COPYRIGHT ACT (preamble—copyrightact)

CHAPTER 415

COPYRIGHT ACT

To make new provision in respect of copyright and neighbouring rights

and certain "sui generis" intellectual property rights in substitution of the

provisions of the Copyright Act, Cap. 196.

14th August, 2000;

1st January, 2001

ACT XIII of 2000 , as amended by Acts VI of 2001 , IX of 2003 , IX of

2009 , VIII of 2011 and XXXV of 2023.

The short title of this Act is the Copyright Act.

The provisions of this Act and of any subsidiary legislation

made thereunder shall also apply, in accordance with the provisions of

the 1982 United Nations Convention on the Law of the Sea as ratified

by the Law of the Sea (Ratification) Act, to an exclusive economic

zone area or an environment protection area as defined in the

Exclusive Economic Zone Act. Any artificial island, installation,

structure, equipment or device therein shall, solely for the purposes of

this Act and any subsidiary legislation made thereunder, be treated as

if they were situated in Malta itself.

PART I

DEFINITIONS

(1)

In this Act, unless the context otherwise requires -

"European Union" means the European Union referred to in the

Treaty;

"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;

(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;

"audiovisual work" means a work that consists of a series of

related images which impart the impression of motion, with or

without accompanying sounds, susceptible of being made visible

and, where accompanied by sounds, susceptible of being made

audible;

"author" means the natural person or group of natural persons

who created the work eligible for copyright but in the case of an

audiovisual work it includes the principal director but excludes the

producer of the first fixation of the audiovisual work;

"Board" means the Copyright Board established under article 45;

"body of persons" means any company or association of persons

whether corporate or unincorporated, whether vested with legal

personality or not, and includes any other body however called

having legal personality;

"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.

Broadcast does not include a rebroadcast;

"broadcasting authority" means the Broadcasting Authority

established by article 118 of the Constitution;

"broadcasting organization" means any broadcaster whether

licensed under the Broadcasting Act or under any other law, and

includes a broadcasting contractor operating in Malta;

"cable retransmission" means the simultaneous, unaltered and

unabridged retransmission by a cable or any other material carrier

for reception by the public of an initial transmission by wire or over

t h e a i r, i n c l u d i n g t h a t b y s a t e l l i t e , o f t e l e v i s i o n o r r a d i o

programmes intended for reception by the public, from within

Malta or from a State in which the exclusive right to authorize

cable retransmission of works eligible for copyright or

neighbouring rights is protected under an international agreement

to which Malta is also a party;

"collecting society" means any organization which manages or

administers copyright or neighbouring rights as its sole purpose or

as one of its main purposes as regulated by the provisions of this

Act;

"collective work" means a work which has been created by two

or more physical persons at the initiative and under the direction of

a physical person or legal entity with the understanding that it will

be disclosed by the latter person or entity under his or its own name

and that the identity of the contributing physical persons will not be

indicated in the work;

"commercial exploitation" in relation to semiconductor product

topographies means the sale, rental, leasing or any other method of

commercial distribution, or an offer for these purposes

Provided that where exploitation takes place under

conditions of confidentiality to the extent that no further

distribution to third parties occurs there shall not be deemed to

have been "commercial exploitation";

"communication to the public" means the transmission of a work

or performance or sound recording by wire or wireless means to the

public and for the purpose of article 7 includes the making

available to the public of the work in such a way that members of

the public may access the work from a place and at a time

individually chosen by them

Provided that the mere provision of physical facilities for

enabling or making of a communication does not in itself amount to

an act of communication to the public

Provided further that for the purposes of article 19,

communication to the public also includes making the sounds or the

representations of sounds fixed in a sound recording audible to the

public;

"communication to the public by satellite" means the act of

introducing, under the control and responsibility of a broadcasting

org anizat io n, th e program me-carryi ng si gnal s in tend ed for

reception by the public into an uninterrupted chain of

communication leading to the satellite and down towards the earth

and the State where such an act takes place shall be deemed to be

the place of origin of that act of communication to the public by

satellite

Provided that if the programme-carrying signals are

encrypted, then there is communication to the public by satellite if

the means for decrypting the broadcast are provided to the public

by the broadcasting organisation or with its consent

Provided further that if the act of communication to the

public by satellite takes place in a State other than Malta or other

than a State in which the exclusive right to authorize or prevent the

satellite broadcasting of a work eligible for copyright or

neighbouring rights is protected under an international agreement

to which Malta is also a party, if the programme-carrying signals

are transmitted to the satellite from an uplink station situated in

Malta, that act of communication to the public by satellite shall be

deemed to have occurred in Malta so that the rights provided for by

this Act shall be exercisable against the person operating the uplink

station, or else in the absence of an uplink station in Malta, if a

broadcasting organisation established in Malta has commissioned

the act of communication to the public by satellite, that act shall be

deemed to have occurred in Malta and the rights provided for by

this Act shall be exercisable against that broadcasting organisation;

"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;

"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, so however that an

object shall not be taken to be a copy of an architectural work

unless the object is a building or model;

"copyright" means copyright under this Act;

"database" means a collection of independent works, data or

other materials arranged in a systematic or methodical way and

individually accessible by electronic or other means without it

being necessary for these materials to have been physically stored

in an organized manner but does not extend to computer programs

used in the making or operation of a database accessible by

electronic means comprised within the term "computer program";

"distribution" means the making available to the public by sale or

other transfer of ownership;

"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;

"lawful" means done in compliance with provisions of this Act,

and "lawfully" shall be construed accordingly;

"lending" means making available for use, for a limited period of

time and not for direct or indirect economic or commercial

advantage, when it is made through establishments which are

accessible to the public

Provided that even when lending by such an establishment

gives rise to payment of an amount, as long as this amount does not

go beyond what is necessary to cover the operational costs of the

establishment, there is no direct or indirect economic or

commercial advantage within the meaning of this Act;

"licence" means a lawfully granted licence permitting the doing

of an act controlled by copyright or neighbouring rights;

"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 save as provided in article 12 of the Statute Law Revision Act,

1980, does not include any written law, law report or judicial

decisions;

"Malta" shall have the same meaning as assigned to it by article

124 of the Constitution of Malta;

" M e m b e r St a t e " m e a n s a s t a t e w h i c h i s a m em b e r o f t h e

European Union;

"Minister" means the Minister responsible for the protection of

copyright and neighbouring rights and includes to the extent of the

authority given, any person authorised by the Minister in that

behalf for any purpose of this Act other than for the purpose of

article 59;

"musical work" means any musical work, irrespective of musical

quality, and includes works composed for musical accompaniment;

"owner of copyright" means the author who is first owner, an

assignee or an exclusive licensee, as the case may be, of a

copyright and in the 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;

"perceptual disability" means a disability that prevents or

inhibits a person from reading or hearing a literary, musical,

dramatic or artistic work in its original format, and includes such a

disability resulting from

(a) severe or total impairment of sight or hearing or the

inability to focus or move one’s eyes;

(b) the inability to hold or manipulate a book; or

(c) an impairment relating to comprehension.

