The author's copyright and artistic :
Comment of the Lebanese law of April 3,
1999
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DEA of private and right law of the businesses
Year 2004-2005
Saint-Joseph university/Faculty of Law
Prepared by : Under the direction
of the professor S. Cabrillac
Yacine Labib
Sandra Rbeiz Coordination : Imane
El Sokhn
Rana Rouphael
Nour Badreddine
Joseph Bsaibes
Clarine Assaf
Mayssa Ghawi
Patrick Oubeid
Maria Khair
Claudia Chamaa
Daria Haytayan
George Hajjar
Imane El Sokhn
Mubarak mark
Mirna Abou Chakra
Mohammad Fawaz
Ibrahim Soumrany
Ghina Tabbara
Nour Hajja
Edward Mansour
Layal Sakr.
Synopsis
Introduction 3
Section 1: Conditions of protection 5
Under section 1 : The object of protection 5
Under section 2 : Holders of protection 8
Section 2 : Effects of protection 10
Under section 1 : Rights granted to the authors 10
Paragraph 1 : Moral right 10
Paragraph 2 : Patrimonial rights 23
Under section 2 : Exploitation of the rights 29
Under section 3 : Sanctions 38
General introduction :
« When one painted on the fabric of others, some
think that the fabric is the accessory of painting ; others think that
painting, whatever it is, is the accessory of the fabric : the first
feeling appears preferable to us. This would not be ridiculous that a work of
painting of Calls or Parrhasius, was looked like the accessory of a fabric of
cheap price »1(*).
It is this specificity of the rule of art by the legal
provision which one could read in Institutes de Justinien and which nowadays
made that the royalty holds an important place in the Lebanese legislation and
this by the introduction of a new law on the protection of the author's
copyright and artistic of April 3, 1999, come into effect on April 13, 1999.
The goal of such a law was to reinforce the royalty who had
known very few changes since the decree No 2385 of January 17 1924 which
dated from the French mandate, and which had repealed the old Othoman
legislation of 1872.
This decree presented, indeed a kind of coding of the royalty
French and was dedicated to « manifestations of the human
intelligence ». It was the oldest regulation on the matter in the
Middle East. This decree regulated the rights of the property commercial,
industrial, artistic, literary and musical, and it made it possible Lebanon to
adhere to two International Conventions to knowing convention of Bern in 1933
and Universal Convention about the royalty in 1959.
However the need to modify this obsolete legislative arsenal
was felt more and more. Indeed, with the progress of the technology in
particular of data processing and the communication, it proved that many
intellectual and cultural creations were deprived of any protection, the
absence of sanctions of the counterfeited acts called in question the
protection system to Lebanon, a new law was to be born.
The fight against the counterfeit became a need and artistic,
literary and even technological creations which represent a Lebanese potential
of richnesses should be protected.
In fact also international reasons pushed Lebanon to adopt
this new law, especially the need for fulfilling the requirements of the
International Conventions. In spite of the accession of Lebanon in 1933 with
the Convention of Bern on the protection of the royalty, Lebanon did not
recognize the moral right of the author and maintained a system of formalities
to be able to exert the rights.
Moreover, for adhesion with the convention of Rome in 1997, it
was necessary that Lebanon sanctions the rights close to the
artist-interpreters and the producers of sound records.
The most important reason was especially to allow Lebanon a
forthcoming accession with the World Organization of the Trade and this
required the setting in conformity of Lebanon with the agreements ADPIC
(agreements on the aspects of the intellectual property which touch with the
trade).
The law of April 3, 1999 is various inspirations : like
Mr. Charon notes it2(*), it
is inspired partly by the law of Singapore, and in conformity with the
Anglo-Saxon legislative technique because it presents whole articles of
definitions3(*).
This law is as interesting by the coexistence as it offers
between the legal systems good different which are the royalty continental and
that of the copyright.
We must, before entering in detail of the law, presenting a
general view, the structure of the law : the text is divided into 12
chapters. Chapter I is a chapter of definition, chapter II is entitled
«the works concerned with protections», chapter III determines `the
holders of the royalty and the conditions of protection, chapter IV «of
extended from legal protection», the chapter V «of the rights granted
to the holders of the royalty», chapter VI «of the exceptions to the
royalty», chapter VII the granted innovation known «right
neighbors», chapter VIII specifies «the duration of protection»,
the chapter IX draft «of associations or of the collective trust
companies», chapter X is relating to the «formalities of
deposit», chapter XI relates to «academies measurements, of the
applicable repairs and sanctions», the chapter XII `the transitional
measures and provisional.
It is noted this text of law sanctions in his chapter VII the
close rights whose object aims at protecting an investment. However the heading
of the law evokes only the author's copyright and artistic, it would have been
preferable to use a more general expression like that of
« royalty »4(*).
Besides this small awkwardness, we can greet the Lebanese
legislator who made a main effort of synthesis by devoting a chapter to the
definition of the technical terms used by the law. In addition, it is useful to
underline the effort established on the level of the elaborate structure
according to a logical and clear plan.
We will successively study the various aspects of the law
while working on a comparative approach with the French law.
The protection granted by this law is subjected, when with its
granting, in certain conditions, which if they are joined together, grant
rights to its holder.
From where neccesity to divide our study into two great
sections : the first concerning the conditions of protection (section 1)
and the second concerning the effects of protection (section 2).
