Business Law Intellectual Property in the UAE.

Business Law: Intellectual Property in the UAE

PARA 4002 - Intellectual Property

University of Cincinnati

Introduction

The UAE is a member of various global conventions on intellectual property rights including

Madrid and PCT (Patent Cooperation Treaty). This membership reveals the wide recognition

of the purpose and the need for protection of international IP rights of other nations in the global

marketplace. In the UAE, registration of the IP falls under the docket of ministry of economy

(MOE). In the current technological world, the need to protect IP in an online environment has

emerged. Nations are modifying their IP rights to apply well in the protection of internet-related

IP. Since IP rights apply both at national and international levels, this dissertation paper

discusses the international treaties that are related to IP and the UAE legislation on IP with

reference to copyright legislation, copyright legislation on the internet, infringement in the

traditional context, and infringement in the context of the internet.

International Legislation: International Agreements that related to the Intellectual

Property

Protection of intellectual property is important in the effort to protect innovation and creativity

within a nation. IP means intangible objects such as literary works, artistic productions,

scientific discoveries, and plans for inventions and designs, which acquire their value primarily

from creative efforts (Fitzgerald and Olwan 566). Intellectual property rights protect these

fruits of human mind with the aim of rewarding their creators together with promotion of

economic, social, and technological development of nations (Trimble and Goldstein 102).

Creativity and innovation may emanate from any place across the globe. The realisation of this

claim reveals the need to protect IP at international levels. For this purpose, international

conventions on intellectual property are enacted. Global legislation on IP rights is codified in

the form of international treaties.

There are different international IP-related treaties and conventions. The Paris Convection

protects the industrial IP. It has four main divisions of provisions that shield the IP. The first

category comprises the national treatment laws, which contain substantive regulation that is

aimed at guaranteeing fundamental IP rights to all member countries (Trimble and Goldstein

242). The second category establishes priority rights while the third category contains rules for

obligations of individuals together with legal entities in different nations to comply with IP

rights’ substantive laws. The fourth category sets out administrative frameworks for

implementation of the pacts (Trimble and Goldstein 242). The Berne Convection protects

artistic and all types of literary works. Its main aim encompasses protecting “in as effective and

uniform a manner as possible, the rights of authors in their literary and artistic works” (Trimble

and Goldstein 262). The pacts underwent revisions to ensure adequate protection of all artistic

and literary works, which have not been released for use in the public domain in the plight of

the emerging technologies.

Berne Convection underwent revisions typically after 20 years since its adoption in1886.

However, technological developments in 1970s and 1980s such as computer storage and home

taping among others introduced more challenges to the protection of artistic and literary work

rights. This situation led to the creation of TRIPS Pacts in 1994 to safeguard artistic works and

literary works that were not adequately protected under Berne Conventions. Later, WIPO Copy

Rights Treaty (WCT) and WPPT (WIPO Performance and Phonograms Treaty) were

established in 1996 to address copyright issues that were not sufficiently addressed by TRIPS

Pacts (Trimble and Goldstein 269).

In its provisions, WCT incorporates the provisions of Berne Convection, although it

additionally addresses copyright problems that are associated with the ‘digital agenda’. It

requires people to seek authentication for digital content creators when transmitting them to

other people through the internet and other digital media platforms and networks (Trimble and

Goldstein 271). It also provides exceptions in terms of storage of digital materials while at the

same time stipulating various technological interventions to ensure adequate protection of

information management rights. PCT focuses on the cooperation of different states in national

patent protection systems. It requires people to make application for protecting their patents in

different nations, which they seek to have their patents protected. However, exceptions apply

to situations in which applications are made through regional systems for patenting such as the

European system, ARIPO, or IOPI. After successful patent registration with the national patent

office, members of PCT have the responsibility of protecting all patent rights that are registered

with the national office of one of the member states.

The Budapest Agreement relates to the disposition of microorganisms for purposes of

protection. Paris Convection establishes the treaty under article 19 (Trimble and Goldstein

285). The treaty demands states to recognise any deposits of microorganisms made with

‘international depository authority,’ whether this body is within or outside the member states’

territory, while patenting microorganisms. The body exists for purposes of culturing and

protecting microorganisms, which nations cannot individually manage to culture. The Madrid

Treaty establishes an international system of registering marks. WIPO International Bureau

administers the system while also gazetting different international marks (Trimble and

Goldstein 287).

Hague Treaty is an international agreement for depositing industrial designs. It was adopted

through Paris convection frameworks in 1925. The pact has undergone several revisions and

supplementations. The 1934 London Act and the 1960 Hague Act are some of the significant

provisions under ‘The Hague Treaty. They regulate IP among signatory member states. Though

not yet in force, the 1999 Geneva Act is also an important Act that regulates the depositing of

industrial designs for patenting as it is incorporated in The Hague Treaty. The 1960 Act controls

and governs about 95 percent of all international industrial design deposits (Trimble and

Goldstein 293).

