Copyright: Challenges, Limitations and Solutions

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Table of Contents

Section introduction
Section background
Section analysis
Section conclusion
References
Footnotes

Section introduction

Introduction

It is a fact beyond doubt that authors, innovators and other original creators need to be acknowledged for their original work. This can be done through financial or economic compensation for their creations, and seeking their permission when reproduction of their original work is needed. This is for example authors, music artists among other individuals.

This is where the issue of copyright comes into play. Copyright, according to Fitzgerald and Olwan, can be conceptualized as that set of exclusive rights that are granted to a creator of an original work¹. These rights include the right to copy, market or adapt the original work of an author or a creator of an original work. However, it is pertinent to point out at this juncture that these rights do not protect the ideas of the creators. They are only concerned with the expression of these original ideas². It is argued that, in some countries, copyright emanates from fixation, and there is no need for the copyright to be registered.

A copyright agreement can be viewed as that legal contract that is drawn between the holder of a copyright and another party. This is for example the agreement between the author of a book and the publisher. In such an agreement, the author gives the publisher the rights to reproduce their original works. This is the same as the agreement that exists between a music artist and their producer, among other examples.

This paper is going to look at the issue of copyright agreement and the various challenges and limitations that copyright agreement faces in contemporary society. Possible solutions to these challenges will also be provided in the paper.

Current Events

According to Hansen, copyright is not a permanent phenomenon as far as the original works of the creator are concerned³. The owner of the original work, under the copyright laws, has exclusive rights to exert control over reproduction, distribution and other exploitations of their creation for a limited period of time. After this duration of time is over, in other words after the expiry of the copyright, the original work now transits into what Hansen refers to as the public domain⁴. This is whereby the members of the public are free to reproduce the works of the author or creator without necessarily having to acknowledge them or to compensate them.

There are several limitations pertaining to copyright agreement which are cited by creators of original works as factors affecting their work. One of them is the limitations and exceptions to copyright clause, a provision of the copyright law that governs copyright agreements. One of the limitations and exceptions is the fair use, under which the publisher or distributor of an original work is not required by law to seek the permission of the original creator. This means that a person can use the original work of an author for commercial gains without their permission and then claim to have engaged in fair use of the same. This is a loophole that can be exploited by people with ulterior motives in the society⁵.

This has led to the proliferation of fake versions of books and other original works in the market. This is what Abdulla refers to as piracy of an original work⁶, a phenomenon that has far reaching effects not only on the creators of original works but also on the consumers. One of the problems with pirated items is that they are of poor quality, given the unprofessional production that goes into them. This adversely affects the satisfaction that consumers derive from such products. The authors are also denied the benefits, economic or otherwise, that they are entitled to derive from their creation.

Other problems come with copyright agreement in contemporary society. This is for example ideas that are stolen from authors without their knowledge, or without their permission. This is closely related to the problem of piracy that was articulated above. In this case, an individual steals the idea of an original creator in the field and uses it as their own, without acknowledging the original producer.

A copyright agreement may take place between the author and the publisher of their original work, where they transfer the rights to reproduce their works to the publisher. The publisher may exploit the various loopholes existing in the copyright agreement laws to deny the author their rights⁷.

These challenges and limitations to copyright agreements are not limited to one country; rather, they affect authors and other original creators in many jurisdictions. The United Arab Emirates and the United States of America are such countries where original creators experience challenges and hurdles related to copyright agreements.

These challenges need to be addressed if authors are to benefit from their creations. This can be achieved through strengthening of the laws that govern copyright agreements, making sure that the loopholes are addressed. This is just but one form of solution to these challenges. Others will be introduced and analyzed later on in the paper.

Copyright Agreement and Challenges: Cases

Several cases can be used to underpin the challenges and hurdles that are faced by copyright agreement legal structures in different countries. It is important to note at this juncture that these challenges also do affect consumers, for example when they are denied the opportunity to reproduce an original work to solve problems that might be affecting the society as a whole⁸. A case in point is when patent laws deny the public the opportunity to access medicines that might be useful in combating major ailments in the society.

M. A. Mortenson Co. v. Timberline Software Corp., et al. is a case in point⁹. The case revolved around the issue of shrink-wrap license and limitation on consequential damages. A shrink-wrap license is a form of software licensing in for software end-users. It comes printed and enclosed within the software package. It details the rights that the consumer has in relation to the producer of the software.

The petitioner in this case, Mortenson Company, is a general construction company in the United States of America. The company bought licensed software from the defendant in the case, Timberline Software Corporation¹⁰. This was purchased through Softworks Data Systems, a company that is an authorized dealer for the defendant.

