Introduction
Intellectual property refers to intangible property such as music, literary works, discovery, inventions, designs, symbols, and words, all of which are products of one’s mind. Therefore, intellectual property is a legal concept that guards intangible property, which comes from people’s creativity. Following the realization that people can generate intangible properties, laws and regulations concerning intellectual property have evolved with time. The term intellectual property became applicable to intangible property in the late 19th century, and by the 20th century, major laws and regulations were in place to protect people’s intellectual property. In this view, laws, and regulations started to protect major inventions and discoveries made in the 20th century. Afterward, different countries started protecting intellectual property within their legal jurisdictions. However, due to the expansion of markets and the explosion of information courtesy of the Internet, the intellectual property became an international issue. Series of treaties and agreements gradually led to the globalization of intellectual property. In this view, this paper examines intellectual property and then focuses on its international conventions and agreements with a view of observing copyright legislations of intellectual property in the United Arab Emirates.
Intellectual Property
Intellectual property encompasses intangible assets that people own because of their creative works. It comprises scientific inventions, literary works, artistic works, industrial designs, trademarks, and discoveries amongst other intangible assets that people own. Conventionally, different types of intellectual properties usually fall into two categories, viz. copyright, and industrial property. The World Intellectual Property Organisation (WIPO) clarifies, “The areas mentioned as inventions, industrial designs, trademarks, service marks, and commercial names and designations constitute the industrial branch of intellectual property” (3). Hence, intellectual property can belong either to copyright property or to industrial property. Despite the difference in categories of intellectual property, the intellectual property law grants them equal protection.
Since intellectual property exists, different countries have formulated laws and regulations to protect and grant rights to the owners of such properties to utilize them for their benefits. Protection of intellectual property is essential because it provides “legal rights to the creators to utilize their creative works economically coupled with giving rights to the public to access creations for their benefits” (WIPO 3). Moreover, the recognition of intellectual property provides means through which the government can promote social and economic development in society. WIPO asserts, “Generally speaking, intellectual property laws aim at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use of those productions” (3). In this perspective, intellectual property law plays a central role in encouraging social and economic development because it protects intellectual property, which is an intangible property that is hard to measure its worth.
International Legislations
Origin of Intellectual Property
The recognition of intellectual property started in the late 19th century when governments started to realize the importance of intellectual property in the socio-economic development of a nation. In 1867, the legislative power of the Northern German Confederation coined the term “intellectual property” when formulating regulations to protect intellectual property. From then, the term intellectual property spread across all nations. The spread of the term led to the realization of the importance of intellectual property in social and economic development as evidenced in the manner in which different countries formulated their legislations regarding intellectual property. Although intellectual property law had existed since late of the 19th century, every country developed its legislation. Before the establishment of treaties and conventions, different countries had their intellectual property laws, which made it “difficult to obtain protection for industrial property rights in the various countries of the world because of the diversity of their laws” (WIPO 241). Hence, the development of intellectual property law emerged from different nationalities then culminated in international circles after a series of conventions, treaties, and agreements.
Paris Convention (1883)
Following the realization that diverse intellectual property laws across the world did not provide necessary protection to industrial property, many countries started to root for international intellectual property rights. Participation in international exhibitions and trade fairs by various countries was not encouraging as many industries had fears about their intellectual property. Trade exhibitions at Vienna in 1873 showed that many foreign industries were willing to participate, but due to a lack of legislation to protect their exhibitions, many refused to attend and display their novel inventions and discoveries. Owing to the low participation rate in international exhibitions and trade fairs, “a special Australian law secured temporary protection of all foreigners participating in the exhibition for their inventions, trademarks, and industrial designs” (WIPO 241). Moreover, the Congress of Vienna recognized the importance of patents and thus urged different governments to enhance the protection of patents. Such developments set the pace for the development of intellectual property laws to safeguard the rights of creators of inventions and discoveries.
