The UAE issued late last year a new copyright law as part of its sweeping legal reform in celebration of its 50th national day. A quick glance over the new law might make it initially seem like a word for word reproduction of the previous UAE Copyright Law of 2002—and that is true to a great degree, but there are several significant specific changes in the new UAE Copyright Law of 2021 that are worth considering.
We missed a small development on the intellectual property side of the Qatar diplomatic crisis in the GCC. Several months ago, Qatar attempted to take control of the domain name beoutq.se, but its attempt was not successful.
Qatar is taking a variety of actions to stop the illegal broadcasting of the signal of beIN Sports by beoutQ – a pirate sports TV network intended to provide sports fans in Saudi and Bahrain with an alternative to watching beIN Sports. In both of these countries, beIN Sports has been officially banned as part of their ongoing feud with Qatar.
In addition to the variety of legal complaints Qatar is making against Saudi, Bahrain, and the UAE in regard to their failure to allow Qatari rights-holders to enforce their intellectual property rights in connection with the infringement of beIN Sports trademarks and broadcasting rights, Qatar made a separate small attempt at taking control of one of the domain names from which
The Office of the United States Trade Representative just issued the Special 301 Report for 2018 – an annual report by the government of the United States that identifies claimed shortcomings of intellectual property laws of foreign countries. This year’s report continues to list Kuwait on the ‘Priority Watch List’ and adds Saudi and the UAE to the ‘Watch List’.
2018 Special 301 – Kuwait
Even though Kuwait has issued a brand new copyright law in 2016, the United States is not still satisfied with this law in regard to ‘the term of protection; limitations on the amount of work reproduced; enforcement, remedies, and damages; and definitions’. According to this report, ‘Kuwait is in the process of drafting amendments to the Law’.
The United States is not happy with the extent to which Saudi grants ‘marketing approvals to domestic companies to produce generic versions of pharmaceutical products that are under patent protection either in Saudi Arabia or in the GCC’. There is also apparently a ‘continued use of unlicensed software by the government’.
In the UAE, the United States has ‘concerns about combatting the sale and transshipment of counterfeit goods’, especially those relating to physical counterfeit markets in the UAE and the lack of IP enforcement mechanisms within free trade zones. The United States also demands that UAE starts granting ‘the necessary operating licenses to establish [collecting management organisations (CMOs)] to allow copyright licensing and royalty payments’. According to this report, trademark filing fees in UAE ‘are the highest in the world and considered cost-prohibitive to protecting trademarks in the UAE’. Finally, the report complains about UAE officials allowing ‘domestic manufacture of generic versions of pharmaceutical products still under patent protection in the United States’, and has questions about ‘whether the UAE intends to continue to recognize patents granted by the GCC Patent Office’.
While Kuwait has been listed in every single edition of the Special 301 Report, this is the first time the UAE is ever included in it. The last time Saudi was listed is 2009 – almost a decade ago.
This report has no legal power of its own, but it is used by the United States to lobby countries around the world to change their laws to make them more protective of IP rights owned by American corporations.
Photo credits: “Kuwait City” by Meshal Alawadhi – CC BY-NC 2.0
The Creative Commons announced yesterday the release of the official Arabic translation of v 4.0 of the Creative Commons licence suite. I was fortunate to be a member of the translation team and I would like to share some of the lessons we learnt from doing this project.
The Creative Commons licences are legal tools that allow creators and content owners to legally make their works available for use and remixing in a way that overcomes the restrictions imposed on culture by copyright law. The Creative Commons has transformed the way creative works are legally shared as there today over a billion works licensed under Creative Commons and which can be legally downloaded and shared from platforms such as Wikipedia, Flickr, YouTube, and others. The international Creative Commons licences became available in Arabic only now, but there are already many Arabic language websites that use them including official government websites, such as Al-Meezan by the Government of Qatar, as well as non-governmental websites, such as 7iber in Jordan.
