Moral Rights in Copyright of GCC Countries: Between Islamic Law and Current Laws

I. Introduction

Providing copyright protection for a creation allows the creator to sell or perform their work to earn their living. In addition, copyright allows the creator to be appreciated and revered for their work, enabling them to receive commissions for the future and be patronized. The same is true where the work is based on theories, research, and science; having copyright or IP whereby access to a piece of work can be licensed and no one may otherwise copy them, allows the writer or creator space to recoup costs or cover the costs for the next piece of work, whether that is to cover materials needed or simply to cover the costs of living to allow the creator or researcher time to ponder, create, or write.

Moral rights of authorship are distinct from the bundle of rights that protect economic interests in creative works. Moral rights consist of four basic rights: the right of attribution, the right of integrity, the right of disclosure, and the right of withdrawal. Economic rights can be transferred or assigned to others in return for royalties. On the other hand, moral rights cannot be transferred. Moral rights are inalienable and perpetual. In other words, moral rights always remain with the original author of the copyrighted work.

The basis for these rights is the personal linkage between the work and its author. The author has the right to claim or disclaim a work as his own (authorship) and to safeguard the work from distortion, mutilation, and other amendments that would be prejudicial to his or her reputation or honour (integrity). Based on moral rights, an author can prevent others from passing off his or her work as theirs or he or she can block usage of a work, such as in parody, which he or she feels will prejudice his or her honour.

The purpose of this article is to elucidate the extent to which Sharia law knew or developed means protecting moral rights. The article approaches this subject not only historically but also analytically. Although there was no formal recognition for moral rights in the history of Sharia law, authors adopted authorship principles similar to moral rights as we know them today. The article elaborates on the legal concepts that may provide the basis for moral rights protection for copyright in Sharia through an analysis of present-day incorporation of moral rights in copyright laws of GCC countries. Countries of the GCC developed their own path in terms of protection for moral rights.

Part II of this article provides an overview of the development of moral rights in the pre-Islamic and during the Islamic era. Part III of this article presents the perspectives of GCC countries on moral rights by focusing on the UAE, Kuwait, and Saudi Arabia. In this section, we analyse moral rights in detail in terms of assignability and waivability, shedding light on the different categories of moral rights like the right to disclose the work to the public, the right of attribution, the right of integrity, and the right to withdraw the work, comparing moral and economic rights. Part IV looks at some modern cultural applications of moral rights, first diving into parody and obtaining a balance between the moral rights of creators versus freedom of speech and how the GCC’s attitudes compares to other countries. Part V then analyzes the enforcement of moral rights. Finally, the article concludes with a set of conclusions.

II. Acknowledgement of Moral Rights in the Pre-Islamic Era

The concept of copyright is not new. Protection for creative works was granted in the pre-Islamic era and many of the legal principles governing intellectual property evolved though in rudimentary format. Poetry was deeply respected in the pre-Islamic era and authors enjoyed an enhanced social standing and esteem. As recognition of the value of their works, poets were compensated for the publication and distribution of their work. In the pre-Islamic era, a poet recited his poems in public and thus claimed their ownership. The poems recited in these local public performances would spread via recitation; mentioning the name of the author was considered a duty and constituted a basic form of moral rights. An unauthorised use could have been seen to show disrespect to the poet and, for this reason, might well have led to public outcry and social exclusion from the tribal community. The process of public recitation in that era was akin to the present time right of disclosure. Some lesser poets were tempted to resort to various forms of theft in order to enhance their standing and wealth. But, such poets were generally cast from cultural society. In pre-Islamic societies works of the mind were valued matters and may have qualified as a form of intellectual property—especially moral rights—though this recognition was rudimentary and enforced largely through social mechanisms like shaming.