"performance" means the direct rendition of the work to a public

which takes place under such circumstances that the works

performed can be perceived by the public without any intermediate

communication;

"performers" includes singers, musicians, dancers, actors or

other artists who sing, deliver, declaim, play in, act in, interpret or

o t h e r w i s e p e r f o r m l i t e r a r y, m u s i c a l a n d a r t i s t i c w o r k s o r

expressions of folklore and includes also singers, musicians, actors

or other artists who sing, play in or perform in variety, circus and

folklore shows or exhibitions;

"person" includes a body of persons;

"prescribed" means prescribed by regulations made under article

59;

"producer of a sound recording" means the legal entity who or

which takes the initiative and has the responsibility for the first

fixation of the sounds of a performance or other sounds or the

representation of sounds;

"rebroadcast" means simultaneous broadcasting by one

broadcasting organization of the broadcast of another broadcasting

organization not under its control, whether situated in Malta or

abroad, and "rebroadcasting" shall be construed accordingly

Provided that "later rebroadcast" shall mean only any such

subsequent broadcast and "later rebroadcasting" shall be construed

accordingly;

"rental" means making available for use, for a limited period of

time and for direct or indirect economic or commercial advantage;

"reproduction" means the making of one or more copies in any

material form of a literary, musical or artistic work, audiovisual

work or sound recording and includes storing such work in any

medium by electronic means;

"rights-management information" means any information

provided by rightholders which identifies the work or other subject-

matter referred to in this Act, the author or any other rightholder, or

information about the terms and conditions of use of the work or

other subject-matter, and any numbers or codes that represent such

information;

"satellite" means any satellite operating on frequency bands

which, under international telecommunications law are reserved for

the broadcast of signals for reception by the public or which are

reserved for closed, point-to-point communication. In the latter

case, however, the circumstances in which individual reception of

the signals takes place must be comparable to those which apply in

the first case;

"semiconductor product" means the final or an intermediate form

of any product consisting of a body of material which includes a

layer of semiconducting material, having one or more layers

composed of conducting, insulating or semiconducting material,

the layers being arranged in accordance with a predetermined

three-dimensional pattern and intended to perform, exclusively or

together with other functions, an electronic function;

"semiconductor product topography" means a series of related

images, however fixed or encoded, representing the three

dimensional pattern of the layers of which a semiconductor product

is composed and in which series, each image has the pattern or part

of the pattern of a surface of the semiconductor product at any

stage of its manufacture;

"sound recording" means the fixation of a sequence of sounds or

of a digital representation of sounds capable of being perceived

aurally and of being reproduced, but does not include a soundtrack

associated with an audiovisual work;

"technological measures" means any technology, device or

component that, in the normal course of its operation, is designed

to prevent or restrict acts, in respect of works or other subject-

matter, which are not authorised by the rightholder of any copyright

or neighbouring right or the sui generis rights as provided for by

this Act. Technological measures shall be deemed "effective"

where the use of a protected work or other subject-matter is

controlled by the rightholders through application of an access

control or protection process, such as encryption, scrambling or

other transformation of the work or other subject-matter or a copy

control mechanism, which achieves the protection objective;

"the Treaty" has the same meaning assigned to it by the European

Union Act;

"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.

(2) For the purposes of this Act the following provisions shall

apply with respect to publication

(a) a work or a sound recording 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

Provided that in the case of a work, the making

available to the public had taken place with the

consent of the author or other owner of copyright, and

in the case of a sound recording, with the consent of

the producer of the sound recording or his successor in

title;

(b) for the purposes of article 19, a sound recording made

available to the public by wire or wireless means in

such a way that members of the public may access it

from a place and at a time individually chosen by

them, shall be considered as if it had been published

for commercial purposes;

(c) 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;

(d) 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.

PART II

COPYRIGHT

(1) Subject to the provisions of this article the following

works shall be eligible for copyright

(a) artistic works;

(b) audiovisual works;

(c) databases;

(d) literary works;

(e) musical works.

(2) A literary, musical, or artistic work shall not be eligible for

copyright unless the work has an original character and it has been

written down, recorded, fixed or otherwise reduced to material

form.

Furthermore, copyright protection shall not extend to

ideas, procedures, methods of operations or mathematical concepts

as such.

(3) A work shall not be ineligible for copyright by reason only

that the making of the work, or the doing of any act in relation to

the work, involved an infringement of copyright in some other

work.

(4) A database shall not be eligible for copyright unless by

reason of the selection or arrangement of its contents, it constitutes

the author’s intellectual creation. Moreover the copyright conferred

to a database shall not extend to its contents and shall be without

prejudice to any rights subsisting in such contents themselves.

(1) Copyright shall be conferred by this article on every

work eligible for copyright 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.

(2) The terms of copyright protection conferred by this article

shall be calculated according to the following table

TABLE

Type of Work

Date of Expiration of Copyright

(i) Literary, musical Seventy years after the end of the

or artistic works and year in which the author dies,

database

irrespective of the date when the work

is lawfully made available to the public.

(ii)Audiovisual works

Seventy years after the end of the

year in which the last of the following

person dies: the principal director, the

author of the screenplay, the author of

the dialogue and the composer of music

specifically created for use in the

audiovisual work.

(3) In the case of an anonymous or pseudonymous literary,

musical or artistic work, or in the case of a collective work, the

copyright in the work subsists until the end of the expiration of 70

years from the end of the year in which it was lawfully 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 the period referred to in the

preceding paragraph of this sub-article 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 the terms of copyright protection

shall be calculated in accordance with the provision of paragraph

(i) of the last preceding sub-article.

(4) In the case of joint authorship reference in the preceding

table to the death of the author shall be deemed to refer to the joint

author who dies last, whether or not he is a qualified person in

terms of article 4(1).

(5) 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.

(6) 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.

(1) Copyright shall be conferred by this article 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 and

which has not been the subject of copyright conferred by article 4.

(2) Copyright conferred on a work by this article shall have the

same duration as is provided for in article 4 in relation to the same

type of work.