The petitioner used the software to prepare a construction bid for a project that the company was interested in. it was later found that the bid was $1.95 million below the required amount, and the petitioner was of the view that this was brought about by the computer software that was purchased from the defendant. The software, according to the petitioner, was defective, leading to the anomalies in the preparation of the bid. The petitioner argued that the defendant has breached the warranties that were enclosed in the shrink-wrap license.

The court ruled that the petitioner was unable to prove any relevant issue pertaining to contract formation, meaning that there was no recognizable copyright agreement between the two parties. The petitioner was also unable to prove unconscionability adequate to avert a summary judgment from the court. The case was thus dismissed, and the petitioner was not paid the damages that they were intending to get from the producer of the original work that they were using.

This case proves that the consumers are also affected by the issue of copyright agreement, and this is a challenge that should also be addressed if the consumers are to benefit from the utilization of original works in the society. If the consumers are not careful when they are entering into these copyright agreements, they might suffer in the future, like in the case of Mortenson.

The other case is that of two songwriters who took their producer to the court on the allegations that the producer violated the agreement that they had set forth on the copyright agreement document. In this case, the two songwriters had transferred copyright to some of their songs to a publisher in the industry. The copyright agreement stated that the publisher will exploit the songs, and compensate the writers by paying them royalties.

The agreement provided that if the publisher did breach the provisions therein, and failed to remedy the same within 45 days after a written notification is brought to their attention, the copyright agreement will be null and void, and the rights will revert to the two songwriters.

The problem arose when, after sometime, the two songwriters decided to work with a different publisher from the one that they had an agreement with. The original publisher was not happy with the turn of events, and they punished the songwriters by delaying the payments of their royalties among other things. After an audit was carried on the accounts of the song publisher, it was found that they had indeed made returns by the exploitation of the songs by the two songwriters, but they had refused to make the required royalty payments. The two songwriters, after realizing this, were of the view that the copyright automatically reverts to them, making the original copyright agreement null and void.

In this matter, the court of appeal ruled that the copyright did revert to the songwriters. This is despite the arguments made by the publisher to the effect that the assignments of the copyright had to be in writing for them to be effective. But the court was of the view that the use of the words such as forthwith and revert in the copyright agreement pointed to the fact that the matter was made abundantly clear to the publisher from the beginning.

This case points to the fact that copyright owners can rely on the courts to interpret the copyright agreement if they had stated the various clauses therein clearly. The various clauses should be worded when the copyright owner intends to transfer their rights to other parties. This is the only way that the courts can help them when the party that had acquired the copyright through transfer of the same breaches the provisions of the clauses in the agreement.

The two cases that were discussed above are a clear illustration of the various challenges and hurdles that copyright agreements in various countries face. All parties involved in such agreement, including those who are affected by the agreements either directly or indirectly, do face the challenges and hurdles that are to be found in this field. This includes the consumers, distributors and most importantly, the owners of the copyright themselves. These challenges have to be addressed if creators of original works, and everyone in the society, were to benefit from various innovations that take place.

Thesis Statement

The following is the thesis statement for this study:

Copyright agreement is faced by a myriad of challenges and hurdles in various countries, challenges and hurdles that affect the operation of this agreement

Descriptive

It is a fact beyond doubt that copyright agreement is faced by various challenges and hurdles that affect the benefit various stakeholders in the industry. Most of these challenges seem to emanate from the limitations and exceptions clause in most copyright laws in various jurisdictions. It is noted that, the exclusive economic and financial rights that holders of copyright have as far as their original work is concerned is saddled down by these limitations and exceptions clauses¹¹.

According to this clause, individuals in the society are permitted to variously use the copyrighted works without the requirement to financially compensate the creator or seek their permission. This is allowed in some instances, for example during what the law refers to as the fair use of the copyrighted material.

The limitations and exceptions clause is provided for in the US Copyright Act of 1976, s 107¹², while under the UAE Copyright Law, the clause is provided for in Article 22¹³. Unscrupulous publishers and consumers may exploit this provision and infringe on the copyright of an original creator.

The above is just one of the problems that seem to affect copyright agreement in the United Arab Emirates, the United States of America and in other countries in the world. These challenges and others will be addressed later in the paper.

Prescriptive

The rise of information and communication technology (herein referred to as ICT) has made it possible for consumers to access original works over the internet. For example, the reader does not have to buy an original physical book from the bookshop. All they need to do is to access the internet and read an online version of the book that they are interested in. the same happens to songs, whereby consumers can download the songs that they want from the internet for free. This development has worsened a situation that was already critical¹⁴.

This paper is going to propose solution for some of these challenges. This is especially in the case of the United Arab Emirates.

One of such solution is the introduction of safe harbor provision in the copyright act of the country. This is given the fact that, currently, intermediaries are not sheltered from liability arising from copyright damages¹⁵. This will especially ensure that consumers can freely use the internet to access the works that they wish to. The United Arab Emirates should emulate the United States of America’s Digital Millennium Copyright Act of 1998, an act that was aimed to address the challenges that come with the rise of the digital age.