A. Moral Rights in the Early Islamic Era

Whilst the theory of modern moral rights is believed to have evolved from ideals of natural rights and personality, from theorists such as John Locke and such, it is clear how the philosophical ideals behind the legal rights have existed deep within traditional cultures. Examining pre-Islamic and Islamic history for clues, one can trace early forms of moral rights. Copyright is about protecting and respecting human thought and creativity, which are valued in Islam. In upholding this right, one is protecting human society and the basis of its development. Therefore, copyright goes beyond positive law, being fundamental in Sharia law. The Hadiths, the retelling of the life and sayings of the Prophet Muhammad (s.a.w), give evidence of the Prophet, on two occasions, publicly commending fellow worshipers for creating new zikrs, spiritual chants or recitations to remember Allah. These have been given as evidence that the Prophet appreciated and respected creativity and innovation. It is worth noting also that there are those who argue against the exclusivity of rights, who highlight that restricting access, restricts some, particularly those who are poorer, from knowledge, beauty, and the chance to honour Allah, if it is a religious chant. To combat this exceptions and fair use clauses exist, allowing personal use in some cases, or limited reproductions to be made for the purpose of sharing to teach in schools.

The Prophet Muhammad (s.a.w) stated “A Muslim who achieves something before another Muslim who has not achieved it is entitled to that.” Prophet Muhammad (s.a.w) is reported to have said “Who revives dead land, it is for him.” Those sayings of the Prophet quoted above crystalise that land, among other things, is the end product of a person’s labour who exerted effort in developing these things and thus should be protected. But this extends beyond land, it is essentially a recognition of work; if something is created it belongs to that person who creates it and that ownership should be respected and the creativity behind it. Furthermore, in the Prophet’s time, religious teachings and many of the Hadiths, the Prophet’s sayings were transmitted orally and in order to ensure its exactness and authenticity, these sayings needed to be attributed to the correct source. The Hadiths state that he left strict instruction to ensure the accuracy of his speech and doings “[w]hoever [intentionally] ascribes to me what I have not said then [surely] let him occupy his seat in Hell-fire.”

Ancient Islam also believed in upholding the second principle of moral rights, the integrity of the work. Religious teachings and sayings of the Prophet were traced back to the Prophet Muhammad (s.a.w) establishing intermediate links to provide authenticity. The teachings and sayings had been handed down orally in an unbroken chain, Isnad, from witnesses who heard, saw or knew the Prophet. The Isnad, or chain of transmission, creates a knowledge path taken by a text and determines whether there were any gaps or weaknesses.

“Any false attribution, especially to the Qur’an or Sunnah, is prohibited.” The Qur’an, suras 3:78 and 4:58, clearly offers punishment for general “misdeeds,” falsely taking credit, and for mis-quoting the Qur’an. Many teachings were attributed to the Prophet Muhammad (s.a.w). Acknowledging the source of information or the chain of transmitters through which information was handed down through generations is the method Muslims have inherited through the system of Hadith preservation. Thus, Sharia demands both the right of attribution and the right of integrity whenever a person refers to Sharia.

Early Muslim-Arab society continued the practices of the pre-Islamic period and even broadened them. Sharia law includes several considerations whose effects are similar to those of modern intellectual property laws. For example, the Caliphs – religious and political leaders who are successors of the Prophet Muhammad (s.a.w)—”would buy books they considered important and make copies of them after paying an adequate compensation to the author.” Such authorship could also lead to awards or commissions made by Caliphs, thus the author had the economic right to earn money from their creation, although it was frowned upon to write or recite the Qur’an or Hadith purposely to gain financial reward. The fact that the Caliphs gave prizes demonstrated the importance set upon creative writing and the sharing of knowledge.

B. Printing and Modern Times

Around 950 CE, paper production in Baghdad led to a boost in book production across the Islamic world. Ijaza, permission and verification of accuracy, was required from the author prior to publishing and distribution; a display of established rights of attribution and integrity. The fifteenth century author, Muhammad Ibn Hasan al-Nawaaji, as cited in Elmahjub interpreted Quran sura . . . . “. . . Allah commands you to render trusts to whom they are due” as it was “an Islamic religious duty on composers of literary works to ensure proper attribution of knowledge.” Other authors in the fifteenth and sixteenth centuries also acknowledged a religious, ethical, and moral duty to maintain integrity and honesty in authorship.

