By Talia A. Lubin The University of California, Hastings College of the Law Juris Doctor Candidate, 2022 Does your skin belong to you? Most people would likely respond to that question with an emphatic, of course! But suppose another person's…
By Hussain Bu Najimah
Washington University School of Law
LLM candidate, 2022
Saudi Arabia is changing very fast, and it has become one of the fastest and hottest developed countries in the world. And one of these changes is the opening of the country for entertainment events, festivals, and art galleries. Saudi Arabia also intends to open more art museums soon, which could be a good opportunity for international artists. So, with that in mind, what follows is a brief overview of the most important aspects of copyright law in Saudi Arabia, which will highlight some of the similarities and differences in the countries’ laws. Despite some minor differences, Saudi and U.S approaches to the nature of protected works, rights ownership, lawful use, duration of protection, infringement and penalties are similar.
In Article 1 of the Saudi copyright law, a “Work” is defined as any literary, scientific, or artistic work, and an “Author” as the individual who creates a work. Moreover, Article 2 protects artwork such as drawings, works of plastic art, architecture, illustrations, designs, and plans. In contrast, Title 17 of the U.S Copyright Act was more detailed in its definitions. For example, a “work of visual art” means a painting, drawing, print, or sculpture and still photographic image (produced for exhibition purposes only, in a limited edition of 200 copies).
We can see the differences between the Saudi and the U.S. copyright laws and how the Saudi law is more flexible and general in its definitions. The similarity between the respective copyright laws protects almost the same areas when it comes to literary works, pictorial, graphic, and sculptural works.
What is not protected? Article 4 of Saudi copyright law and §102 of the U.S. copyright law do not protect work methods, concepts of mathematical sciences, ideas, procedures, axioms, and abstract facts. For example, if all of your work was drawn in two colors and someone else used your colors as an inspiration it would not likely be considered an infringement of your copyright rights.
Owners of Rights
Article 5 of Saudi copyright law provides more details about how an author can claim his/her copyright rights, and it is very important to mention that an author must publish her/his works if she or he wants to claim rights to them. To illustrate that, an artist cannot claim rights for a work that is kept from the public and is not published. In contrast, §104 of U.S. copyright law gives protection for unpublished works without regard to the nationality or domicile of the author, but not necessarily the same rights for published works. This is considered a very big difference between the copyright laws.
Article 8 of Saudi copyright law explains how authors or “artistes” can exercise their rights in the follow ways:
- Attributing the work to himself/herself or publishing it under a pseudonym or anonymously;
- Objecting to any infringement of the work and preventing any deletion, change, addition, distortion, corruption, or any other form of tampering with the work itself;
- Making any amendment to or deletion from the work at his/her discretion; and
- Withdrawing the work from circulation.
The first point from the above list is the “eternal” rights of artists, which are not subject to waiver or lapse. Also, these rights will not be forfeited for any reason; after the death of the owner, and if there are no heirs, all rights will go to the Saudi Ministry of Culture and Information.
In contrast, §106 of the U.S. Copyright Act allows the owner of the right to waive these rights with a written agreement.
Now to perhaps the most important copyright right: financial rights. Let’s see what Article 9 of Saudi copyright law has for us. The author or any person on her/his behalf, will have the right to (1) printing and publishing the work in any form, like converting a painting to an illustration design, (2) redistribution of the sound or visual material, (3) communicating the artwork to the public by any forms, like acting or broadcasting, and (4) the author in all forms can materially exploit the work. Article 12 of the Saudi copyright law is very interesting because any waiver from the author regarding future artworks is considered void. Moreover, Article 13 urges owners to make agreements and contracts with licensed organizations, and Article 14 obliges the author’s heirs to fulfill any prior agreement or contract.
Article 15 of the Saudi copyright law also covers the lawful use of a work without obtaining permission from the owner of the right, and some of these forms of use are:
1) It is lawful to use someone else’s work if the person copied the work for personal use, except with regard to an audio or audio-visual work, and computer software.
2) Quoting from a work could be justified by the intended objective, mentioning the source and the name of the author next to the quotation.