The United Arab Emirates should also pay attention to the copyright agreements that it enters into with other countries, such as the United States of America. This is given the fact that analysts have found that these agreements tend to work against the interests of the United Arab Emirates. This is considering that most of the agreements are vague on the fair use clause, and as such, the accessibility of copyrighted materials becomes a very expensive undertaking. This affects the country’s research and education efforts aimed at improving the country’s technological infrastructure.

The above discourse points to the fact that the solution for the challenges and hurdles that face copyright agreements in the United Arab Emirates and other countries lies not only with the authors and other creators of original works, but with all the stakeholders in the industry. This includes the legal system, which is tasked with the role of mediating between aggressors and victims of copyright agreement, the consumers and the publishers of original works.

Structure of the Paper

The following is the structure that will be assumed by this paper:

Section Introduction

This section, which has already been covered, provided the reader with an overview of the whole paper. The section is aimed at introducing the reader to the study as a whole, highlighting the major events that the reader should expect from the study. Background information on the study was provided, as well as current events and news as far as copyright agreement and the attending challenges and hurdles are concerned. This section also provided information on cases that surrounds copyright agreement, as well as a descriptive and prescriptive thesis statement of the study. Lastly, the section provides the reader with a proposed structure of the whole study, highlighting the major contents of each section of the paper.

Section Background

This section is going to provide the reader with background information on copyright agreement and the challenges and hurdles therein. The author will start by providing a brief history of the copyright law and copyright agreement both in the United States of America and United Arab Emirates, as well as in other countries. A summary of copyright laws will then be provided. This will be followed by an analysis of the current state of the laws in the United States of America, the United Arab Emirates and other countries where necessary.

Section Analysis

In this section, the researcher will provide the reader with an analysis of three arguments surrounding the thesis statement as identified in section 1. Each of the arguments will have three sub-arguments, each of which will further have three sub-sub-arguments.

Section Conclusion

The researcher is going to conclude the whole study in this section. First, a summary of the problem addressed in the paper will be provided. This will be followed by a summary of the proposed solution, and a summary of discussion and viability of the solution.

Section background

History of Copyright Laws

This section is going to provide a brief history of the copyright laws as these will be covered in detail in section three of the paper.

The copyright law as we know it today can be traced back to British legislation in the early eighteenth century. Analysts are of the view that the first copyright law or statute was passed in 1709 in Britain¹⁶. This was referred to as the Statute of Anne, from which other copyright laws in the world were adapted.

Statute of Anne 1709

This act was referred to as:

An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned¹⁷

Before the enactment of this act, printers, booksellers and other individuals were involved in printing, reprinting, publishing and distribution of books and other publications without the consent of the authors¹⁸. This, according to the drafters of the statute, affected the authors negatively, as they were unable to accrue any financial benefits from their works. After the enactment of this statute, parties interested in publishing, distributing or otherwise exploiting a printed or unprinted work had to seek the permission of the author. The rights to print, reprint, distribute and other activities aimed at exploiting the works of the author were vested solely on the author¹⁹. The author could then willingly, and in accordance with the law, transfer these rights through a copyright agreement to other parties who wish to exploit their works²⁰.

Other countries, realizing the importance of shielding the authors from negative exploitation, adapted copyright laws fashioned after the Statute of Anne, with few alterations to fit the local situation. The aim was to motivate the authors to come up with more original works to stimulate learning in the society.

The UAE Copyright Laws

The UAE ratified what came to be referred to as the UAE Copyright Law in 2002, after the country has joined the World Trade Organization²¹. It is a requirement that after joining the World Trade Organization, a country has to sign the Trade Related Aspects of Intellectual Property Agreement (herein referred to as TRIPS agreement), a legislation that is aimed at regulating the circulation of intellectual property in the member countries²². The agreement requires that countries pass copyright laws to necessitate this.

The law passed by UAE to this end was referred to as “the Federal Law No. (7) of 2002 (UAE) Pertaining to Copyrights and Neighboring Rights (“UAE Copyright Law”)²³.

This law vests the print rights, reprint or otherwise exploit the works of an author in the country to the author. The authors can then transfer their copyright to other parties such as publishers and end users through a copyright agreement²⁴.

Summary of Copyright Laws

The copyright laws in UAE, USA and other countries aim at protecting the rights of the author or original creator to accrue benefits arising from exploitation of their original work.

In contemporary society, these laws are partially standardized in different countries, and majority of the countries in the world, if not all, have copyright laws in their law books. Several regional and international treaties have also shaped the copyright laws and subsequently copyright agreements in various countries around the world. This is for example the Berne Convention which will be analyzed later in this paper and the WIPO Copyright Treaty among others²⁵.

