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

Paragraph 1: General rules

According to a traditional distinction, one can observe, in the law of April 3, 1999, the rules of substance (A), and the rules of form (B) applicable to the contracts of exploitation of the royalty.

Has to them rules of substance

45. The contract relates according to article 15 to the reproduction right, of representation, communication to the public, translation, adaptation, transfer and distribution of work and on that of conceding in hiring, like on the right of importation of the copies of work manufactured abroad.

These patrimonial rights can be yielded freely to thirds, on a purely free or expensive basis. The law considers only the transfer (and not the loan), i.e. the final transmission of a right in rem. Sometimes however, because of the very broad faculties recognized with the author with the transfer of whole or part of its rights, according to the methods which it chooses, the prerogatives of the assignee tend to merge, de facto with those attached to a simple concession.

As in common right, the legislator requires for the validity of the contract, of the conditions relating to the person of the author : the assent and the capacity (1), and of the conditions relating to the contract as such : the object (2).

1-assent and capacity 

46. The assent and the capacity know, on the matter, some particularisms compared to the common right. In French right, and according to the L.132.7 article of the code of the intellectual property, the personal and written assent of the author is obligatory, even when the author is the subject of a legal protection measure for incapacity (safeguard of justice, trusteeship, supervision). This provision thus excludes the legal or conventional representation of the author by a third.

As for the Lebanese right, article 15 of the law of 99 lays out, « the contracts relating to the exploitation or the transfer of the patrimonial rights must that ; whatever is the object, being noted in writing between the contractors under penalty of nullity » .La literal reading of this text enables us to deduce a priori that the representation is not prohibited. However the expression « noted in writing between the contractors », can let understand that so that there is contract one needs the obligatory presence of the author and his agreement, that is essential even if this last is juridically unable. In this case, its tutor or his curator must give his agreement in accordance with the rules of the Code of the obligations and contracts.

Therefore, so much the Lebanese and French legislator founded a rather protective mode of the author and his exploited rights. After having treated assent and of capacity of the author, part to the contract, we will study thereafter contours of its object.

2-object 

Article 17 of the law puts contours of the object of the contract of transfer or exploitation ; the rights object of the act must be clearly quoted by the contractors (A), the exploitation must be limited in space (b), and time (c), the mode of remuneration of the author must be the proportionality (D), as any transfer of future work is struck of nullity (E), moreover, article 19 supplements article 17 by requiring a restrictive interpretation of the act (F), we will treat these aspects successively.

a- The act must contain in an exhaustive way the rights object of the contract 

47. The patrimonial rights of the author as one already saw are varied, it can exploit them or yield them in a partial way into total (article 16). If necessary, convention must mention the right or the rights object of the contract : the photographic or cinematographic representation or on tape or video disc, distribution, the communication of work or public by sale or hiring, or directly or indirectly by cassettes or films.

Therefore, it is necessary that the contract contains in an unambiguous way the rights object of convention to avoid any later litigation. For example, it will be clear that the contract relates to the reproduction and not the representation by considering them two distinct rights and it harmonizes some with article 19 of the law « the transfer by the author of the one of his rights is always limited to this only right ».

Thus, according to the known as article, we conclude that the clause inserted in the contracts of exploitation or transfer and who relates to the totality of the rights, « straight included/understood » , will be inoperative

B territorial limitation of the contract 

48. Practically, the transfer is authorized for the whole world, but the assignee can yield his right with restrictions relating to the territory (article 17). Thus, the exploitation of the royalty can be limited in a country or a given city. But, the majority of the current contracts stipulate that the exploitation of the royalties will be made on a world scale, it was considered that such a stipulation is valid especially that it contains necessarily the extent of the rights object of the contract.

It is necessary however to distinguish between total transfer and world transfer, because it will be always possible to limit the contract, as for the exploited rights and as for its duration. Note finally, that the Lebanese legislator did not envisage a geographical limitation which would replace a defect of such a mention in the contract, as it did in the absence of contractual temporary limitation. The author will be able to then face situations where its contracting would exploit its creation beyond the Lebanese territory, profiting with depends on the author of additional remunerations going against the forecasts of the parts in the contract, even against the approval of the author, thus an infringement of the moral rights of the author will come to be added to the attack of his patrimonial rights.

c- temporary limitation of the contract 

49. Article 17 requires a limitation in the time of the contract of exploitation or of transfer, failing this the contract will be famous being concluded for one duration 10 years as from the date from signature. By this 10 years limitation, the Lebanese legislator, avoided a polemic which knew the French right which did not treat a question. Thus, some considered that in the absence of such a limitation the contract will be limited by one duration similar to that of the royalty, others consider that a contract not limited in time will be without effect.

