La propriété littéraire et artistique : Commentaire de la loi libanaise du 3 avril 1999

Under Section 1 : The object of protection

We will initially study the object of protection as defined by the French code and the Lebanese law (A) then we will wonder whether this object is identical in spite of the terminological difference, and this, by analyzing some the criteria (B).

The definition has 

1. Considering the influence which in general has the French right on the Lebanese right but more especially in the particular case of the author's copyrights and artistic it is useful to compare the articles of the French code and the Lebanese law. At first sight these two rights strongly resemble each other. Indeed, article 2 of the Lebanese law and the L112-1 article of the code of intellectual property (CPI) French seem to define the works protected or the object from protection by the delimitation of their applicability, a field to tell the truth rather broad bus holds appropriation account of the work (goal of functional utility or simply esthetic proof is the software are protected) neither of its merit, neither of its importance (the judge does not have to carry value judgment) nor of its mode and its form of expression (the Lebanese right enumerates here limitativement and awkwardly the forms which can take protected works ; inter alia are quoted the software and computer programs in article 2 of the Lebanese law. Those are subjected to the common right of the author's copyrights and artistic).

The applicability thus seems quite wide. Work, it even, is not defined in the article first of the law of 1999, an article which however includes/understands more ..... definitions and whose object even is to define the basic concepts of the law !

But the French right does not only employ this term (work) with him, preferred the expression « work of the spirit » ; the Lebanese right chose that of « intellectual creation » or at least thus one translated ÇäÊÇÌ ÇáÚÞá ÇáÈÔÑí ^5(*) These two expressions are to be defined

The doctrines^5(*) in France seem to have posed like equation  « intellectual creation + creation of form = work of the spirit ». That would mean it that the Lebanese right, which used only the term « intellectual creation » for designer the object of protection, does not require the creation of form ?

Still is necessary it to define the creation of form.

B- Criteria of protected work

Protected work must be a creation of form (1) original (2).

1) The existence of a creation of form

Let us define the form (A) in turn then creation (b)

a. The form

2. The first civil room of the French Supreme court of appeal, in its stop of October 17, 2000 defines the creation of form as being « the realization of the design of the author ». The ideas being of free course and not being able to be suitable, their effective matérialisation is a condition with their protection. Today, considering the financial weight of the research and the development, the question lends to controversies.

We previously put ourselves the question to know if, in Lebanon, the creation of form is required in spite of the restrictive use of the term « intellectual creation ». Actually matérialisation is the effective realization of the ideas is required by Al 5 of article 4 of the law of April 3, 1999.

B. Creation

3. It is not enough to have an idea and to materialize it, still it is necessary that this idea results from the activity of the author. The setting in light of preexistent things (archeology, the folklore.) is not a creation that it is in Lebanon or in France.

Let us note here that the folklore is quoted expressly by the Lebanese law in its article 4 as being not protected.

Creation is well a requirement in Lebanon, the use of the term « ibtikar » proves it (article 5).

Creation and the form are required ; the creation of form is a condition ; thus the work of the spirit and intellectual creation have the same significance.

It is then necessary to criticize the translation made by the international office of OMPI of ÇäÊÇÌ ÇáÚÞá ÇáÈÔÑí : « intellectual production » or quite simply « work of the spirit » would be more suitable terms. Professor Ibrahim Najjar, proposed the expression « creation of intellect and the human brain » ^6(*)

2) Originality of creation

4. Neither the French legislator nor Lebanese legislator N `posed, in way express, the originality like condition of protection of work.

Only the article L 112-4 of the French right A, actually, evoked and this, only for the titles.

Silence is as for him complete in Lebanese right but it is not doubt only L `originality is an implicit condition in the two French and Lebanese legal systems. Moreover the term « intellectual creation » employed in article 2 of the Lebanese law according to certain commentators some originalité7 would suppose(*). We notice, in all the cases, that the jurisprudence of the two countries mitigated the gap of the loi8(*).

The originality required is perceived differently according to countries'. The French right has a very traditional and traditional vision: the work is original which includes/understands the personal print of the author.

The countries of the copyright have a more objective vision : L is original `work which is not copied.

This objective design takes increasingly important proportions today with the advent of new technologies.

The French right itself would tend «die-to personalize » L `originality of work (Pachot Stop, Court of Suspension, have Plén. March 7 19869(*))

But this stop remained insulated ; the design personalist is always, of strength in France.

The Lebanese right, says one, is inspired at the same time by the French system and that of the copyright10(*) ; this law is a laboratory, a formidable example to study the coexistence between the royalty continental and the copyright, resulting from the countries of tradition of common law.

This double influence would have to encourage the Lebanese legislator with more clearness, there is a lack of legal safety here

- Which is the degree of originality required ?

« the originality is not the fact of being without origin, but of founding its own origin to some extent » (Michel Schneider)

The originality is not weighed, it is enough that it exists, (the judge does not have, let us recall it, to carry value judgment.) the Lebanese law protects the derived translations and works. They are regarded as original. They are not it, actually that « relatively ", bringing it « small more » which will make work a new creation. (The principle of translation must however be authorized by the author of the principal text) .La condition of originality is the same one for the software which does not have a specific mode of protection.

The law of 1999 has surely the merit to modernize the royalties but one can emit some criticize when the use of the term has « intellectual creations » and the textual absence of a clear concept of originality (in the field of the object of protection).

We will treat in our following part of the holders of protection.

Under Section 2 : Holders of protection

The Lebanese law chose the principle of the protection of the creator of work (A) but envisaged situations in which the holder of the right of protection would be a person other than the creator (B)

To it principle has

5. Article 5 of the law of April 3, 1999 lays out: « the person who created a literary or artistic work enjoys, of the only fact of the creation of the work of the absolute right of property on work and of the protection of her rights without any formality ».

It results from this article that the holder of the right of protection it is the creator of work. The courts Lebanese subordinate this protection to the condition of originality in the sense that work must be the fruit of a personal effort of creation, carries the personal influence of the author.

The author is in theory and except contrary proof, the person whose name east indicates on the work in the usual way, no additional formality is required.

This rule is envisaged has article 11 of the law, the article thus envisages a presumption of property in favor of the author whose name is registered on work, this presumption being simple it admits the contrary proof.