Section 1 : Conditions of protection
We will treat in a first part, object of protection (under
section 1) and in a second part of the holder of protection (under section
2).
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 doctrines5(*) 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 work5(*).
According to Mr. Edouard Eid6(*), 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 passages7(*).
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 Ferran8(*), 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. Charon9(*) 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 Berti10(*), 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).
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 protection11(*) Mr. Najjar12(*) 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
Chapter first
Definitions
1st. For purposes of the application of the
provisions of this law, unless otherwise specified express, the terms and
expressions mentioned hereafter have the direction which is given to them in
this chapter, including with regard to the related rights:
«interpretation or execution of a work» means
presentation of a work by the musical execution, the recitation, the
declamation, the representation, the dance and of any other interpretation or
execution of a work, either directly, or via any device or process;
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LB LEBANON- Text 1-01, page 001
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«interpretation or public execution» means
interpretation or execution of a work carried out in a place or places where
people can be of which the number exceeds that of the members of only one
family and their close relations;
«broadcasting» means transmission of work to the
public by any system without wire, including using artificial satellites;
«computer program» gets along of a whole of
instructions expressed in the form of words or symbols or any other way and
which can, in a material form, being deciphered by computer for purposes of the
realization of a task or obtaining a given result;
«sound recording» means incorporation of sounds in
some material form that they are, that these sounds come or not from the
interpretation or the execution of a work, but do not indicate the sound
recording accompanying a audio-visual work;
«reprographic reproduction» means obtaining copies of
the original of a work by any means other than the impression, such as the
photocopy; this expression indicates also the realization of enlargings or
reductions of work;
«right related» means rights whose enjoy the artists
interpreters or executants, the sound producers of recordings, as well as the
establishments, the stations, the companies and the organizations of television
and broadcasting and the publishers;
«work» gets along of any work within the meaning of
articles 2 and 3 of this law;
«collective work» gets along of a work carried out by
several individuals, on the initiative and under the direction of a person or
entity who publishes it under her own name;
«audio-visual work» gets along of any work expressed
by means of a series of associated images, accompanied or not by sounds, and
which gives an impression of movement at the time of the presentation, the
broadcasting or the transmission of work using special devices;
«work of collaboration» gets along of any work carried
out by several authors, provided that the aforementioned work does not
constitute a collective work;
«producing of a sound recording or a audio-visual
work» gets along of the person or entity who takes the initiative and the
responsability to produce the sound recording or audio-visual work;
«author» gets along of the individual who creates an
unspecified work;
«reproduction» means realization of one or several
copies or specimens of a work, in some manner or in some form that it is,
including the permanent or temporary recording on disc, tape, diskette or in an
electronic memory; this term indicates also the production of a copy or a
two-dimensional specimen of a three-dimensional work or a copy or a
three-dimensional specimen of a two-dimensional work;
«copy or specimen» means result of any operation
consisting to reproduce, record or print an original work or to reproduce it by
reprographic processes;
«publication» means availability of the public of
copies or specimens of work or sound recording, with the assent of the author
or the producer of the sound recording, in sufficient quantity to satisfy the
reasonable needs for the public, by the sale, the hiring or any other
transmission resource of the property or the possession of a copy or a specimen
of work or sound recording, or right to use them; this term indicates also the
availability of the public of copies or specimens of work or the sound
recording by all average electronics.
Are not considered to constitute a publication the execution of
a work dramatic, dramatico-musical, cinematographic or musical, the public
declamation of a literary work, the transmission or the broadcasting of an
artistic or literary work, the presentation of an artistic work or the
construction of an architectural work.
A publication of a sound recording the fact is not considered to
constitute of making it listen by any means or device or of broadcasting it;
«communication with the public» means availability of
the public, by transmission by wire or without wire, of the sounds and the
images of a work or one of these elements only, in order to make it possible
the public to hear or to see work in a place far away from the place of
emission.
This expression indicates also the availability of the public of
work by devices by wire or without wire (like the Internet) in order to make it
possible each individual to penetrate in the aforementioned work of the place
and at the time that it chooses.
Chapter II
Protected works
2. The protection provided by the present law
applies to all intellectual creations, which they are written or photographic
works, of sculptures, drawings or oral works, whatever are the merit, the
importance, the destination or the mode or the form of expression.
Protection applies in particular to works hereafter:
-- books, files, booklets, publications, printed and other works
literary, artistic or scientific written;
-- conferences, speech and other oral works;
-- audio-visual and photographic works;
-- musical works with or without words;
-- dramatic and dramatico-musical works;
-- gestural works, choreographies and mimes;
-- drawings, sculptures, works of decoration and weaving and
lithographies;
-- drawings and photographs intended for architecture;
-- computer programs, whatever is the language, including the
preparatory material used for the development of the programs;
-- charts, projects, plans, models geographical, topographic,
architectural and scientific;
-- works of the visual arts of some nature that it is, that they
are intended or not for the production.
3. Without damage of the rights on original
work, are also subjected to the provisions of this law and also profit from the
protection provided by the present law works derived hereafter:
-- translations, adaptations and transformations of work and
musical arrangements;
-- collections of works and information realized, in
punched-card or different form, with the assent of the holder of the royalty or
of his successors on a purely universal or particular basis, who, by the choice
or the provision of the matters, constitute intellectual creations.