D fixing of the mode of remuneration of the author 

50. Article 17 of the law mentions that the contract must contain a clause relating to the participation of the author in term of percentage, with the receipts rising from the exploitation or from transfer of right. By this text, the legislator wanted to protect the author and to encourage it to take part in the success of his work. This mention is not limited to the contracts of edition but also applies to the contracts concerning the communication of work to the public. This rule aims at n the other hand protecting the author against a possible transfer from its rights of a ridiculous amount compared to the profit which the editor can make. The violation of this rule is sanctioned by the relative nullity which can be avoided by the confirmation of the author.

The article L. 131-4-1 of the French code also considers that the remuneration of the author is in theory proportional to the exploitation which will be made of its work, by exception to this principle, the law envisages cases expressly where the contractual remuneration of the author is possible.

E The nullity of the transfer supplements future works 

51. According to article 18, the complete transfer of future works is null and not avenue. The raison d'être of this principle is clear : the author who yields future works can be injured at the time of the later edition of work. This is frequent in the profanes who will accept all conditions offered by their contractors and for one unspecified duration, and which will découvreront after the harmful consequences their behaviors.

Therefore, the law came to fill this gap by considering the null contract, and consequently the author will take again the property of his work. Practically, the prohibition of article 18 is moderated by the recourse to a pact preferably subject to the conditions posed by the common right. This prohibition is envisaged in the same way in article 132-18 of the French code in order to protect the authors against engagements likely to compromise or block their freedom and their creative sensitivity. This prohibition applies to the patrimonial rights to works and not to works themselves. However, this prohibition can be emptied of its contents and thus the transfer of a future work will be valid provided that it is limited in time and that it does not carry not reached to the moral right of the author.

f- the restrictive interpretation of the contract of transfer or exploitation 

52. According to article 19 « the contracts concluded subject to payment as regards royalty are interpreted in a restrictive way ».

Thus, the judge must interpret these contracts of transfer in a restrictive way in favor of the author. This rule is reinforced by the conditions relating to the form of the contract, like mentioned article 17 of the same law concerning the obligatory mention of the rights object of the contract, the temporary and territorial limitation as well as the remuneration proportional of the author.

According to the law, the restrictive interpretation of the contract of transfer is limited to the contracts subject to payment, that in are bare contracts ?

Since this rule aims at the protection of the author as lets it know the text and the spirit of the law of 1999, we say that the acts on a purely free basis are more dangerous than the acts subject to payment and thus they require a reinforced additional protection. Thus, and a fortiori, the protection established by this article can and must be extended to the acts on a purely free basis, thing which must show us later jurisprudence.

Corns rules of forms

53. With an aim of the protection of the author, the law is shown rather formal, not only one writing will have to be written but still it will have to contain a certain number of mentions. Like the French right, the Lebanese law in its article 17 lays out that any transfer must imperatively noted in writing under penalty of nullity, even between the parts of the act. This article raises several problems. Let us raise initially that this text derogates from the principle of consensualism which governs the Lebanese right of the contract and to the general rules concerning the mode of the proof indicated in article 254 of the commercial law and in article 257 of the Lebanese code of the obligations and the contracts. Indeed the proof of the commercial contracts Lebanese is free it is done by any means. If we regard the contracts of exploitation of the rights of the authors as being of the mixed contracts having a civil nature for the author and commercial for his contracting, the proof of this contract with respect to the contracting one should this make freely. However it is differently laid out in article 17.

Also let us note that the writing can be required by the law for the needs for the proof as it can be it for the validity of the contract. In the first case if the writing is missing the contract could be proven by any other means, but in the second case if the writing is missing the contract will be considered null because it would miss a condition of formation essential with its validity.

The legislator seems to have compared the writing to a condition of formation conferring to him a function AD validitatem and this in a preoccupation with a protection.

