It has been broadly accepted that copyright holders in the UAE
enjoy absolute discretion to determine the first date of publishing
their works. However, this may not remain the situation in Dubai
for TVbroadcasters. A judgment issued by the First Instance Court,
and recently affirmed by the Appeal Court of Dubai, appears to
restrict the exercise of rights granted under UAE copyright
law.
Article 5 of UAE Federal law number (7) for 2002 in relation to
Copyrights and Neighboring Rights (the "UAE Copyright
Law"), stipulates that
"Author and his successors shall enjoy, in respect of the
work, moral rights, which are not subject to assignment or a
statute of limitations, such rights include:
- The right to decide to first publish the work.
- The right to claim authorship [...]"
Media companies, broadcasters, TV and satellite channels that
own copyrights of recorded programs and/or interviews have been
exercising their legal rights by selecting, modifying, cancelling
and changing their broadcasting schedules. The 'first
publication of work' doctrine assumes the liberty of copyright
holders to determine the first date of broadcasting recorded
material. Nevertheless, this has been subject to serious
restriction in Dubai as the First Instance Court found a regional
media TV broadcaster liable for moral damages because of
rescheduling/cancelling of the first broadcast of an
interview.
The facts of this case go back to 2008 when a regional TV
broadcaster announced its weekly programming and confirmed to an
interviewee the first date of airing a recorded interview featuring
the interviewee. On the scheduled date of the broadcast, the
broadcaster instead decided to air an interview with a different
guest. The first interviewee, who became the plaintiff in the case,
felt the rescheduling undermined his social standing. He filed a
tort action and initiated civil proceedings seeking AED 500,000 as
moral damages for emotional distress and embarrassment. The case
was filed before Dubai First Instance Court, and was supported with
an expert report issued by 'auditors and consultants' to
prove the damage.
As per common practice in Dubai, the judge referred the case to a
'court expert' to evaluate the plaintiff's claims and
examine other disputed grounds. The expert found the defendant
liable for moral damages and affirmed the conclusion made in the
expert report initially submitted by the Plaintiff. The court
accordingly found the broadcaster liable for damages due to the
breach of so called "customary rules, media honor and media
professional guidelines". The court found the broadcaster
damaged the social standing of the plaintiff after publicizing the
date of publishing the plaintiff's interview and then
cancelling the same without prior notice or apology.
Furthermore, the court confirmed that although the broadcaster
holds the copyright and has the right to decide the first
publication date, there are other considerations of good faith that
surpass abstract rules of law and that should have been considered.
Therefore, the broadcaster was found negligent and liable for the
alleged damage suffered by the plaintiff for not publishing the
recorded episode at the appointed date. The court identified the
plaintiff as a public figure with prestigious social status in the
region, and concluded that the broadcaster should be liable for the
tortious misconduct and ruled for AED 100,000 as monetary
compensation only. The court did not state in the final written
verdict the grounds in calculating this amount of damages.
The broadcaster felt the First Instance Court holding to be unjust,
groundless, prejudicial to its legal rights and contradictory with
the black letter rules of law. Strictly speaking, there are no
official documents, references or regulations to find the source of
what was cited as "media honors" or "media
professional guidelines". The broadcaster appealed before the
Appeal Court for lack of legal basis, illegitimate conclusions and
on evidentiary and procedural grounds in respect of the court
expert's report. The defendant sought from the Appeal Court to
implement Article 5 of the UAE Copyright Law and reverse the First
Instance Court judgment. The plaintiff also appealed the judgment,
alleging that the damages awarded did not adequately reflect the
actual damage and requesting the Appeal Court to adjust the value
of damage to AED 500,000 as initially sought before the First
Instance Court.
The Appeal Court examined the grounds of both parties' appeal
cases and decided to accept both parties' appeals in
formalities but dismissed the appeals' legal grounds. The
Appeal Court affirmed the First Instance Court's judgment, but
elaborated that the broadcaster was found liable based on the
'abusive exploitation of rights' doctrine in accordance
with articles 104/106 of the UAE Civil Transactions Code. The
Appeal Court found the broadcaster misused its rights in an abusive
manner that required compensation for the damages caused to the
plaintiff.
The broadcaster contested the judgment and decided to seek
certiorari from Dubai Cassation Court alleging the
misinterpretation of law provisions, prejudice of the
broadcaster's rights, and lack of legitimacy/legal reasoning of
the lower courts' holdings. The petition before the Cassation
Court is still pending for further examination by the Chief
Justices Committee. We anticipate that the Cassation Court will
issue its ruling before the end of 2010. In the meantime, the
Cassation Court initially decided to hold off the execution
formalities of the lower courts' judgments until the Chief
Justices Committee concludes its judgment.
In light of the current holdings by the First Instance Court and
the Appeal Court, media companies, broadcasters, TV and satellite
channels operating from Dubai Media City Free Zone are highly
recommended to consider this case and the resulting restrictions on
the 'first publication of work' doctrine. Media companies
should also adopt precautionary procedures to ensure that
operational changes, such as rescheduling a planned broadcast, do
not result in liability.
If finally affirmed by Cassation Court of Dubai, this decision will
substantially limit the discretion of media companies,
broadcasters, TV and satellite channels to reschedule and modify
their programming.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.