Some countries such as the UAE and USA recognize the fact that the authors and other original creators also have moral rights riding on their copyright laws. This is for example ethical considerations such as the requirement of having the author credited for their work when it is quoted elsewhere by another author²⁶. This also includes other rights that go beyond financial or economic rights of the author to their works.

Current State of Copyright Laws

Currently, the author’s copyright varies from one country to the other as far as their duration and length of time are concerned. Analysts are of the view that the length of copyright is dependent on several factors, such as the form of work that is copyrighted. For example, a music composition is different from a book. It also depends on whether the copyrighted material has been published or not, and whether the material is the work of an individual or a corporate entity²⁷.

In countries such as the UAE and USA, the default duration of copyright is usually the lifetime of the creator of the material plus several decades after their demise²⁸. The period, depending on the factors analyzed above, may extend to 50 or 70 years after the death of the author.

As already indicated in this paper, copyright gives the author the exclusive right to exploit their works and enjoy the attending benefits. The copyright law automatically grants the author two forms of rights as far as the exploitation of their work is concerned. The first is a positive right to “copy or exploit the copyrighted material”²⁹. Alternatively, the author can transfer these positive rights to other parties through a copyright agreement. The second set of rights is the negative right to stop another party from copying or exploiting their work without their permission. This right enables the author to seek legal redress if this happens.

It is noted that at the beginning of the copyright laws, the rights of the author were limited to copying of a book, or making translations or adaptations for public display. This is given the fact that print of paper was the sole format that almost all texts were published. With the various developments in the society such as ICT, these rights have been extended to include dramatizations, online distributions and such others³⁰.

Initially, copyright was only granted on books. However, this has been extended, especially with the revision of the laws in early 19^th century, to include other original works. This is for example maps, musical compositions, photos, paintings, sculptures among other original works. With the rise of ICT in the 20^th century, the laws were further revised to include works such as computer programs, audio and visual recordings among others³¹.

Section analysis

This section is going to provide an analysis of the various arguments that surround the issue of copyright agreement and the riding challenges and hurdles. This is together with the possible solutions for these challenges and hurdles. The first argument has to do with the fact that copyright agreement and copyright laws in general have undergone significant transformations over the years. These transformations have been, in part, efforts to counter the various challenges and limitations. The second argument addresses the issue of the comparable nature of copyright agreement and copyright laws in the United Arab Emirates and the United States of America.

The argument is that these two jurisdictions have experienced more or less similar challenges as far as these laws are concerned. The third argument will be a more or less combination of the two arguments above. This argument will identify the various challenges and limitations of copyright agreement and copyright laws in the two countries, as well as other similar jurisdictions. The aim will be to analyze the solutions that have been adopted by these countries to address the challenges, as well as trace the origins of those limitations and their impacts on various stakeholders in the industry.

General History of Copyright Laws

It is a fact beyond doubt that contemporary copyright laws have their origin in Europe during the early years of industrial revolution. Analysts are of the view that the drafters of these laws did not have the interests of the authors at heart initially³². This is contrary to popular belief to the effect that the governments were interested in taking care of the welfare of the authors and other original creators³³.

There are arguments that the introduction of the copyright laws was aimed at enabling the church, a very critical aspect of earlier European society, as well as the government, to regulate and control printing and publishing of literature in the society. This is especially so given the fact that the printing industry was firmly established in the society during the fifteenth and sixteenth centuries³⁴.

Before the establishment of printing press in Europe, the church and the state were able to control the distribution of materials in the country. This is given the fact that duplication of copies was laboriously carried out by scribes, who did it manually. The invention and use of press made it possible to reproduce a text fast and with ease. This in turn made it possible to circulate ideas and information in the society, a fact that raised concerns for the government and church³⁵.

On one hand, the church needed the rapid distribution of Christian literature, but at the same time needed to control the distribution of dissent ideas in the country. This sentiment was shared by the government. To counter this, the government introduced the copyright laws that ensured that the authors held the sole rights to reproduce and distribute their works. This way, the government could control dissent publications by denying dissenting authors their copyrights or tracing their works when such rights were granted³⁶.

The discourse above points to the fact that challenges and hurdles affecting copyright laws in various countries has a long history. The above case indicates that the authorities might have inserted clauses in the laws that were aimed at benefitting the authorities at the expense of the authors.

International Copyright Laws

The history of copyright agreements and copyright laws in general can also be traced through the international copyright laws. Some several treaties and conventions have shaped the current international copyright laws.

Berne Convention for the Protection of Literary and Artistic Works

This is an international copyright law that was first drafted in the year 1886³⁷. It is an international agreement that governs copyright agreements and other copyright laws in countries that are signatory to the law. It was established in a convention in Berne, Switzerland, and that is how it got its name³⁸.