That is- it anonymous works or pseudonyms, in theory the quality of author belongs to the person or entity which published them except if the true identity of the author is revealed, it will fully return to him to enjoy its rights. (Article 10)

The identification of the author is not always thing easy sometimes complex situations prove more delicate.

B- Application has complex situations 

The determination of the creator of work is more difficult on two assumptions the first being that of paid (1) and the second that of works of collaborations or co-operation (2)

1- The work created by an employee 

6. Being the works created by one pays under the terms of a contract of employment and in the framework of the performance of its duties, the employer, person or entity is considered titular royalties envisaged by article 15 has less than one contrary agreement in writing.

This rule thus constitutes a true exception to the principle of the protection of the creator of work.

This article 8 thus leaves the possibility to the creative employee of work of concluding a convention with the employer under the terms of whom it keeps the property of work and thus the protection of his right.

The Lebanese legislator thus adopted the principle of the automatic devolution to the employer of the works created by pay and this contrary to the French right which considers that the existence or the concluding of a contract for services or of service by the author of a work of the spirit does not carry any exemption from the pleasure of the recognized right.

This rule posed by the Lebanese legislator seems unjust to us because it is pays it which took the initiative and it is him which spent time for realizes without any merit on behalf of the employer and yet it is the latter which profits from protection.

2- The work of co-operation 

7. The legislator defined this work in the first part of the law devoted to the definitions : « it is about a work to creation of which contributed more than one person, provided that she is not a collective work »

The Lebanese law distinguishes between two assumptions to determine the holders of the right of protection :

- Works in which the contributions of each various participant is based as a whole without it not being possible to allot has each one its share in creation of work, in this case all the joint authors are considered as creators has equality.

- Works where it is possible to identify the contribution of each one or its contribution, in this case, each joint author will be considered as independent creative artist of the part of the work to which it contributed.

On the first assumption the joint authors jointly hold the rights of on work, whereas on the second assumption each one is regarded as the single author of his contribution (article 6)

Article 6 adds that none the joint authors of a work of collaboration or co-operation can exert its royalties without the assent of the others, this except contrary agreement in writing.

C- Exception : Collective work 

8. Collective work was defined in the introductory chapter as being «  a work in which took part more than one individual on the initiative and under the coordination of the person or entity who took the responsibility to publish it of in her proper name «

Thus the holder of the royalty it is the person or entity who took the initiative to create it and which directed its realization and not all the people who took part in this creation.

Section 2 : Effects of protection

Protection being granted by the law to its holder remains to be seen which are its effects.

The law grants to the holder protection rights (under section 1) and allows him to exploit them (under section 2). However very reached with these rights protected by the law is subjected to serious sanctions (under section 3).

Under Section 1 : Lines granted to the authors

The rights granted to the author of literary or artistic work are patrimonial or moral.
However a difference in approach on this level can be raised between the legislators Lebanese and French, the first starting with the description of the patrimonial rights and the second by that of the moral right. From where two paragraphs, moral right (paragraphe1) and patrimonial right (paragraphe2).

Paragraph 1 : Moral right

9. We will develop the moral right under two axes: the characters (A) and the contents (B) of the moral right.


A- Characters of the moral right

These characters are quoted in article 22 of the law of April 3, 1999. The moral right is personal, perpetual, inalienable, imperceptible.

1- personal character

10. This right this distigue of the patrimonial right in what it is related to the person of the author and is regarded as a personal right what explains why its author cannot transmit it between sharp.

2- perpetual character

11. Article 53 of the law of 1999 lays out that the moral right is imprescriptible: nonthe use does not make it obsolete and it survives the death of its author .Cet article reveals the intention of the legislator to determine the modes of transmission of this right to the thirds, thus it refused the transmission of this right between sharp. In other words, it prohibited as example the sale and the lease. But it allowed the transmission because of died by successional way, thus joining article 22.
This is explained by the fact that the heir supplements the personality of his author after his death, it is with him that the rights and obligations of the latter are transmitted, among which figure the moral right.
Let us note that the jurisdictions decide that the respect of the moral right is between the hands of the heirs or legatees not a right but a duty, in short, these jurisdictions instituerent having them rights natural guards of the memory of the late one.


3- inalienable character

12. Being personal, this right east is inalienable, inalienable.

4- imperceptible character

13. Since the moral right is inalienable and perpetual and that it remains always related to the person of its author, it is normal that it is imperceptible.
Since the seizures finish by the sale of the good to the biddings in the event of nonthe payment of the debt, it is normal that the moral right is imperceptible because inalienable and cannot be sold.
Let us announce that the seizure cannot relate to the moral right as such but on the other hand can relate to the material effects rising from this right, on same work it more concretely.
An analogy as for the characters of the moral right can be raised by bringing closer the French and Lebanese provisions. In fact the article L 121-1 codes intellectual property French lays out: the author enjoys the right to the respect of his name, his quality and his work. This right is attached to its person. It is perpetual, inalienable and imprescriptible. It transmissible because of died to the heirs to the author. The exercise can be conferred on a third under the terms of testamentary provisions.

B it contained of the moral right

Given article the 21 moral rights allotted to the author and in particular the right to reveal work and to decide on its mode of disclosure, to assert the paternity of work and to require that its name be on all the specimens each time work is used in public, to use a pseudonym or to remain anonymous, to be opposed has any slandering, mutilation, deterioration or modification of the work which carries reached to its honor or its reputation or its fame or its literary or scientific artistic situation and to terminate contracts of transfer of its patrimonial rights even after their publication if this cancellation is necessary to the ends of protection of its personality and its reputation or following a change of its opinions or circumstances with the proviso of compensating the thirds for the damage resulting from this cancellation.
These rights represent the 4 prerogatives of the moral right which are: the right of disclosure (1), the right to paternity of work (2), the right to the respect of the integrity of work (3), and the right of withdrawal of work still say right of repentance (4).

1 it right of disclosure

14. This right is granted by subparagraph 1 of article 21.
It consists of the publication of work and the handing-over of a sufficient number of specimens to the public. The author has only the right to reveal his work, it decides principle of the divulguation, in the same way it can not reveal it. EC right, one deduces impossibility of forcing the author to carry out a contract of order, it is with him that returns the possibility of deciding methods of the divulguation, and if this disclosure is in its interest or not.
Any attempt at divulguation of work without the acceptance of the author is prohibited.
In the case of withdrawal of work by its author, it is interdict with the thirds of the redivulguer without the acceptance of this last.
It is after the divulguation that are born the patrimonial rights of the author like the exploitation, the modification, the sale....work.
In the case of does the death of the author before the divulguation of his work, raise the question to know if the heirs have the right to reveal it in its place?