(1) Copyright shall be conferred by this article on every

work which is eligible for copyright and which is made by or under

the direction or control of the Government of Malta and also such

governments of other States, international bodies or other inter-

governmental organisations as may be prescribed by the Minister

responsible for the Industrial Property Office.

(2) Copyright conferred by this article on databases or on a

literary, musical or artistic work shall subsist until the end of the

expiration of seventy years from the end of the year in which it was

first published.

(3) Copyright conferred by this article on an audiovisual work

shall have the same duration as is provided for by article 4 in

relation to the same type of work.

(4) Article 4(5) shall apply in like manner to works eligible for

c op yr ig ht t o wh ic h t his article a pplies which, having been

unpublished, are lawfully published or lawfully communicated to

the public for the first time after copyright protection has expired.

(5) Articles 4 and 5 shall not be deemed to confer copyright on

works to which this article applies.

(1) Copyright in an audiovisual work, a database, 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;

(g) display or performance to the public

Provided that the right to authorise or prohibit the cable

retransmission of a television broadcast shall be exercisable only

through a collecting society.

(2) The right to authorise or prohibit cable retransmission shall

not apply when the transmission is made in Malta

(a) if the retransmission is in pursuance of a ‘must carry’

requirement in conformity with the Electronic

Communications (Regulation) Act; and

(b) if and to the extent that the transmission is made for

reception in the area in which the cable retransmission

may be received.

(3) The right to authorise or prohibit the cable retransmission

of a television broadcast shall be exercisable only through a

collecting society.

(4) In the case provided for in subarticle (2) where a

rightholder has not transferred the management of his rights to a

collecting society, the collecting society which manages rights of

the same category shall be deemed to be mandated to manage his

rights. Such rightholder shall have the same rights and obligations

resulting from the agreement between the cable operator and the

collecting society which is so deemed to be mandated to manage

his rights as the rightholders who have mandated that collecting

society and he may claim such rights within a period of three years

from the date of the cable retransmission which includes his work

or other protected subject-matter.

(5) Where no agreement is concluded regarding authorization

of the cable retransmission of a broadcast, either party may call

upon the assistance of one or more mediators appointed by the

chairman of the Malta Arbitration Centre, unless otherwise agreed

to by all the parties. The tasks of the mediators shall be to provide

assistance with negotiation. They may also submit proposals to the

parties. It shall be assumed that all the parties accept a proposal as

r e f e r r e d t o in t h i s su b a r t i c l e i f n o n e of t he m e x p r e s s e s i t s

opposition within a period of three months. Notice of the proposal

and of any opposition thereto shall be served on the parties

concerned by judicial act, unless otherwise agreed to by the parties.

The mediators shall be so selected that their independence and

impartiality are beyond reasonable doubt.

(1) The first sale or other transfer of ownership in the

market of the original work enjoying copyright or copies thereof,

when such sale is effected by or with the consent of the copyright

owner himself, shall exhaust the exclusive distribution right in

respect of that work or its copy.

(2) For the purposes of this article "market" means the market

in Malta and as from the 1st May 2004 the European Union.

(1) Copyright in an audiovisual work, a database, a literary

work other than in the case of a computer programme, a muscial or

artistic work shall not include the right to authorise or prohibit -

(a) temporary acts of reproduction, which are transient or

incidental and an integral and essentail part of a

technological process and whose sole purpose is to

enable

(i)

a transmission in a network between third parties

by an intermediary, or

(ii) another lawful use of a work or other subject-

matter to be made, and which have no

independent economic significance;

(b) reproductions on paper or any similar medium,

effected by the use of any kind of photographic

technique or by some other process having similar

effects, with the exception of sheet music, provided

that the rightholders received fair compensation;

(c) reproductions on any medium made by a natural

person for private use and for ends that are neither

directly nor indirectly commerical, on condition that

the rightholders receive fair compensation which takes

account of the application or non-application or

technological measures to the work or subject-matter

concerned;

(d) specific acts of reproduction made by publicly

accessible libraries, educational establishments or

museums, or by archives, which are not for direct or

indirect economic or commercial advantage;

(e) ephemeral recordings or works made by broadcasting

organisations by means of their own facilities and for

their own broadcasts

Provided that any reproduction of a work made

under this paragraph may, if it is of exceptional

documentary character be preserved in official

archives;

(f)

reproduction of broadcasts made by social institutions

pursuing non-commercial purposes, such as hospitals

or prisons, on condition that the rightholders receive

fair compensation;

(g) the performing, playing or showing of a work in a

place where no admission fee is charged in respect of

such an act by any club whose aim is not profit-

COPYRIGHT

making;

(h) the reproduction, translation, distribution or

communication to the public of a work for the sole

purpose of illustration for teaching or scientific

research only to the extent justified by the non-

commercial purpose to be achieved, and as long as the

source, including the author’s name, is, unless this is

impossible, indicated;

(i)

the reproduction, translation, distribution or

communication to the public of a work for the benefit

of people with a disability, which are directly related

to the disability and on a non-commercial nature, to

the extent required by the specific disability;

(j)

the reproduction by the press, translation, distribution

or communication to the public of published articles

on current economic, political or religious topics or of

broadcast works or other subject-matter of the same

character, in cases where such use is not expressly

reserved, and as long as the source, including the

author’s name, is indicated, or use of works or other

subject-matter in connection with the reporting of

current events, to the extent justified by the

informatory purpose and as long as the source,

including the author’s name, is, unless this is

impossible, indicated;

(k) the reproduction, translation, distribution or

communication to the public of quotations for

purposes such as criticism or review, provided that

they relate to a work or other subject-matter which has

already been lawfully made available to the public, as

long as, unless this is impossible, the source, including

the author’s name, is indicated, and that their use is in

accordance with fair practice, and to the extent

required by the specific purposes;

(l)

the reproduction, translation, distribution or

communication to the public of a work for the

purposes of public security or to ensure the proper

performance

or

reporting

of

administrative,

parliamentary or judicial proceedings;

(m) the reproduction, translation, distribution or

communication to the public of political speeches as

well as extracts of public lectures or similar works or

subject-matter to the extent justified by informatory

purposes and provided that the source, including the

author’s name, is, except where this is impossible,

indicated;

(n) the reproduction, translation, distribution or

communication to the public of a work for use during

religious celebrations or official celebrations

organized by a public authority;

(o) the reading or recitation in public by a person of any

reasonable extract from a published literary work if

accompanied by a sufficient acknowledgement;

(p) the inclusion in a communication to the public, the

making of a graphic representation and the making of a

photograph or film, of a work of architecture or

sculpture or similar works made to be located

permanently in public places;

(q) the incidental inclusion of a work or other subject

matter in other material;