4. The protection conferred by the present law
does not apply
-- with the daily bulletins of information;
-- with the legislative laws and other provisions, the decrees
and decisions emanating of the whole of the authorities and administrations of
the State, like with their official translations;
-- with the court orders of any nature and their official
translations;
-- with the speeches made in public meetings and assemblies,
subject to the exclusive right of the author of the speeches and conferences to
gather them and to publish them;
-- with the ideas, abstract data and scientific concepts;
-- with all folk works belonging to the national heritage; on
the other hand, works which take as a starting point the the folklore are
protected.
Chapter III
Holders of the royalty
and conditions
of protection
5. The person who creates a literary or
artistic work enjoys, of the only fact of the creation of work, the absolute
right of property on work and of the protection of her rights without any
formality.
6. When it is impossible to determine the
share taken by each author in the creation of a work of collaboration, the
authors are famous being the joint authors of work and to jointly hold the
rights on work. However, if it is possible to dissociate the contribution of
each joint author of those of the other joint authors, each one of them is
regarded as the single author of his contribution.
Except contrary convention, no joint author of a work of
collaboration cannot exert the royalty on work without the assent of the other
joint authors.
7. Except contrary convention, 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.
8. Except contrary convention, 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, the employer, who is entitled to
exert the laws aimed to article 15 of this law.
9. Except contrary convention, of the royalty
on a audio-visual work the producer of the aforesaid work is famous holder.
10. Author of an anonymous work or a work
pseudonym is famous the person or entity who published work. When the author
reveals his identity, it can take advantage of its rights.
11. Author of a literary or artistic work is
famous, except proof of the opposite, the person whose name is indicated on the
work in the usual way.
Chapter IV
Field of application
protection
provided by the present law
12. The protection provided by the provisions
of this law applies to literary and artistic works created by
-- authors Lebanese, whatever their place of residence;
-- foreign authors, provided that they amenable to a country
left to Convention Bern for protection literary and artistic works or to
universal Convention on the royalty, or that they have their residence
there;
-- authors amenable to any Member State of the League of the
Arab States which did not leave to the one above-mentioned conventions, subject
to reciprocity; or
-- producers of audio-visual works having their seat principal
or their residence in Lebanon or in a country left with Convention Bern for the
protection of literary and artistic works or with universal Convention on the
royalty.
13. The protection provided by the present law
also applies to literary and artistic works
-- published for the first time in Lebanon;
-- published for the first time in a State left with the one the
conventions aimed to the preceding article; or
-- published for the first time in a foreign country which did
not leave to the one above-mentioned conventions, provided that they are also
published in Lebanon or in a State left with the one above-mentioned
conventions within 30 day as from the date of their publication in the other
country.
Chapter V
Rights of the holder of the royalty
14. The holder of the royalty enjoys the
patrimonial rights and the moral right.
15. The holder of the royalty enjoys the
exclusive right to exploit work. This right includes/understands the exclusive
right to authorize or prohibit
-- reproduction, impression, the recording and reprographic
reproduction of work by some process that it is, including the photographic and
cinematographic reproduction, reproduction on tape and video or different
disc;
-- translation in a foreign language, the adaptation,
modification, the transformation, the reduction or the rehandling of work, like
any arrangement of musical work;
-- the sale, distribution and the hiring of work;
-- the importation of copies or specimens of work produced
abroad;
-- the interpretation or execution of work; and
-- the communication of work to 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 allowing to
transmit the sound and the image of television programmes and broadcast
ordinary or emitted starting from artificial satellites.
16. The patrimonial rights of the author are
regarded as movable property and are transmissible entirely or partially.
17. The contracts relating to the exploitation
or the transfer of the patrimonial rights must, whatever is the object, being
noted in writing between the contractors under penalty of nullity. They must
mention the rights which make the object of the contract, the place and the
date of signature of the contract and the participation of the author, in terms
of percentage, with the receipts rising from the exploitation or the transfer
of the rights. In the absence of a mention of the period of validity, these
contracts are famous being concluded for one duration 10 years as from the date
from signature.
18. The complete transfer of future works is
null and not avenue.
19. The transfer by the author of the one of
his rights is always limited to this only right and the contracts concluded
subject to payment as regards royalty are interpreted in a restrictive way.
20. Except contrary convention, the author and
the type-setter of a song enjoy equal rights on work.
21. In addition to the rights aimed to the
preceding article, and notwithstanding any possible transfer of the aforesaid
rights, the author enjoys the moral right and in particular the right
-- to reveal work and to decide mode of disclosure of work;
-- 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;
-- 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;
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.
22. The moral right of the author is
inalienable and imperceptible but can be transmitted by way of succession,
testamentary or legal.
Chapter VI
Exceptions
23. Subject to the provisions of article 24 of
this law, any individual has the right to copy, record or reproduce a specimen
of a work protected under the terms of the present law, for her personal and
deprived use, without the assent or the authorization of the holder of the
royalty and without him to pay remuneration, provided that work were published
in a legal way.
Is not famous of use personal and private the use of the specimen
reproduces within a company or of any other place of work.
24. The exception aimed to the preceding
article does not apply if it involves a damage for the rights and interests of
the holder of the royalty. It is in particular illicit
-- to carry out architectural work in all or partly;
-- to copy, record or reproduce any work of which a limited
number of original specimens was published;
-- to reproduce totality or a great part of a book;
-- to record or transmit collections of information of any
nature; or
-- to record or copy a computer program, except if the holder of
the royalty authorized the use of the program and with the proviso of carrying
out one specimen of the program intended to be used in the event of loss or of
deterioration of the original specimen.