In theory, the heirs supplement the personality of their author, but in this case they are obliged to reveal initial work without modification, if not they should specify in an unambiguous clear way the modifications operated with revealed work since they have the obligation to respect the integrity of work as natural guards of the memory of the late one.
The author cannot yield the patrimonial rights rising from his work before his divulguation because this right returns to him to him alone in the sense that the assignee cannot exert it and could not thus benefit from the patrimonial rights.
One to pourrair in this case to continue the author for abuse omission to use the right of divulguation but in exceptionally rare cases since vis-a-vis such a prerogative so closely attached to the author, the right of divulguation must be only exceptionally declared abusive in its exercise.

2- right to paternity

15. Article 21 of the law n? 75 of April 3, 1999 enacted that : «  The author enjoys the moral right and in particular the right:

- to assert the paternity of work and to require that its name be mentioned on all the specimens of work each time work is used in public ; 

- to use a pseudonym or to remain anonymous... »

On the other hand, the L.121-1 article of the French C.P.I. lays out that « the author enjoys the right to the respect of his name, of his quality... » ; it is acted in fact of the right to paternity of work, so that work is published under the name of the author .

In fact, the right to the name and paternity is the right for the author to make recognize work as being of him and consequently to require that the mention of its name be reproduced on work or is automatically associated this one.

It is thus necessary to note, that the mention of the name of the author on work is very important, even paramount because it makes it possible to constitute this moral bond between the author and the public.

The right to the name and paternity exists always even if work does not enjoy the protection given to the author for the inexistence of the condition of innovation.

Indeed, the inexistence of the name of the author on his works can cause damage subjected to a repair of damage.

In addition, the royalty to the paternity of his work is characterized by a character intellectual and moral and differs itself from the patrimonial rights.

But what of the nature of the right to paternity happenhappens ? Which are these characteristics ?

Moreover, which is the extent of the right to paternity ? The right to the respect of the name is a right or on the contrary an obligation ?

While answering this series of questions we initially will approach the nature of right to paternity (I) in order to be able to determine in a second place the extent of this right (II).

I- The nature of the right to paternity 

16. The right to paternity of the author is related to the personality of the author, it is regarded as a right of the personality.

However, the very moral right to paternity as is characterized by the following characteristics :

1- The right to paternity is a perpetual right : in other words, it is not limited by time but it remains even after the extinction of the patrimonial right. The moral right could be exerted, as a long time as work survives in the memory of the men.

2- The right to paternity is unchangeable (inalienable) : article 22 enacted that the moral right is inalienable, i.e. it should not be yielded to another person.

3- The right to paternity is imperceptible. 

4- The right to paternity is imprescriptible :

The author can require to mention his name on his work and the new copies even after years of the date of constitution of work, and despite everything transfer of the author of his right to paternity, that it be contractual or tacit.

5- The right to paternity is a discrétionnaire right : it is intended to highlight the discrétionnaire character of the author, it is thus only qualified to decide if and according to which methods its work is subjected to the curiosity of the public and the arrows of criticism.

As let us announce, as there is an influence of the right to the name on the patrimonial rights.

Article 52 enacted « that the protection of the patrimonial rights on an anonymous work or pseudonym published lasts 50 years as from the end of the year of the first legal publication of work ».

Consequently, by allotting mensongèrement the paternity of a work, one causes a moral wrong with the true author, bus « if the name of the author is revealed before the expiry of the 50 years above-mentioned period, the provisions of article 49 of this law apply » and according to article 49, « the protection of the patrimonial rights lasts all the life of the author and 50 years as from the end of the year of the death of the author ».

In other words, by making the decision of disclosure, the author introduces his work into the sphere of the economic values.

In French right, when the pseudonym or the anonymity is preserved, the article L.123-3 C.P.I. lays down a mode of special calculation of the patrimonial rights, which is common to collective works besides, the duration of the exclusive rights is fifty years as from the beginning of January of the calendar year according to that of the publication, it is seventy years for the musical compositions.

In the final analysis, the nature of the right to paternity reinforces its coherence, but what happenhappens extent of this right ?

II extent of the right to paternity 

17. Article 21 of the law of April 3, 1999 and the article French L.121 C.P.I. specify the right to the respect of the name. However, it is about a right, it does not act to in no case of an obligation, the author who can, if it prefers it, choose anonymity or a pseudonym.

We will initially study the indication of the name of the author who is right a (A), to approach thereafter the indication of the name of the author who is not an obligation (B).

A- The indication of the name of the author is a right

18. The right for the author to proclaim his paternity with work is connected to the intellectual creation whose honor must flash back on the creator ; it is necessary for that that the public can know the spirit in which work germinated. This right is subdivided besides in right to the name and right with quality.

As for the right to the name, the editor, for example, will have to indicate the name and also the first name of the author, if this one wishes it, not only on the published works, but still on the advertizing documents. The name could not be replaced by an allusion.

As for the right to quality, it is the complement of the precedent, besides since the author can require that on the editions of its works its titles, ranks and distinctions be reproduced, the editor who can limit itself to the principal mentions if the enumeration were too bulky, and jurisprudence could proclaim that so only the purpose of the reputation of the author and not his quality was reached the L.121-1 article is not to defend this fame of the artist.

It is necessary to put aside the case where the name of the author is used to indicate the work of others ; there is then usurpation of name and the moral right in this case cannot be called upon to sanction such intrigues, because the moral right protects only the author through his works but it is not the case when there is usurpation.

As for conventions by which an author would give up prevailing himself of his name and his quality for the benefit of a third, their illiceity is obvious, because they run up against the principle of the inalienability of the moral right. Indeed, the author must preserve the right to constantly reveal his paternity of a work : abdicatives conventions of the right to the name thus would be stripped of very carried, being able to see their effect cancelled by the unilateral will of the author.

In Lebanese right, article 21 subparagraph 3 lays down:

- «Right to use a pseudonym or to remain anonymous ».