(r) the reproduction, distribution or communication to the

public of a work for the purpose of advertising the

public exhibition or sale of artistic works, to the extent

necessary to promote the event, excluding any other

commercial use;

(s) the reproduction or communication to the public of a

work by way of caricature, pastiche or parody;

(t)

the reproduction, translation, distribution or

communication to the public of a work in connection

with the demonstration or repair of equipment;

(u) the reproduction, distribution or communication to the

public of an artistic work in the form of a builidng or a

drawing or plan of a building for the purposes of

reconstructing the building;

(v) the communication to the public, for the purpose of

research or private study, to individual members of the

public by dedicated terminals on the premises of

establishments referred to in paragraph (d) of works

and other subject-matter, not subject to purchase or

licensing terms, which are contained in their

collections;

(w) in the case of a database, the performance of those acts

which are normally necessary in order that the licensed

user obtains access to the contents of the database and

normal use thereof, in respect of the whole or part of

the database which the user is licensed to use; and any

contractual provisions running counter to what is

prescribed in this paragraph shall be null and void.

(2) Copyright in a computer programme shall not include the

right to authorize or prohibit

(a) the observation, the study or testing of the functioning

of the program by the licensed user in order to

determine the ideas and principles which underlie any

element of the program if this is done whilst

performing any of the acts of loading, displaying,

running, transmitting or storing the program which he

is entitled to do;

(b) the reproduction by the licensed user of the code and

translation of its form where this is indispensable to

obtain the information necessary to achieve the

interoperability of an independently created computer

program with other programs, provided that these acts

are confined to the parts of the original program which

are necessary to achieve interoperability and the

information necessary to achieve interoperability has

not previously been readily available to the licensed

user

Provided that any information obtained from the

reproduction of the code and the translation of the

form of a computer program made under this

paragraph shall not

(i)

be used for purposes other than to achieve the

interoperability of the independently created

computer program;

(ii) be given to other persons, except when

necessary for the interoperability of the

independently created computer program;

(iii) be used for the development, production or

marketing of a computer program substantially

similar in its expression to the original program

or for any other act which infringes copyright;

(c) the making of a copy or a back-up copy, the

translation, adaptation, arrangement and any other

alteration of a computer program and the reproduction

of the results thereof, in so far as this is necessary for

the licensed user to make proper use of the program in

accordance with its intended purpose, including the

correction of errors; and the right of the licensed user

to make a back-up copy of a computer program may

not be restricted or excluded by contract in so far as it

is necessary for the use of that computer program.

(3) The exceptions and limitations provided for in this article

shall only be applied in such particular cases which do not conflict

with a normal exploitation of the work or other subject-matter and

do not unreasonably rejudice the legitimate interests of the

rightholder.

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

Provided that the copyright in any such work shall not

include the right to authorise or prevent the reconstruction, in the

same style as the original, of a building to which that copyright

relates or the right to authorize or prevent the rental or lending of

buildings or works of applied art.

(1) Copyright conferred by articles 4, 5 and 6 shall vest

initially in the author or in the joint authors

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.

(2)

Subject to the provision of the last preceding sub-article-

(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

this Act.

PART III

MORAL RIGHTS OF AUTHORS

(1) It shall not be lawful for any person, including the

assignee of the copyright or a licensee thereunder, 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.

(2) 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 not 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.

(3)

On the death of the author -

(a) the right passes to such person as he may by

testamentary disposition specifically direct, provided

that on this person’s death the right passes to his

successor;

(b) if there is no such direction but the copyright in the

work in question forms part of his estate, the right

passes to the person to whom the copyright passes;

COPYRIGHT

(c) if or to the extent the right does not pass under

paragraph (a) or paragraph (b) it would be exercisable

by the owners of the copyright.

PART IV

NEIGHBOURING RIGHTS

Performers shall have the exclusive right to authorise or

prohibit the doing in Malta any of the following acts

(a) the fixation of their performances;

(b) the direct or indirect, temporary or permanent

reproduction by any means and in any form, in whole

or in part of a fixation of their performances;

(c) the rental and lending of their fixed performances;

(d) the distribution of the original performances fixed in

phonograms and of copies thereof;

(e) the making available to the public of the fixation of

their performances, by wire or wireless means, in such

a way that members of the public may access them

from a place and a time individually chosen by them;

(f)

the broadcasting and the communication to the public

of their performances, except where the performance

is itself already a broadcast performance or is made

from a fixation.

The rights conferred by this article shall have the duration

of fifty years from the end of the year in which the fixation of the

performance was first lawfully published or first lawfully

communicated to the public, whichever is the earlier or in the

absence of such publication or communication to the public from

the end of the year in which it was first performed.

Producers of sound recordings shall, in respect of their

sound recordings, and producers of the first fixations of audiovisual

works, in respect of the original and copies of their audiovisual

works, have the exclusive right to authorize or prohibit

(a) the direct or indirect, temporary or permanent

reproduction by any means or form in whole or in part;

(b) the rental and lending, even after their distribution, or

pursuant authorization, by the producer;

(c) the distribution;

(d) the making available to the public by wire or wireless

means in such a way that members of the public may

access them from a place and a time individually

chosen by them.

The rights conferred by this article on sound recordings

and audiovisual works shall have the duration of fifty years from

the end of the year in which the sound recording or the first fixation

of the audiovisual work was first lawfully published or lawfully

communicated to the public, whichever is the earlier or in the

absence of such publication or communication to the public from

the end of the year in which the first fixation was made.

(1) Broadcasting organisations shall have the exclusive

right to authorize or prohibit the doing in Malta of any of the

following acts

(a) the fixation of their broadcasts or initial cable

transmissions;

(b) the direct or indirect, temporary or permanent

reproduction by any means or form in whole or in part

of fixations of their broadcast or initial cable

transmissions as set out in paragraph (a) above;

(c) the distribution of fixation of their broadcasts or initial

cable transmissions as set out in paragraph (a) above;

(d) the rebroadcasting of their broadcasts as well as the

communication to the public of their broadcasts if such

communication is made in places accessible to the

public against payment of an entrance fee;

(e) the making available to the public, of fixations of their

broadcast or initial cable transmissions as set out in (a)

above, by wire or wireless means, in such a way that

members of the public may access them from a place

and at a time individually chosen by them.

(2) A broadcasting organisation shall not have the right

provided in sub-article (1)(a) above when it merely retransmits by

cable the broadcasts of broadcasting organisations.

The rights conferred by this article on broadcasts shall

have the duration of fifty years from the end of the year in which

the broadcast was first transmitted whether by wire or over the air,

be it by cable or satellite.