It is necessary to be questioned then if the requirement of a writing subject to payment relates to only the contracts or also the bare contracts. The answer is easy and this because the bare contracts are considered more dangerous for the author and of this fact it will have a fortiori to be subjected to obligatory writing AD validitatem for the contracts subject to payment.

Finally we must consider the question of nullity : will be an absolute nullity or a relative nullity ?

Article 17 gets the answer to us when it lays out that « contracts... to be noted in writing between the contracting one under penalty of nullity » thus nullity is a relative nullity and the right to prevail itself about it is limited to two contracting and more especially with the author than the law wants to protect.

Paragraph 2 : Particular applications

54. The Lebanese law of April 3, 1999, contrary to the French right does not contain any provision relating to the specific contracts of exploitation of the royalty in particular the contract of edition, the contract of representation and the contract of audio-visual production governed by the code of French intellectual property.

Indeed the French right remains more elaborate concerning the question it develops indeed a more explicit approach devoting a whole section to each above mentioned contract by defining it and by specifying there in a more detailed way the rights and the reciprocal obligations of the parts.

Thus this silence of the Lebanese legislator leads us to the application of the common right of the contracts present in the Lebanese code of the obligations and the contracts. This encourages us to wonder about the consequence of such an application.

Indeed even if the absence of text seems to preserve contractual freedom it does not devote actually a protection which a possible contractual delimitation of the field within the law could guarantee.

Let us note moreover than chapter 7 of the Lebanese law entitled « Related rights »

can however lend to confusion since it comprises only one enumeration of the holders of these rights and an outline of their rights.

However our study relates to only the contracts concluded between the holder from the royalty and its contracting holder of the related right.

This fact we will mainly try successively to find the nature of the already quoted contracts and the various obligations of the parts to the contract ; the articles of chapter 7 will be treated only on a purely subsidiary basis.

A- the contract of edition 

55. The French right in the Ll32-1 article of the code of the French intellectual property defines the contract of edition as being « the contract by which the author of a work of the spirit or these having right yield to conditions determined to one or more people called editors the right to manufacture or to make manufacture in a number of the specimens of work with load for it to ensure the publication and the diffusion of it ».

With the reading of this article one notes that the contract of edition is only one contract of transfer to which is grafted the obligations of diffusion and publication of the editor.

While speaking about contract of transfer one places oneself within the framework of the sale contract devoted by book 1 second left the Lebanese code of the obligations and the contracts entitled « special rules with certain contracts ». However the provisions of this title are not enough to govern the contract of edition since other obligations falling on the editor are added to it (publication, diffusion) from where requires it to seek of another rules which would apply to this contract.

On the one hand the obligations of the author in the contract of edition are the handing-over of the thing as well as the obligation of guarantee, just like in the sale contract (transfer).

Article 401 of the code of the obligations and the contracts lays out  « the salesman has two principal obligations 1-that to deliver the thing sold 2-that to guarantee it ».

The delivery of the thing within the contract of edition takes the shape of a handing-over of the object or work so that the owner is able to manufacture it.

As for the obligation of guarantee, it relates to the peaceful exercise of the right to manufacture work against very reached.

In addition the editor sees himself in his turn obliged to publish work, to diffuse it while returning account with the author. These obligations point out those incumbent with the agent to us (to manage one or more business, to achieve one or more acts art 769 - to return account- art 789-). However contrary to this last, the editor acts for his own account as in the concession.

The obligations of the two parts being been defined we conclude that the contract of edition approaches more than one contract of concession since the editor does not have a freedom relating to the exploitation.

After studyhaving studied the contract of edition as such, one announces that the Lebanese right devotes a single Article (article 45) on the rights of the editors of printed or handwritten written works envisaging their rights to authorize or to prohibit the reprographic reproduction or the commercial exploitation of the aforesaid works.

B- The contract of representation 

56. The L132-18 article of the code of French intellectual property lays out : « The contract of representation is that by which the author of a work of the spirit and his having right authorize a person or entity to represent the aforementioned work, in conditions that they determine ».

This definition shows us the major difference with the contract of edition since in the contract of representation, no transfer of the right to exploit work is envisaged. It is rather about a lease where the communication with the public is specific and where the exploitation of this right is limited at one given period.

In spite of this difference in nature, the contract of representation contains the same obligations which fall on the author in the contract of edition, namely the obligation of handing-over of work and that of guarantee.