It is noted whereas the author enjoys certainly the right to respect his name and his quality. Actually, this seems normal because this royalty is based at the base on the moral right, which in its turn sticks to the personality of the man, indeed, this last A the choice enters :

1- The revelation of its name which will be the object of protection.

2- The use of a pseudonym.

3- Or to remain anonymous.

As in French right, the Lebanese right expects that the indication of the name of the author is a right and not an obligation, it is the right of the revelation of the name.

The author has the right to reveal his name with the public, in exchange, the public must respect the name of the author and his quality.

The adoption of this principle is old, it returns in article 145 of the decree n? 2835 of January 17, 1924.

Remain to mention, the respect of the name of work : it is necessary to reveal this name on a copy released with the public in a determined place, in more one should not put any signal at the place of this name.

The designation of the name and the quality of the author has as an importance to inform the public of the psychological bases which led to the invention of work, that gives a capacity and a value distinguished to work.

However, if the indication of the name of the author is a right, it is not an obligation. We will explain how this is concretized.

B- The indication of the name of the author is not an obligation

19. The author can prefer to leave his work in anonymity (b) or to publish it under a pseudonym (A) ; this choice does not imply that it gives up its royalties in their double form, moral right and pecuniary right, but it will be represented in the exercise of its rights.

The article L.113-6 C.P.I. enacts that « the authors of works pseudonyms or anonymities enjoy on those the rights recognized by the article 1st; they are represented in the exercise of its rights by the editor or the originating publicator as long as they will not have made known their civil identity and will have justified their quality », from where the possibility for the author of giving up anonymity or the pseudonym (c). We see that the representative could thus be an editor but also a publicator.

a- The use of a pseudonym

20. The pseudonym adopted by the author and who does not leave any doubt about his civil identity, submits with his author the right to require his respect as if it were his true name.

For what refers to this, the French legislator considered a very particular case, that where the pseudonym would be at such transparent point that the public could not mistake and recognizes necessarily the author. According to the article L.113-6 C.P.I., the provisions of subparagraphs 2 and 3 cannot be applied ; it is the return to the common right which will be essential as if the author had published work under his identity. The special provisions will not be maintained if « the pseudonym adopted by the author does not leave any doubt about its civil identity ».

Indeed, article 52 of the Lebanese law of April 3, 1999 specified that « if the pseudonym used does not leave any doubt about the identity of the author or if the name of the author, is revealed before the 50 years above-mentioned period, the provisions of article 49 of this law apply «.

It is necessary whereas the pseudonym identifies or reveals the author clearly in order to produce effects equivalent to those of the proper name.

b- The anonymity of the author.

21. It may be that the author does not assert to mention his name, and that it does not sign his literary or artistic work, he then publishes his work in anonymity.

In this same field, article 10 of the law of 1999 provided that « is a famous author of an anonymous work or a work pseudonym the person or entity who published work. When the author reveals his identity, it can take advantage of its rights ». This article proves that the author who remains anonymous, guard always his whole rights on its work, even if it appears after the publication it can always exert these rights with regard to the thirds. However, before the publication, the law considers that the author is that which published work, for goal to facilitate the communication with the thirds. After having examined the effects of the anonymous publication, it is useful to see the effects which stick to the lifting of anonymity.

C Lifting of anonymity or withdrawal of the pseudonym.

22. The decision of the author is not necessarily final and the case should be conceived where its refusal to uncover itself would be temporary. The representation is not expected that as long as the author will not have made known his civil identity, it will do it, on the most frequent assumption, by a declaration of alive sound. But it was allowed that the declaration can be raised only postmortem.

The project of the French intellectual property (juill.1947) envisaged a procedure under the terms of which the statement of identity was to be made with the seat of the professional organizations interested authors and editors. Inopportunely, this useful provision was removed without the reasons of its disappearance being explained.

In the event of litigation, the judges will have to thus seek if the assignee were or not in good faith, ignoramus or knowing the decision of the author to reveal his paternity on work.

The lifting of anonymity or the pseudonym will affect the duration of the patrimonial rights. Under L.123-3 article, « with regard to anonymous works or pseudonyms, if the authors make known themselves, the duration of the right of the exploitation is that related with the category of work considered and the period of legal protection starts to run under the conditions envisaged to the L.123-1 article ».

Legal protection already started to run, this sentence means that one returns to the time of the common right, that is to say a protection during the life of the author and fifty years after his death for the benefit of its having rights, while recalling that it is seventy years for the musical compositions.

In the final analysis, the name is a property which can be the subject of various exploitations, in particular as a corporate name or a mark, it can be yielded to thirds subject to payment or free. No one cannot, so to use the name of a third at commercial purposes, and the use by an author of the name of an existing person, or having existed, to name one of its characters can be reprehensible, since it is likely to harm the person considered.

3- Right to the respect of the integrity of work

23. The right to the respect of the integrity of work, being one of the moral rights, was devoted to article 21 of this law.

Indeed, according to this article, the author enjoys the right « to be opposed to any deformation, mutilation, deterioration or modification of the work which carries reached to its honor or its reputation, or its fame or its artistic situation, literary or scientific... »

This right is also recognized to the artist-interpreters (article 44 of the law of 1999). « The artist interprets or executant enjoys, his life during,... of the right to be opposed to any deformation or modification of his service... » 

The question of attack to the integrity of work is an issue of fact appreciated by the courts dealing with the substance of a case, in an absolute way.

Jurisprudence considers that it reached there with the integrity of work in the following cases :

- When there is an objective attack with the integrity of work i.e. a deformation or a material modification of work without the authorization of the author.

- When it reached there subjective i.e. any adaptation which does not take into account the principal idea on which puts back work^5(*).

According to Mr. Edouard Eid^6(*), the two designs, objective and subjective, merge. The material modification which does not relate not reached to the principal idea to which puts back work cannot be sufficient to see there an attack with the integrity of work.

The modification as such does not constitute automatically an infringement of the moral right.

With regard to the logo, for example, it is impossible that there is a material attack with the integrity of work since, by nature, it is anonymous and its modification cannot in no case to attack the honor, to the reputation or with re-elected of the author.

The moral right cannot also constitute an obstacle with the use of the right of adaptation which is a patrimonial right.

However the courts consider that any modification is summarized in an infringement of the moral right of the author.