3) Using the work for educational purposes, which shall be justified by the intent, or making up to two copies for public libraries or if non-commercial documentation centers on the following conditions:
a) It shall not be commercial or for profit.
b) Copying shall be restricted to the requirements of pertinent activities.
c) It shall not impair the material benefit of the work.
d) The work is out of print or is lost or damaged.
4) Copying short quotations, for schoolbooks prepared for educational curricula or even for history books, or art within the limits of necessity and mentioning the name of the author, may be lawful use.
The above uses are not that different from the fair uses referenced under U.S. copyright law, but all of these factors are likely to be tested in the courts to determine what is exactly fair use and what is not because it is not just about quantity of use but also quality.
Scope and Duration of Protection
Saudi copyright protection covers the following:
1) Works of Non-Saudi and Saudi artists produced, published, displayed, or performed for the first time in Saudi Arabia, and also for Saudi artists’ works created outside of Saudi Arabia and
2) Any works that have acquired copyright protection by means of international agreements or treaties for the protection of copyright rights to which the Saudi government is a party.
It is very important to understand that the Saudi Arabian and U.S. governments are party to five international agreements for the protection of copyright rights, including UCC Geneva July 13, 1994; UCC Paris July 13, 1994; Berne (Paris) Mar. 11, 2004; WTO Dec. 11, 2005, and VIP Feb. 21, 2019. Those treaties will help artists in both countries to seek copyright protection in case a problem arises. Furthermore, I encourage artists who want to go or send their works overseas to check if there is an international agreement in place for the protection of copyright rights in that country, and then to contact a copyright lawyer there for consultation.
Now, for the duration of protection under Article 19 of the Saudi copyright law:
1) The copyright protection period will exist for as long as the author is alive, and after the death of the person, the right of protection will stand for 50 more years.
2) If the name of the author was unknown or if the work was created for a corporation, the protection period will be for 50 years from the date of first publication. In the case of the name of the author that was unknown becomes known before the end of the 50 years, after the death of the author the protection duration will be 50 years.
3) If the work has more than one part and is published separately or over a period of time, each part will be considered as independent work for the purposes of calculating the protection period.
4) For a work of art like handcrafted or manufactured photographs, the protection period shall be 25 years from the date of first publication regardless of republication.
Chapter 3 of Title 17 of the U.S Copyright Act is different from the Saudi copyright law on the duration of protection if the works in question were created after January 1, 1978:
1) The protection period of the copyright will stand as long as the author is alive, and after the death of this person, the right of protection lasts for 70 years.
2) The corporate or anonymous work duration of protection will stand for 95 years from the year of its first publication or 120 years from the year of its creation, whatever comes first.
Neither country allows for the renewal of the right of the protection period.
Provisions for Infringements and Penalties
The violation of copyright rights in Saudi Arabia and the U.S. can lead to very serious consequences.
Article 22 of the Saudi copyright law covers copyright infringement and penalties as follows:
1) Any violation of this law shall be subject to one or more of the following penalties:
- A fine not up to $66,666;
- Closure of the violating establishment or one that participated in the copyright violation, for a period not exceeding two months; and/or
- Imprisonment for a period not exceeding six months.
2) Upon repetition of the infringement of the same work or any other work, the maximum limit of penalty, fine and closure may be doubled.
According to Chapter 5 of Title 17 of the U.S. Copyright Act, anyone who violates the exclusive rights of the copyright owner could face the following if sued:
- Payment to the copyright owner of any profits the infringer received and of any losses suffered by the copyright owner, or in the alternative, “statutory damages” of no less than $750 and not more than $30,000 per work infringed, and $150,000 for willful infringement;
- Paying the other party’s attorney’s fees;
- A court order restraining the infringer from continuing the infringing activity; and/or
- The confiscation and destruction of the infringing items.
Willful infringement can also result in criminal penalties, including imprisonment of up to five years and fines up to $250,000 per offense. (Comment: I separated possible criminal penalties from the above civil because the federal government would need to bring criminal charges.)
In conclusion, copyright is a very complex area of the law, but the general overview in this article should give artists an overview of the laws in each country. Nevertheless, this blog post is intended only to show the general similarities and differences between Saudi Arabia and U.S. copyright laws. It is not intended to constitute legal advice.