In the times of the Prophet Muhammad (s.a.w) theft of poetry was possible, but frowned upon, however, to steal a book or manuscripts would have required the time and effort to transcribe and copy it, thus making it more difficult and less likely and therefore less in need of protection. But, once printing presses were established, it was possible to obtain a copy, and reprint it assigning authorship to an incorrect or false author, thus amorally gaining revenue or fame for another’s work. The resolution therefore states that a book cannot be published or altered without authorisation from the original author/owner. (Publication is also forbidden if the book covers topics forbidden in Sharia). The resolution then continues in line with international laws, that moral rights are passed on to an heir following death of the author or owner. Where work is for hire by contract, the rights belong to the hiring company or person, depending on the contractual terms. In Jewish law, in the 1500’s with the onset of printing, many Rabbis set printing bans on rabbinical teachings and prayer books, with a copyright of twenty-five years, and a penalty of ex-communication if the law was broken. The risk was real, as shown when Joseph II, the Emperor of Austria, pressured the chief rabbi in the 1800s to break the copyright and illegally copy such books, in order to boost Austria’s book trade.

Modern day Islamic laws are discussed and interpreted for the modern world by scholars of the International Islamic Fiqh Academy, which has 57 member states. The Academy issued such a statute, named Resolution No. 43 (5/5) Moral Rights identifying copyright and patent rights as inviolable and protected by Sharia. This includes corporate names and trademarks, inventions, and literary works and can be traded by the owner. In the Academy’s seventh session, copyright was again assessed, examining theft of copyright, thus demonstrating its considered importance.

“As these rights of attribution and integrity have been recognised in relation to Sharia itself, the question that arises is whether these rights can be extended to individual authors. Nothing in Sharia prevents extending the right of attribution and right of integrity to individual authors.” Indeed, in Islamic seminaries, the author had to authorise a copy of his book that was taught to students, who in turn were permitted to narrate and transmit that text without misrepresentation and to hold a copy of the book. “This shows that for Muslims the publication of an unauthorised work or distortion of a work was considered at the very least morally dubious.”

“The hadiths imply that Sharia requires source attribution for individual authorship as well. Early Islamic authors did not have legally protected moral rights, and no cases are on record in which authors brought legal charges against other parties for violating their authorities or falsely claiming authorship of their works.” But by the 1600s, the author Muhammad Ibn Hasan al-Nawaaji did collate what he believed to be poems stolen from himself and others, in order to challenge the thief. But, in general, “interests of Islamic authors were protected by social norms governing ethics and honour. Any information passed must be trustworthy, that is, information should be preserved in the original format and protected from any distortion.”

Al Balushi, Al Lawati and Mohsin explore the different purposes behind copyright, looking at who are served by each theory. Locke’s theory (detailed further, below) essentially describes works as “an extension of the mind of the author and a result of his personal labour,” serving the author, whereas other theories look to permit a “monopoly” to that work, incentivising (and patronising) authors and creators to continue to produce further work, for the benefit of humanity, and the encouragement of output, whilst removing the ability of those “free riders” who would steal or exploit the work of others, if there were not consequences. So, there is required a balance: between encouraging creativity, for the mental and philosophical enlightenment, knowledge expansion and as an economic driver, by protecting the creative output of the author or creator (moral right); allowing them to generate an income to live on whilst creating (economic right); and, permitting enough access to the public that the creation serves society (free access to library or school copies).

Additionally, to the simple ethics involved, the Qur’an supports human ownership, following similar reasoning to Locke and Kant’s theories of natural laws. Hume, in 1751 said, “. . . .whatever is produced or improved by a man’s art or industry ought, forever, to be secured to him, in order to give encouragement to such useful habits and accomplishments . . . .” Locke, a little earlier in 1690, took a more individualistic view, suggesting that: “God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being.” It is followed by his famous prose: “The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”

So, one sees ownership as a worthwhile endeavour to discourage idle hands, encourage entrepreneurial spirit and motivate others to purposeful enterprise, the latter sees property as God-given resources, provided for us to make our own with our own efforts and labour. These theories, along with others of the time, formed the basis of natural law theory. The Qur’an provides overlapping statements: “He is the One Who has made the earth a place of settlement for you and the sky a canopy; and sends down rain from the sky, causing fruits to grow as a provision for you . . .,” “He is the One Who created everything in the earth for you . . . .”