Thus, the right to the respect of the integrity of work is opposed to any deterioration or modification of this one, some is the importance but that subject to the limits which can bring to the moral right of the author, the nature of the conventions concluded by him about its work (Case Fr, 1ère 17/12/1991, Bull.N.360).

In this direction, any clause of the contract of edition by which the author would leave by advance with the editor any freedom to modify its manuscript is null, because it is exclusively with the author that returns the right to bring there, if it estimates useful, any addition or modification.

This right gives to the author faculty to take care, after the disclosure of its work to the public, so that its work is not denatured or is not mutilated.

In the event of violation of the moral right of the author to the respect of the integrity of its work, it will be able to seize the court which will sanction the attack.

Thus was regarded as infringement of the moral right of the author the update of a work without the authorization of the author, in the same way the publication of a work whose editor removed passages^7(*).

It should be noted that according to article 15 of the law of 1999 the holder of the royalty enjoys the exclusive right to authorize or prohibit the translation in a foreign language, the adaptation, the modification, the transformation, the reduction or the rehandling of work, like any arrangement of musical work.

In certain cases the holder is not necessarily the author (articles 7 and 8 of the law of 1999).

According to article 7 holder of the royalty is famous on a collective work the person or entity who took the initiative of the creation of the work and which in supervised the realization. And according to article 8 the employer is famous holder of the royalty on the works created by individuals in the exercise of their functions and their profession within the framework of a contract of employment concluded with a person or entity. It is the employer who is entitled to exert the rights aimed to article 15.

In this case one wonders how the holder of the right will exert his right whereas the attack is made with the honor or the reputation or the fame or the artistic situation, literary or scientist of the author of work.

In certain cases French jurisprudence accepts that it is carried reached with this right.

It is the case where it is about a collective work, then that which is responsible for the edition of work can make certain modifications and that with a single aim of the improvement of work.

But we can say that they are rare exceptions and that if the editor wants to make certain modifications, he must take beforehand the agreement of the author of work.

It is considered that this solution is transposable in Lebanese right.

4- Right of repentance or withdrawal

24. This right is a moral right which is allocated to the author and who can be called upon only in the event of transfer of the patrimonial rights to a third. Indeed, article 21 of the law on the author's copyright and artistic, following the example, of the French right makes it possible the author «to terminate the contracts of transfer of the patrimonial rights even after their publication, if this cancellation is necessary to the ends of protection of its personality and its reputation or following a change of its opinions or circumstances, with the proviso of compensating the thirds for the damage resulting from this cancellation ».

Thus, if one interprets article 21 literally one could consider that the author will be able to withdraw his work only in the condition which its publication carries reached to its honor.

But the legislator while recognizing with the author the right of repentance did not want to frame it under this condition ; and this interpretation is not true.

Indeed, the author can withdraw his work without this condition not being necessarily met.

This right of repentance or withdrawal is summarized in the right which belongs to the author, when his work is published, to reconsider his decision, therefore to stop its diffusion.

The stop of the diffusion is done here by the cancellation of the contract of transfer of the patrimonial rights. The author cannot withdraw the copies between the hands of that which has them in a legal way.

This right is imprescriptible and depends only on the inspiration of the author himself, without requiring another condition. He is essentially attached to his person. He disappears with him and can be exerted by the heirs only if the latter act under the terms of the will explicitly expressed by the author, before his death, that part of its work either destroyed or is not published, and that because of the personal character of its right.

This right cannot be called upon for exclusively pecuniary reasons, if not one would be in the presence of an abuse right, because like straight, the right of repentance is framed within the limits of the good faith and the respect of the obligatory force of the contracts which exist between him and the thirds, and even while returning to the provisions of article 21, we notice that pecuniary reason the « » does not appear among the reasons for which the author can withdraw his work.

In any event, the author must compensate the person to whom it yielded her work of the losses really undergone by her (such as the not sold published books) and for the chances of missed profit.

This right can be also used if work is collective, but it must make good in this case the damage also undergone by the other authors of work. This right cannot be used with regard to the audio-visual interviews, and that because of the stipulation express relating to it appearing in the law of 1999.

Jurisprudence considers that the author whose work was inserted in another, composite, does not need to use this right.

When the author is not the holder of the royalties (article 7 and 8) one wonders whether one cannot conceive implementation a easier of this right.

C) Leaves the moral right after death of the author 

25. Art 53 of the law of 1999 of the author's copyright and artistic lays out : « The protection of the moral right of the author or the artist interprets or carrying out is not limited in time and is transmitted by way of testamentary or legal succession. »

With died of the author, his heirs are invested of a moral right. The moral right having for mission of protecting the personality from the author, it will be a function which the latter will have to exert in the respect of the wills expressed by the author of alive sound. Thus, the heirs are not presented any more like the continuators of the person of late, but well in the form of natural guards of its memory. The exercise of this moral right must be dictated by the concern of respecting the will of the author before serving their own interests.

The holder of the royalty enjoys not only one moral right on his work but also patrimonial rights. These 2 elements of the royalty coexist since the birth of the pecuniary right and for all its length of time. After which the moral right only remains as long as work exists.

In its article 21, the law of 1999 of the author's copyright and artistic A defines the various aspects of the moral rights that the holder of the royalty can have on work. The author can decide if its work must be revealed and in which form. He has the right to require to be recognized as author of work that he create, and to also require the respect of this work while being opposed to any deformation, multiplication or other modifications of this one like with any act or very reached devaluing work or prejudicial with the reputation of the author. Lastly, it can withdraw its work commercial while renonçant with the contracts of transfer or exploitation of its patrimonial rights even after publication.

Article 22 of the same law comes to specify that one cannot have these moral rights (aimed to the preceding article), that they are imperceptible, and that they are only transmissible by testamentary way or way of succession.

The death of the author does not transmit intact the moral right. Indeed, the right of withdrawal and repentance is excluded : indeed, one could not grant, with the heirs to the author, the expression of a remorse that this last did not exert of alive sound. The right of repentance, first element of the moral right, is imprescriptible and depends only on the inspiration of the author himself. He is essentially attached to the person of the author, disappears with him and can be to exert by the heirs only if the latter act under the terms of the will explicitly expressed by the author before his death, that part of its work either destroyed or is not published.