25. Is licit, for the establishments
educational and university and the public libraries with nonlucrative goal, the
realization, without the assent of the author and him to pay remuneration, of a
limited number of specimens of computer programs, intended to be put for the
provision of the schoolboys and students as free loan, provided that the
aforementioned establishments and libraries hold at least an original specimen
of the aforesaid programs and provided that are fixed by emanating decree of
the ministries for national education, the culture and the higher education and
professional teaching and technique the process of reproduction, the categories
of programs being able to be reproduced and numbers it copies authorized; in
the same way, it is licit, for the student, to carry out a single copy for its
private use.
The use of a short part of a work published in a legal way is
licit, without the authorization of the author of work, at ends of criticism,
argumentation, testimony or at teaching ends, provided that this use does not
exceed the measurement justified by the goal to reach. The use must be
accompanied by the indication of the source and the name by the author if this
name is reproduced on work.
26. The reprographic reproduction or the
realization of copies of articles published in newspapers or reviews or short
extracts of works is licit, without the assent of the author and without him to
pay remuneration, provided that the act of reproduction is carried out at
teaching ends and the measurement justified by the goal does not exceed to
reach. The name of the author or the authors, as well as editor, must be
mentioned with each use of a copy of the article or work, if these names are
reproduced on original work.
27. Any public library with nonlucrative goal
can, without the assent of the author and him to pay remuneration, to reproduce
by reprographic reproduction or to copy an additional specimen of work,
provided that it holds an original specimen of it at least, in order to
preserve the aforementioned additional specimen and to use it in the event of
loss or of deterioration of the original specimen.
28. Is licit, under the terms of a decree of
the Minister for the culture and higher education, the reprographic
reproduction, the realization of copies or the recording, without the assent of
the author and him to pay remuneration, of a specimen of a audio-visual work
equipped with a particular artistic value, for purposes of conservation in the
files of the ministry, when the holder of the royalty unduly refuses to
authorize the recording of the aforesaid the copy.
29. Is licit, without the assent of the author
and him to pay remuneration, the reprographic reproduction, the realization of
copies or the recording of a specimen of a work at ends of use in legal or
administrative procedures, the measurement justified by the goal to reach.
30. Is licit, without the assent of the author
and him to pay remuneration, the use by the bodies of information, for purposes
of the report of an event of topicality, short fragments of a work seen or
heard during this event, in the measurement justified by the goal to reach and
with the proviso of mentioning the name of the author and the source.
31. Is licit, without the assent of the author
and him to pay remuneration, the publication by the bodies of information of
copies of architectural, artistic, photographic works or of works of the
applied arts being in places open to the public.
32. Is licit, without the assent of the author
and him to pay remuneration, the exposure or interpretation or public execution
of a work with the course
-- official ceremonies, in the measurement justified by the goal
to reach;
-- activities of the educational establishments, when work is
used by the teachers or the pupils, provided that the public is only made up of
teachers, pupils, parents of pupils and people taking part directly in the
activity of the educational establishment.
33. Is licit, without the assent of the author
and him to pay remuneration, the exposure of an artistic work in a museum or an
exposure organized inside a museum, provided that the museum is owner of the
material support of work and provided that the aforementioned exposure does not
carry not reached to the legitimate interests of the author.
34. Is licit, without the assent of the author
and him to pay remuneration, the reprographic reproduction or the realization
of copies or specimens of an artistic work for purposes of its publication in
catalogs intended to facilitate the sale of work, provided that the
aforementioned reproduction or realization of copies or specimens does not
carry not reached to the legitimate interests of the author.
Chapter VII
Related rights
35. Of related rights the sound producers of
recordings, the companies and organizations of television and broadcasting are
famous holders, the publishers, the artists interpreters or executants, the
actors, the musicians, the singers, the members of musical groups, the dancers,
the artists of puppet theaters and the artists of circus.
36. The sound producers of recordings profit
from the protection conferred by the present law when
has) the producer of the sound recording native of
Lebanon or a country left to the International Convention on protection the
artists interpreters or executants, the producers of sound records and the
organizations of broadcasting, made in Rome on October 26, 1961;
b) the first fixing of its was carried out in a State
left with above-mentioned convention; or when
c) the sound recording was published for the first time
in a State left to above-mentioned convention. When the first fixing took
place in a State which did not leave to Convention Rome but that the sound
recording was also published, in the 30 days following the first publication,
in a State left with the aforementioned convention, this sound recording is
regarded as having been published for the first left time in the State.
37. The artists interpreters or executants
profit from the protection conferred by the present law when
has) interpretation or execution took place in Lebanon
or in a State left with Convention Rome;
b) interpretation or execution is fixed in a sound
recording protected under the terms of article 36 from this law; or when
c) interpretation or execution not fixed in a sound
recording is diffused by an emission protected under the terms of article 38
from this law.
38. The organizations and companies of
broadcasting or television profit from the protection provided by the present
law when
has) the principal seat of the organization or the
company is located at Lebanon or in a State left at Convention Rome; or
when
b) the program was diffused by a transmitter located on
the territory of Lebanon or a State left at Convention Rome.
39. Notwithstanding the provisions of article
15 of this law, the artists interpreters or executants have the right to
authorize or prohibit
-- broadcasting and the communication with the public of their
interpretations or not fixed executions, except when interpretation or
execution used is itself a repeat broadcast of an interpretation or execution
whose broadcasting had been authorized before;
-- fixing or the recording on a material support of their
interpretation or not fixed execution; and
-- reproduction, the sale or the hiring of recordings containing
a fixing not - authorized of their interpretation or execution.