As a development of the Vienna Congress, stakeholders in the industry and government officials met in 1878 to discuss how they could formulate uniform legislation necessary for the regulation of industrial property. The outcome of the meeting was a proposal to unite all countries for the common purpose of protecting industrial property. Following the adoption of recommendations made in the International Congress on Industrial Property, “a diplomatic conference was convened in Paris in 1883, which ended approval and signature of the Paris Convention for the Protection of Industrial Property” (WIPO 241). Belgium, France, Guatemala, Italy, El Salvador, Brazil, the Netherlands, Serbia, Portugal, Switzerland, and Spain are the 11 countries that signed the Paris Convention and agreed to abide by the legislations therein.
The Paris Convention has four key provisions, which are critical in the protection of industrial property. The first key provision is that each of the countries that signed the Paris Convention should grant equal rights to industrial property owners regardless of their jurisdiction. According to WIPO “each country party the Paris Convention must grant the same protection to nationals of the other member countries as it grants to its nationals,” (242). This provision enables equal treatment of industrial property owners independent of the countries that they belong. The second key provision is that member countries of the Paris Convention can grant the same protection to other nationals who are not part of the Paris Convention if their industrial property has great significance in their countries. The third key provision restricts member countries from making additional legislation that has the potential of causing discrimination against other nationals from member countries, thus negating the principle of equal treatment. The fourth key provision “deals with the administrative framework which has been set up to implement the Convention and includes the final clauses of the Convention” (WIPO 242). The provisions empower member countries to have frameworks that they can use in implementing legislations of the Paris Convention.
The Paris Convention did not establish mere legislation to guide the protection of industrial property, but it established legal and administrative organs to implement its legislation. The “Union” of the Paris Convention has legal and administrative functions that enable compliance among member countries. Even countries that are not members of the Paris Convention carry the responsibility of protecting the industrial property of member countries. Under this construct of Union, “a state which becomes a member of the Union by acceding to the most recent Act of the Paris Convention (the Stockholm) becomes bound concerning all member countries, even those not yet party to it” (WIPO 259). The administrative structure of the Union comprises the Assembly, which formulates legislation, the Executive Committee, which implements legislation, and the supervisory responsibility carried out by the International Bureau of WIPO. With these administrative organs, the Paris Convention can implement legislations that are essential in protecting industrial property among member states and even in other countries that are not members of the Paris Convention.
Berne Convention (1886)
The Berne Convention deals with copyright laws that aim at protecting literary and artistic works. As aforementioned, the formulation of copyright laws started in mid 19th Century when a number of states started enacting their legislations. However, the copyright legislation was not uniform to provide for effective protection of intellectual property across all nations. Therefore, “the need for a uniform system led to the formulation and adoption on September 9, 1886, of the Berne Convention for the Protection of Literary and Artistic Works” (WIPO 262). The Berne Convention provided means through which countries could uniformly protect literary and artistic works using the same legislations. With time, member states of the Berne Convention have revised it to enhance legislations that protect intellectual property. Since technological developments have brought significant changes in intellectual property, copyright laws should adjust in response to changes. The major revision of the Berne Convention took place in Stockholm and its objective was to align legislations to be in tandem with technological developments. Another objective was to develop administrative structures to cater to the unique needs of the developing countries.
The Berne Convention has three basic principles in its key provisions. The first principle is that member states should grant equal protection to the intellectual property of nationals and other nationals. The second principle states that member states should grant national treatment of intellectual property automatic protection without necessarily letting nationals register for protection. The third principle provides for extra protection to intellectual independence of protection that states provide where the intellectual property comes from. Hence, these basic provisions enhance the protection of intellectual property in all legal jurisdictions that have subscribed to the legislations of the Berne Convention.
Patent Cooperation Treaty (1970)
The treaty provides international protection of patents. The main objective of the treaty is to complement the Paris Convention by protecting the intellectual property of the member states. Following the realization that national and regional systems of intellectual property duplicated responsibilities, the Diplomatic Conference agreed to establish the Patent Cooperation Treaty in 1978. During the 1970s and 1980s, the patent community experienced heavy workloads, which threatened its functions in protecting intellectual property as stipulated in the Paris Convention. Therefore, “the main objectives of the PCT are to facilitate and accelerate access by industry and other interested sectors to technical information related to inventions and to assist developing countries in gaining access to technology” (WIPO 278). Hence, PCT enhanced the implementation of the provisions in the Paris Convention across the world.