26. With regard to the duration of the moral right, art 53 of the same law speaks about a right not limited, whereas art L. 121-1 of the code of the intellectual property said that it is a perpetual right. In spite of the difference of the terms used, the object of the Lebanese legislator also went in the direction of a perpetual right which always lasts, indefinitely. What is not limited in time, leads to an eternity and thus to a perpetuity.

We saw that the right of withdrawal and repentance disappeared with the author, except precise instructions of the late one, whereas the right of disclosure, if it is certainly transmissible to the heirs and to sole legatees, was not defined like perpetual by the law. Art 53 of the law of 1999 does not give any precision on which right carries protection unlimited in time, but adds that it is transmitted by way of testamentary or legal succession. One can thus show contrario that the rights which are transmitted by way of succession are perpetual.

The nature and the characters of the moral right change after the death of the author. There is a change of finality, because the interests concerned are not any more the same ones. This phenomenon is logical, since the person to which this right is attached disappears. The legal fiction of the continuation of the person of the deceased person by his successors is not enough to fight the reality of death. It is here that one realizes at which point work is the reflection of the personality of the author, that this good is eminently personal with his creator.

According to the theory of the rights of the personality, this one already makes it possible to ensure the memory protection of the late one. It founded on the fact that work survives itself its author, while remaining is marked print of its personality. Thus of simple right of the personality, it becomes duty to ensure the memory and the respect of the work of the late one. The successors should not use the moral right to their profit, but must put themselves at the service of the work of the late one. Consequently occasion, they will render service to the company by perpetuating an image of work faithful to its author.

The Lebanese law of 1999 on the author's copyright and artistic did not treat the successional devolution of the moral right whereas in French right this one was approached by the intellectual Code of the property which organized an order of devolution appreciably different from that founded by the Civil code.

In the absence of special text, the Lebanese common right is applicable. Being a right extrapatrimonial, the moral right is subjected to no reserve in the event of will. The autonomy of the will of the late author is total, it has the free choice of the person who is able to ensure the respect of her work. And if the late one did not write a will, and did not take any precision concerning its moral right, it transmits itself intestate to all its heirs.

After the death of the last successor, who becomes moral right ?

Under the terms of the principle which straight is likely abuse, which with quality to intervene with the protection of the moral right ?

Being a duty, the moral right of the author deserves a protection more accentuated much after its death than that reserved by the law of 1999 especially than the successional devolution is done in reference to the community.

Paragraph 2 : Patrimonial rights

These patrimonial laws are recognized in a chapter V of the law.

We go first of all, to carry out an analysis of the texts of the law (I), we will announce then the attacks in Lebanese right to these duly protected rights (II).

I- Analyze law 

We will see successively which are the characters of these rights (A), their contents (B) for then considering their fate after the death of their author (C).

A- Characters 

28. The holder of the royalty enjoys an absolute right of property.

It is what declares clearly article 5 of the law. This absolute character aims at allowing to the holder of right to be prevailed of its freehold and this constantly without need for achievement of any formality.

29. Then the author enjoys an exclusive right under the terms of article 15 . He is the only one with being able to exploit his work, to benefit from it. This exclusive right confers on its holder the right to prohibit or allow the reproduction, the impression, the recording or the fixing of work on a material support. It can also prohibit or allow any representation or public execution of work, any translation of work, any distribution, including the sale or the hiring, the importation of specimen of work manufactured abroad, and the public communication of work by any process.

30. The patrimonial rights are transferable, that rises from article 16 which regards the patrimonial rights as movable, entirely transmissible property or partially.

31. Like patrimonial straight, the royalty is a seizable right, it can be the subject of a seizure on behalf of the creditors of the author asserting their right of credit.

32. This right is also a temporary right i.e. it lasts all the life of the author plus 50 years after his death. This idea has its justification in the characteristic of these rights and this to give time to the authors to be known and so that one can develop their work.

33. Like patrimonial straight, this right is likely abuse in its exercise which can stress the bad faith of the author.

We in our developments will stress the contents of these rights.

B- contents 

Three prerogatives are conferred on the author by the patrimonial rights : reproduction right (1), right of representation (2) and right of continuation (3).

1) reproduction right 

The principle being that the author enjoys an exclusive right to the reproduction of his work (A), however this principle suffers from some exceptions (b).

a- the principle 

34. Article 15 gives to the holder royalty an exclusive right to authorize or prohibit the reproduction of work by some process that it is.

The article first of the law defines the reproduction as being the realization of one or more copies or specimens of a work, in some manner and in which form that it is.

The author can entrust to a third the right to reproduce his work by processes photographic, cinematographic, or by video cassettes.

In theory any individual is not authorized to reproduce work by some process that it is, and this without the authorization express of the author of work. This prohibition raises owing to the fact that artistic work is a work of spirit and it is inherent in the person of its author; very reached with this absolute right will have to be sanctioned. Is also added to it that the patrimonial rights conferred on the author under the terms of this law, aim at allowing the author of a work to draw all the pecuniary benefit from its works to be able to encourage the artists, painters and writers to generally reproduce artistic works which could be not only appreciated in their moral value but more especially to constitute a pecuniary resource for the author.

We can observe the precision which the legislator in the formulation of this right and his protection takes. Indeed the legislator provides a detailed enumeration of the various processes by which the exclusive right of the author can be blocked, we note for example that it enumerates in an exhaustive way the reproduction of work on a material support, « by any means » that it is by photographic or cinematographic process or even on phonographic supports or by video cassettes or CD-Rom, and the text adds « or by any other equivalent or similar process ».

From where the possibility for the judge by examining the infringement proceeding brought by the holder of the royalty, to carry out an examination allowing him to qualify very proceeded like bearing reached to this exclusive right, therefore a margin of freedom is left to the judge who thus has a sovereign capacity of appreciation.

However certain restrictions or exceptions are allowed by the law and this under the chapter VI heading « Exceptions ».

Let us study these various exceptions respectively :

b- exceptions 

According to Micheline Ferran^8(*), there exists in Lebanese right of the general exceptions (1) also appearing in French right, and of the exceptions specific, original (2).

1- General exceptions 

35. Article 23 makes it possible any individual to copy, record or reproduce a specimen of a work protected and this for a use personal and deprived without the assent or the authorization of the holder from the royalty and without him to pay remuneration.

The private use is not that which is used within a company or any other place of work.

However this exception does not play when it undermines the rights and interests of the author and this in the following cases :

- works published in very few specimens.

