United Arab Emirates: Copyright Law - How Does The UAE Compare With Common Law Jurisdictions?

Civil law and common law traditions exert divergent influences on certain features of national copyright laws, which results in major differences between copyright law in civil law jurisdictions and in common law jurisdictions:

In civil law jurisdictions, the protection of the author is the cornerstone of copyright law. As a result, copyright law is aimed at protecting both the author's economic interests and the author's reputation against the unauthorized use or alteration of his/her works. To this end, authors are granted some non-transferable rights and retain copyrights in their works absent any express assignment of rights, even in the context of an employment contract.

In common law jurisdictions, copyright law promotes progress and economic benefits arising out of a work. As a result, an author is seen as a transferor of rights that constitute a source of economic benefits for the community. As such, all of the authors' rights are transferable, and employers or commissioning parties may benefit from an automatic assignment of rights in a work to facilitate investment and exploitation of the rights.

The UAE is a civil law jurisdiction, highly influenced by French law and Islamic law. As such, the provisions of the UAE copyright law fundamentally diverge, in some respects, from copyright law in common law jurisdictions (such as the United Kingdom (UK), Ireland, the United States, Australia and New-Zealand).

However, it is common practice for many companies operating in the UAE to run their business on the assumption that the principles enshrined in the UAE Federal Copyright Law (the "UAE Copyright Law") are the same as those applied in common law jurisdictions. This is not the case. This false belief may have a significant impact on businesses since it may result in authors' rights arising out of the company's activities not being effectively passed through to the company, and remaining with the individuals who created those rights, the consequences of which are detailed hereafter.

Since the UAE is attracting more and more businesses in a wide variety of sectors, it is paramount for these companies employing people and/or commissioning works in the UAE to know the differences between the copyright law in the UAE and the copyright laws in common law jurisdictions.

This article highlights some of the typical main differences between UAE copyright law and the copyright laws in common law systems, which any business operating or looking to operate in the UAE should be aware of.

No automatic transfer of copyrights

In both civil law and common law countries, the general rule is that copyright initially vests in the author of the work.

However, in common law countries, the copyright may initially vest in the employer or another person/entity for whom the work was prepared.

In the United-States, under the "work made for hire" doctrine, the copyright in a work created by an employee within the scope of his/her employment will automatically (without a written assignment) and initially vest in the employer. A commissioner may also own the copyrights in a work made by an independent contractor as a work made for hire under certain circumstances.

This doctrine is premised on the principle of facilitation of investment and exploitation.

A similar rule exists under the laws of the UK and the laws of Ireland with respect to works made by an employee in the course of his/her employment.

In civil law countries, however, ownership of copyrights in a work vests in the author of such work, until the copyright is assigned through a written assignment instrument.

As a result, unlike what it is often assumed, an employer or a commissioning party does not automatically own the copyrights in the work made by an employee in the course of his/her employment or commissioned to an independent contractor. This rule applies in the UAE and is a public order rule.

Under the UAE Copyright Law, absent a written assignment of copyrights in employment contracts or commissioning agreements, the copyrights will not be passed through to the employer or commissioner of the work, and will remain with the employee or the independent contractor (unless the work may qualify as a collective work under Article 1 of the UAE Copyright Law, which may be difficult to prove in practice). Confirmatory assignments may also have to be put in place for the assignment of copyrights to the employer or commissioner to be valid under UAE law, as explained in section two below.

Companies must therefore ensure that adequate assignment agreements are put in place with their employees and independent contractors in the UAE to ensure the effective transfer of the rights to the company.

It is paramount for all companies in the UAE, but especially those with research and development (R&D) departments (laboratories, cosmetic companies, etc.), design offices in the UAE (fashion brands, etc.), or creating content in the UAE (advertising agencies, design/brand agencies, etc.) to include in their standard employment contracts an express assignment in their favour in respect of the copyrights in the works created by their employees in the course of their employment. We also strongly recommend that companies put in place with their employees a system of confirmatory assignments of the copyrights in the works created in the course of the employment contract (see section two below).

Likewise, any companies, regardless of their field of activity, should ensure that their agreements instructing third party contractors and governed by UAE law contain the relevant assignment clauses allowing the copyrights in the deliverables ordered to be transferred to the company (such as a logo, a web design, a retail design, a packaging, a software, the architecture of a building, etc.). A clause merely referring to the assignment of all the rights in the works as works 'made for hire' would be irrelevant and ineffective.