Where a sound recording published for commercial

purposes or a reproduction of such sound recording is used directly

or indirectly for broadcasting by wireless means or for any

communication to the public a single equitable remuneration shall

be paid by the user to the performers and to the producers of the

sound recording concerned to be shared equally between them.

Such payment shall be made to a collecting society representing

both performers and producers of sound recordings or, in the

absence of such a collecting society, to the producer of sound

recordings who shall be obliged to distribute half of the

remuneration to the performers

Provided that for the purpose of this article, sound

recordings made available to the public by wire or wireless means,

in such a way that members of the public may access them from a

place and at a time individually chosen by them, shall be

considered as if they have been published for commercial purposes.

(1) The distribution right in respect of fixations of

performances, sound recordings, original and copies of audiovisual

works and fixations of broadcasts conferred by the preceding

articles of this Act on performers, producers of sound recordings,

producers of the first fixations of audiovisual works and

broadcasting organisations respectively, shall be exhausted by the

first sale or transfer of ownership in the market of the originals or

copies of such works in regard to that particular original or copy,

when such sale is effected by the neighbouring right owner or with

his consent.

(2) For the purposes of this article, "market" means the market

in Malta and as from the 1st May 2004 the market in any othe

Member State.

The provisions of article 9 shall apply mutatis mutandis to

the neighbouring rights conferred by this Act in like manner as they

apply to copyright in a literary, musical or artistic or audiovisual

work, or database.

Neighbouring rights conferred by this Part shall apply only

in respect of works -

(a) of which the performer, the producer or broadcaster

is -

(i)

an individual who is a citizen of, or is domiciled

or permanently resident in Malta or in a State in

which such works are protected by neighbouring

rights under an international agreement to which

Malta is also a party;

(ii) 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 such works are protected by

neighbouring rights under an international

agreement to which Malta is also a party;

or

(b) which are made, first published, broadcast or

communicated to the public in Malta or in a State in

which such works are protected by neighbouring rights

under an international agreement to which Malta is

also a party;

or

(c) which are made by or under the direction or control of

the Government of Malta and also such governments

of other States, international bodies or other inter-

governmental organisations as may be prescribed.

PART V

MORAL RIGHTS OF PERFORMERS

(1) Independently of a performer’s economic rights, and

even after the transfer of those rights, the performer shall until the

expiry of the economic rights, as regards his live aural

performances or performances fixed in phonograms, have the right

to claim to be identified as the performer of his performances,

except where omission is dictated by the manner of the use of the

performances, and to prohibit any distortion, mutilation or other

modification of his performances that would be prejudicial to his

reputation

Provided that during the lifetime of the performer it shall

not be lawful to transmit any of the aforementioned moral rights.

(2)

On the death of the performer -

(a) the right passes to such person as he may by

testamentary disposition specifically direct, provided

that on this person’s death the right passes to his

successor;

(b) if there is no such direction but the copyright in the

work in question forms part of his estate, the right

passes to the person to whom the copyright passes.

PART VI

TRANSFER OF COPYRIGHT AND NEIGHBOURING RIGHTS

(1) Subject to the provisions of this article, copyright and

neighbouring rights shall be transmissible by assignment, operation

of law or by testamentary disposition as movable property.

(2) An assignment or testamentary disposition of copyright or

neighbouring rights may be limited so as to apply to some only of

the acts which the owner of the copyright or neighbouring rights

has the exclusive right to authorize or prevent, or to a part only of

the period of the copyright or neighbouring right, or to a specified

country or other geographical area.

(3) When an author in relation to the original or copy of his

work or a performer in relation to the fixation of his performance

assigns his exclusive right to authorize or prevent the rental thereof

to the producer of the sound recording or the producer of the

audiovisual work containing the author’s work or the performer’s

fixed performance, that author or performer shall retain the right to

obtain individually or through a collecting society an equitable

remuneration for the rental of the said sound recording or original

or copy of the said audiovisual work from the producer concerned

and such right may not be waived. In the absence of agreement on

the remuneration payable under this sub-article, the amount of such

remuneration shall be determined by the Board.

(4) Subject to the provisions of article 52 no assignment of

copyright or neighbouring rights and no licence to do an act the

doing of which is controlled by copyright or by neighbouring rights

shall have effect unless it is effected by an agreement in writing

between the parties

Provided that when a contract is concluded between a

performer and a producer of audiovisual works concerning the

production of an audiovisual work the performer shall be deemed to

have assigned to the producer his exclusive rights on the fixation of

his performance, unless agreed otherwise, subject only to the right,

which may not be waived, of the performer to an equitable

remuneration payable on the conclusion of the contract by the

producer to the performer or should he so desire to a collecting

society representing him, which remuneration shall, in the absence

of agreement between the parties, be determined by the Board.

Provided further that, when a contract is concluded

between the author of an audiovisual work or the authors of the

underlying works used as the basis for the audiovisual work and the

producer of the audiovisual work concerning the production of that

audiovisual work such authors shall be deemed to have assigned to

the producer their exclusive rights on their copyright works, unless

agreed otherwise, subject only to the right, which may not be

waived, of the authors to an equitable remuneration payable on the

conclusion of the contract by the producer to the author

individually or should the author so desire, to a collecting society

representing him, which remuneration shall, in the absence of

agreement between the parties, be determined by the Board.

(5) An assignment or licence of copyright granted by a joint

author or an assignment or licence of a neighbouring right granted

by a joint rightholder shall have effect as if granted by the other

joint authors or joint rightholders respectively

Provided that, where any other joint author in the case of

copyright or joint rightholder in the case of neighbouring rights is

not satisfied with the terms on which such assignment or licence

has been granted, he may, within three months from the day on

which the said terms have been communicated in writing to him,

apply to the Board for the determination by it of such terms as the

Board may consider fair and reasonable.

(6) An assignment, licence or testamentary disposition may be

effectively granted or made in respect of a future work or an

existing work in which copyright or a neighbouring right does not

yet subsist, and the prospective copyright or prospective

neighbouring right in any such work shall be transmissible as

movable property

Provided that in the case of copyright such assignment or

licence shall not be deemed to include a copyright which in terms

of article 11(1) vests in the author’s employers, unless the parties

expressly include it.

(7) A testamentary disposition of the material on which a work

is first written or otherwise recorded shall, unless the testator has

provided otherwise, be deemed to include any copyright or

neighbouring right or prospective copyright or prospective

neighbouring right in the work which is vested in the deceased.