The agreement was later to be renegotiated severally after the initial 1886 convention. This is for example in 1896, 1908, 1928, 1948, 1967 and 1971³⁹. The law requires that the member countries draft laws that protect the creators of original works in their country.

In articles 3-5 of the convention, the principle of national treatment is provided for⁴⁰. According to this principle, member state are required to provide their citizens copyrights that are similar to those they give to citizens from other member states. This means that there is no discrimination between citizens of one country and other member states as far as the provision of the copyright is concerned. The challenge here is that some countries are unable to negotiate with other nations for fair distribution of the copyright benefits. This means that a country may be arm twisted to provide original creators from other member states more rights than those received by their citizens in those countries⁴¹.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

This agreement came much later after the Berne Convention⁴². It is regarded as one of the most significant developments in international copyright laws during the 90s decade. This law was the result of the Uruguay Round of talks during the General Agreement on Tariffs and Trade (herein referred to as GATT) convention in the year 1994⁴³.

This piece of law has several provisions touching on copyright within and between the member countries. This agreement is one of the provisions that states wishing to join the World Trade Organization (herein referred to as WTO)⁴⁴. Member states to this organization are required to be signatories to this agreement and comply with all the provisions that are provided therein.

However, member states are exempted from the provisions of the moral rights clause, which is to be found in Article 9(1)⁴⁵. Article 10 of the convention provides that computer programs and databases within the member state should be bought under the auspices of the law.

This law was the first that introduced the issue of intellectual property law into the sphere of international trade, which is controlled by the World Trade Organization. Some of the challenges in the convention include the fact that the developing nations argued that they were exploited by the developed nations. The developing nations were arguing that the developed nations were interpreting the TRIPS agreement narrowly, exploiting the loopholes in the law.

This was resolved in 2001 when the developing nations initiated a round of talks, giving rise to the Doha Declaration⁴⁶. This declaration was a World Trade Organization statement that, among other things, clarifies the scope of the agreement. For example, it provides that the agreement needs to be interpreted within the context of the international goal of promoting access to medicines to all humanity⁴⁷.

Anti-Counterfeiting Trade Agreement

If it is ratified, this will be one of the most recent laws as far as copyright agreement is concerned. It is a proposed and tentative plurilateral trade agreement that is heralded as an effort to counter the proliferation of counterfeits and pirated copyright materials⁴⁸. The proponents of this act acknowledged the fact that the current copyright laws in the international arena were not sufficient to fight counterfeits and pirated materials, given the fact that such materials are in abundant supply in the market⁴⁹.

This law extends to cover the distribution of copyrighted materials through the internet and other information and communication platforms⁵⁰. This law can be seen as one of the strategies adopted by various nations to counter the various challenges and limitations riding on copyright agreements and copyright laws in general.

Copyright Agreement and Copyright Laws in UAE

As earlier indicated, the copyright law in the UAE is a fairly recent development. It was ratified after the country joined the World Trade Organization in 2002. As earlier stated in this paper, member states in World Trade Organization have to be signatories to the TRIPS agreement, which provides that the states have to establish copyright laws within their jurisdiction⁵¹. The UAE was reacting to this provision when the government adopted the UAE Copyright Law in 2002.

The UAE copyright law provides that the expression of the idea of an original creator has to be protected, as opposed to protecting the idea alone⁵². Expression may involve adaptation of the works, for example the adaptation of a book into a movie.

The fact that the UAE is a recent entrant in the copyright law stage means that several challenges were encountered as part of the legislation’s teething problems. One of them is the provision of the TRIPS agreement stating that member states have to treat local and foreign copyright holders equally. To this end, the UAE has been unable to effectively exploit the original and copyrighted works of foreign inventors and authors, making the process a very costly undertaking.

The Copyright Agreement and Copyright Laws in UAE are Comparable to those of the USA

Origins of Copyright Laws in UAE and USA

The origins of the laws in the two countries are more or less the same. Both jurisdictions have adopted international treaties and domesticated them, making them relevant to the local copyright structure.

Adoption of International Treaties

Both the United Arab Emirates and the United States of America have adopted international treaties and ratifications, making them part of their local legislature. A case in point is the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement. Given the fact that both of these nations are members of the World Trade Organization, they had to sign the agreement as part of the requirements to belong to the organization. This led to ratification of local copyright laws that ensured that the provisions of the TRIPS agreement are adhered to.

Both of the nations are also signatories to the Berne Convention. This and other factors point to the fact that the copyright laws in the two countries have a common origin.

This further is an indication of the fact that the challenges faced by copyright agreements and copyright laws in these countries are more or less similar, given the similar origin of the laws. For example, the limitations and exceptions clause of the Berne Convention and the TRIPS agreement affect authors and other original creators in both jurisdictions.