It is important to note that a copyright assignment is only valid under the UAE Copyright law if it satisfies a number of conditions, including that the assignment should: be in writing, expressly specify the rights assigned, and include statements of the purpose for which the rights are assigned and the geographical area in respect of which the rights are assigned. In addition, one must note that under UAE law, an assignment of copyrights in more than four future works is null and void, as further detailed in section two.

Without an assignment that complies with the provisions of the UAE Copyright Law, companies are at risk of having to defend a copyright infringement claim from the owner of the rights that were not transferred (either an employee or a contractor), on the basis of the unauthorized use of its work(s), which could notably result in damages to be paid to the claimant and an injunction to withdraw the related work(s) (or product comprising such work(s)) from the market (hence entailing withdrawal and replacement costs).

If the company attempted to assign the rights to a third party, such third party may also face a copyright infringement claim from the owner of the rights. In such a situation, we would expect the third party assignee to file a contractual liability claim against the company that assigned to it copyrights it did not own.

In addition, in the event the company were to seek to enforce its intellectual property rights against an alleged infringer, there is a significant risk that the alleged infringer could be successful in challenging the ownership of such intellectual property rights, which would result in the dismissal of the infringement claim.

Also, if a company cannot prove its ownership of copyrights, it may have a significant impact on its ability to find investors or on the price of its business when trying to sell it.

No general assignment of future copyrights

Another major difference between copyright law systems in civil law jurisdictions and common law jurisdictions resides in the assignment of future copyrights.

In common law countries, there is no prohibition on the contractual assignment of a future copyright in a work that has yet to be created. As a result, it is possible to assign future copyrights, i.e. copyrights in works that are still to be created.

In civil law countries, as a general rule, an agreement that concerns all the works or all the works of a specific type that will be created by an author in the future is void.

In particular, the UAE Copyright law contains a provision that deems any disposal of the author's future intellectual rights in five or more future works to be null and void. But if, for example, an employee is employed in a creative role, this could mean that his/her five works are completed within a few hours of signing any agreement.

As a result, in order to overcome such restrictions from assigning five or more future works, we would recommend that companies put in place with their employees in the UAE a system of confirmatory assignments that should be completed and signed by the employee once it has created and delivered any work in the context of his/her employment agreement. This means that the employee does not assign rights in all future works created in the course of his/her employment contract but assigns the rights as and when a particular work is completed.

The same applies to service providers once they have created any deliverables in the context of a service agreement (involving the delivery of more than four works during the term of the agreement), and have been paid for such deliverables in accordance with the service agreement. That would, for instance, apply in the case of a design and build agreement between an employer and a contractor, which generally involves the delivery of multiple design documents.

A system of confirmatory assignments executed upon delivery would ensure the effective assignment of rights in the deliverables where more than four deliverables are involved. More generally, we recommend putting in place a system of confirmatory assignments of copyrights with any service providers as a matter of good practice since it allows a clear identification of the deliverables, the copyrights of which are assigned to the commissioner, and hence limits any possibility of a successful challenge from the contractor as to the copyrights assigned to the company.

As a result, we would recommend adding in all employment agreements or service agreements governed by UAE law a clause pursuant to which the employee or the contractor undertakes to execute any required documents, during the term of the agreement or any time after its termination, in order to ensure the effective assignment of rights in the works/deliverables.

Strict limitations in the waiver of moral rights

As a general rule, moral rights granted to authors consist of the right of disclosure of the works, the right of attribution (i.e. right to claim or disclaim authorship in the work) and the right of integrity (i.e. right to prevent distortion and modification of a work).

In the United States, however, authors benefit from limited moral rights of attribution and integrity because such rights only exist for a narrowly defined group of works of visual arts.

Moral rights are personal and cannot be assigned. However, in most common law jurisdictions, moral rights can be waived. It is therefore usual practice to see in assignments or licensing agreements governed by US, UK or Irish laws, provisions under which authors waive their moral rights. As a general rule, a waiver of moral rights is only valid if it is in writing and it identifies the relevant copyrighted work(s). Such an approach is consistent with the functional view of authors' rights in these countries.

On the contrary, in civil law countries, including the UAE, general waivers of moral rights would ordinarily be unenforceable as it would be equivalent to an assignment of moral rights, which is prohibited in accordance with the traditional approach of copyrights in civil law jurisdictions (pursuant to which authors' works are protected as the products of the authors' personality, so that authors should be protected against any modification of their works).

An author may only undertake in writing not to exercise his/her moral rights in relation to a specific person or entity, provided that the agreement specifies the work(s) and specific uses to which the undertaking applies. The more detailed these provisions are, the greater the likelihood that they will, if challenged, prove valid and enforceable in court.

Copyright laws in the other GCC countries contain provisions similar to the ones described above and in force in the UAE.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.