PART VII

SUI GENERIS RIGHT IN RESPECT OF DATABASES

Notwithstanding the provisions of article 7, the maker of a

database who can show that there has been qualitatively or

quantitatively a substantial investment in either the obtaining,

verification or presentation of the contents of the database shall

have, irrespective of the eligibility of that database or its contents

for protection by copyright or by other rights, the right to authorise

or prohibit acts of extraction or re-utilization of its contents, in

whole or in substantial part, evaluated qualitatively or

quantitatively.

(1) The maker of a database which is made available to

the public in whatever manner may not prevent a licensed user of

the database from extracting or re-utilizing insubstantial parts of its

contents, evaluated qualitatively or quantitatively, for any purpose

whatsoever, as long as the licensed user does not perform acts

which conflict with the normal exploitation of the database or

unreasonably prejudice the legitimate interests of the maker of the

database or in any way cause prejudice to the holder of a copyright

or neighbouring right in respect of the works or subject matter

contained in the database and any contractual provisions running

counter to this proviso shall be null and void

Provided that the repeated and systematic extraction or re-

utilization of insubstantial parts of the contents of the database

implying acts which conflict with a normal exploitation of that

database or which unreasonably prejudice the legitimate interests

of the maker of the database shall not be permitted.

(2) Notwithstanding article 25, a licensed user may, without

the authorization of the maker of a database made available to the

public in whatever manner, extract or re-utilize a substantial part of

its contents for the following purposes

(a) extraction for private use in the case of a non-

electronic database;

(b) extraction for the purposes of illustration for teaching

or for scientific research to the extent justified by the

non-commercial purpose to be achieved provided the

source is indicated;

(c) extraction or re-utilization for the purposes of public

security or an administrative or judicial procedure.

The right provided for in article 25 shall expire fifteen

years from the first of January of the year following the date of

completion of the making of the database, or if made available to

the public in whatever manner before expiry of the said period,

such a right shall expire fifteen years from the first of January of

the year following the date when the database was first made

available to the public

Provided that any substantial change, evaluated

qualitatively or quantitatively, to the contents of a database,

including any substantial change resulting from the accumulation

of successive additions, deletions or alterations, which would result

in the database being considered to be a substantial new

investment, evaluated qualitatively or quantitatively, shall give rise

to the creation of a new database, which shall be entitled from that

moment to its own term of protection of fifteen years.

Such a right which may be assigned or granted under

contractual licence subject to the provisions of article 24 shall be

without prejudice to rights existing in respect of the contents of the

database.

The right conferred by this article shall only apply to a

database -

(a) whose maker or rightholder is at the time when the

database is made -

(i)

an individual who is a citizen of, or is domiciled

or permanently resident in Malta or in a State in

which such a sui generis right in respect of

databases is protected under an international

agreement to which Malta is also a party;

(ii) 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 such a sui generis right in

respect of databases is protected under an

international agreement to which Malta is also a

party;

or

(b) which is made or first made available to the public in

Malta or in a State in which such a sui generis right in

respect of databases is protected under an international

agreement to which Malta is also a party;

or

(c) which is made by or under the direction or control of

the Government of Malta and also such governments

of other States, international bodies or other inter-

governmental organisations as may be prescribed.

(1) For the purposes of this Part "extraction" means the

permanent or temporary transfer of all or a substantial part of the

contents of a database to another medium by any means or in any

form while "re-utilization" means any form of making available to

the public all or a substantial part of the contents of a database by

the distribution of copies, by renting, by on-line or other forms of

transmission

(2) Provided that public lending shall not be deemed to be an

act of extraction or re-utilization.

The first sale in Malta of a copy of a database by the

rightholder or with his consent shall exhaust the right to control the

resale of that copy.

PART VIII

SUI GENERIS RIGHT IN RESPECT OF SEMICONDUCTOR

PRODUCT TOPOGRAPHIES

Creators of semiconductor product topographies and their

successors in title shall have the exclusive right to authorize or

prevent in Malta the reproduction of the topography and the

commercial exploitation or the importation for the purpose of

commercial exploitation of the topography or of a semiconductor

product manufactured by using the topography.

The right conferred by article 32 shall not prevent

(a) reproduction of a topography privately for non-

commercial aims;

(b) reproduction for the purpose of analyzing, evaluating

or teaching the concepts, processes, systems or

techniques bodied in the topography or the topography

itself;

(c) any act in relation to a topography meeting the

requirements of article 35 and created on the basis of

an analysis and evaluation of another topography

carried out in conformity with the preceding paragraph

(b).

When the topography or the semiconductor product has

been put on the market in Malta by the rightholder or with his

consent the exclusive right to authorize or prevent the commercial

exploitation or the importation of that topography or of that

semiconductor product shall be exhausted.

The right conferred by article 32 shall apply only in respect

of semiconductor product topographies which are the result of the

creator’s own intellectual effort and are not commonplace in the

semiconductor industry but shall not extend to any concept,

process, system, technique or encoded information embodied in the

topography

Provided that where the semiconductor product topography

consists of elements that are commonplace in the semiconductor

i n d u s t r y, i t s h a l l b e p r o t e c t e d o n l y t o t h e e x t e n t t h a t t h e

combination of such elements, taken as a whole, fulfils the above-

mentioned conditions.

The right conferred by article 32 shall apply in favour of a

creator or his successor in title who is an individual who is a citizen

of, or is domiciled or permanently resident in Malta or in a State in

which such a sui generis right as is conferred by article 32 on

s e m i c o n d u c t o r p r o d u c t t o p o g r a p h ie s i s p r o t e c t e d u n d e r a n

international agreement to which Malta is also a party.

Where a topography is created in the course of the creator’s

employment, in the execution of his duties or following the

instructions given by his employer the exclusive right conferred by

article 32 shall be deemed to be transferred to the creator ’s

employer or his successor in title, subject to any agreement

between the parties excluding or limiting such transfer

Provided that the creator’s employer or his successor in

title must also satisfy the criteria of article 36 or be 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 such a sui generis right as is conferred by

article 32 on semiconductor product topographies is protected

under an international agreement to which Malta is also a party.

Where no right to protection as conferred by article 32

exists in favour of a creator or his employer in accordance with

articles 36 and 37, the right shall apply in favour of the person or

his successor in title, who, satisfying either of the conditions

mentioned in the proviso to article 37, first commercially exploits,

in Malta or in a State in which such a sui generis right as is

conferred by article 32 on semiconductor product topographies is

protected under an international agreement to which Malta is also a

party, a topography which has not yet been exploited commercially

anywhere in the world and has been exclusively authorized to

exploit commercially the topography throughout such territory by

the person entitled to dispose of it.