Operation of Copyright Laws in the Two Countries

The operation of the copyright laws in the two nations is also similar to some extent, just like in the case of the origin. For example, both jurisdictions contain the copyright law in their constitution. In other words, the copyright law is enshrined in these countries’ constitutions⁵³.

The impetus to adopt the copyright laws is also similar in these countries. For example, the drive was both to protect the interests of the individual authors and producers of other original works while at the same time ensuring that the government can control the publication and distribution of information by tracking the activities of the copyright holders. The governments in both countries realized the fact that it was important to encourage distribution of materials in their countries, but this has to be controlled to regulate the distribution of dissent materials.

However, the operations of the law in these two countries may be somewhat different in various fronts. For example, according to the provisions of the Berne Convention, the copyright of an original work is automatically granted to the author, meaning that ideally, no other activities such as registration are necessary to ensure that the author enjoys the rights. This is what happens in the United Arab Emirates. Authors and other creators are given the rights automatically. However, it is noted that the case is different in the United States of America. It is noted that statutory damages and other benefits such as attorney’s fees are enjoyed only by the authors and other creators who have registered their works⁵⁴. This is a significant point of departure between the USA jurisdiction and that of UAE.

Challenges to Copyright Laws

However, there are also differences when it comes to challenges that affect copyright laws and copyright agreements in these countries. For example, given the fact that the copyright laws in the UAE are fairly recent, most of the challenges can be defined as teething problems as earlier indicated. This is for example the inability of the country to bargain effectively with other countries to uphold the welfare of copyrights originating in UAE and operating in these other countries.

On the other hand, USA is a developed nation and as such, the legal structures and systems within which the copyright laws operate are fairly established. This being the case, the country can negotiate effectively with other nations, ensuring that USA copyright holders are not negatively exploited in other countries.

Limitations and Exceptions Clauses in Copyright Laws in UAE and USA

Notably, exclusive economic and financial rights that copyright holders enjoy throughout the world are subject to various limitations and exceptions under the laws⁵⁵. This provides that various uses of the copyrighted materials are permitted under the law without economic benefits accruing to the owner of the copyright.

Limitations and Exceptions in USA

The American copyright law, referred to as the US Copyright Agreement of 1976, does provide for limitations and exceptions as far as the copyright benefits of the original creator are concerned.

The limitations and exceptions clause is provided for in clause s 107 of the country’s copyright law⁵⁶. The clause provides for fair use of the copyrighted material in the country. According to this provision, fair use is not regarded as an infringement on the copyrighted material.

Limitations and Exceptions in UAE

Similarly, the copyright law in the United Arab Emirates has a clause on limitations and exceptions. This is provided for in article 22 of the law, and a total of eight exceptions are provided for here⁵⁷.

Some of the exceptions apply when an individual makes a sole copy of the copyrighted material for their personal use, without expected financial gain from the use. Another is the copying of the copyrighted material for legal proceedings, for example to make an exhibit or a piece of evidence in a legal proceeding.

Effects of these Exceptions and Limitations

The effects of these limitations and exceptions are not limited to the authors, but extend to other stakeholders in the industry. For example, the individual consumer can make a copy of the material for their personal use, ensuring that information and in extension knowledge in the society is made accessible to all members of the society.

However, there are negative impacts as far as the same provisions of the law are concerned. For example, individuals may make copies claiming that they are for personal use, only for them to use them for financial gains. In jurisdiction where the legal structure is not well established, the activities of such individuals may continue undetected for long, affecting the authors negatively.

Definition of Terms in Copyright Laws

It can be argued that the definition of terms in the copyright laws of both UAE and USA are comparable to some extent. This is a further indication of the fact that the origin of the laws might have been similar also.

Copyright Subject Matter

This is defined both in UAE and USA copyrights laws. For example, in article 2 of the UAE law, it is defined to cover literary productions such as books, computer programs drawings and paintings among others.

Copyright Law and the Author

The definition of an author is also similar in both jurisdictions. For example, in article 1 of the UAE law, an author is regarded as the person who creates the work that is subject to copyright⁵⁸.

Both jurisdictions also recognize the rights of an anonymous author or an author using a pseudonym. This is provided that the true identity of such authors is known. Where there are doubts regarding the true identity of the author, the copyright automatically reverts to the publisher or producer of the material⁵⁹.

Licensing and Transfer of Copyright

Both jurisdictions also allow for the transfer of copyright from the author to third parties. This is provided that the prerequisite legal requirements for such a copyright agreement are met.

Transfer of copyright is defined as the situation where the owner of the copyright cedes their rights to third parties through a copyright agreement. The third party, such as publishers, are allowed to reproduce and exploit the original works of the author, compensating the authors through royalties and such other material benefits as agreed⁶⁰.