These have been interpreted by Islamic jurists to a similar natural rights law premise, summarised by Elmahjub, that those who “mixt their labour’ with mubah,” the “resources of the Earth, are entitled to ‘ownership and control rights’” of those resources, thus, effectively are entitled to moral rights. Elmahjub theorizes that Kant’s ideas in “Metaphysics of Morals” of human’s having a fundamental drive to “claim objects as their own and exclude others from interfering with their possession,” fits well with the Qur’anic determination of humankind’s fitrah and disposition for ownership, suggested by Al-Fajr 89:19–20, “[a]nd you devour ‘others’ inheritance greedily, and love wealth fervently” and the need to state, ‘‘[d]o not consume one another’s wealth unjustly, nor deliberately bribe authorities in order to devour a portion of others’ property, knowing that it is a sin.” These would suggest a need for laws to protect property, whether physical or intellectual.

In terms of ownership of material objects, we return to literary works; Zouaninadia demonstrates that the Prophet Muhammad (s.a.w) celebrated the importance of knowledge and its pursuit and saw it as a benefit to human development, which would continue beyond the knowledge-seeker’s death. Transmitting that knowledge with precise reproduction and with accurate authentication, certainly for the Hadiths, but also for knowledge and or creative works such as poetry was, as previously noted, of the utmost importance moral imperative. And what was created via work, was the creators’ property, and the right to that property was transferable to their heirs upon their death, as per Hadith Sahih al-Bukhari 6731. Thus, in essence a form of copyright, with both moral and economic rights, at least in terms of authorship and the right to pass on the creation to an heir.

III. GCC Countries and Moral Rights in their Copyright Laws

Each country in this article follows Islamic law, often for family law if not the full law, and does so based upon recommendations and translations from a madhab, a school of thought or interpretation, all founded by a different Imam long after the death of the Prophet Mohammed (s.a.w). Both Kuwait and the UAE follow the Hanafi madhab, known for a pragmatic approach, concluded through ‘reason and opinion’. Saudi Arabia on the other hand follows the Hanbali School, known for adhering closely and more literally to the Quranic and Hadith sources. Therefore, it would follow that if some of the culture has either filtered into, or been purposely added into the UAE and Kuwait’s laws upon its creation and amendments, then they would follow a Sharia form that was open to a flexible interpretation, and may be fairly similar, but one may see more differences in Saudi law, where Sharia is more prominent across the entire legal system and follows a stricter School of interpretation.

The subject has topical importance too, as Nadia Naim argues:

there are systematic flaws in the GCC states adopting intellectual property laws which are in essence a procrustean modification of foreign laws which have developed from colonial occupation or laws taken from donor countries. The GCC legal systems of the states have evolved utilising different sets of legal principles and therefore it could be argued the foreign laws that have been adopted are somewhat unsuitable for the GCC states.

Naim’s statement does have merit, but seems a little strong, as the copyright and moral rights laws do seem to function in the Arab world, but mostly require unification to improve clarity and much stronger enforcement (the latter requires the former). As Jamar comments, there is a move towards Muslim countries that have been more secular in the past, re-establishing a more religious ethos to law and society. In nations where this may occur, a better understanding of the impact of Sharia on IP and copyright would be important, and of course affects countries beyond the GCC, where those countries deal internationally.

Yet, laws are changing in the Arab nations as a necessity of globalised business and bilateral trade agreements. All six GCC nations, and 13 of the 22 Arab League nations are members of the World Trade Organisation (WTO), with another seven as observers. There is a move towards streamlining intellectual property, and resultantly copyright law, as per the Berne Convention and the Agreement on Trade-Related Intellectual Property Rights (TRIPS), with an aim to attain a balance between the rights of the author and those of either the user or owner of the work. The ease of international availability of images, music and the written word is also having a big impact on copyright laws; nations will need to collaborate to determine novel ways to allow the sharing of copyrighted works, whilst setting limitations to protect authors’ moral rights.