However two differences can be noticed on the level of the obligations to the load of the owner. This last is not held of an obligation of diffusion and its obligation of information is more strict because of the restrictive field of its freedom.

Indeed in this contract the representative can communicate work with the public only for one given duration or in a limited number of times, it is thus by no means about a permanent exploitation of work as in the contract of edition.

The Lebanese law as we already said does not expect that provisions on the related rights of the interpreters or representatives, downstream from the contract of representation.

Article 37 of this law quotes the requirements among the artists interpreters or executants to profit from protection. As for him article 39 enumerates the rights specific to the holders of this protection. Let us announce as example broadcasting and the communication with the public of their interpretation or execution.

However article 40 does not fail to call upon the possibility for its holders taking part collectively in a work, to elect in the majority relative a representative charged to exert the rights which theirs are conferred.

Independently of the patrimonial rights and within the framework of this same chapter the law points out the moral rights of the author of which right with the paternity of its interpretation or execution (article 44).

C- the contract of audio-visual production 

57. The French legislator omitted to define the contract of audio-visual production however we can conclude from the provisions relating to this contract his principal characteristics.

The originality lies in the presumption of transfer of the rights of the authors to the producer; as for the obligations of the parts they are copied with some differences, on those of the contract of edition.

The Lebanese legislator of dimensioned sound, devotes a study of the related rights of the audio-visual producers. He starts to enumerate the producers of recording (article 36) and the organizations, companies of broadcasting or television (article 38) profiting from the protection provided by the law.

Then the legislator reserves for the producers authorized by the artists interpreters to carry out the first fixing of a audio-visual work on material support an exclusive right to reproduce, distribute, sell and rent work as well as the right to communicate it to the public (article 41)

Finally the legislator distinguishes the company laws, organizations and undertaken broadcasting and of television in particular their faculty of retransmission, projection and of reproduction of their program, rights of the producers of sound like the direct production or indirect recording and the hiring of their recordings.

Under Section 3: Sanctions

Various kinds of sanctions are envisaged by the law on the protection of the author's copyright and artistic No.75 of April 3, 1999.

Indeed pévues measurements by this law are preventive (A), repairing (B), repressive measures (C).

A- Preventive measures

58. Concerning the preventive measures, they are include in the provisional measures envisaged by the law tending to prevent or put an end to the attacks carried to the royalty or with the related rights, these measurements are : descriptive or real seizure of the objects counterfeiting and this on scheduling of the judges of the summary procedures or the president of the qualified magistrates' court or on order of the qualified Attorney General (articles 81 and 82).

Once the made attack, the law envisages repairing measurements as well as repressive measurements.

B- repairing measurements

59. Concerning these measurements, article 84 lays down the obligation to pour damages in repair of the material loss and moral undergone by the holder of the protected right. Let us note that these damages are fixed by the courts according to the value commercial of work, the damage and the perts undergone by the holder of the right and the benefit drawn by the author of the attack. The court can pronounce the seizure of the elements being the subject of continuations as well as material and apparatuses used to commit the offense.

C- Repressive measurements

60. Concerning these measurements, the law envisages a sorrow of one month imprisonment at three years and amends of 5 million to 50 one or Lebanese pound million of these two sorrows only in the event of infringements quoted in articles 85, 86, 87, 88 of the aforesaid the law.

61. the law envisages also certain additional sorrows whose publication of the judgment, closing for one given duration of the buildings of the commercial establishment of the chain of television or condemned broadcasting, the law envisages the possibility of confiscation and the destruction of the material used to make the offense as well as counterfeiting objects (article 86).

62. Being the infringements quoted in the susmentinnés articles, the action fear being committed of office by the Attorney General or following the request of the injured part or by the director of the Office for the protection of the intellectual property (article 89)

The notification of the decisions judiciares bearing on the above-mentioned infringements must be made with the Office for the protection of the intellectual property within 15 day as from the date of the delivery. (article 90).

The law envisages in its article 91 the infringement consisting in the fact of importing, of making enter in deposit or frank zone or of making forward in Lebanon of the sound recordings, of works counterfeiting of the recordings and of works juissant of protection under the terms of the studied law, the law envisages in this case the seizure of such works.