Challenges and Hurdles in Copyright Agreement and Copyright Laws

Challenges and Hurdles from Within the Copyright Act

Legal Provisions

One challenge that has been identified severally in this paper has to do with the fact that the laws are formulated in such a way such that internal inconsistencies are inevitable. This is for example the desire of the laws to provide for the interests and welfare of the authors, then providing for limitations and exceptions clauses that can be exploited.

Duration of Copyright

Duration of copyrights is another challenge to these laws that emanates from within the laws. In most cases, the copyright extends to cover the life of the author and the several years after their death. This may work against the spirit of spread of information and knowledge that is the cornerstone of printing and publication of books and other materials. This is for example when the authors limit the circulation of their works deliberately. While they are within their rights to do this, it is notable that the information in their books may be so important to the intellectual and other developments in the society, which they limit by curtailing the distribution of their works. This is for example when a mathematician invents an ingenious formula that may help engineers in building structures that are disaster resistant.

Treatment of Foreign Copyright

According to various international treaties and statutes, nations are required to treat copyright owners from other countries as if they are their citizens. This means that there is no discrimination or prejudice in provision of copyright laws and benefits that ride with it.

This may mean that local copyright holders have to compete at par with their foreign counterparts, without favoritism from their government. This may work against the local copyright holders, especially if their works are inferior to those of their international competitors, or if they lack the financial muscle to further exploit their rights.

Challenges and Hurdles from Without the Laws

Rise of the Internet

The rise of the internet has brought about many challenges and hurdles for the copyright agreements and copyright laws in various countries. The internet has made it possible for consumers to access copyrighted materials online, without having to pay for them or seek the permission of the authors. This has led to an increase in piracy and other forms of infringements on copyrights.

Lack of Awareness

Another challenge has to do with the lack of awareness among the members of the public and the authors themselves. The members of the public may be ignorant of the copyright laws, and as such, may infringe on the copyright of authors without their knowledge. On the other hand, the authors may be ignorant of their rights under the copyright laws. Due to this, they may be unable to come up with copyright agreements with their publishers that will benefit them. The publishers may use this ignorance to exploit the authors.

Weak or Ineffective Legal Systems

The legal systems may be so weak or ineffective to the extent that they are unable to ensure that the copyright laws are adhered to. This makes it impossible for authors who feel that their copyright agreement has been violated to seek legal redress.

Addressing the Various Challenges and Hurdles

Reviewing the Copyright Laws

One strategy is to review the copyright laws in the country. For example, the government may review the limitations and exceptions clauses in the laws. The government may also create more provisions that ensure that the copyright is not infringed upon by new developments such as the rise of the internet⁶¹.

Strong Advocacy Bodies

The government and other stakeholders in the industry should ensure that the advocacy bodies fighting for the rights of the authors are robust and effective. These bodies can be strengthened by ensuring that authors have the freedom to join them. These bodies can petition the government to create legislations that upholds the rights of the authors, ensuring that the copyright agreements that are signed by the authors are respected by all parties⁶².

Creating Awareness

The members of the public who are the end consumers of copyrighted material should be made aware of the copyright laws so that they do not infringe on them knowingly. The same goes to the authors, who should be made aware of their rights under the law so that they can effectively bargain during the drafting of copyright agreements with third parties.

Section conclusion

Summary of Problem

The problem that was identified in this paper has to do with the fact that several challenges and hurdles afflict copyright laws and copyright agreements in various countries. These challenges include inbuilt deficiencies such as limitations and exceptions in the laws. These may be exploited by unscrupulous individuals in the society to the detriment of the copyright holders. Other challenges are from without the laws. These include weak legal systems, lack of awareness and the rise of internet among others.

Summary of Solution

Several possible solutions were identified for the problems identified above. These include review of the laws, strengthening of the legal structures and systems in the country as well as creation of awareness among the various stakeholders in the industry.

Discussion and Viability of Solution

Some of the problems identified for the challenges are viable, while some of them are themselves plagued by challenges. The creation of awareness is viable, given the fact that most of the challenges with copyright agreements emanate from lack of awareness among the various stakeholders. This may however be faced by challenges such as the lack of interest on the part of the members of the public.

The strengthening of the advocacy bodies may be a viable solution also. This is given the fact that a robust advocacy body will fight for the rights of the authors effectively. This may however be challenged by the lack of financial resources on the part of these bodies.

The review of the laws may be challenged and undermined by the governments, especially so given the fact that the government may wish to control the distribution and circulation of some materials in the society. As such, provisions such as the limitations and exceptions may remain in place without alteration, negatively affecting the welfare of the authors.

References

Abdulla Ali, Copyright and knowledge advancement: a case study on the UAE copyright law, Library Management, Vol. 29 Iss: 6/7, pp. 461-472.

Deazley Ronan, Rethinking copyright: history, theory, language. Edward Elgar Publishing, 2006.