40. The artists interpreters or executants who
take part collectively in a work or a representation elect in the majority
relative a representative charged to exert the rights which are conferred to
them under the terms of article 39 of this law.
41. The producers authorized by the artists
interpreters or executants to carry out the first fixing of a audio-visual work
on a material support have the exclusive right to reproduce, distribute, sell
and rent the audio-visual work which they produced, like communicating it to
the public.
42. The companies, organizations and
establishments of broadcasting and television aimed to article 38 of this law
have the right to authorize or prohibit
-- the retransmission of their programs in some form that it
is;
-- the projection of their programs televised in places where
the entry is subordinated to the payment of an import duty;
-- fixing, at lucrative ends, their programs on material
supports;
-- reproduction of recordings not - authorized their televised
or broadcast programs.
43. The sound producers of recordings have the
right to authorize or prohibit the reproduction, direct or indirect, their
sound recordings and the hiring of the aforesaid recordings at lucrative
ends.
44. The artist interprets or executant enjoys,
his life during, of the right to the recognition of paternity of his
interpretation or execution, as well as right to be opposed to any deformation
or modification of his service. With its death, this right is reserved for its
heirs.
45. The editors of printed or handwritten
written works have the right to authorize or prohibit the reprographic
reproduction or the commercial exploitation of the aforesaid works.
46. Any contract relating to related rights
must be noted in writing by the contractors.
47. The exceptions aimed to articles 23 to 34
of this law apply to the laws aimed to articles 35 to 45 of this law.
48. The protection of the related rights does
not affect any the protection of the rights conferred on the works original or
derived under the terms of the present law. None the rights aimed in this
chapter can be interpreted like reducing the royalties of work.
Chapter VIII
Duration of protection
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.
50. For works of collaboration, protection
lasts all the life of the joint authors and 50 years as from the end of the
year of the death of the last joint author. Except contrary convention, if one
of the joint authors dies without heir, its share returns to the other joint
authors or to their heirs.
51. For collective works and audio-visual
works, protection lasts 50 years as from the end of the year of the first
authorized publication of work. If work is not published, protection lasts 50
years as from the end of the year during which work was completed.
52. 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.
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
expiry of the 50 years above-mentioned period, the provisions of article 49 of
this law apply. For the works published in the name of a legal entity and for
posthumous works, protection lasts 50 years as from the end of the year of
publication of work.
53. 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.
54. The protection of the patrimonial rights
of the artist interprets or executant lasts 50 years as from the end of the
year during which interpretation or execution took place.
55. The protection of the rights of the
producer of sound recordings lasts 50 years as from the end of the year during
which work was fixed for the first time on a material support.
56. The protection of the rights of the
station, the organization, the company or the establishment of television or
broadcasting lasts 50 years as from the end of the year during which the
program was diffused.
57. The protection of the rights of the
publisher lasts 50 years as from the end of the year during which the first
publication took place.
Chapter IX
Associations and companies
of
collective management of the rights
58. The authors and the related holders of
rights, or their successors, on a purely universal or particular basis, have
the right to request associations or to companies of private law, made up
between them, for management, integral or partial, of their rights and the
collection of remunerations which are due for them.
59. The above-mentioned mandate is exercised
under the terms of a written procuration written in front of notary, in whom
all the rights are mentioned expressly whose management is entrusted to
association or the company.
The mandate is concluded for one given duration and relates on
the totality or a part only of works, existing or future, of the author or the
holder of the related rights. In case of doubt, the mandate is considered to
relate to the whole of works.
60. Before exerting any activity, any
association or company intending to exert the collective management of rights
must deposit, near the Ministry for the culture and the higher education, the
receipt of declaration of creation of the association envisaged by the law on
associations or the receipt of inscription of the company to the relevant
register, and must provide the elements hereafter:
-- a copy of the rules of procedure of association or statutes
of the company;
-- the name and addresses of the director;
-- the number of authors and related holders of rights having
elected association or the company to exert collective management their rights
and to take care of the collection of remunerations which are due for them;
-- a copy of the mandates given by the authors, the related
holders of rights or their successors, on a purely universal or particular
basis, association or the company;
-- period of validity of the mandates;
-- conditions of distribution of the perceived amounts; and
-- the annual balance sheet of association or the company.
61. The activity of associations or the
collective trust companies of the rights is subjected to the monitoring and the
control of the Ministry for the culture and the higher education. The
aforementioned associations and companies are held to place at the disposal of
the ministry the whole of their registers and accounts books for purposes of
the exercise of the ministerial monitoring.
62. Any association or company is held to
appoint an approved countable expert charged to check the registers and to
submit an annual report to the general assembly. Moreover, association or the
company is held to obtain each year the report/ratio of another approved
countable expert.
63. Any association or company is held to hold
at least a general assembly per annum, during whom the report/ratio of the
president of association or the company, as well as the financial statement,
the assessment of the past year and the budget of the following year are
voted.
64. Any association or company is held to
appoint a lawyer registered with the one of the two bars as a legal adviser, in
accordance with the law on the exercise of the occupation of lawyer.
65. When an association or a company is made
guilty of a grave offense or repeated attacks to legal or lawful provisions,
the Minister for the culture and higher education can transmit the file to the
Attorney General, who takes adequate measurements.