Even though a previous version of the Creative Commons licenses (v 3.0) had an Egyptian adaptation that was available in Arabic, this new Arabic translation is the first global Arabic language Creative Commons licence that is not tied to a specific jurisdiction. The need to make this Arabic translation universal made this project extremely challenging as there are 17 different Arabic-language copyright laws in the Arab World that use different terminologies for even the most basic copyright concepts. For example, the term ‘copyright work’ translates to مصنف (Musannaf) in some countries and to عمل (Ammal) in others. The same goes for other core copyright terms such as originality, reproduction, adaptation, and circumvention.
Fortunately, Arabic is one of the official languages of the United Nations, which means that international copyright treaties are adopted in Arabic. The existence of an Arabic text of an international nature provided us with a neutral authority that we can rely upon in choosing the most appropriate term for our translation. Therefore, we relied upon the text of the Berne Convention, the WCT, the Marrakesh VIP Treaty, and the Beijing Treaty as our primary authority for translating copyright terms. For terms that we could not find in these treaties, we looked at the 17 different copyright laws available in the Arab World and considered the frequency of how often a term appeared as the basis for choosing one over another.
This approach provided us with a systematic approach to translation, but it was not very easy to follow. The Arabic text of the international copyright treaties is not consistent. For example, the term ‘reproduce’ is translated as نسخ (naskh) in Berne, Marrakesh, and Beijing, but as استنساخ (istinsakh) in the WCT, the term ‘distribute’ is translated as يوزع (yuwazzi’) in the WCT, Marrakesh, and Beijing, but as تداول (tadawul) in Berne, and the term ‘circumvent’ is translated as تحايل (Tahayul) in the WCT and Beijing, but as تفادي (Tafadi) in Marrakesh. In some cases, there was no consistency even within the same treaty. In cases where a most commonly used term could not be identified, the translation team voted on the most favoured term and consistently used it in the translation.
Something that I found extremely interesting during this project is that certain extremely significant copyright concepts do not have a common label to identify them at all in Arabic. For example, the right of integrity, which is a right that is found in practically all Arab copyright laws, is not explicitly named as such in any of these laws except one. This probably because there is, in fact, no formal one-word label for this concept even in the Berne Convention. The Marrakesh VIP Treaty does mention this right as such, and translates it as حصانة (Hasannah), however, the majority of the members of the translation team did not feel that term would be understood as such in Arabic, and instead used the only reference found for it in a domestic Arabic copyright law (Algeria) which is سلامة (Salama).
Translating the Creative Commons into Arabic was a fun and engaging exercise, and it taught us, the contributors to the translation project, something new about the way copyright laws are drafted differently across the region.
Kuwait passed a new Copyright and Neighbouring rights Law in June 2016. This is new law replaces the 1999 copyright law – the first copyright law that Kuwait ever had. This new law is probably motivated by Kuwait’s accession to the Berne Convention in 2014.
Unlike patents and trade marks, copyright works do not need to be registered to acquire protection in Oman. However, the government still provides a mechanism for registration to those who wish to do so. This does not grant those who register with any special legal rights, but, in theory at least, it can provide additional evidence in case the ownership or the existence of a work is contested. Once or twice a year, the Ministry of Commerce and Industry (MOCI) publishes in the Official Gazette the details of the works that have been deposited for copyright registration. In 2016, MOCI published only one list in Official Gazette issue no 1158. I took a look at this list to see how many works were registered this year, by who, and for what kind of works.
The Arab Copyright Treaty [الاتفاقية العربية لحماية حقوق المؤلف] of 1981 is an old international copyright treaty that nobody seems to take seriously in the Arab World and which was recently updated through a the Modified Arab Copyright and Neighbouring Rights Treaty [الاتفاقية العربية لحماية حقوق المؤلف والحقوق المجاورة], but it seems that nobody has noticed this at all. I recently discovered that Qatar formally acceded to this Treaty, so I thought I’ll write a little bit about it.
Digital rights management, or DRM for short, are the digital locks that control the way users access and interact with digital goods. For example, you cannot copy the video off a Blu-ray disc because these discs are equipped with technological protection measures that enable the user to view the video, but not do anything else with it. These technologies were created by the content industry to combat online piracy because it was thought that classic copyright law on its own is not sufficient to protect the interests of the content industry. So the content industry thought, ‘the answer to the machine is the machine’, and created a technology to combat the piracy enabled by new internet.