The PCT protects patents from nationals of the member states. The functioning system holds, “Any national or resident of a PCT Contracting State can file an international application” (WIPO 278). Nationals who have filed their patents at national and regional offices, which are present in the member states, receive a guarantee of protection. The applicants of the patents should pay a fee. However, the fees charged vary from one person to another depending on the level of income. Since its inception, the PCT has made significant contributions in the protection of industrial property in the form of patents that various nationals file, thus promoting economic development.
The Budapest Treaty (1980)
The Budapest Treaty provides for the protection of patents that involve microorganisms. Protection of patents related to microorganisms had a very complex procedure that compelled nationals to use many resources. Thus, the treaty sought to enhance the effectiveness of depositing patents by allowing all member states to have depository authority and avoid duplication of responsibilities by national patent systems. The treaty has the International Depositary Authority, which has the mandate of accepting patented microorganisms for purposes of protecting them as intellectual property. According to WIPO, the International Depository Organisation “will be available for the deposit of microorganism, to any ‘depositor’ under the same samples thereof to anyone entitled to such samples but no one else” (286). In this view, nationals from the member states have access to the International Depository Authority where they can deposit their patents for protection.
The treaty has some advantages to the depositors because they can apply for patents in their own countries without incurring much expense as it used to be before the establishment of the treaty by the member states. Among member states, there is at least one International Depository Authority, thus providing accessible services to nationals. Instead of depositors making numerous applications of patents, they can do it once by applying to the International Depositary Authority. Another advantage is that the “security of the depositor increases because for an institution to become an International Depositary Authority, solemn assurances as to the seriousness and continued existence of that institution must be given” (WIPO 287). The assurances were given by the Budapest Treat to improve the security of the patents, thus enabling member states to participate in the protection of patents as per the legislation of intellectual property.
Madrid Agreement
This agreement has two treaties that govern its application in the international registration of marks. One treaty is the Madrid Agreement, “which deals with international registration of marks, while the other treaty is the Protocol Relating to the Madrid Agreement” (WIPO 248). In 1996, the Madrid Agreement and Protocol Relating to the Madrid Agreement came into effect under the administration of the International Bureau of World Intellectual Property Organisation. The Protocol “intends to make the Madrid system acceptable to more countries” (WIPO 187). Currently, many countries have subscribed to the Madrid Agreement due to its importance in protecting international registration marks.
The Madrid Agreement and Protocol allows nationals of the member countries to register their marks. An application for international enrolment “may be filled by a natural person or a legal entity, which has a real and effective industrial or commercial establishment in or is domiciled in or is a national of a country, which has subscribed to the Madrid Agreement or Protocol” (WIPO 278). This provision restricts the registration of marks by countries that are not member states or connected to member states in some ways. Such restrictions compelled many countries to subscribe to the Madrid Agreement and Protocol in a bid to protect their intellectual property.
The Hague Agreement
The Hague Agreement specifically deals with industrial designs. The Hague Agreement became effective in 1928 after the adoption of the Paris Convention. A series of revisions of the Hague Agreement led to the development of two major Acts, viz. the London Act (1934) and the Hague Act (1960). Although the two Acts focus on industrial designs, they are entirely independent and autonomous in their functions. WIPO states, “The main aim of the international deposit of industrial designs is to enable protection to be obtained for one or more industrial designs in several states through a single deposit filed with the International Bureau of WIPO” (293). This aspect relieved applicants from making different applications to different countries, thus making it easy to acquire the protection of industrial designs.
The major provision of the Hague Agreement is that “an applicant of the member states or domiciled states can make applications to seek the protection of the industrial designs” (WIPO 96). Moreover, another provision states that a single application of the industrial property can comprise a maximum of a hundred designs. Another provision also provides for the renewal of the industrial designs every five years for them to have maximum protection due to technological evolution. A provision in the Hague Agreement states, “The international deposit has the same effect in each of the states designated by the applicant as if the designs included had been directly deposited in that stated on the date of international deposit” (WIPO 294). Thus, the Hague Agreement provides essential protection of the industrial designs in member countries.