Dowd J. Raymond, Copyright Litigation Handbook (1st ed. ed.). Thomson West, 2006.

Fitzgerald Brian, and Olwan Rami, Copyright law in the United Arab Emirates in the digital age, 2010. Web.

Hannibal Travis, Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law, Notre Dame Law Review, vol. 84, p. 384, 2008.

Helfer R. Laurence, Adjudicating copyright claims under the TRIPs agreement: The case for a European human rights analogy, Harvard International Law Journal, vol. 39. 358-439, 1998.

Hugh Jones and Christopher Benson, Publishing law, Routledge, 2002.

Kenneth L. Port, Licensing Intellectual Property in the Information Age (2nd ed.). Carolina Academic Press, 2005.

Lindsey Marc, Copyright Law on Campus. Washington State University Press, 2003.

Marcello S. Keller, Originality, Authenticity and Copyright, Sonus, VII(2007), no. 2, pp. 77–85.

Nimmer David, Copyright: Sacred Text, Technology, and the DMCA, Kluwer Law International, 2003.

Shipley E. David, Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works, UGA Legal Studies Research Paper No. 08-001; Journal of Intellectual Property Law, Vol. 15, No. 1, 2007.

Silverthorne Sean, Music Downloads: Pirates- or Customers? Harvard Business School Working Knowledge, 2004.

Footnotes

Hannibal Travis,Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law, Notre Dame Law Review, 2008.
Hannibal Travis, 2008.
Hannibal Travis, 2008.
Helfer R. Laurence, Adjudicating copyright claims under the TRIPs agreement: The case for a European human rights analogy, Harvard International Law Journal, vol. 39, 1998.
Fitzgerald Brian, and Olwan Rami, Copyright law in the United Arab Emirates in the digital age, 2010. Web.
Fitzgerald Brian and Olwan Rami, 2010.
Fitzgerald Brian and Olwan Rami, 2010.
Fitzgerald Brian and Olwan Rami, 2010.
Hannibal Travis, 2008
Fitzgerald Brian and Olwan Rami, 2010.
Fitzgerald Brian and Olwan Rami, 2010.
Fitzgerald Brian and Olwan Rami, 2010.
Tamimi Al, 1999.
Tamimi Al, 1999.
Tamimi Al, 1999.
Hannibal Travis, 2008.
Fitzgerald Brian and Olwan Rami, 2010.
Nimmer David, Copyright: Sacred Text, Technology, and the DMCA, Kluwer Law International, 2003.
Silverthorne Sean, Music Downloads: Pirates- or Customers? Harvard Business School Working Knowledge, 2004.
Silverthorne Sean, 2004.
Nimmer David, 2003.
Tamimi Al, 1999.
Shipley E. David, Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works, UGA Legal Studies Research Paper No. 08-001; Journal of Intellectual Property Law, Vol. 15, No. 1, 2007.
Nimmer David, 2003.
Dowd J. Raymond, Copyright Litigation Handbook (1st ed. ed.). Thomson West, 2006.
Abdulla Ali, Copyright and knowledge advancement: a case study on the UAE copyright law, Library Management, Vol. 29 Iss: 6/7, 2008.
Deazley Ronan, Rethinking copyright: history, theory, language. Edward Elgar Publishing, 2006.
Deazley Ronan, 2006.
Dowd J. Raymond, 2006.
Nimmer David, 2003.
Rosen Ronald, 2008.
Shipley E. David, 2007.
Abdulla Ali, 2008.
Rosen Ronald, 2008.
Hannibal Travis, 2008
Rosen Ronald, 2008.
Hugh Jones and Christopher Benson, Publishing law, Routledge, 2002.
Hugh Jones and Christopher Benson, 2002.
Lindsey Marc, Copyright Law on Campus. Washington State University Press, 2003.
Kenneth L. Port, Licensing Intellectual Property in the Information Age (2nd ed.). Carolina Academic Press, 2005.
Kenneth L. Port, 2005.
Marcello S. Keller, Originality, Authenticity and Copyright, Sonus, VII (2007), no. 2.
Marcello S. Keller, 2007.
Lindsey Marc, 2003.
Nimmer David, 2003.
Marcello S. Keller, 2007.
Rosen Ronald, 2008.
Fitzgerald Brian and Olwan Rami, 2010.
Nimmer David, 2003.
Fitzgerald Brian and Olwan Rami, 2010.
Marcello S. Keller, 2007.
Rosen Ronald, 2008.
Fitzgerald Brian and Olwan Rami, 2010.
Rosen Ronald, 2008.
Marcello S. Keller, 2007.
Fitzgerald Brian and Olwan Rami, 2010.
Rosen Ronald, 2008.
Marcello S. Keller, 2007.
Fitzgerald Brian and Olwan Rami, 2010.
Fitzgerald Brian and Olwan Rami, 2010.

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