But then again, there is no perfect technology, and because the objective of all content technologies at the end of the day is to deliver a certain song, video, or some other content to the end-user, all DRM technologies are susceptible to circumvention. Once a single circumvented copy of a work is made available online, it does not matter that all other copies are protected, because it only takes that one single incident of circumvention to provide all illegal sharing platforms with a source to duplicate and distribute on their networks. Even after all these years and all the DRM technologies developed, it remains extremely easy to find online illegal copies of movies and songs.
DRM did not provide a solution to piracy, and instead has limited the ability of legitimate users, who pay for the content, to properly enjoy the content they legally acquired. If you purchase a movie or a TV show episode from the iTunes Store you cannot watch it on an Android device, a PS4 or an XBox, whereas if you illegally download it you can play it on any device you want. One might say that there are numerous online video stores and you can buy your content from the store that works for your device instead of complaining about Apple’s DRM, but what if I own multiple devices, should I buy the same content multiple times just to make sure that it works on all my devices, or should I have the right to use the content the way I choose if I pay for it legally. Similarly, if a device is discontinued or a business goes bankrupt, DRM does not allow the user to make sure that the content remains usable in the future.
With that being said, we need to acknowledge that DRM has enabled the creation of some extremely useful business models that provide us as consumers with different options on how to pay for content. As DRM enables businesses to control how often a file is played or how long a file remains valid, we are now able to rent a digital file or pay for a subscription. Thanks to such technologies we now have things like Netflix and Spotify that charge us a tiny fraction of the money we used to in the past for consuming the same amount content.
I don’t think that the existence of DRM itself is the problem, the problem is the fact that many laws around the world make it illegal to circumvent DRM. As a legitimate user, I should be able to circumvent DRM if DRM restricts me from carrying out legitimate uses or subjects me or my property to risk, and companies that apply harmful DRM to content should be held accountable and punished for doing so. The law protects against the circumvention DRM irrespective of whether the work to which DRM is applied is protected by copyright (i.e. in the public domain) and irrespective of whether or not the circumvention is undertaken to carry out a use that is permitted by copyright (e.g. for the purpose of quotation or review) – this does NOT make any sense.
Even though international treaties, such as the WIPO Copyright Treaty, require States to protect against the circumvention of DRM, these treaties permit States to have exceptions to allow the public to circumvent DRM in certain cases, but not all countries take advantage of these flexibilities. For example, the copyright law in Oman does not allow ANY exceptions to the anti-circumvention measures found in Article 40(1) of the law.
DRM continues to be used in more and more online services, but if no action is taken, the restrictions imposed by DRM will override all the checks and balances that copyright law is meant to respect in order for society to fairly benefit from cultural works.
According to the National Centre of Statistics and Information, there are more than 60,000 persons with disabilities in Oman. 30% of these persons have a sight related disability which means that they cannot easily read written materials. According to the World Blind Union, only 7% of all the books published in the world are available in formats accessible to the visually impaired, such as Braille – and you can bet that in Oman not even 1% of the books available in the country are accessible in such formats.
Technology can provide the visually impaired with numerous opportunities to access to books. It is possible to use screen reader technology to read aloud any text on a computer screen to a blind person or to convert it into refreshable Braille display. This is not only usually economically cheaper than producing a standard Braille version, but it is more practical because traditionally accessible books are heavy and massive in size in comparison to printed books.
However, even though technology can help make books accessible, the Omani Copyright Law makes it an act of copyright infringement for someone to convert a printed book into a format accessible to a visually impaired person if the permission of the author is not acquired. Oman is an extremely small market and it does not make economic sense for publishers to produce and market accessible formats of their books to blind users in Oman. The Omani Copyright Law is probably the most restrictive Copyright Law in the entire Arab World because it does not even allow users to make private copies of protected works for their personal use for any purpose – even if making this copy is necessary for a blind person to read. To make things worse, the Omani Copyright Law allows copyright owners to impose technological protection measures (TPMs) that can stop a blind person from using applications such as screen readers without the permission of the author. If a user circumvents the technological protection measures, he will be in violation of the law irrespective of the purpose for circumvention.
