MALTA Law and Practice Contributed by: Deo Falzon, Fenech & Fenech Advocates
• the commercial importation, distribution, posses- sion or manufacture of infringing copies; • the circumvention of effective technological protec- tion measures; • dealings in devices or services designed to facili- tate such circumvention; and • the unauthorised removal or alteration of electronic rights management information where this facili- tates or conceals infringement. Separate liability arises for the infringement of moral rights where a work is mutilated, distorted or other- wise subjected to derogatory treatment prejudicial to the author’s honour or reputation or where the author’s right of attribution is violated, irrespective of any assignment of economic rights. A variety of civil remedies are available, including injunctions, damages, seizures, measures for destruc- tion and blocking orders vis-à-vis intermediaries, as Malta fully transposed the enforcement of intellectual property rights by virtue of Chapter 488 of the Laws of Malta. Criminal proceedings are also possible in certain cir- cumstances; however, these would need to be pros- ecuted by the executive police and may lead to puni- tive measures. 3.8 Infringement Tests and Substantiality The courts would be expected to assess the “sub- stantial part” requirement in copying from both a qual- itative and quantitative perspective. As the law pro- vides for an exclusive right in respect of the protected material in its totality or substantial part thereof, either in its original form or in any form recognisably derived from the original, non-literal copying is also expected to be actionable as long as the other requirements for infringements are met. 3.9 Collective Management and Licensing Collecting Societies undergo an authorisation pro- cess under the auspices of the Copyright Board in Malta, which is statutorily set up. The Copyright Board also approves the applicable tariffs. The Act does not establish broad compulsory licensing schemes for sectors such as education or broadcasting, but it does impose mandatory collective management for specific
uses and provides for non-waivable rights to equi- table remuneration in defined cases, such as rental of sound recordings or audiovisual works. Disputes concerning approved royalties, licence terms or tariffs, including disagreements over equitable remuneration, are resolved by the Copyright Board, whose decisions are subject to appeal before the Court of Appeal; how- ever, once these are approved, enforcement of such tariffs is a matter for civil infringement or contractual breach proceedings. The Broadcasting Act also provides for aspects of “must offer” content vis-à-vis general interest objec- tive service licensees broadcasting on the general interest objective network. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter The Patents and Designs Act (Chapter 417 of the Laws of Malta) creates a design right that protects the appearance of the whole or a part of a prod- uct, resulting from features such as lines, contours, colours, shape, texture and materials, provided the design is new and has individual character. Protection may extend to product shape, configuration, surface decoration and packaging, but not to features dictat- ed solely by technical function and there is no specific mention of trade dress per se. 4.2 Requirements for Protection Please see the response above for the requirements for protection. Unregistered design rights may also arise in Malta under the EU unregistered design rights regime, which subsist automatically upon first disclo- sure in the EU. 4.3 Registration and Term Industrial designs are registered with the Comptroller of Industrial Property under the Patents and Designs Act (Chapter 417) by filing an application accompa- nied by representations of the design and payment of the prescribed fee. The official filing fee for a national design application is EUR46.59. Registration typically follows a formal examination and, if accepted, is com-
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