Introduction
Over the past few years, there has been a steady (though slow-moving) increase in interest in the interaction between law and technology. This may be unavoidable in a society that is becoming more and more reliant on cutting-edge technology that are being quickly integrated into our daily lives.
In Malta, the ability to vest rights in intellectual property owners dates back to 1911 for copyright and 1899 for inventions, trademarks, and designs.
Malta joined the World Intellectual Property Organization in 1977 after ratifying the Universal Copyright Convention in 1969. Malta joined the World Trade Organization as a founding member in 1994. The old rules controlling copyright, patents, and trademarks were repealed and new legislation was enacted in their stead the same year.
Intellectual Property Law Malta
Intellectual property rights are the essential proprietary rights for every digital, industrial, scientific, and artistic area. Intellectual property rights are the legal rights that protect intellectual or intangible endeavours and inventions. Intellectual property rights are gradually emerging as the primary corporate asset, the one that gives an advantage over rivals in a world of commerce that is knowledge- and technology-based.
Copyrights, trademarks, design rights, trade secrets, and patents are just a few examples of IPRs that can take many different forms and structures. Each Intellectual property rights has different standards for protection eligibility.
It should be noted that Maltese IP law and IPRs often only grant negative rights, such as the ability to forbid or restrict third parties from engaging in IPR-protected behaviour. The law regulating patentability is different and distinct from the law controlling the underlying innovation.
IPRs are typically considered essential for two key, connected goals:
- to give authors’ moral and financial rights, as well as the public’s right to access such works, legal protection; and
- As an intentional act of government policy, to foster and reward innovation, information sharing, and fair trade for economic and social growth.[1]
The first codified IP statute legislation in Malta was the Intellectual Property (Protection) Ordinance, which was adopted in 1900 when Malta was still a British territory (Chapter 29 of the Laws of Malta). As a result, historically, Maltese IP law has been primarily influenced by British law, referencing UK precedents and textbooks where Maltese IP legislation is lacking or lacking in precedent. Naturally, there is also a European component because Malta is an EU member and is subject to European law.
Malta’s primary intellectual property regulations fall under the following areas:
- Copyright Act (Chapter 415 of the Laws of Malta);
Under the Copyright Act (Chapter 415, Laws of Malta), copyright protects literary, musical and artistic works, and is granted automatically to a work that both:
- Has an original character.
- Has been written down, recorded, fixed or otherwise reduced to material form.
Since protection is given at production of the work, registration is not necessary. However, territoriality imposes a limit on this defence. Concepts in mathematics, techniques, and methods of operation are not protected by copyright. The author or joint authors, as the case may be, are always the owners of the copyright, with the exception of computer programmes and databases. Additionally, a database will only be qualified for copyright if it is the author’s original creative work. Software is under the umbrella word “computer programme,” which also refers to literary works.
- Trademarks Act (Chapter 416 of the Laws of Malta);
Act XII of 2019, which went into force on May 14, 2019, transferred the Trade Marks Directive (2015/2436) into the Trade Marks Act, Maltese law, Chapter 597. The term “trademark” refers to any indicator, including words, designs, characters, figures, colours, the shape of items or their packaging, sounds, and personal names.
- Patents and Designs Act (Chapter 417 of the Laws of Malta);
Inventions under the Patents and Designs Act (Chapter 417, Laws of Malta):
- Are novel (not forming part of the prior art).
- Involve an inventive step.
- Are susceptible to industrial applications.
Biological inventions could potentially be eligible for patent protection, with some moral and ethical limitations. Discoveries, theories of science, techniques of mathematics, works of art, computer programs, and informational presentations are not considered to be patentable inventions.
- Intellectual Property Rights (cross-border measures) Act (Chapter 414 of the Laws of Malta);
- Enforcement of Intellectual Property Rights (Regulation) Act (Chapter 488 of the Laws of Malta);
- Trade Secrets Act (Chapter 589 of the Laws of Malta); and
- Commercial Code (Chapter 13 of the Laws of Malta).
The Industrial Property Registrations Directorate, sometimes known as the “IP Office,” is the principal institution with regard to intellectual property in Malta. It is a division of the Commerce Department. Along with the IP Office, the Department of Customs is crucial when it comes to imports and counterfeit goods, and certain processes must be followed when going before the Department of Customs, as will be covered later in this series. Except for a few restricted exceptions involving patents, namely situations that fall under the purview of the (relatively new) Patents Tribunal, and including some administrative processes that can be conducted at IP Office level.
Artificial Intelligence Regulation
It has long been a subject of science fiction that robots may create human-like outputs and interactions. But now that we have access to increased processing power and other technical developments, we live in a world where robots can artificially perceive, think, and communicate. Simply said, robots are becoming able to create works independently of humans and, critically, in a manner that was not always foreseen or intended by the artist.
This new reality raises a variety of ethical and legal issues. Malta recently made the laudable move in this regard of forming a Taskforce tasked with developing a national strategy to regulate Artificial Intelligence (“AI”).
In light of this, it is important to note that academics appear to concur that AI is not as sophisticated or intelligent as it is sometimes claimed to be. While an AI-induced apocalypse is still the stuff of science fiction, artificial intelligence is already quite prevalent in the creative sectors. In reality, to name a few creative sectors, it is already typical that AI is utilised in some capacity in images, movies, music, content production, graphic design, journalism, and gaming. As a result, there is already a sizable corpus of intangible works that have been produced by machines without any assistance from humans. Under Maltese law, there is a question that must be addressed right away by the future rule on artificial intelligence: Are machine-generated intangible works protected? If so, whose ownership is proper?