Competence to determine the suspect objects, to draw up the inventory of it and to take the samples of them, is granted the policemen of customs and the foctionnaires of the office for the protection of the intellectual property. These agents act under the orders or with the authorization of the Attorney General or the Office for the protection of the intellectual property.

In all these cases, a verbal lawsuit will have to be organized according to the mentions envisaged by the law (article 92).

The civil proceeding or penal will have to be committed within 15 day from the date of the verbal lawsuit under penalty of nullity.

The seizure can be marked per the court on request of the demador who will have to pour a guarantee fixed according to the value of the objects whose seizure will be marked.

63. Finally, of the complementary sorrows are envisaged by article 97 of the law studied concerning the infringements envisaged in articles 91 and following of the aforesaid the law.

These sorrows consist in the posting of the decision of court at the places indicated by the court and the publication of the decision in two local newspapers indicated by the court with the expenses of the applicant.

If the comdamnée part is a newspaper, a television or review or broadcasting station the decision will be published in this newspaper, this review, this station, moreover of both publication above-mentioned.

Let us note q' most of the contribution of ctte new studied law resides in the sanctions envisaged and mentioned above.

However the effectiveness of these sanctions faisnt the object of our studies, remains attached to a concrete, effective application ensuring a true protection of the rights of intellectual protection^11(*) Mr. Najjar^12(*) could write that the violations of the royalties were « current and banal in a country having known more than one score of interior years of war, forwardings and occupations foreign », for then wondering « if a legislation is a sign of evolution, if it testifies to the creation of a preeminence of legality compared to the law of the jungle ; if a new law will be able to involve a true affectivity ».

From where a more respectful application of the law, very protective, will have to be born. What counts, it is not only the spirit of the law but also its application which will implement the effective protection of the right of the author's copyright and artistic.

Thanks to this law and to the motivations of many lawyers Lebanese, it is possible to raise, like made Mr. Charon, this beautiful challenge !

Index

- A - P

Anonymity: 21- 22 Paternity : 15 and following

Regulation : 11 - 32

Author : 2 - 5 - 6 - 10 and suiv.15 and suiv. - Audio-visual production : 57

23 and suiv. - 25 - 28et suiv.- 34 and suiv. 41 - Protection : 1 - 5 and suiv.- 9

44 and suiv.- 53-54 and suiv. - 59 and suiv. Pseudonym : 20 - 22

- C - R

Capacity: 46 Repentire : 15 and suiv.

Transfer: 12 - 30 - 44 - 45 - 48 - 49 - 51 - 52 Representation : 39 - 56

Assent: 46 Reproduction : 34-35-36-37

Contract: 45 and suiv.52 - 55- 56 - 57 Withdrawal : 24-25

Counterfeit: 42 - 43- 61 - 62

Creation: 1 - 3 - 4

- D - S

Moral right: 9 and suiv. - 25 Seizure : 13-31

Patrimonial right : 28 and according to 41 Sanction : 44-53-58 and suiv.

Right of continuation : 40

Disclosure : 14 - 25

- E - T

Edition : 55 Holder of protection : 5 and suiv.

- F

Form : 2 - 44- 53

- I

Integrity : 23

- O

Object : 1 - 47

Work : 1 and suiv. 6 - 7 - 8

Work of co-operation : 7

Collective work : 8

University Joseph Saint

Third cycles/common Course

Intellectual properties

Law on the protection of the author's copyright and artistic *

(n° 75 of April 3, 1999)

CONTENTS **

Articles

Chapter first: Definitions 1st

Chapter II: Protected works 2-4

Chapter III: Holders of the royalty and conditions of protection 5-11

Chapter IV: Field of application of the protection provided by the present law 12-13

Chapter V: Rights of the holder of the royalty 14-22

Chapter VI: Exceptions 23-34

Chapter VII: Related rights 35-48

Chapter VIII: Duration of protection 49-57

Chapter IX: Associations and collective trust companies of the rights 58-75

Chapter X: Deposit 76-80

Chapter XI: Academies measurements, damages and sanctions 81-97

Chapter XII: Transitional provisions 98-101

* ¹¹ Public decision of the ministry of the 18 Nov.2004, Al Balad 20 Nov.2004, the East the Day 6 Dec.2004

* ¹² Ibrahim Najjar, chronicle of Lebanese private law p.402 and 406, Beirut 2001