66. The conditions of constitution and
operation of associations and the above-mentioned companies, the conditions of
the control exerted by the Ministry for the culture and the higher education
and the conditions of observation of the infringements are fixed by decree
taken in the Council of Ministers, on opinion of the Minister for the culture
and the higher education, within three month as from the date of publication of
this law at the Official Journal.
67. Associations and collective trust
companies of the rights are competent for
-- to conclude from the contracts with thirds for the use of
works and to fix remunerations which they are held to perceive;
-- to distribute the remunerations perceived between the holders
of rights;
-- to take all measurements administrative, legal, arbitration
and friendly for purposes of the protection of the legitimate rights of their
constituents and the collection of remunerations due; and for
-- to obtain users of works all information necessary to the
ends of calculation, collection and distribution of remunerations due.
68. Associations and companies do not have the
right to refuse, without valid reason, to conclude the contracts aimed to
article 67 from this law with the users of works.
69. Any user of a work is held to communicate
to association or the company a list of the operations carried out within the
framework of the use of work, such as reprographic reproduction, sale, hiring,
exposure, remote transmission or broadcasting, as well as the number of copies
or specimens in question, the number of public exposures or the number of
televised or radiophonic diffusions.
70. Associations and companies do not have the
right to refuse, without valid reason, to exert the management of the rights of
an author and to ensure the collection of remunerations which are due for him.
71. Any association or company is held to
submit an annual report to the authors who gave him mandate to exert the
management of their rights and to ensure the collection of remunerations which
are due for them, so that those are able to deliver their opinion with regard
to the perceived amounts, the conditions of collection and distribution of
remunerations, like any other administrative question. Association is held to
take these opinions in consideration during the development or of the
modification of the conditions of management of the rights and perception of
remunerations.
72. The authors, the related holders of rights
and their agents have the right, constantly, to take note of the accounts of
association or the company of which they form part.
73. The authors and the related holders of
rights which requested an association or to a company to manage their rights
and to perceive remunerations which are due for them are held to inform in
writing association or the company of any work which they published or which
they publish after the date on which they gave the aforementioned mandate to
the aforementioned association or company.
74. The distribution of the amounts perceived
between the holders of rights takes place once per annum at least and is
proportional to the effective use of their works.
75. The author, the holder of related rights,
association or the company can terminate the contract, with the proviso of
having a valid reason, and with the proviso of notifying the cancellation with
the other part three months before the end of the year. The cancellation takes
effect as from the end of the year during which it was notified with the other
part.
Chapter X
Deposit
76. Work, the sound record, interpretation or
execution or the broadcast or televised program must be lodged with the Office
for the protection of the intellectual property of the Ministry for the economy
and the trade.
The deposit constitutes for the depositor a presumption of proof
of the property of work, sound record, interpretation or execution or broadcast
or televised program; however, this presumption can be fought by any means of
contrary proof.
77. Any holder of the royalty or of related
rights-- like his successors on a purely particular or universal basis-- which
wishes to carry out a deposit must present at the Office for the protection of
the intellectual property a request signed for his hand or hand of his agent,
comprising information hereafter:
-- the title and the type of work, the sound recording,
interpretation or execution or the broadcast or televised program;
-- the name, quality and address of the author or the holder of
the related rights; when the author or the holder of the related rights does
not carry out itself the deposit, the request must also comprise
above-mentioned information with regard to the person who carries out the
deposit;
-- the authentic type of instrument on which the depositor melts
its request for deposit, when the depositor is not the author or the holder of
the related rights; and
-- if necessary, the name and addresses of the person authorized
to carry out work on the material level (printer, stereotyper, etc).
Moreover, it is advisable to join at the request of deposit
has) a copy or an extract of the document in virtue of
which the deposit is carried out, when the applicant is not the author or the
holder of the related rights itself (procuration, act of renunciation,
contract, agreement...); and
b) three specimens of the work or the object of the
related rights. Being the illustrations, of the oil-base paints and to water,
of the statues, works of architecture and works of which there is one specimen,
the above-mentioned specimen is replaced by a reproduction, photographic or
different, work in these three dimensions, presenting the shape and the aspect
of work, overall and in detail.
78.-- 1) the deposit is admissible only if it
is accompanied by the tax whose amount is fixed by this article.
2) The amount of the taxes perceived by the Office for the
protection of the intellectual property is fixed as follows:
-- deposit of a printed work: 50.000 pounds Lebanese;
-- deposit of a cinematographic film, a videogram or a sound
recording: 175.000 pounds Lebanese;
-- deposit of a daily or periodic publication: 75.000 pounds
Lebanese (for one year);
-- deposit of an illustration, a geographical drawing, a
postcard, a photograph or a daily or periodic publication (1 specimen):
25 000 pounds Lebanese;
-- deposit of any other object not mentioned above: 50.000
pounds Lebanese;
-- tax with recording of a contract relating to a deposit near
the office: 50.000 pounds Lebanese;
-- tax for the realization with a certified copy with a
certificate with recording: 25.000 pounds Lebanese.
79. The request for deposit is recorded near
the Office for the protection of the intellectual property and the depositor
receives a certificate where information is mentioned which appears in the
request, accompanied by the three specimens deposited.
The certificate is dated, sealed and signed by the director of
the office. The first certificate is provided free and the office levies an
additional levy, as mentioned with the preceding article, for very new specimen
of the certificate.