The right conferred by article 32 may be assigned or

granted under contractual licence subject to the provisions of

article 24.

The right conferred by article 32 shall subsist for ten years

from the end of the year in which the semiconductor product

topography was first commercially exploited anywhere in the world

or for fifteen years from the first fixation or encoding of the

semiconductor product topography if it has not been commercially

exploited

Provided that in the case where the term of protection

commences from the date of first commercial exploitation in the

world rather than from the first fixation or encoding of the

topography, the legal remedies provided for by article 43(1) shall

also be available in favour of a rightholder who can prove to the

satisfaction of the Court that the defendant fraudulently reproduced

or commercially exploited or imported for that purpose a

semiconductor product topography even though such acts occurred

prior to the commencement of the term of protection and the

coming into existence of the right conferred by article 32.

Notwithstanding article 32 and the provisions of article 42,

a person or his successor in title who acquires a semiconductor

product shall not be prevented from commercially exploiting that

product if at the time of acquisition he was not aware and could not

reasonably be expected to be aware that a sui generis right as is

conferred by article 32 subsisted in that work

Provided that, at the suit of the rightholder or his

successors in title, the Civil Court, First Hall, shall order that

person to pay adequate compensation to the plaintiff in respect of

the acts committed by him after he became aware or had reasonable

grounds to believe that the semiconductor product is protected by

such a sui generis right.

PART IX

INFRINGEMENT

(1) Copyright, neighbouring rights and sui generis rights

are infringed by

(a) any person who does or causes another person to do,

without a licence from the owner or holder thereof, an

act the doing of which is controlled by copyright,

neighbouring rights or sui generis rights;

(b) any person who, without the licence of the copyright

owner or right holder, 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 possesssion or

manufactures in the course of business or offers or

exposes for sale or hire an article in respect of which

copyright, neighbouring rights or sui generis rights are

infringed under the preceding paragraph;

(c) any person who, without the licence of the copyright

owner or rightholder does anything which circumvents

any effective technological measures, which the

person concerned carries out in the knowledge, or with

reasonable grounds to know, that he or she is pursuing

that objective;

(d) any person who, without the licence of the copyright

owner or rightholder maufactures, imports, distributes,

sells, rents, advertises for sale or rental, or possesses

for commercial puposes, devices, products or

components which

(i) are for the purpose of circumvention of, or

(ii) have only a limited commerically significant

purpose or use other than to circumvent, or

(iii) are primarily designed, produced, adapted or

performed for the purpose of enabling or

facilitating the circumvention of, any effective

technological measures;

(e) any person who, without the licence of the copyright

owner or rightholder provides, promotes, advertises or

markets a service which serves for the purpose of

circumvention of any effective technological

measures;

(f)

any person who, without the licence of the copyright

owner or right holder, knowingly performs any of the

following acts

(i)

the removal or alteration of any electronic

rights-management information;

(ii) the distribution, importation for distribution,

broadcasting,

communication

or

making

available to the public of works or other subject-

matter protected under this Act from which

electronic rights-management information has

been removed or altered without authority,

if such person knows, or has reasonable grounds to

know, that by so doing he is inducing, enabling,

facilitating or concealing an infringement of any

copyright or any neighbouring right, or of the sui

generis rights as provided by this Act

Provided that any of these items of electronic

rights-management information

(i)

is associated with a copy of a copyright work

under the terms of this Act, or

(ii) appears in connection with the communication

to the public of a copyright work under the terms

of this Act, or

(iii) is covered by a sui generis right under the terms

of this Act.

(2)

(a) Notwithstanding the provisions of subarticle (1)(c), (d)

a n d ( e ) , w h e r e t h e a p p l i c a t i o n o f a n y e ff e c t i v e

technological measure to a copyright work prevents

any beneficiary of an exception provided for in article

9(1)(b), (c), (d), (e), (f), (i), (l) or (h) from benefiting

from that exception, the rightholder shall make

available to the beneficiary the means of benefiting

from that exception, to the extent necessary to benefit

from that exception or limitation

Provided that the beneficiary shall have legal

access to the protected work or subject-matter

concerned

Provided further that there is no voluntary measure

taken by the rightholder or exclusive licencee or

agreement between the rightholder and the other party

concerned, the purpose of which is to enable the

beneficiary (or persons of a class to which the

beneficiary belongs) to benefit from the exceptions

specified in the above paragraph.

(b) The provisions of subarticle (2)(a) do not apply to

copyright works made available to the public on agreed

contractual terms in such a way that members of the

public may access them from a place and at a time

individually chosen by them.

(1) Where any person infringes the copyright,

neighbouring rights or sui generis rights in respect of a work, he

shall be liable, at the suit of the copyright owner or right holder to

be condemned by the Civil Court, First Hall to the payment of

damages or to the payment of a fine to be determined in accordance

with a scale of fines to be prescribed by the Minister, as the said

Court, having regard to the circumstances of the case, may deem

proper and to the restitution of all the profit derived from the

infringement of the copyright, neighbouring rights or sui generis

rights

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, neighbouring rights or sui generis rights subsisted in the

work to which the action relates, the Court shall not condemn him

to the restitution of the profit.

(2) The Civil Court, First Hall may in an action for

infringement of copyright, neighbouring rights or sui generis rights

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.

(3)

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.

(4) 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.

(1) Saving the provisions of the last preceding article, any

person who contravenes the provision of article 12(1), shall be

liable at the suit of the author or his heirs to be condemned by the

Civil Court, First Hall, to the payment of a fine, and for damages to

be determined in accordance with a scale of fines to be prescribed

by the Minister.

(2) In any proceedings under the last preceding sub-article the

Court shall 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.

(3) The provision of the last preceding sub-article shall not

apply where the infringing article is a building.

(4) Any person who contravenes the provisions of article 12(1)

and (2) and article 23(1) shall be liable at the suit of the author or

the physical person to whom, or the legal entity to which, the right

to exercise the aforesaid moral rights has been transmitted under

the proviso to article 11(2), to be condemned by the Civil Court,

F i r s t H a l l t o th e pa y m e n t o f a f in e , an d f or d a m ag e s t o b e

determined in accordance with a scale of fines to be prescribed by

the Minister.

PART X

THE COPYRIGHT BOARD

(1) The Minister shall by notice in the Gazette appoint a

Copyright Board, consisting of a chairman and two other members

for the purpose of performing the functions assigned to such Board

by the provisions of this Act.

(2)

The Chairman of the said Board shall be a retired Judge or

a retired Magistrate or a person who has practised as an advocate in

Malta for a period of, or periods amounting in the aggregate to, not

less than seven years.