A. Modern Changes

In UAE, the Federal Decree Law on Copyright and Neighbouring Rights of 2021 (the Copyright Law of 2021) replaced the old Federal Law No. 7 of 2002, where it has introduced significant changes to take account of the fast-moving digital developments.

A number of articles under the previous Law have been replaced, amended or even removed. Some of those changes affect moral rights of the author. For example, the Copyright Law of 2021 prevents the assignment or waiver of moral rights. Moreover, the Copyright Law of 2021 includes provisions for an author to withdraw copyrighted work from circulation for justified reasons.

Kuwait was formed during the 1700’s as an Ottoman province, and as such its legal system would have would originally have been based on the 1876 Al-Majella al-Ahkam al-Adaliyyah, which was in turn based on the Islamic School of Hanafi. Whilst there were no specific laws to cover moral rights and copyright, one could have extracted laws to fit, however in reality this is unlikely. Within the small communities that existed it would have been frowned upon to steal the creative output of others; it would likely have been rare, and remedies would have been calculated locally for each situation.

Kuwait updated their Copyright Law No. 75 in 2019, partially to improve protections for the international entertainment industries and encourage trust and partnerships with the state. Whilst Kuwait did not join the Berne Convention until 2014 it, along with UAE and Saudi Arabia, was a ratified signee of the Arab Copyright Treaty, 1981. Moral rights and the protections thereof were also inserted into the Kuwaiti Civil Code (Decree No. 67 1980) by the commissioned legal scholar Abd al Razzak al-Sanhuri, who borrowed from the French Civil Code and blended it with Sharia principles to create a new legal code taking note of local cultural, religious, and legislative norms.

The legal system of the Kingdom of Saudi Arabia (KSA) somewhat differs to many other Arab nations. New laws are made by the ruling King, of the House of Saud, whose only limitation is to act within the instructions of the Qur’an and Sunnah. Many Arab countries follow Sharia for family law; KSA follows a strict translation of Sharia law for all aspects of legislation and life. It is, therefore, an interesting system to examine to see if major contrasts exist.

Saudi Arabia is a significant international trade player, as such it is a member of international IP and copyright agreements, such as the Berne Convention, WIPO, and TRIPPS. Indeed, KSA was the first nation in the region to introduce a copyright legislation in 1989, the most recent amendment being issued in 2021 by the Board of the Saudi Authority for Intellectual Property (SAIP). The SAIP is a reasonably new organisation, (established 2018) to ‘regulate, support, develop, sponsor, protect, enforce and upgrade the fields of intellectual property in the Saudi Kingdom in accordance with international best practices,’ demonstrating that authors’ rights, including moral rights are being taken seriously.

B. Moral Rights vs. Economic Rights

An author’s moral rights exist independently of the economic rights in a work. Moral rights are recognized as personality rights since literary or artistic work is a result of the personality of the creator or author. The concept of moral rights relies on the connection between an author and his/her creation. Moral rights protect the personal and reputation, rather than purely monetary, value of a work to its creator. Under the UAE Copyright Law of 2021, moral rights and economic rights are governed by different legal provisions. In case of conflict between moral rights and economic rights, the moral rights prevail.

According to the UAE Copyright Law of 2021, moral rights exist even after a copyright has expired. In clear terms, the Copyright Law of 2021 provides that the author and his universal successor will enjoy perpetual moral rights which may not prescribe. When compared with economic rights of an author, the UAE Copyright Law of 2021 does not establish a period or tenure for an author’s moral rights. So, moral rights are not limited until the copyright for the work itself exists. Rather, moral rights of an author exist in perpetuity.

For Saudi Arabia, moral rights are covered in Royal Decree No. M/11, 19 Jumada I 1410 [December 17, 1989], Chapter 3, Article 8. There exist the four standard features, with any works not bequeathed to an heir passing to the Ministry. As with other countries, with regards to financial rights, the author maintains the rights to withdraw the works from circulation and public display, but if the works have been sold or licensed to others, the author may need to compensate those persons, should an agreement upon circulation not be reached. Photos or pictures of people cannot be published without the permission of those shown, or their heirs if appropriate, unless the image is of a public event or features public figures.

