On 31 July 2014, the Copyright Act 2014 (Copyright Act) came into force in Mauritius to provide better protection to copyright and related rights. The Copyright Act repeals the Copyright Act 1997 (the 1997 Act).
The Copyright Act has a number of objectives:
- Compliance with the WIPO Copyright Treaty This is a treaty that provides additional protection for copyright deemed necessary due to advances in information technology. First, computer programs are protected as literary works. Secondly, the arrangement and selection of material in databases is protected. Thirdly, it provides authors of works with control over their rental and distribution which they may not have under the Berne Convention alone. Fourth, it prohibits circumvention of technological measures for the protection of works as well as the unauthorised modification of rights management information contained in works;
- Compliance with the WIPO Performances and Phonogram Treaty This is a treaty that develops and maintains the protection of the rights of performers and producers of phonograms in a manner as effective and uniform as possible;
- To address the issues related to the internet and piracy;
- To protect performers, producers of phonograms and broadcasting organisations;
- To provide limitations and exceptions in specific circumstances in relation to work;
- To review the role and functions of the Mauritius Society of Authors (MASA) which will now be known as the Management Rights Society; and,
- To provide quick remedies for the infringement of authors, composers and copyright holders.
Key Features of the Copyright Act
Broadening of Definition of "Copyright"
The definition of "copyright" has been expressly widened so much so that it now not only means an economic right but it also captures "moral" rights i.e. the right to claim authorship of a piece of work and the right to prevent any act to be done that would be prejudicial to the honour and reputation of a copyright owner.
Scope of Copyright Widened to "Folklore" and "Traditional Cultural Expressions"
The scope of protection of copyright has been widened to capture "folklore" and "traditional cultural expressions".
Folklore includes among others, folk tales, folk poetry, instrumental folk music, folk dances and plays, artistic forms or rituals and production of folk art.
As regards "traditional cultural expressions" it includes any form of artistic and literary expression in which traditional culture and knowledge are embodied and which is intergenerational.
Scope of Protection
The scope of protection for copyright has been broadened in the sense that under the 1997 Act it was limited to Mauritius and to an author who is either a citizen of or has his habitual residence in any member state of the Berne Convention.
However, under the Copyright Act the basis for protection is not only citizenship of or habitual residence in Mauritius but also for works that are eligible to protection in Mauritius pursuant to any international convention or other international agreement to which Mauritius is a party and as may be prescribed.
Over and above the protection that the Copyright Act extends to "work", it now comprises a special provision relating to the protection of "related rights".
Thus the following are now expressly protected namely:
- Performance taking place in Mauritius;
- Performance incorporated in phonograms protected under the Copyright Act; and
- Performance fixed in phonograms and is included in broadcast protected under the Copyright Act.
However it is to be noted that the pre-condition for a phonogram to be protected under the Copyright Act is that it must have either been produced, first fixed or first published in Mauritius.
Furthermore, in order that broadcast fall within the protection of the Copyright Act the following conditions must be satisfied namely:
- They must emanate from a broadcasting organisation or the headquarters of which are situated in Mauritius; and,
- The transmitters for such broadcast must be situated in Mauritius.
Finally, the extent of protection for performers, broadcasting organisations and performers of phonograms extends to those who are entitled to protection by reason of the membership of Mauritius to any international convention or international agreement on these matters or, as may be prescribed.
Setting up of Technological Protection Measures
The Copyright Act sets up a methodology known as "technological protection measures" by which acts in relation to works or objects of related rights that have not been authorised by a copyright owner are effectively protected.
The New Prohibitions & Offences
An important feature of the Copyright Act is that, as part of the obligations of Mauritius under the WIPO Copyright Treaty is it formally introduces provisions on anti-circumvention and rights management information.
Thus the Copyright Act makes it an offence to circumvent effective technological measures in the comprehensive list of activities contemplated by the Copyright Act. In this regard the legislator has ensured that the phrase "effective technological measures" is defined namely the situation wherein use of a work or related right is controlled by the right holder through a copy control mechanism, an access control or protection process such as encryption, scrambling or other transformation of the work or subject-matter.
Rights Management Information
"Management Information" has been defined and refers to a system by which the author, work, performer and performance of the performer, producer of the phonogram, the phonogram, the broadcaster, the rights of an owner under the Copyright Act is identified or information about the use of work, performance, the phonogram or the broadcast are identified or any number code by which these are identified.
The Copyright Act creates two offences in relation to rights management information:
- First, it is an offence to remove or alter an electronic rights management information without the consent of the right holder;
- Secondly, it is an offence to distribute, import for distribution, broadcast or communicate to the public works or subject-matter protected under the Copyright Act from which the electronic copyright management information has been removed without the consent of the right owner and where such activity will induce, enable, facilitate or conceal an infringement of any right protected under the Copyright Act.
The Re-definition of the Functions of the MASA
The scope of functions of the MASA has been the subject of much controversy during the recent years. In proposing the Copyright Act to the National Assembly, it is clear that the Government of Mauritius has endeavoured to resolve what has been perceived as an uncomfortable and undesirable situation and bring certainty to the issue.
Thus, the Copyright Act now establishes a Mauritius Rights Society, to be known as the "Society" that in effect takes over the role of the MASA as it prevailed under the Copyright Act 1986 and the Copyright Act 1997.
In as much as the Copyright Act extends to performers and phonogram producers, likewise, membership of the Society extends to this new category of author. The Copyright Act expressly provides that the management of copyright and related rights does not rest exclusively with the Society.
Of interest, the Copyright Act has reviewed the composition of the Society and does not require anymore that one of the members must be a member of the Society and who shall be an author or composer of a work with wide experience and knowledge in copyright matters. On the issue of the functions of the Society, the Copyright Act extends the scope of the Society known under the former copyright legislation as MASA.
Thus, over and above taking over the role and attributions of the MASA, the Society has been vested with an additional function that is comprehensively set out in the Copyright Act. In brief, the additional attribution resides in the function of the Society to manage the rights of authors, including the owners of copyright and related rights.
The Copyright Act expressly provides for what has been termed as special remedies.
The Copyright Act has expressly removed the provision in the 1997 Act dealing with civil remedies. Thus, while the jurisdiction of the Judge of the Supreme Court sitting as a Judge-in-Chambers has been preserved, it is now not mandatory anymore that an action for copyright infringement to be lodged by way of Plaint With Summons before the Supreme Court.
The new provisions in of the Copyright Act do not revolutionise Mauritius copyright law. Nevertheless, there is no doubt that compliance by Mauritius with its international obligations is mandatory and reflects a responsible approach and the seriousness with which the Government of Mauritius views its international obligations. Furthermore, while the actual application of the new features to the laws on copyright remain to be tested, the fact remains that the formal protection of Mauritian folklore and cultural expressions is a welcome change in Mauritius legislation and marks a new era in its copyright laws. On the larger global commercial field, this certainly augurs well for Mauritius. Indeed, the existence of strong and effective legislation to protect the rights of authors and related rights, including the preservation of the local folklore and cultural heritage not only for Mauritian citizens but also for those who are entitled to protection by reason of Mauritius' membership to international treaties and international agreements, establishes the forum for future investment in Mauritius.
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