At the end of November 2021 the UAE adopted the largest legislative changes in its history, with more than 40 new or significantly amended laws.
The changes apply across many sectors, from trade and industry to the production, sale and use of narcotics. As well as firming up some security matters, the overall results appear to strengthen the rights of business (especially investors), institutions, and individuals (especially for personal relationships).
The press release says the raft of new laws and legislative amendments “are intended to keep pace with the developmental achievements of the UAE and reflect the country’s future aspirations”. They certainly represent a general tidying up to reflect global best practice and to keep pace with technological development – for instance, amendments to the Law on Electronic Transactions and Trust Services now give digital signatures the same weight as a handwritten signature.
The updated Federal Crime and Punishment Law clearly improves protection for women and domestic servants, clarifies and emphasises the penalties for rape and indecent assault, and eases some of the restrictions on extramarital relationships including effective decriminalisation of consensual relationships out of wedlock.
The new Online Security Law has some welcome measures against cybercrime and online harassment, bullying and ‘fake news’. The danger of course is that it’s still difficult to raise concerns about the exercise of authority or to test the boundaries; what seems legitimate to some might well qualify under the law as spreading rumours or publishing misleading information online.
And the UAE’s anti-narcotics laws have been eased slightly in the direction of more leniency to first-time offenders with a shift towards rehabilitation rather than punishment.
We were particularly interested in impacts on the creative sector, of course, and we sought some professional input from Amal Atieh (right), Senior Associate in the IP Department at BSA Legal.
The UAE has always had strong IP protection; it is a signatory to a range of international treaties on the recognition and enforcement of intellectual property rights, and this is reflected in legislation. In particular, any original intellectual work in literary, arts or the sciences is protected under the UAE copyright law whatever its description, form of expression, significance or purpose. Copyright applies for the owner’s lifetime plus 50 years.
There is a presumption of copyright if the author/creator of the work affirms their rights to it (which usually means stating that somewhere on or near the work). In theory this is open to challenge; you’ll get more protection by registering the work with the Ministry of Economy (it costs a bargain AED 50 for individuals) and/or the INTEROCO Copyright Office (which is much more expensive but gives you a certifcate that guarantees copyright protection in the 179 countries that have signed up to the Berne Convention).
The most relevant aspect of the new changes is improved protection for copyright and IP; Federal Decree-Law No. 38/2021 on Copyrights and Neighboring Rights replaces all existing UAE legislation in this area and enhances protection for creators and owners of relevant works.
Included are the right to determine when the work in question was (or will be) first published, which can obviously affect a range of issues around ownership, fair use, and moneys due; and the right to protest against alterations to the work “if the alteration leads to distortion of the author’s intent” (there still could be lots of room for argument there).
The New Copyright Law also introduces new doctrines, such as economic rights on copyrights in context of work for hire, licensing of computer software and smart applications. The sanctions and penalties in case of violations and infringements have also been increased to help copyright owners with anti-piracy efforts.
There’s additional protection too for people of determination.
Amal Atieh feels the law is generally well drafted to provide better protection and catch up with international progress in terms of copyright protection. “The law could be enacted to be more comprehensive and regulate all possible issues that may arise from copyright exploitations, creations, transactions and/or disputes,” she says. “However, the trend of all IP related laws to keep them simple and brief to leave the interpretation of issues to the competent court.”
That tends to be the model elsewhere, and it does obviously place significant emphasis on the ability of the courts to understand the issues and make appropriate judgements – which could well become case law that clarifies and hones the overarching Federal Law. It could take some time before we have specialist advocates and suitably experienced judges, but then that’s the case with most new legislation ….
We also asked Amal Atieh how the new laws generally affect the kind of content that can be included in creative/cultural activities – what changes will affect artists, designers and performers?
Her view is that there will be little direct impact on content, except to improve protections under the Berne Convention, to which the UAE is a signatory and which has always been the basis of UAE copyright law.
The updated legislation sharpens this commitment. Says Amal: “The New Copyright Law helps to increase the sanctions in case of infringement of such rights”, and the one area of content that will be affected most is digital. “The New Copyright Law should assist holders of digital rights, developers of computer software and smart applications, and game designers and investors to feel more comfortable about the legal landscape. The provisions of the New Copyright Law establish a clearer statutory protection which will urge innovators and investors to enhance their projects in the UAE.”
There’s a caveat, though, and again it’s the implementation of the law within the courts. Amal thinks the legislation and statutory protection will not be the key area of development – “the practice of courts will also be an area that needs a focus from all stakeholders. It is very important to enhance the knowledge and find specialised judges that can deal with all technical knowledge surrounding the digital issues. This will need a collective effort under the umbrella of a sovereign decision from all concerned parties to assure due process in examining such conflicts.”
Incidentally, another area that has been strengthened is the law around the other prime example of intellectual property – trademarks. (In general, copyright law applies to the authorship of original works: trademarks identify goods or services.) In particular, the federal law on trademarks has been amended to expand the scope of protection to include a variety of novel trademark formats: 3D objects, holograms, even sounds and scents that distinguish a supplier and its products. A copyrighted video game or a multimedia artwork, for instance, might usefully carry the extra protection of a registered trademark in one of these forms.
The UAE follows the commonly used first-to-file principle for trademarks, meaning whoever files the trademark application first is presumed to be the rightful owner. The trademark then has to be used within five years after registration (trademark registration gives you ten years; protection).
As part of the changes to IP law and procedures, the UAE has joined the Madrid System of the World Intellectual Property Organisation as from 28 December 2021. This is a good thing, because it means there’s less need to use a local agent for registering trademarks – previously a foreign applicant for a trademark had to appoint a local agent via a power of attorney which had to be legalised first by the UAE embassy in the applicant’s home country and then by the Ministry of Foreign Affairs in the UAE. The new arrangements mean that a foreign applicant can extend their basic ‘home’ registration to the UAE without the need for a local agent (unless the trademark registration is refused, in which case you’ll definitely need help).