WIPO Copyright Treaty (1996)
The revision of the Berne Convention frequently occurred in about 20 years until 1971 when the copyright community made Stockholm revision 1967 and Paris revision in 1971. Owing to major technological changes such as video technology, reprography, compact cassette systems, the emergence of computers, electronic databases, and satellite broadcasting, there was a need for additional legislation to provide for technological advancements. The international copyright community met and discussed how they could formulate effective treaties to protect intellectual property in the wake of technological developments. In 1996, “the WIPO Diplomatic Conference on Certain Copyright and Related Rights Questions adopted two treaties, viz. the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)” (WIPO 269). The adoption of the WCT and WPPT by member countries of the Berne Convention improved the protection of intellectual property.
The legal provisions in the WCT have their basis on the Berne Convention. The purpose of the WCT was to strengthen provisions in the Berne Convention and make them responsive to the technological changes that occurred in the late 20th century and beyond. According to the WCT, “the governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far such agreements grant to authors more extensive rights than those granted by the Convention or contain other provisions not contrary to this Convention” (WIPO 269). This provision shows that no member countries can interpret WIPO in a manner that contradicts the provisions in the Berne Convention. The WCT also has a safeguard clause, which states that the WCT provisions do not change obligations that member states have in copyright laws provided in the Berne Convention. In relationships with other treaties, the WCT categorically states that it has not any relationship with other treaties except the Berne Convention, but it does not prejudice copyrights of other treaties.
United Arab Emirates Intellectual Property Legislation
Copyright Legislation
Copyright legislation in the United Arab Emirates has evolved with time in response to international conventions and agreements. The government of the United Arab Emirates has adopted legislation from the international community to protect the intellectual property of its nationals and other nationals from different nations. Abed, Hellyer, and Vine (2006) assert, “As a member of the World Intellectual Property Organisation, the UAE acceded to the Paris Convention for the protection of Industrial Property in 1966, following implementation of three intellectual property laws in 1993” (258). Since the UAE is a member of the Paris Convention, it has an obligation of protecting intellectual property for social and economic development. Before the adoption of the legislation in the Paris Convention, the UAE did not have powers to implement them because members only had the prerogative of implementing them. Moreover, its nationals did not have essential protection for their industrial property. In essence, the UAE did not enjoy the protection privileges of the Paris Convention.
Due to the realization of the importance of copyright laws in social and economic development, the government of the UAE made significant changes in copyright laws. Before 2002, artists and authors received copyright protection during their lifetime and 25 years after their death. However, new legislation under “the Federal Author and Copyrights and Parallel Law No. 7, issued in August 2002 gives protection to authors and artists not only during their lifetime, but also for 50 years after their death” (Abed, Hellyer, and Vine 259). The adoption of new legislation has forced the UAE to comply with WIPO’s legislations in the aspect of copyright. In the principle of equal treatment, the UAE works of other nationals receive the same protection as stipulated in the WIPO legislation. Additionally, other nationals can receive protection subject to the reciprocal treatment that their states grant to nationals of the UAE. Hence, violation of copyright laws in the UAE can make an individual pay a high fine and/or face imprisonment depending on the nature of the violation.
The national leaders of the UAE have formulated additional legislations to support WIPO legislation in the Paris Convention and the Berne Convention as well as in other treaties and agreements. A ministerial decision in 2004 recommended that the government should conduct regulation of registration, collective management, mandatory licensing, and import distribution according to the stipulations in the Federal Law (2002). According to Abed, Hellyer, and Vine, “decision 131 states that works shall be registered at and a copy of the work shall be retained in the UAE registration office to safeguard the rights of the owner in the event of any dispute involving copyright” (259). The next ministerial decision (132) also seeks to regulate the importation and distribution of copyrighted materials in a manner that protects the rights of owners, importers, and distributors. These decisions tightened the copyright legislation to ensure that importers and distributors of copyrighted works cannot perform their work without seeking licenses from the Ministry of Information and Culture.