The international community has made serious efforts in recent years to help persons with disabilities overcome the restrictions imposed by copyright. This has led to the adoption of the Marrakesh Treaty for the Visually Impaired. This treaty makes it an obligation on States to include exceptions in their copyright laws that enable the visually impaired to have access to copyright protected works, but unfortunately Oman is yet to accede to this treaty. It is also not clear if Oman can actually join this treaty at all because the Free Trade Agreement Oman signed with the USA greatly limits the way Oman can modify its copyright law. For example, Marrakesh Treaty requires States to make sure that technological protection measures do not stop the visually impaired from using copyright exceptions, but the Free Trade Agreement with the USA puts restrictions on the extent to which Oman may permit the circumvention of technological protection measures which may be in violations of the Marrakesh Treaty.
The unfairness of the Omani Copyright Law towards disabled persons is not only morally wrong, but it could also be seen as a violation of the human rights of disabled persons. Oman is a party to the Convention on the Rights of Persons with Disabilities which requires Oman to ensure that disabled persons enjoy the right to education and the right to participate in culture without discrimination. The Omani Copyright Law is lacking on different fronts, but its failure to support disabled persons is a glaring problem that needs to be addressed immediately.
Similar to the copyright laws of other Gulf states, the Omani copyright law adopts the exhaustive closed list system for copyright exceptions. This means that for a use of a protected work not to be considered an infringement, that use must fall under an explicitly stated exception under the copyright law. The fact that a use is personal, non-commercial, or accompanied by proper attribution, on its own, is not sufficient to protect the use against claims of copyright infringement. This is different from copyright laws that adopt a flexible copyright exception system, such as ‘fair use’ in the USA, where any use may be permitted, even if not explicitly mentioned in the law, as long as the use can be considered ‘fair’.
Copyright laws that adopt a flexible copyright exception, such as the US copyright law, are capable of enabling new innovative uses of technology without the need for the actual law to be amended, whereas copyright laws that adopted a closet list of exceptions, such as the Omani copyright law, are usually incapable of accommodating for new technological uses without amending the law.
An example of such a new technological use is the practice of ‘text and data mining’ – a research method that uses computer software to analyse massive amounts of data to look for interesting trends. As an illustration, text and data mining can examine thousands of medical records to identify links between certain symptoms and diseases in a way that cannot be done by a human individual. Similarly, such method can be used in the study of law to electronically analyse massive amounts of court decisions to identify trends and connections between different legal key terms. Due to the way text and data mining works, the computer software making the analysis must copy the data, at least temporarily. Because the Omani copyright law does not have an exception to permit copying in this specific case, text and data mining is considered an activity that violates copyright law if the permission of the author is not acquired. It is not practically possible to acquire permission for many text and data mining cases because the data is extremely massive in size and there is no way for the researcher to go and seek the permission of every single author of such data. If the data examined is public data on the internet, such as tweets or other user generated content, it might not be possible to even identify the author of the work.
This would not have been the case had the Omani copyright law adopted a flexible copyright exception like fair use. Under such a system, it would be possible to argue that text and data mining is permitted as long as the use satisfies the conditions for fair use. This does not only mean that legislators in countries like the USA do not have to waste their time amending the copyright law every time a new technology comes out, but this also makes the USA a much more attractive environment for the adoption of new technologies, such as text and data mining for research, because their law is flexible enough to permit it.
The copyright exceptions currently offered by the Omani copyright law are inadequate and do not satisfy some of the most basic needs of users in the country (we are the only country in the GCC that does not have a private use exception). Oman needs to have a text and data mining to enable the use of this method by researchers in the country. Oman should also reconsider the general way in which it implements exceptions under the copyright law and must seriously take into consideration the needs of the members of society when determining this issue.