MALTA Law and Practice Contributed by: Deo Falzon, Fenech & Fenech Advocates
for instance. Moreover, where goods are placed on the EU/EEA market with the consent of the proprietor, further commercialisation cannot be prohibited except for when there are other legitimate reasons to do so. 2.6 Trade Mark Enforcement and Remedies As of the time of writing, the Civil Court First Hall is still the court with jurisdiction to deal with such mat- ters, although this is expected to change in favour of the Commercial Court. A number of civil rem- edies are available, including seizure, damages and destruction, as well as measures targeting counterfeit goods in transit, ie, goods not destined for release on the Maltese market. In certain contexts, trade mark infringement can constitute a criminal act; however, this would require prosecution by the Executive Police and the remedies would be punitive in nature. 3. Copyright 3.1 Legal Framework and Copyrightable Works The Copyright Act, Chapter 415 of the laws of Malta, is the main statute governing copyright protection and confers eligibility for copyright on artistic works, including works irrespective of artistic quality, as well as works of architecture, audiovisual works, databas- es, literary works and musical works. 3.2 Requirements for Copyright Protection Copyright protection is automatic; however, it requires fixation, ie, embodiment of the material subject to copyright. No registration is required, although there are several best practices to be considered depending on the nature of the work eligible for copyright. 3.3 Authorship and Ownership An author is necessarily the natural person or group of natural persons who created the work eligible for copyright. Joint authorship is recognised as a work produced by the collaboration of two or more authors in which the contribution of each author is not sep- arable from the contribution of the other author/s. There is also a presumption that in the case of com- puter programs or databases created in the course of employment, in the execution of the employee’s duties or following instructions given by the employer,
the economic rights are deemed transferred to the employer unless the contrary is set out contractually. 3.4 Scope of Rights and Moral Rights Moral rights are retained by the author and cannot be transferred inter vivos. Moral rights can be waived and transferred causa mortis. 3.5 Term of Protection and Termination Copyright lasts for 70 years after the end of the year in which the author dies. There are no termination or reversion rights that automatically apply. 3.6 Limitations, Exceptions and Defences Under the Maltese Copyright Act, copyright is sub- ject to a closed list of statutory exceptions rather than a general fair dealing doctrine and these exceptions apply only in specific cases that do not conflict with the normal exploitation of the work or unreason- ably prejudice the rightholder’s legitimate interests. Permitted uses include temporary technical copies forming an integral part of a technological process, private copying by a natural person for non commer- cial purposes subject to fair compensation, quotation for purposes such as criticism or review with proper acknowledgement and use by way of caricature, par- ody or pastiche. Further exceptions cover illustration for teaching or scientific research on a non-commer- cial basis, uses for the benefit of persons with dis- abilities, reporting of current events, incidental inclu- sion of works, certain uses by libraries, archives and educational institutions and uses required for public security or for administrative, parliamentary or judi- cial proceedings. These exceptions are exhaustively defined by statute and must be interpreted strictly. 3.7 Copyright Enforcement and Remedies Copyright infringement occurs where any person, without the licence of the copyright owner or other right holder, carries out or authorises the carrying out of an act reserved to the owner’s exclusive economic rights, including reproduction, distribution, rental or lending, communication to the public, broadcasting, adaptation or other exploitation of a protected work, whether in whole or in a substantial part. Infringement also includes:
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