Trademark Law Pact seeks to harmonise different procedures for administration about national

application and mark protection. Its incorporation was done in 1994 in Geneva, although its

enforcement took place in 1996 (Trimble and Goldstein 297). New parties to the pacts join

either individually or through intergovernmental entities, to which they subscribe membership,

such as the EU or the OAPI. In its regulations, Trimble and Goldstein confirm that the pact

does not “deal with the substantive parts of trademark law that covers the registration of marks”

(297). The pact applies to different commodities and services marks, but the marks must be tri-

dimensional and observable. Certification, official recognition, and combined marks are not

recognised in the pact.

Other important international agreements that relate to property rights include Strasbourg

Pacts, Patent Law Agreement, Vienna Treaty, Locarno Pact, Rome convection, and Nice Pacts.

Strasbourg pacts establish classification guidelines for property rights that relate to patents,

industrial designs, and brand names. The Vienna Agreement governs figurative components in

marks. Locarno Pact defines the approaches for grouping different industrial designs (Trimble

and Goldstein 313). The Nice Agreement relates to international approaches for services

together with product classifications with the objective of registering their marks. Adopted in

2000 in Geneva, Patent Law Treaty aims at harmonising various formal approaches that are

deployed in regional and national patenting and patents. It also avails various requirements for

application by the offices of the contracting parties.

The Rome convection establishes rules and procedures for protecting organisations that engage

in broadcasting, production of phonograms, and artistic performance (Trimble and Goldstein

314). Technological developments offset intellectual rights. The Rome convection sought to

enhance better protection of its focus organisations against duplication of their works upon

considering the insufficiency of copyright law to protect the organisations fully when new

technologies emerge. This claim suggests that international treaties that relate to IP protection

evolved depending on the emergence of new threats such as technology to intellectual property

for different innovations in different industries. As evidenced in the next section on the UAE

legislation on IP, even at national level, the evolution of IP legislation is also important to

protect people and organisations’ IP due to the emerging new threats such as the internet and

other technological developments.

The UAE Legislation

The UAE is a signatory to Berne convection, which protects artistic and literary works.

Through the legislation, the UAE protects copyrights of different people within it and at

international platforms. However, it has well established copyright law at the national level.

Fitzgerald and Olwan claim that nations that joined WTO (World Trade Organisation) also

signed various pacts that were associated with the organisation such as TRIPS pact, which

compelled them to make changes in their national copyright laws to comply with the pacts

(565). The UAE encompassed one of such nations as it reviewed its copyright law in 2002. In

fact, Fitzgerald and Olwan assert, “the UAE promulgated a new copyright law that was titled

the Federal Law No.7 of 2002 (The UAE) Pertaining to Copyrights and Neighbouring Rights”

(565). The UAE is also a member state to WPPT, WCT, PCT, and Paris Convention. Thus, any

regulations on the protection of intellectual property at national levels, as advocated for by the

conventions and pacts, apply in the UAE copyright law.

various moral and economic rights of the original creators of any material. The author or

persons who are granted rights by authors or creators of any original work have the right for

giving licences authorising the exploitation of any work through reproduction, downloading,

transmission, broadcasting, or any other means (Fitzgerald and Olwan 566). Article 8 permits

rental of audio-visual works and software. However, it provides limitations to the renting of

the software. The article states that the software renting does not apply to the case of computer

software, unless it is clearly stated as constituting one of the rental objects (Fitzgerald and

Olwan 567).

Article 18 protects phonogram producers from any exploitation such as re-broadcasting, rental,

availing of copyright materials in the public domain without authentication, and reproducing

of materials. They are also accorded rights of disseminating their work through computers,

wire, and wireless means or any other means they may deem appropriate (Fitzgerald and Olwan

568). Article 19 gives media companies the freedom of giving authorisation for use of any of

their footage and hence transmission. It also gives them the right of forbidding public

communication unless they grant such authority. Article 7, 8, 18, and 19 of the UAE copyright

law exemplifies the strictness of the UAE in protecting intellectual property of its citizens.

However, for protection, the UAE requires parties to make deposits of copyrightable materials

with its information and culture ministry (Fitzgerald and Olwan 570). Safeguarding strategies

are also provided to ensure protection of all works against unauthorised translations.

The UAE copyright law makes provisions of validity of the copyrights. For cinematographic

works, this duration is 50 years since their creation. For other works, the duration covers the

lifetime of the creator in addition to 50 years that are counted from the date of death of the

creator (Fitzgerald and Olwan 573). However, the law grants public libraries, education centres,

scientific-based organisations, and cultural-based organisations the right to reproduce

copyrighted materials through photocopying. Nevertheless, the number of copies should not

exceed 50. The reproduction should mainly serve the interest of authorised persons and/or

uphold the stakes of original work creators. Breach of these provisions attracts imprisonment

or a penalty of a maximum of 50,000 and a minimum of 10,000 Dirhams (Fitzgerald and Olwan

574) as provided for in article 37. Publishers who contravene the directions given by authors

through intentional omissions, unauthenticated alterations, and/or additions are subject to

punishment by way of imprisonment or fines of 10,000 Dirhams or more.

