Assignment of Copyright in Saudi Law
Dr. Samia Hassan
Introduction
Copyright is a movable property and may be transferred by assignment, testamentary disposition or operation of law. The economic rights of an author can be transferred in whole or in part for a valuable consideration. The Saudi’s Copyright Protection Act, 2002 adopts this approach (Section 11-12)). The Act distinguishes between two situations in discussing the transfer of copyright, which are transfer in author’s lifetime and transfer on death. This paper deals with the basic principles of assignment of copyright and related rights in Saudi law.
Transfer during the lifetime of the author
Contracts relating to the commercialization of the author’s right
Transfer of copyright is usually by contract or license. Under the Saudi Copyright Protection Act, 2002 the user of copyright (licensee) must exploit it in accordance with the terms of contract of transfer. The author, in return, must refrain from doing any act that may hinder the use of the right by the licensee. However, the author may withdraw his work from circulation; he may make an alteration, deletion or addition therein (Section 10).
The Saudi Copyright Act, 2002 does not recognise the transfer of prospective copyright. The Act provides that the transfer of author’s right in unspecified future works is null and void (Section (12)). A transfer differs from an agreement to transfer. An agreement to transfer is usually concluded before the work comes into existence. It is a written agreement to the effect that copyright belongs to the prospective transferee when it is created.
Under the Saudi Copyright Act, 2002 author has the right to determine the period of the transfer (license) (Section 11)).
The divisibility theory is prominent in under the Saudi Copyright Protection Act, 2002, 1996. Accordingly, the principle of limiting transfers to those rights stipulated in the contract is a basic rule.
Transfer (devolution) upon the author’s death
Under the Saudi Copyright Act, 2002 only economic rights devolve upon death. Two rules apply in this regard. The first rule is that a sole author dies leaving a heir or a will or both, the copyright transmitted as a matter of law to the heir or the beneficiary under the will. The Act provides that on the death of the author his right, except to a share in a work, shall vest in his heirs unless the author named other persons or organization for right purposes in his will (Section 11). The right of the heirs or person entitled under a will or beneficiaries are subject to the following qualifications: firstly, they must abide by the terms of the contract between the deceased and third party regarding the use of the work. Secondly, they must respect the will of the deceased author, which either prohibits publication of the work or fixes a date of publication (section 11). Also in Saudi Arabia, copyright can be transferred entirely or in part either by contract or by inheritance. Thirdly, when they fail to publish a work, the Minister of Information and Culture initially requests them to publish the work and if they fail to do so within a year, the Minister may mandate the publication of the work. In this case, fair compensation must be paid to heirs or beneficiaries as the case may be (Section13).
The second rule governing the devolution of the copyright upon the author’s death is when the sole author or a co–author dies leaving no heirs and no will. The work passes to one who deserved it according to sharia law (Section 11).
No requirement of registration of protected works and pertinent license agreements
Under the Saudi Copyright Act, 2002 the registration of copyrighted works is not obligatory. There are arguments against registration: Copyright emerges the moment the protected work is created. That means copyright attaches to a work upon creation. Another argument is that registration and deposit of a copy were in the past devices resorted to for censorship purposes.
By contrast, the argument in favour of registration is that, although copyright attaches to a work upon creation, registration is necessary for court proceedings as evidence of ownership of the intellectual property. It is a public record of the right. In addition, they argue that registration is inexpensive and can be restored to without waste of time and money.
The way forward
Saudi Arabia has witnessed positive developments in regulating intellectual property rights in general and particularly the right of the author. A special court for intellectual property disputes has been established.
However, the Copyright Act of 2002 could be amended to cope with technological development and better regulate some aspects of copyright. As Saudi Arabia has embraced the fourth industrial revolution, with focus on artificial intelligence applications and development, special rules should be introduced to define copyright and their owners in such systems.
Also, the Act is silent as to the commercial rental to the public of originals or copies of computer programs or copyrighted works, which is provided for by TRIPs Agreement. The Act does not provide for the protection of folklore. Works of Saudi folklore are extensively exploited outside of their communities and regions of origin, without any remuneration or other advantages. To exploit and commercialize expression of folklore on a worldwide scale, the UNESCO13 recommended the establishment of national archives, where the collected folklore can be properly stored and made available. It also recommended the creation of folklore museum or folklore sections at existing museums where traditional and popular culture can be exhibited.
Finally, legal education should be responsive to the increasing importance and new developments of intellectual property rights. Therefore, the Prince Mohammad bin Fahd University has timely and rightly introduced a special course on intellectual property rights in its undergraduate program. A forthcoming master’s program in international business law will also comprise a course on intellectual property and another on franchise agreements. Those ourses are intended to cover conventional rights but also digital intellectual property rights. Besides that special course, different aspects of intellectual property rights are covered at varying levels in relevant commercial law courses.
02-Aug-2021