- When it is a question of photocopying or of copying a whole book or most of the book. We can wonder on the founded good of this provision and thus conclude that even for a private use the book could not be copied in entirety, and that a small part of the book can be used for a private use !! Would be the this thus principle of the whole copying of the book which is prohibited ? This is not the private use which makes copying, without the assent of the author, licit ? However in our opinion a book in entirety can be the subject of a private use and this last cannot be restricts with one only part of the book.

- When it is a question of transmitting or to record a data base.

- When it is a question of building completely or partially an architectural work.

- When it is a question of copying or of recording a software, except with regard to the person who acquired a license of use of the software.

Article 27 reserves a special place for the public libraries with nonlucrative goal which are authorized to reproduce or copy an additional specimen of work provided that they preserved the original, and this with an aim of exemplary conservation of the aforesaid in the event of deterioration of the original specimen.

2- Original exceptions 

Mrs. Ferran classifies these exceptions specific in three different contexts.

a- A particular exception concerning the software for the needs for teaching 

36. The educational establishments, as well as the universities and the public libraries with nonlucrative goal are authorized to reproduce any copy of a limited number of software, provided that these establishments are in possession of at least an original copy. (article 25 subparagraph 1)

This exemption which, one points out it does not require in our case any preliminary authorization of the holder of the protection, and which does not justify of no remuneration, can be however carried out only with a one exclusive aim that to place these copies at the free disposal of the students and academics.

A condition is as necessary for the implementation of such copies, as are fixed by emanating decree of the ministry for national education and the higher education, the process of reproduction, the categories of programs being able to be reproduced and numbers it authorized copies.

The student can carry out a single copy for his private use.

Thus derogating from the common right, such an exception allows the students and the etablissments of teaching to be able to have the software freely, so that the provisions of the new law do not block the accesses to the knowledge and information.

Mr. Charon^9(*) takes again the formulation of Mrs. Ferran while souligant that the law includes/understands « in filigree an outline of the right of the public to information », and that « this subject, more than significant in France, seems perfectly adnis in Lebanon ».

This exception was introduced according to Mrs. Ferran « in order to allow the educational establishments and their students to use the software more or less freely, the legislator having wanted to prevent that the provisions of the new law do not block the access to the knowledge and information ».

That is equivalent in fact to setting-up on the one hand, of a reproduction right « of office » at the establishments and universities and, in addition, of one « aimed » granted to the students to make a private copy.

According to Mr. Kamal Berti^10(*), such an exception constitutes an important obstacle with the absolute right of property which the law confers on the author of the software.

b- Exceptions having didactic objectives and of information :

37. A short quotation of a work already published does not require any preliminary authorization, if the quotation were made for ends of critical analysis, illustration, explanation of an opinion or scientific research.

Two conditions being necessary to implement this exception, first is that the borrowed quotation does not exceed the limits of the objectives, and second is that the name of the author and the source are mentioned. (article 25, subparagraph 2)

Article 26 fact of also escaping the preliminary authorization from the author any reproduction from article from newspapers or extract courts provided that these acts fall under a strictly teaching goal and in the limits from this goal, the other so necessary condition relating, that to the indication of the names of the author and the editor.

Article 30 lays down the use, by the bodies of information and for purposes of the report of an event of topicality, quotations of a work seen in the course of this event, in condition certainly that the author of work is mentioned.

The exposure of an artistic work in a museum is also authorized, provided that this museum is owner of the material support of work and that is not reached the legitimate interests of the author. (article 33)

Finally is authorized, by article 34, the reproduction of a work of art which is intended to be published in a catalog to facilitate the sale of work without damage to the interests of the author.

We note that the legislator Lebanese, anxious to protect the royalty from work, however keeps a place with the free and effective circulation of information which one especially finds in the media and teaching.

Although we criticize the classification of this exception within the framework of the original exceptions, Mrs. Ferran seems to have to classify these exceptions « who go beyond the exception of short quotation », within a specific framework which derogates, according to it, except general that for the short quotation.

c- Exceptions with a general aim 

38. In order to be used in the procedure judiciare and administrative, any reproduction and recording of work within the limits necessary to this use are authorized.

Under the terms of a decree of the Minister for the culture and higher education, are licit any reproduction, recording or copy of a audio-visual work which has a particular artistic value and this so that it is preserved at the files of the ministry.

2) Right of representation 

39. Article 15 confers to the holder royalty an exclusive right to prohibit or allow the communication of work the public, by wire or without wire, by hertzian or comparable way, by coded artificial satellite or not coded, including the retransmission with the public, by any means making it possible to transmit the sound and the image of television programme or broadcast ordinary or emitted starting from artificial satellites.

However this exclusive right is attenuated, and the legislator by article 32 sanctioned a right to the representation and the exposure of work to the public, without the authorization of the author and any remuneration, and this when these acts are carried out in official ceremonies, the framework of public demonstrations and the framework of the activities of the educational establishments to the use of the students and teachers but provided that public either restricted.

We must note that being an exception, it must be interpreted restrictivement, therefore one cannot add executives not envisaged by the law, these acts having to be exclusively realize within the above mentioned frameworks.

Let us note finally that the Lebanese legislator did not envisage an exception for the family representations, the absence of such an exception senble to be strange in a country where the family keeps a paramount place in the company.

3) The absenced' a right of continuation 

40. Contrary to the French right which provides that in the event of certain resales of the material support of certain works, the holder of the royalty will be able to touch a perception of 3% of the selling price to each transfer ; the Lebanese right does not envisage any provision conferring to the holder a right of continuation.

C- Fate of the patrimonial rights after death of the author

41. As one announced higher, these patrimonial rights last all the life of the author plus 50 years as from the end of the year of the death of the author.

We note that these rights are very protected by the legislator who once again tried to get for the author of work the most guarantees. Another interest is continued also by the legislator that, of the procuration of necessary time so that the authors are known and that their works are developed.

Although the Lebanese law provides the protection of the royalty, one however realizes obvious attacks with these rights.

II- Infringements of the royalties to Lebanon 

We will study first of all, the infringements of the patrimonial rights in their economic context to consider then, the first legal sanctions practiced by the Lebanese State.