Any new legal system should start by determining if the current laws already address the issue at hand. It should be highlighted in this regard that creative creations are safeguarded by intellectual property rights (“IPRs”) under the existing legal framework. For instance, whereas trademarks protect unique signs of origin, patents protect inventions. However, given the advancements made in AI technology, all IPRs will need to be carefully taken into account as part of a comprehensive national policy to effectively govern AI and machine-generated works.
Although the Copyright Act (Chapter 415 of the Laws of Malta) does not expressly forbid it, it does seem to be pointing in the direction that a natural person must necessarily be the creator of a work in order for it to qualify for copyright. In fact, the Copyright Act’s definition of “author” states that it refers to “a natural person or group of natural people who created the work eligible for copyright.” In essence, this might lead to a situation in which a sizable percentage of creative works are not protected by copyright merely because they were produced by a machine.
An example to this is the case of Infopaq International A/S v Danske Dagbaldes Forening (C-508) the Court of Justice of European Union (“CJEU”) is stated that the copyright is only applicable to original works. Inference may be drawn from this that copyright cannot be granted without direct human involvement. It must be noted that this case, which involved a media-monitoring service that used a data capture procedure using search words to produce article summaries for clients, was not directly addressing the same issue but rather the rights of reproduction of copyrighted work under Directive 2001/29 and the requirements for exemption therefrom.
It is immediately apparent that there is a conflicting approach on this point if one were to look at the practise developing in foreign jurisdictions.
Other countries like the United Kingdom, Ireland, Canada, New Zealand, and India adopted the strategy of recognising that computer-generated works are eligible for copyright protection.
Malta copies as a source the United Kingdom in terms of IP laws and article 9(3) of the UK states:
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
It is argued that the success of any legal system regulating AI would depend on how ownership of machine-driven creativity and intangible works is regulated. This has a wide range of commercial and legal ramifications. It won’t be simple to handle this in a way that provides legal certainty, especially as this issue could have some repercussions on other legal concepts like responsibility. Given that citizenship for AI is being considered in Malta, it’s possible that at some point assigning ownership to the AI itself may also be somewhat entertained.
Software
Software is considered to be literary work and is thus automatically protected by the Copyright Act, Chapter 415 of Maltese law. A work is deemed eligible for copyright protection (which, under Maltese law, includes creative works, audio-visual works, databases, literary works, and musical works) as soon as it is created, at which point a copyright—a non-registrable right—arises. In Malta, there is no official requirement for copyright registration, whether voluntary or otherwise. Schemes, regulations, business procedures, and computer programmes are not regarded as innovations that are eligible for patent protection, according to the Patents and Designs Act, Chapter 417 of the Maltese statutes (PDA).
Although still in its infancy, the area of “Law and Technology” already has a wide range of subfields, and in the majority of cases, the significance of each subfield in the legal community rises in direct proportion to the growing significance of the pertinent technology in daily life. So, if a new technology becomes very significant commercially, there will be a commensurate increase in the requirement for effective legal control. Consequently, there is an increasing interest in safeguarding software. Programs and “software” are the cornerstones of one of the most rapidly expanding industries in the last ten years. The computer software market is currently worth several billion dollars, and based on the graph’s rising tendency, it appears that this will continue for a while. The continued dominance of the computer software sector is understandable if we are to accept those who claim that our society is quickly approaching the future where every house, school, and workplace will have a computer. The main issue with software from a legal perspective is that it is very hard and costly to design a computer programme, but relatively simple and inexpensive to duplicate. Programs are written and finalised over the course of hundreds of man-hours, so they take weeks or months to produce yet can be replicated in a matter of minutes, frequently with the same ease as a phonograph record is recorded into a tape recorder.
One is likely to run across thousands of pages of newly published material when investigating the legal protection of computer software. A really thorough investigation of this subject can hardly be presented in fewer than 100 pages of text, thus such an analysis is inevitably outside the purview of this short essay. Therefore, the objective of this project is to raise public awareness of the need for legal solutions to issues brought about by the widespread sale and usage of computer programmes, particularly in light of the protection provided by copyright law. The pertinent Maltese laws will be reviewed, and any necessary revision will be taken into account from a broad perspective.
Practice and research have demonstrated that different kinds of computer programmes may be protected in varying degrees under various provisions of the Commercial Law. The following discussion is largely focused on one of the most significant and widely used types of protection: copyright. However, had it been the intention to conduct a thorough analysis of the topic, one would have had to look at the various degrees of protection provided by the Law on Patent, Copyright, Trade Secrets, Trade Mark Unfair Competition, etc.
Conclusion
Today, laws need to be abreast even as life grows more and more complicated. In a similar vein, it took more than 50 years for the law to catch up to the copyright consequences. The pertinent clauses were first introduced in the U.K.’s Copyright Act of 1956 and Malta’s Copyright Act of 1967. Millions might be lost due to the violation of property rights by unauthorised copying in the realm of computer programmes. Therefore, one hopes that a review of current laws and the adoption of the reforms would make it easier to administer justice when the matter ultimately comes before our Commercial Courts.
[1] World Intellectual Property Organization, Introduction. in Wipo (ed), WIPO Intellectual Property Handbook (WIPO 2004)
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