80. Any bearing contract on a work, a sound
recording, an emission or a broadcast or televised program recorded near the
Office for the protection of the intellectual property can also be recorded
near the known as office.
Chapter XI
Academies measurements,
damages and
sanctions
81. In the event of imminent infringement with
the royalty or the related rights, the holder of the aforesaid rights, or its
successors on a purely universal or particular basis, like, in particular,
associations or collective trust companies of the rights, take all academies
measurements necessary aiming at preventing very reached with these rights.
To this end, the judge of the summary procedures can make any
decision envisaged by the law and can in particular return ordinances
provisional aiming at protecting the right in question or the work which is the
subject of the attack, like any other work of the author or the holder of the
related rights. The judge of the summary procedures can match his decision of
an obligation. The president of the qualified magistrates' court or the
qualified Attorney General has also the right to order above-mentioned
academies measurements.
82. The judge of the summary procedures, the
president of the magistrates' court or the Attorney General can seize on a
purely provisional basis the elements proving the attack carried to the royalty
or the related rights or order that is drawn up an inventory of these elements
and to leave them with the guard of the defendant.
83. In the event of infringement with the
royalty or the related rights, the right of the aforesaid holders can seize the
court of jurisdiction to ask that an ordinance be returned aiming at putting a
term at the above-mentioned attack or to prevent all new attack.
84. Whoever undermines the royalty or with the
related rights is held to pour damages in repair of the material loss and moral
undergone by the holder of the rights; these damages are fixed by the courts
according to the commercial value of work, the damage and the losses undergone
by the holder of the rights and the benefit drawn by the author of the attack.
It is up to the court to pronounce the seizure of the elements which are the
subject of the continuations as well as apparatuses and material used to commit
the offense.
85. Being works belonging or not to the public
domain, is liable to a sorrow of one month imprisonment at three years and to a
fine of five million to 50 million Lebanese pounds, or one of these two sorrows
only, whoever
-- deposit or charges a third with fraudulently depositing a
literary or artistic work under a false name;
-- imitate, fraudulently and in the intention to mislead the
purchaser, the signature or the mark of the author;
-- counterfeits, with full knowledge of the facts, a literary or
artistic work; or
-- sells, stores, exposes to the sale or puts in circulation,
with full knowledge of the facts, a counterfeited or signed work name of a
plagiarist.
In the event of repetition, the sorrow is doubled.
86. Is liable to a sorrow of one month
imprisonment at three years and to a fine of five million to 50 million
Lebanese pounds, or one of these two sorrows only, whoever carries reached or
tries to carry reached, with full knowledge of the facts and with a lucrative
aim, with the one of the royalties or of the holder of the related rights aimed
by the present law; in the event of repetition, the sorrow is doubled.
The court of competent jurisdiction can also order the closing
of the buildings, the commercial establishment, the chain of television or
broadcasting which undermines the royalty for one one week duration to one
month, as well as the destruction of any copy or any specimen of work realized
without the assent of the holder of the rights and of all the equipment and
apparatuses used for this purpose. The court can also order the publication of
the judgment in two local newspapers, with the expenses of the defendant.
This article is applied taking into account the provisions of
articles 200 and following of the penal code.
87. Is liable to a sorrow of one month
imprisonment at three years and to a fine of five million to 50 million
Lebanese pounds, or one of these two sorrows only, whoever manufactures,
imports for the sale or of the hiring, proposes with the sale or with the
hiring, holds for the sale or of the hiring, or any equipment, apparatus or
completely designed device rent install sell or partially to collect, without
authorization, an emission of television or broadcasting reserved for part of
the public being discharged of a royalty to receive the aforementioned
emission. In the event of repetition, the sorrow is doubled.
88. Is liable to a sorrow of one month
imprisonment at three years and to a fine of five million to 50 million
Lebanese pounds, or one of these two sorrows only, whoever organizes or
facilitates the reception of the above-mentioned emissions by others. In the
event of repetition, the sorrow is doubled.
89. Being the above-mentioned attacks, the
action can be committed of office by the Attorney General, at the request of
the injured part or by the director of the Office for the protection of the
intellectual property.
90. The court orders relating to
above-mentioned infringements must be notified by the courts which pronounced
them with the Office for the protection of the intellectual property within 15
day as from the date of the delivery.
91. It is absolutely prohibited, in all
circumstances, to import, make enter in deposit or frank zone and to make
forward in Lebanon of the sound recordings, of works counterfeiting of the
recordings and works which enjoy protection under the terms of the present law;
such works must be seized where that they are.
92. Are qualified to determine suspect
objects, to draw up the inventory of it and to take of them samples the
policemen, the servants of the customs and the civils servant of the Office for
the protection of the intellectual property sworn in to this end. These civils
servant act under the orders or with the authorization of the Attorney General
or the Office for the protection of the intellectual property and are held to
inform the aforementioned office of any infringement to the provisions of this
law of which they would be informed. The sworn in civils servant of the Office
for the protection of the intellectual property act as quality of legal senior
police officers for purposes of the application of this law.
Any suspect object can be indicated, inventoried and be sampled
where that it is. Any sampling and any designation or inventory of these
samples must be the official report object where are mentioned
1. the first name, surname, quality and place of residence of
the civil servant who writes the official report;
2. the authority which gave mandate to the civil servant and the
date on which this mandate was given;
3. the date, the hour and the place of the operation;
4. the first name, surname, nationality, place of residence and
profession of the person at whom the operation took place;
5. a report/ratio detailed concerning the suspect objects,
including/understanding the number, the kind and the quality of these
objects;
6. the signature of the person at which the objects or the goods
was found or, if the aforementioned person refuses to sign, a mention of this
refusal; and
7. the signature of the agent which wrote the official
report.