Copyright Legislation on the Internet
Technological development in terms of the utilization of digital works on the Internet has led to significant changes in copyright laws. In the era of the Internet and Information Technology, people can easily pirate copyrighted materials and produce duplicate copies of the originals while incurring negligible costs. Hence, the UAE recognizes the fact that piracy of copyrighted materials is a setback in social and economic development due to a lack of protection of intellectual property. According to Abdulla, “the UAE law states that the copyrights and neighboring rights take effect automatically from the moment the work is created; it is not necessary to register or fulfill any other formalities for the work to be copyrighted” (465). In this view, UAE nationals have secure protection of their intellectual property because they do not have to register. Automatic protection is important in copyrighted materials because Internet users can easily copy and duplicate millions of copies within a short time, thus denying owners their intellectual property. Therefore, without automatic protection, owners would lose intellectual property through the Internet, as the process of registration takes time.
The emergence of the Internet in the 20th century has led to numerous changes in legislation that guard intellectual property. The UAE has enacted legislation that regulates electronic documents. The legislations regulate electronic documents such as e-signatures, e-mails, and electronic records because they form part of intellectual property, thus are subject to WIPO legislation. Due to piracy and cybercrime, electronic documents require legal protection as intellectual property of people. In the UAE, “the law aims at improving the transfer of electronic documents to cooperate and government bodies, and thus enhance the availability of related services via reliable e-mail connections” (WIPO 260). The protection of electronic documents limits piracy and forgery, thus promoting e-commerce in the modern era of technology. However, Abdulla asserts that the UEA copyright law “excludes protection to official texts of laws, regulations, decisions, international agreements, judgments…as well as news media and current facts” (466). Hence, the public should know what kind of information is available free to reproduce so that they can avoid violating copyright laws.
Since learning institutions utilize a great deal of information on the Internet, they are prone to violate copyright laws. Usually, copyright laws allow owners to have the right to manipulate information for personal interest. However, learning institutions also should utilize the same information in a manner that does not violate copyright laws. According to the copyright laws, “authors do not have right to deny a third party from performing the work in the family or by students in an educational institute against no direct or indirect remuneration” (United Arab Emirates10). In this view, learning institutions have the freedom to utilize copyrighted work for learning without deriving direct or indirect economic benefits. Copyright laws in the UAE permit students to derive quotations, reproduce short excerpts and perform the copyrighted works for educational purposes. Moreover, students can download, print, and copy some pages from the Internet so long as they use them in learning circles only.
Infringement in the Traditional Context
The United Arab Emirates like many nations gradually adopted intellectual property legislations to protect the creations of its nationals and other nationals from different countries. The lack of proper copyright legislation in the UAE in the 1990s and beyond made authors lose a great deal of their intellectual property due to piracy. Since copyright rules were not stringent, a significant number of people violated them for they could easily do away with the fines and penalties imposed. About moral rights, “it should be noted that the UAE law does not expressively provide that there should be no infringement of the moral rights of attribution and integrity where the defendant acted reasonably in the circumstances” (Fitzgerald and Olwan 4). Before 2002, copyright laws granted protection for a lifetime and 25 years after one’s death. Infringement of copyright under this period attracted fines and penalties.
Infringement of copyright laws has been a major issue in the UAE since the lack of stringent legislation has enhanced the production and sale of counterfeit and pirated materials. The USA International Business Publications notes, “The UAE has been a major center for production, sale, and export of pirated and counterfeit products” (98). In a bid to curb piracy, the UAE has enacted Intellectual Property Rights (IPR) legislation and enhanced its enforcement to meet the international standards recommended by WIPO. These legislations have improved copyright protection since the UAE offers the best protection of films and music in the Middle East. Comparatively, copyright penalties in the UAE are more severe than those in the United States (USA International Business Publications 207). The severity of penalties emanates from the enactment of new legislation to guard copyrighted materials.
