This article are provided as information only and not intended for basing any decisions.
In March of 1999, the Lebanese Parliament enacted a long-awaited copyright protection law after four years of stalling and heated debate. The law became effective on June 14, 1999 and addresses the protection of literary and artistic intellectual property (the "Law"). Prior to the enactment of this new law, Law No. 2385 dated January 17, 1924 addressed the issue of copyright protection. The new law repeals and replaces those relevant provisions of the 1924 law. However, the 1924 law remains in effect with regards to those subjects not covered by the provisions of the new law.
The new copyright law will most likely enhance Lebanon’s chances of a smooth accession to the World Trade Organization (WTO), a process that Lebanon began earlier this year. To that end, many of the provisions of the new law are designed to comply with the requirements of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), as it deals with copyright and related rights, which agreement Lebanon will be bound to once it accedes to the WTO. TRIPS, in turn, binds WTO members to the substantive provisions of the Berne Convention.
Scope of Protection under the Law The Copyright Law protects all human intellectual productions created prior to and after its enactment (Articles 2 and 98). The law specifically refers to the following categories of works, by way of example:
Works specifically excluded from the protections of the law are: daily news bulletins; laws, decrees, resolutions and their translations; judicial rulings; public speeches; thoughts, data and pure scientific facts; and all works of arts of folkloric heritage (Article 4).
The above types of works will benefit from the protections of the law if their authors are Lebanese residing anywhere or nationals of a state member of the Berne Convention for the Protection of Literary and Artistic Work or the WIPO Convention or nationals of a state member of the Arab League, even if it is not a member of the Berne or WIPO conventions, provided that the state offers reciprocity to Lebanese authors or audiovisual producers with domicile or a head office in Lebanon or any state member of the Berne or WIPO conventions (Article 12). Additionally, covered works will be protected, even if the above nationality requirements are not met, if:
The above requirements for authors and works are consistent with the provisions of the Berne Convention, which provide that persons entitled to protection are authors who are nationals of one of the member states or who have their habitual residence there and authors who are not nationals of one of the member states but whose works were first or simultaneously published there.
Under the new law, ownership of a work vests in its creator immediately upon creation (Article 5). The holder of the copyright enjoys both exclusive financial rights to exploit his work and certain moral rights, including the right to be recognized for his work, the right to remain anonymous, and the right to prohibit harmful modifications to his work (Articles 14, 15 & 16). Many of the financial rights provided by the law mimic those minimum standards of protection required by the Berne Convention, such as the right to translate the work, the right to make or authorize the reproduction of the work, the right to perform the work, the right to authorize the broadcasting/communication of the work and the right to sell the work.
The general term of protection for the financial rights is for the author’s lifetime plus 50 years after his death (Article 49). For joint works, protection is for the life of the co-authors plus 50 years after the death of the last surviving co-author (Article 50). The period of protection for the financial rights for group works (as distinguished from joint works), audiovisual works, works published under a pseudonym, and all related rights is 50 years (Articles 51, 52, 54,55, 56 & 57). The author may dispose of or assign his financial rights to existing works, but he may not dispose of his future works or his moral rights, the latter of which have an indefinite term and may only be transferred through a legacy or inheritance (Articles 16,18, 22 and 53). Any contracts fully or partially disposing of an author’s financial right to exploit his work must be in writing and must be specific with regards to the subject, place and time, compensation and term. Contracts omitting the term will be legally deemed to have been concluded for a period of 10 years under the law (Article 17).
There are certain exceptions to the above protections and rights. The law allows any natural person to copy an already legally published work, without the consent of the author, if the purpose is for personal or private (i.e., non-commercial) use, provided that such use does not damage the other rights of the copyright holder (Articles 23 & 24). The law exlcudes certain acts, such as the copying of computer programs (unless by permission and for the purpose of backup in case of loss or damage) and limited edition works, from the realm of this exception (Article 24). The law also sets out certain other situations in which copying of a work may be made without the consent of the authors, such as for educational purposes, for archive purposes, for use in judicial and administration proceedings, for use by the information media and for display in museums and exhibits (Articles 25-34). The above exceptions initially arose out of the government’s need to ensure that students and universities are able to copy original works for their own personal and educational use. Of course, these exceptions cannot be abused and are not without certain limitations.
Related rights are defined as those held by artists of performance (e.g., actors, musicians, singers, orchestra members, dancers and circus performers), producers of audio recordings, publishing houses and radio and television broadcasting institutes, stations, companies and authorities (Articles 1 & 35). The law sets out the specific rights enjoyed by each of these categories of copyright holders under the law and the criteria for enjoying these rights. As with rights granted to the primary original works, any agreements affecting related rights must be in writing (Article 46) and the exception for personal or private use applies to these rights as well (Article 48).