The owner of the goods has the right to register with the
official report all information and reserves which it estimates useful and to
take copy of the official report, and, if necessary, of the inventory. The
civil proceeding or penal must be committed in front of the court of competent
jurisdiction within 15 day as from the date of the official report, under
penalty of nullity.
93. The court can, on request of the applicant
and before the conclusion of the authority, to order the seizure of the
totality or part of the objects registered with the official report and in the
inventory and it can order, in this case, with the applicant to pour at the
clerk's office of the court, before the seizure, a guarantee which it fixes
according to the value of the objects of which it for submission to pronouncing
the seizure.
The court appoints by ordinance the civil servant charged to
carry out the seizure; in the same way, it can indicate the place in which the
seized objects must be stored as well as the sequestration to which the
aforementioned objects must be entrusted.
94. The civil servant who carries out the
seizure must write at once an official report in double specimen and must
deliver one of the specimens to the seized person. The official report is
written in accordance with the provisions of article 92 of this law and is
joined to the inventory of the seized objects. The seized person sign two
specimens of the official report; in the event of refusal or of incapacity to
sign, the aforementioned refusal or the aforementioned incapacity is mentioned
on the two specimens of the official report on the spot of the seizure.
95. The seized person must receive a copy of
the documents hereafter:
1. the warrant for attachment;
2. the document attesting the payment of the security near the
clerk's office of the court, when such a deposit was ordered;
3. the inventory of the seized objects; and
4. the official report of the seizure.
96. If the Office for the protection of the
intellectual property carries out an inspection at the request of the injured
part, this one pours to him a contractual tax of an amount of 100.000 pounds
Lebanese.
97. Any decision of court pronounced in the
above-mentioned cases involves the application of the complementary sorrows
hereafter:
1. the posting of the decision at the places indicated by the
court and the publication of the decision in two local newspapers indicated by
the court, to the expenses of the defendant; and,
2. in all the cases where the condemned part is a newspaper, a
review or a broadcasting station or television, the publication of the decision
in this newspaper, this review or this television or broadcasting station, in
addition to the two above-mentioned publications.
Chapter XII
Transitional provisions
98. All the works written before the date of
entry into force of this law and not published profit from the protection aimed
by the present law, provided that they did not fall into the public domain at
the date from entry into force from this law. The duration of protection aimed
by the present law will be reduced period which will have been passed until the
date of entry into force of this law.
99. Any author, producer or editor of a book
or a publication are held to send free five specimens of work mentioned to the
Ministry for the culture and the higher education.
100. Articles 137 to 180 included decree No
2385 of January 17, 1924 (as modified) and articles 722 to 729 included penal
code are repealed.
101. The present law is published with the
Official Journal and between into force two months after the date of its
publication.
______________
* Titrate Arab: .
Entry into force: June 14, 1999.
Source: communication of the Lebanese
authorities.
Note : translation of the international Office of
OMPI.
** Added by the international Office of OMPI.
Tables of content
Synopsis 2
Introduction 3
Section 1: Conditions of protection 5
Under section 1 : The object of protection 5
The definition has 5
B Criteria of protected work 6
1 - the existence of a creation of form 6
the form has 6
B creation 7
2 - originality of creation 8
Under section 2 : Holders of protection 8
The principle has 8
B Application to complex situations 8
1 - the work created by an employee 9
2 - the work of co-operation 9
C Exception : collective work 9
Section 2 : Effects of protection 10
Under section 1 : Rights granted to the authors 10
Paragraph 1 : Moral right 10
Character of the moral dorit has 10
1 - personal character 10
2 - perpetual character 10
3 - inalienable character 11
4 - imperceptible character 11
B Contents of the moral right 11
1 - right of disclosure 12
2 - right to paternity 12
3 - right to the respect of the integrity of work 17
4 - right of repentance or withdrawal 20
C Leaves the moral right after death 21
Paragraph 2 : Patrimonial dorits 23
I Analyze law 23
Has the characters 23
B Contents 24
1 - reproduction right 24
a- the principle 24
b- exception 25
1 - general 25
2 - original 26
2 - right of representation 27
3 - the absence of a right of continuation 28
Patrimonial C fate of the right after death 28
II infringements of the royalties to Lebanon 28
Has the economic context 28
B Legal sanctions 29
Under section 2 : Exploitation of the rights 29
Paragraph 1 : General rules 30
Has the rules of substance 30
1 - assent er capacity 31
2 - object 31
B Rules of forms 34
Paragraph 2 : Particular applications 35
The contract of edition has 36
B The contract of representation 37
C The conrtrat of audio-visual production 37
Under section 3 : Santions 38
Has the preventive measures 38
B Repairing measurements 38
C Repressive measurements 39
Conclusion 41
Index
Appendices
* 1 The institutes of the
Emperor Justinien, Paris 1806, page 59, Delivers II, Titer I, para.34
* 2 Christophe Charon :
royalty Lebanese : between copyright and design personalist. The close
East, legal Studies, page 8.
* 3 See for example the article
1st law.
* 4 Charon, op.cit page
6.
* 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
* 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
