personal use);

  
  

  2. reproduction is an incidental and integral part of the process
     of digitally transmitting the work between different parties;

  
  

  3. reproduction is made by a person authorised by the rightful
     owner or by law to carry out the transmission or broadcast of the
     relevant work;

  
  

  4. reproduction is inevitable and incidental in order to
     accomplish a lawful action and in a manner that ensures that the
     copy is automatically erased without being able to be
     retrieved.




• People with visual or physical impairments will be permitted to
  use an accessible format or copy of a work for personal use. Also,
  there are provisions for accredited non-profit entities to also
  have limited rights to reproduce works in an accessible format, for
  non-profit purposes. There will be further guidance around these
  provisions in the Implementing Regulations.




• There are provisions for the creation of a new committee by the
  Ministry of Economy under the name “The Grievances Committee
  for Copyrights & Neighbouring Rights”. This will be the
  competent authority to hear and decide all disputes related to
  copyright or neighbouring rights.




• The New Copyright Law also introduces increased sanctions and
  penalties in case of violations and infringements of copyrights.
  The penalties for infringements have been increased to AED 100,000
  (approximately USD 27,500). For example, the sanction for
  infringing one of the moral or financial rights of the author has
  been increased to AED 100,000 from AED 50,000 (in the Old Copyright
  Law). Further, the penalties for using a computer program or
  applications without obtaining a license from the author or
  successors could lead to fines of at least AED 100,000 to AED
  1,000,000 (USD 275,000). Previously the fine was AED 30,000 (USD
  8,175) under the Old Copyright Law.

The new laws go a long way to removing and addressing concerns
under the Old Copyright Law – particularly around ownership of
employee created rights.

However, in a number of areas, the default position in the New
Copyright Law is clear, but with the qualification of “unless
otherwise agreed”, or similar wording. Due to this, and also
restrictions around assignment of future rights etc, we recommend
that employers and also companies entering agreements around the
creation of copyrights, ensure that the ownership position is
clearly addressed in any and all such agreements. This will remove
any ambiguity and will help ensure the rights are transferred to
your business. It will also be good practice to continue with
confirmatory assignments on creation of works, especially
commercially important rights, in order to ensure the ownership of
the works is clear and you have supporting written proof of
transfer of such ownership.

We will provide an update once the Implementing Regulations are
issued, as these will provide further guidance on the above, and
other areas under the New Copyright Law.

Read the original article on GowlingWLG.com

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.