What is the Modified Arab Copyright and Neighbouring Rights Treaty?

The Arab Copyright Treaty [الاتفاقية العربية لحماية حقوق المؤلف] of 1981 is an old international copyright treaty that nobody seems to take seriously in the Arab World and which was recently updated through a the Modified Arab Copyright and Neighbouring Rights Treaty [الاتفاقية العربية لحماية حقوق المؤلف والحقوق المجاورة], but it seems that nobody has noticed this at all. I recently discovered that Qatar formally acceded to this Treaty, so I thought I’ll write a little bit about it.

The Arab Copyright Treaty is supervised by the Arab League’s Educational, Cultural and Scientific Organization (ALESCO), but no information appears to be available regarding the treaty on its website at all. What I know for a fact is that Oman has not ratified the original Arab Copyright Treaty of 1981 or the Modified Arab Copyright and Neighbouring Rights Treaty. According to the official legislation portal of the Qatari Government, Oman signed the Arabic Copyright Treaty of 1981, but of course signature without ratification is insufficient to bind Oman to this treaty.

I found evidence that the original treaty of 1981 was ratified by Tunisia in 1981 (Law No 8 of 1983), the UAE in 1984 (Federal Law No 28 of 1984), Iraq in 1985 (Law No 41 of 1981), Saudi in 1985 (Royal Decree No M/6 of 10/5/1406H), Kuwait in 1986 (Law No 16 of 1986), Qatar in 1986 (Decree No 50 of 1986), Jordan in 1987 (see Official Gazette No 3488 issued on 16 July 1987), and Syria in 2001 (Legislative Decree No 16 of 2001). The treaty is only open for members of the Arab League. There are probably other countries that have ratified it, but I could not find evidence of this. According to Article 31 of the Arab Copyright Treaty of 1981, the treaty enters into force after the three ratifications/accessions, so this treaty has definitely entered into force.

Now the Modified Arab Copyright and Neighbouring Rights Treaty is a seriously mysterious legal instrument. It is not clear when this treaty was actually adopted, but the earliest reference I found of it in an official legal document is in Jordanian Law in 2007 (see Official Gazette No 4837 issued on 16 July 2007). The document says that the King of Jordan approves the decision of the Jordanian cabinet to approve the Modified Arab Copyright Treaty. To me this does not sound like a ratification or an accession and I don’t know what it means. The next reference I found is in Qatari Law in 2015 (Decree No 20 of 2015), which clearly says that the Qatar accedes to the treaty. I am 100% sure that Oman has not ratified or acceded to this treaty, I do not know about other countries. According to Article 59 of the Modified Arab Copyright and Neighbouring Rights Treaty, the treaty enters into force for each State a month after depositing the instrument of ratification/accession. There does not seem to be a requirement for a minimum number of ratification to be achieved before the treaty enters into force, this means that the treaty is already legally binding for at least Qatar, I do not know the status of treaty in regard to Jordan.

Even though this treaty is found on official legal documents in both Jordan and Qatar, the text of the treaty attached to the Qatari accession decree says “Draft” [مشروع], I hope that this does not mean we should take this ‘royal decree’ with a pinch of salt.

So what the hell is the Modified Arab Copyright and Neighbouring Rights Treaty? It is another international copyright instrument that imposes obligations on States to provide legal protection for copyright and neighbouring rights. It clearly says that software (Article 2(2)) as well as analogue and digital databases (Article 3(3)) are to be protected. It grants in Article 5 authors the moral right to choose when to make the work available the public, to withdraw the work from circulation, as well as the rights to paternity and integrity. Article 6 includes current economic rights such as communicating to the public and making a work available online. An extremely interesting aspect is that Article 7 makes it optional for States to provide a European style ‘Resale Right’ that entitles authors for a percentage of the revenues from all future sales of their original works. The term of protection for economic rights is generally 50 years pma (Article 13), and moral rights are deemed to be perpetual (Article 17). In regard to neighbouring rights, the treaty protects the rights of performers (Article 25), sound recorders (Article 27), and broadcasters (Article 29). The Modified Arab Treaty also includes provisions in Article 48 requiring States to prohibit the anti-circumvention of effective technological measures and the removal of digital management information. Chapter 5 of the treaty provides mechanisms for collective rights management.

Other interesting aspects of the Modified Arab Copyright Treaty is that Article 21 requires States to pick one of two options for regulating ‘works for hire’ by setting the default treatment to either make the employer own the work of the contractor or make the contractor own his work for the employer, both options allow the parties to agree to another arrangement.

An even more interesting aspect of the Modified Arab Treaty is that it provides in Chapter 3 a long list of exceptions that appear to be compulsory. The 3-step test is found in Article 32, but it is written as if it automatically permits any use to be allowed as long as it satisfies the test – this makes sound like a flexible fair use style exception, but it might just be lousy drafting. Article 33 allows using works for the purpose of illustration in education – this doesn’t say ‘just a quotation’. Article 34 permits quotations, Article 35 permits reproducing current articles by the press in full as long as right is not reserved by the original author, Article 36 permits copying for administrative purposes, Article 37 permits copying and broadcasting for reporting current events, Article 38 permits libraries and archives to make copies for education, but not archival purposes, Article 39 permits broadcasting public speeches, Article 40 permits temporarily copying by broadcasting agencies, and Article 41 provides a compulsory licence mechanism. It is extremely interesting to note that there is no private copyright exception even though ALL Arab countries have it in their domestic laws (with the exception of Oman).

The treaty does not have an dispute resolution mechanism or a way to effectively enforce it, so it does not have teeth.

Even though the original Arab Copyright Treaty was not widely known, it did provide a theoretical legal framework for providing Arab World wide protection for States that were not members of the Berne Convention. For example, Kuwait only joined the Berne Convention in 2014, so prior to that Kuwaitis were entitled for protection in the Arab World only as a result of the membership of Kuwait to the Arab Copyright Treaty. Also, the copyright law of Kuwait, which only came in 1999, appears to be highly influenced by the Arab Copyright Treaty of 1981. I am not sure how many Arab countries are not members of the Berne Convention anymore though, probably only a tiny handful. If the objective of a State is to provide protection for its nationals abroad, it might as well just join Berne, the WCT and the WPPT.

I am sure I read somewhere that Saudi is considering acceding to the Modified Arab Copyright Treaty, I do not know if that will happen. When Qatar acceded to this treaty, it declared that it will not use the option to introduce the ‘Resale Right’, which obviously is not currently found in its law. It’s been a year since Qatar acceded to this treaty, yet no amendments have been made to its copyright law, I am not sure if this is because their law is compatible with all their obligations under the treaty or because they do not care.

You can download the Arabic text of the Modified Arab Copyright and Neighbouring Rights Treaty here as found in the Qatari accession decree.

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