In 2002, the adoption of Federal Law No. 7 facilitated tightening copyright laws as a violation of the laws attracted severe fines and penalties. WIPO had considered the UAE as a place with high rates of piracy because most of the pirated materials in the Middle East originated from it. The Federal Law (2002) cautions people against violating copyright laws without seeking written permission from owners of the copyrighted materials. Hence, according to the Federal Law (2002), anyone who infringes copyright laws “will be punished by imprisonment for a period not less than two months and payment of fine not less than ten thousand dirhams not exceeding fifty thousand dirhams or by one of the two penalties” (United Arab Emirates 13). The infringement comprises copyright laws as stated in the WIPO treaty.
Infringement in the Context of the Internet
Technological advancement in the aspect of information technology has complicated how different nations adopt and implement copyright laws. Earlier copyright laws did not provide for the use of the Internet as a means of infringing copyright laws. In modern society, WIPO has revised copyright laws to be in tandem with technological advancement. Fitzgerald and Olwan (2012) assert, “The rise of digital networked technologies has meant that copyright is now central to almost everything we do from recreation to research” (18). The United Arab Emirates has thus realized that digital technology requires responsive legislation to curb copyright infringement, which is rampant due to the versatility and accessibility of the Internet.
The Federal Law (2002) of the United Arab Emirates provides stringent copyright legislation, which aims at deterring people from infringing on copyright laws. Although digital content has copyright, significant content of the Internet infringes on copyright laws. Since digital content is prone to infringement of copyright legislation, the UAE has put necessary measures in place to curb Internet piracy. According to the Federal Law, infringement of copyright laws entails making any work, performance, “phonogram, a broadcasting program of stipulated protection in this law, available to the public through the computer, the Internet, information nets, or other means and such violations attract severe penalties of up to two months imprisonment and fines not less than 10,000 dirhams” (United Arab Emirates 14). The adoption of the Federal Law has led to reduced cases of copyright infringement in the UAE.
The Internet has also brought with it cyber crimes and piracy in the modern world. The United Arab Emirates is grappling with the aspect of cyber crimes and piracy because it undermines social and economic development. Since the UAE is a member of WIPO, it has the responsibility of ensuring that piracy and cyber crimes do not occur within its jurisdiction. As part of the efforts to curb copyright infringement, the UAE government has enacted stringent legislations of copyright. According to Abed, Hellyer, and Vine, “a draft law on cybercrime proposes a maximum 15-year prison sentence and a fine of up to Dh 100,000 for crimes such as interception, modification, data theft, interference, sabotage of networks, hacking, and virus distribution” (260). The proposed law also incriminates acts of using Internet technology in a manner that infringes on copyright regulations.
Conclusion
Intellectual property is an intangible property that emanates from creative minds. Since it is intangible, intellectual property is prone to theft. Hence, proper legislations are necessary to protect it. From the 19th century, the international intelligence community has made a series of conventions, treaties, and agreements, which have allowed the formulation of copyright laws in various countries. The Paris Convention (1883), the Berne Convention (1886), the Patent Cooperation Treaty (1970), the Budapest Treaty (1980), and the WIPO Copyright Treaty (1996) are some of the conventions and treaties that have contributed to the modern-day legislation of intellectual property. Hence, the formation of international organizations such as WIPO has enhanced the protection of intellectual property in various countries. The United Arab Emirates is one of the countries that have subscribed to the WIPO legislation and implemented numerous legislations to help in reducing incidences of copyright infringement.
References
Abed, Ibrahim, Peter Hellyer, and Peter Vine. The United Arab Emirates Yearbook 2006, Dubai: Trident Press, 2006. Print.
Abdulla, Ali. “Copyright and knowledge advancement: a case study on the UAE copyright law.” Library Management 29.6 (2008): 461 – 472. Print.
Fitzgerald, Brian, and Rami Olwan 2012, Copyright Law in the United Arab Emirates in the Digital Age. Web.
United Arab Emirates. Federal Law No. (7) of the Year 2002 Concerning Copyrights and Neighbouring Rights, 2002. Web.
USA International Business Publications. Doing Business and Investing in United Arab Emirates, New York: Int’l Business Publications, 2007. Print.
WIPO. WIPO Intellectual Property Handbook: Policy, Law, and Use, Geneva: WIPO, 2004. Print.