Collective Rights Administration Companies & Associations Somewhat unique to copyright laws of the region, the new Lebanese copyright law allows authors and holders of related rights to form associations or companies authorized via a power of attorney to manage all or part of their rights and collect compensation arising therefrom (Articles 58 & 59). Such company or association must register with the Ministry of Culture & Higher Education and is under the control and authority of this Ministry. The incorporation and functioning of these associations and companies will be regulated by a decree law (regulation) to be issued by the Council of Ministers upon a proposal of the Ministry (Articles 60, 61 & 66). Such associations and companies will have the authority to: (1) enter into contracts with individuals who use the works and agree on compensation for such use, (2) distribute compensation to the rights holders based on their pro rata share of actual usage of their work, (3) take all measures necessary to protect their principals’ rights and (4) obtain all information necessary to calculate, collect and distribute compensation (Articles 67 & 74).
Lodging of a work, sound recording, performance or radio or television program at the Copyright Protection Department at the Ministry of Economy and Commerce is deemed evidence of ownership of a work, albeit non-conclusive and rebuttable (Article 76). The application must state certain information, such as the title and type of the work, and the name and address of the author or holder of the related right or the individual filing on his behalf, and must include 3 copies of the work or subject of the related right. The application must also include the required filing fee, which ranges from LL 20,000 – LL 175,000 (approximately US $13 - $116) depending on the type of work being lodged. (Articles 77-78).
Damages and Penalties for Infringement and violation of the Law As noted above, should Lebanon succeed in its attempt to accede to the WTO, it will be bound to comply with the provisions of TRIPS. In addition to ensuring the adequate protection of intellectual property rights, TRIPS also imposes an obligation on member countries to implement mechanisms for enforcing these rights and the laws protecting them. More specifically, TRIPS requires that WTO members provide for both civil/administrative remedies and criminal remedies and penalties. With respect to civil remedies, it provides for such procedures as injunctions, imposition of damages, seizure and destruction of infringing goods and other provisional measures aimed at preventing infringement. Of course, the precepts of due process must form the foundation of any such remedies. With regards to criminal remedies, TRIPS requires WTO members to provide for criminal procedures for willful, commercial counterfeiting or piracy, at a minimum, with penalties of imprisonment and/or fines. Where appropriate, members may also allow for the seizure, forfeiture and destruction of the infringing items.
Lebanon’s new copyright law attempts to meet these requirements in providing for precautionary measures, civil damages/remedies and criminal penalties. First, the law addresses the issue of precautionary measures. Where it is anticipated that an infringement of copyright or related rights might occur, the law allows the Judge of Urgent Matters, the President of the Court of First Instance (i.e., trial court) and/or the Public Prosecutor, at the request of the concerned party, to take all necessary precautionary measures to prevent the occurrence of a violation (Article 81). The Judge of Urgent Matters also has wide powers in the even of a violation to take such measures as seizure of the violating materials, taking stock of the violating materials while maintaining them in the defendant’s custody and injunctions (Articles 82-83). The law also addresses the issue of civil damages and provides that any person who violates an author’s rights or related rights must pay equitable compensation as determined by the court based on the commercial value of the work, the damage caused, profits lost by the author and gains acquired by the violator (Article 84).
Criminal penalties for violations of the law provide for a fine between approximately $3,300 - $33,000 and/or possible imprisonment ranging from 1 month to 3 years, depending on the violation. More specifically, the law imposes the following penalties:
Where any of the above violations have occurred, an action may be initiated by the Public Prosecutor sua sponte or upon the request of the harmed party or the head of the Copyright Protection Department (Article 89). Moreover, all of the above penalties may be doubled for repeat offenders.
Finally, the law prohibits the importing of any pirated recordings and works that enjoy legal protection in Lebanon. This is most likely in response to the huge pressure Lebanon received from software and other technology companies seeking to invest in Lebanon but fearful of the unusually high rate of unregulated piracy in the region in general. Various sources suggest that up to 90% of software in Lebanon is pirated. Moreover, according to the International Federal of the Phonographic Industry, the piracy rate for sound recording in Lebanon is estimated at 50% and can be as high as 70% for international productions. Pursuant to the new law, any such works will be seized wherever they are found (Article 91). To this end, the law allows policemen, customs officers, and Copyright Protection Department officers to identify suspected infringing works, take stock of them and take samples and seize items when necessary (Article 92). In doing so, they must complete a report that includes specific information delineated in the law.
Given the infancy of this law, it still remains to be seen how effective the Lebanese government and judicial authorities will be at enforcing the provisions of this law. To date, enforcement of the law has been minimal and has been limited to a few surprise raids and fines against infringing music and computer stores. The hope is, however, that this new copyright law will help to encourage foreign investment in Lebanon, open the door to technology transfer, and ultimately increase international confidence in Lebanon as it tries to rebuild itself to its pre-war status as a leading business center in the Middle East.
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