(3) The Minister shall also appoint two other persons to act as

members of the Board, one to replace the chairman and the other to

replace any of the other two members, whenever the chairman or

any of the other members, as the case may be, is, for any reason,

unable to carry out his functions.

(4) Every member of the Board shall hold office during the

Minister’s pleasure and the Minister may, without assigning any

reason, revoke the appointment of any member and appoint a new

member whenever he deems it to be necessary.

(5) The members of the Board, with the exception of the

Chairman if he is a Magistrate, shall, before entering upon their

office, take before the Attorney General the oath to examine and

decide any matter referred to them with equity and impartiality.

The Chairman or any other member of the Board may

abstain or may be challenged by any of the contending parties for

any of the causes mentioned in article 734 of the Code of

Organization and Civil Procedure. Any question regarding any

cause of abstention or challenge and any question which is a

question of law alone shall be decided by the Chairman of the

Board.

The Board shall have the power to summon any person to

give evidence or to produce books or other documents before it,

and the Chairm an of the Board shall have, in regard to the

summoning and examining of witnesses before the Board, the same

powers as are by the Code of Organization and Civil Procedure

conferred on the Civil Court, First Hall.

(1) Proceedings of the Board shall be held in public and

the Board’s decision shall be notified to the parties by registered

post to their respective business or private addresses and, unless the

contrary is proved, such decision shall be deemed to have been

s e r v e d o n t h e p a r t y c o n ce r n e d n o t l a t er t h a n t h e t h i r d d a y

succeeding the day when it was posted to such party.

(2) The Minister may make regulations governing proceedings

before the Board and, without prejudice to the generality of the

foregoing, may make regulations -

(a) prescribing the manner in which any matter may be

referred to the Board;

(b) prescribing the procedure to be adopted by the Board

in dealing with any matter referred to it under this Act

and the records to be kept by the Board;

(c) prescribing the manner in which the Board shall be

convened and the place where the Board shall hold its

sittings;

(d) prescribing a scale of fines, costs and fees; and

(e) generally for the better carrying out of the functions

assigned to the Board by this Act.

(1) There shall lie a right of appeal from all decisions of

the Board.

(2) Any appeal shall be brought before the Court of Appeal

composed in the manner provided in article 41(9) of the Code of

Organization and Civil Procedure by application within fifteen

days of service of the Board’s decision.

(3) The Minister responsible for justice may make rules

governing appeals to the Court of Appeal under this Act, and

prescribing a scale of costs and fees in relation to such appeals.

Costs and fees in respect of proceedings before the Board

and before the Court of Appeal shall be borne by the parties in such

manner as the said Board or Court, as the case may be, shall decide.

(1) In any case where it appears to the Board that a

collecting society or an owner of copyright or neighbouring right -

(a) is unreasonably refusing to grant a licence in respect

of cable retransmission or rebroadcasting, or

(b) is imposing unreasonable terms or conditions for the

granting of such licence,

the Board may direct that, as respects the doing of any act relating

to a work with which the collecting society or the owner, as the

case may be, is concerned, a licence shall be deemed to have been

granted by the collecting society or by the owner at the time the act

is done, provided the appropriate fees fixed by such Board are paid

or tendered before the expiration of such period or periods as the

Board may determine.

(2) The Minister may by regulations order that the provisions

of this article shall not remain in force as from the date mentioned

in such order.

PART XI

COLLECTIVE ADMINISTRATION OF RIGHTS

Authors and other owners of copyright and of neighbouring

rights may authorize a collecting society to administer their

economic rights.

Repealed by Act IX. 2003.99.

Repealed by Act IX. 2003.99.

Repealed by Act IX. 2003.99.

Repealed by Act IX. 2003.99.

Repealed by Act IX. 2003.99.

Repealed by Act IX. 2003.99.

PART XII

REGULATIONS

The Minister may make regulations for the better

implementation of the provisions of this Act and, without prejudice

to the generality of the foregoing, may by such regulations

(a) prescribe any matter that may be prescribed under this

Act;

(b) introduce changes to extend the protection granted by

this Act to any other form of intellectual property not

otherwise protected by this Act as may be provided by

any international instrument that is binding in Malta;

(c) change and revive the terms of the duration of

protection as may be provided in any international

instrument that is binding in Malta;

(d) alter the rights and limitations thereof as may be

provided in any international instrument that is

binding in Malta;

(e) prescribe the functions of the Copyright Board;

(f)

provide for matters relating to collecting societies, in

particular their establishment, tasks, manner of

operation, setting and approval of fees and their

supervision.

Without prejudice to any provision of this Act granting the

Minister the power to make regulations, the Minister may, subject

to the provisions of the Exclusive Economic Zone Act, from time to

time, make, amend, substitute or repeal regulations for the purpose

of regulating, prescribing or otherwise providing for any matters

regulated by or under this Act or by or under any subsidiary

legislation made thereunder, in respect of an exclusive economic

zone area or an environment protection area as defined in the

Exclusive Economic Zone Act or any activities therein including,

but not limited, to the applicability or otherwise of this Act and, or

of any subsidiary legislation made thereunder.

PART XIII

TRANSITORY PROVISIONS

(1) This Act shall apply

(a) in relation to works made after the coming into force

of this Act; and

(b) saving the provisions of sub-article (2), to works made

before the coming into force of this Act where the term

of protection has not, upon the coming into force of

this Act, expired under the Copyright Act repealed by

this Act.

(2)

(a) The rights of performers in respect of a fixation of

their performance on a phonogram to prevent the

fixation of their unfixed performance which took place

prior to the commencement of this Act and the

reproduction of such fixation when undertaken without

their authorisation and the rights of performers to

prevent the broadcasting by wireless means and the

communication to the public of their live performance

when undertaken without their authorisation shall be

protected under this Act until the end of a period of

fifty years computed from the end of the calendar year

in which the performance took place. Provided that

these rights are exercised through a collecting society.

(b) The right of producers of sound recordings made prior

to the commencement of this Act to authorize or

prohibit the rental of the said sound recordings shall be

protected under this Act for a term of fifty years

computed from the end of the calendar year in which

the sound recording was made. Provided that these

rights are exercised through a collecting society.

(c) The right of the holder of copyright in respect of a

literary work consisting of a computer programme to

authorise or prohibit the rental of the said programme

shall be protected until the end of a period of fifty

years computed from the end of the calendar year in

which the author of the said computer programme dies.

(3) No action may be taken under this Act in respect of an

action which took place prior to the commencement of this Act in

respect of rights recognised by this Act but which were not

recognised by the Copyright Act repealed by this Act.