A- Economic context 

42. The hacking and the counterfeit of the tools and the supports for diffusion of works increased considerably in Lebanese right. Thus and by a simple walk in the car on the Lebanese highways, we can find merchants of cassettes, discs, video, programs and software at ridiculous prices.

In an article, in the East the Day of April 8, 2005, Cegarra Mr. Jean-Jack notes that, according to International Intellectual Property Alliance, the industry of the counterfeit generated a loss of earnings of 31 million dollars for the manufacturers in Lebanon, this situation particularly reaches the manufacturers of software and the film producers even the producers of discs and books.

In October the 2004 United States threatens Lebanon to withdraw it list of the beneficiary countries of the system generalized preferably (GPS), it is a program conceived like a help for the countries in the process of development, and which authorizes the importation without customs duty of some 4800 products, this benefit for Lebanon increases each year, explains the American ambassador Jeffery Feltman.

However Lebanon is in signal 15 of the countries or these rights are violated, although a progress was made, with regard to the hacking of the data-processing software and CD, and which made it possible to reduce the rate of hacking of 94% A 74%.

A 6 months deadline is granted to Lebanon and this taking into consideration progress carried out, this file was examined for the first time by the American commercial authorities.

Urgent measures should be taken by the Lebanese authorities.

B- Legal sanctions 

43. In a first decision of its kind since the promulgation of the law on literary and artistic protection, the public ministry carries out the arrest of a computer engineer which had reproduced and installed software on computers and this, without authorization of the holder of right.

The engineer surprised in obvious offense by the central police force, in the place of his work with a quantity of software not laid off, was reproduced in an illicit way.

Another step was crossed by the Lebanese authorities in December 2004, the Criminal Investigation Department stated to have seized, in Beirut, of the thousands of DVD and pirated compact disks of a value of more than 2 million dollars, four people were stopped and must appear before justice for this hacking judged like offense.

Searchings in deposits and stores of Beirut where were films, DVD and compact disks of music, allowed the seizure of a loading of two trucks.

Under Section 2:Exploitation of the rights

44. Royalties being the whole of the moral advantages and financier allowing the creator to benefit from his work, to protect it and control the exploitations which are made by it. These two elements of the royalty coexist since creation of work and for all its length of time.

However only the patrimonial rights relate to the exclusive right of exploitation of work. In this approach of the question it should be evoked the structure whatever can strange chosen by the Lebanese legislator. The rules relating to the contracts of exploitation appear in a chapter entitled « rights of the holder of royalty », the Lebanese legislator in this chapter seems deliberately to confuse the moral rights and the patrimonial rights. Indeed since it do not distinguish them explicitly, that makes us believe that it for submission to submitting them to the same legal status and we can say of premium on board that like the patrimonial rights the moral rights can be the subject of exploitation. However this assertion must be directly contradicted and this because it comes to opposition to the nature even of the moral laws and the spirit of the law.

Thus this heading and this confusion should be analyzed only like one inappropriate awkwardness which with any incidence or significance.

Finally let us note that according to article 16, the patrimonial rights attached to work are subjected to the principle of transferability, these rights are transferable and temporary being given that they are related to the idea of property, i.e. the author while respecting the mode of protection establishes by the Lebanese law of 1999 can yield the property of it to a person or entity can matters that the transfer is on a purely free basis or subject to payment.

Article 17 adds that the transfer must be made in writing, and the article enumerates the mentions which the act must contain, the such rights which make the object of the contract, the place and the date of the signature of the contract, with the percentages with the receipts rising from the exploitation or from transfer of the rights, that the author must obtain. It should be noted that this written form is hardly required nullity, therefore we can conclude from it that the form is here required AD validitatem thus necessary for the validity of act and not AD probationem required for the simple proof.

What consolidates even more our idea is the fact, extremely known, that the form required for the validity is especially required to protect the part with the contract, in our case the holder of protection is the author of the act since as its name this law indicates it relates to it « protection of the author's copyrights and artistic ». Thus the law aims primarily the protection of the author, the form required being necessary to ensure this protection.

Article 18 prohibits the anticipated transfer, total of future work by regarding it as null. The justification of this provision lies in the fact of guaranteeing the freedom of creation of the author while preventing that this last is not dependant of « irremediable manner with an economic partner ». However we put ourselves the question to know if the law considers also the case of transfer partial of work, if so, why it did not speak about transfer very runs without precision ? The term « total » ready with ambiguity, and our opinion in fact future works cannot make the object of a transfer and not the character total or partial of the transfer which is prohibited. Any transfer, total or partial was it, is prohibited.

Thus this exploitation is subject to general rules (paragraph 1) and she knows particular applications (paragraph 2).

* ⁵ Lucas (A.), «  Author's copyright and artistic  », Dalloz 2nd ed.2002, p.10

* ⁶ Najjar (I), «  The regulation of the author's copyright and artistic and the patent rights  » In Chronicles of private law Lebanese 2001, p.293

* ⁷ Ferran (Mr.), «  The author's copyright and artistic  : Last developments in Lebanese right  » Publication of the CCI of Paris, ACCOMEX July/August 2002 p.58

* ⁸ «  the protection of works of the spirit also profits with the software in so far as they cover an originality reflecting the print of the personality of their author  », Court of Paris, 4th CH., February 4, 2004. in Annals of the Artistic and Literary Patent rights, 2004, p.117

* ⁹ Dalloz 1986, p.405, note of B. Edelman

* ¹⁰ Charon (CH.), «royalty Lebanese  : between copyright and design personalist  », in the Close East Legal Studies, p.5-6

* ⁵ TGI Paris, 11/5/1988

CA Paris, 20/2/1990, D.1990, p.72

TGI Paris, 27/11/1985, Gas Stake., 19862, synopsis 369

* ⁶ Edouard Eid: royalty and close right in Lebanese and right right of the Arab countries, edition Sader 2001 page 356 and suiv.

* ⁷ TGI Paris, 10/11/1971, D.1972 som.147

CA Paris, 7/6/1982, D.1983 IR 97

* ⁸ Extract: Micheline Ferran on the author's copyright and artistic  : last developments in Lebanese right. Accomex July/August 2002 No.46, p.9

* ⁹ Christophe Charon: royalty Lebanese: between copyright and design personalist. The close East, legal Studies, No.56, p.10

* ¹⁰ Kamal Berty: Outline of the new law on the royalty to Lebanon. Conference given to the University of Nantes 1999