The 2002 copyright law as discussed in the previous section does not factor adequately the

threats of to intellectual property of both the foreigners and citizens of the UAE within the

nation. This replicates the challenges encountered by various other international pacts on IP.

The challenges prompted a review of pacts in an effort to introduce new laws that were aimed

at curbing the emerging technological threats to IP. In article 37, the UAE copyright legislation

of 2002 mentions the word ‘internet’ only when making provisions for infringement of

financial and moral rights for authors and/or person who are conferred copyright rights. The

law prevents people from engaging in any act that prejudices the rights of such individuals by

engaging in activities that amount to breach of the provisions of article 7 through 19 such as

modifying, duplicating, downloading, transmitting, and re-broadcasting materials that are

available over the internet and or any other communication networks (Fitzgerald and Olwan

579).

International Intellectual Property Alliance (IIPA) supports the claim on the inexistence of

adequate legal frameworks in the UAE guarding erosion of copyrights in a digitised economy

(280). The organisation cites the emerging internet-based malpractices such as violation of

TPMs and piracy as major copyright challenges that ail the UAE. It maintains that these

malpractices have significantly grown following the relaxation of MOE (Ministry of Economy)

in terms of offering instructions to the TRA in relation to enforcing legal actions against various

internet-based sites that target the UAE market (IIPA 280). However, amid this concern,

to enhance modernisation of the law before it can successfully resume its copyright

enforcement via TRA. The concern of MOE entails ensuring the availability of infringement

laws that are specifically adapted for utilisation in the protection of copyrights in an online

environment.

Infringement in the Traditional Context

Similar to other copyright laws that are adopted by different nations, the UAE copyright laws

make provisions for infringements. They also provide remedies to the infringement. In the

traditional context, judges select experts who determine and evaluate possibilities of

occurrence of infringements. However, the courts reserve the power for making decisions on

any case that is presented before them about infringement of copyrights (Fitzgerald and Olwan

574).

Article 34 or 41 makes provisions for enforcement of infringement. The articles provide the

holder of the copyright “or their successors with various remedies against infringers including,

precautionary measures, administrative sanctions, civil redress, and criminal penalties” (574).

Article 34 accords the right of requesting a court to consider precautionary interventions for

possible copyright infringements.

Out of their own discretion or following directions from the real owner of a copyright, custom

authorities can give an order for counterfeited products to be suspended from being released

into the market for a maximum of 20 days (Fitzgerald and Olwan 574). Remedies to

infringements, as provided for in article 37, include fines, imprisonment, or both. For instance,

in the absence of prejudicing other the UAE laws, penalties for copyright infringements range

from 12,700 to 13, 600 USD, two-month jail term, or both.

Infringement in the Context of the Internet

While copyright law no.7 of 2002 provided effective remedies for infringement of related

copyrights, in an internet-enhanced approach for information sharing, internet-based piracy

constitutes a leading way of infringing copyrights in the UAE. International Intellectual

Property Alliance supports this notion by claiming that significant numbers of people in the

UAE now use internet-enabled phones to access internet, thus amplifying possibilities of

infringement of copyrights that are provided for in article 37 (281-282). High penetration of

broadband has also increased the number of people with internet access to various materials

that are available in an online environment. However, International Intellectual Property

Alliance reveals that the government has not commensurately responded to this increase by

putting in place stricter or better laws to handle internet-based infringement to copyright (282).

The implication of the above observation is that lack of laws that specifically focus on internet-

based infringement of copyright leads to increased unauthorised access to information that is

contained in websites and other means of holding information over the internet. In fact,

International Intellectual Property Alliance puts the UAE in the second position in internet-

based copyright offending (282). In 2010, while principally depending on the existing laws

against copyright infringement, TRA took legal actions against infringers for more than 100

websites. The situation led to the launching of six copyright criminal infringement cases (282).

Nevertheless, more laws to curb internet-based copyright infringement are required in the

UAE.

Conclusion

The need for protection of intellectual property finds recognition at both national and

international levels. The desertion paper has revealed that this cognition leads to the

establishment of several international treaties and conventions for protecting IP. Under the

treaties, member states are also required to establish various laws that are consistent with the

international treaties on IP protection. For this reason, the UAE altered its copyright laws and

promulgated the changes under federal law no.7 in 2002. While such laws have been effective

in the protection of copyright against infringement, the desertion has held that updating of the

laws in an effort to ensure adequate protection of copyright in an online environment is

necessary.