Kuwaiti Copyright Law No. 75 (2019) is similar to both UAE and Saudi in these matters. The initial principles of the moral rights of the author are covered in Articles 6 and 7, confirming that moral rights are non-transferable and remain valid and enforceable. The exception being if the author dies without heirs to inherit the rights or, of course, if the author is unknown, in which case they cannot be upheld. The economic rights are described in separate articles and valid for 50 after the death of first publication.

C. Moral Rights, Assignability, and Waivability

Moral rights are typically considered inalienable, meaning they cannot be relinquished to another party. These rights inherently belong to the originating author and cannot be transferred or waived to others. However, moral rights can be waived if the author voluntarily chooses to do so in very limited circumstances. For instance, under the UAE Copyright Law of 2021, moral rights can pass to the heirs of the author, presumably before the death of the author, when this would simply be succession rather than a waiver. Upon death, and in the absence of heirs, moral rights pass to the Ministry of Economy.

It is unclear if an assignment or licensing agreement between parties to the contrary would be invalidated. This point is contentious since the UAE Copyright Law of 2021 is silent on the subject and there are no instances or court cases that address it. However, since moral rights encompass a privileged relationship between the author and their work, courts in the UAE would honor this special relationship and as such moral rights would not be negated or waived by the terms of a contract.

However, it seems permissible under the UAE Copyright Law of 2021 to conclude agreements to the effect that the author undertakes to refrain from exercising certain rights that derive from moral rights. An author may only undertake in writing not to exercise their moral rights in relation to a specific person or entity, provided that the agreement specifies the work(s) and specific uses to which the undertaking applies. The more detailed these provisions are in the agreement, the greater the likelihood that they will, if challenged, prove valid in court.

In Saudi Arabia law, Chapter 3 is quite clear that moral rights are not transferable. Article 8 (2) states that they are ‘not subject to waiver or lapse by prescription’. Chapter (3) states that moral rights, as mentioned above, are transferred to the state upon death, if the author has no heirs, thus in KSA the moral rights are not transferable.

Kuwaiti Law also is very clear that moral rights are not to be transferred or waivered and should the author try to do so, the agreement would be legally null and void. This also counts for performers, with the exception that rights can be waivered for recorded performances.

D. Classification of Moral Rights

Moral rights of authorship and integrity are distinct from the bundle of economic or exploitation rights that are usually associated with copyright. The types of moral rights regulated in article 5 of the UAE Copyright Law of 2021 are as follows: right to disclose the work to the public, right of attribution, right of integrity, and right to withdraw the work from circulation. These types of works go beyond the minimum requirements of Article 6bis of the Berne Convention. For example, the rights of disclosure and withdrawal are not included in Berne Convention. However, there is no access right in the list of moral rights recognized in the UAE. This right allows a creator of work to review the work so as to create new works or adapt the existing work. Such splits between the European generic laws and those of the GCC, could indicate a common thread, from the GCC legal systems back to Islamic Law. However, most likely it is an artifact of the Berne Convention being created to protect economic rights, with the moral rights law being a secondary consideration. The following is a discussion of the different types of moral rights recognized under UAE, Kuwait, and Saudi laws. In general, the three GCC nations follow the same key rights. Disclosure without consent is an infringement, but only stands for the first disclosure. There also lacks clarity over whether the right stands for every new type of format (print, film, animation etc.). When to claim attribution, i.e., it should always be attributed to the author, even in fair use cases and when used in part. Work produced by an employee is attributed to the employer. If the author choses to latterly recall the work, Kuwait has the moral right to prevent it if the work has been changed in a derogatory way, however Saudi supports the work created by others mimicking the original or changing its purpose, as it is its own separate entity. Attribution is considered very important, even in death, and this aspect, along with rights of disclosure and withdrawal may come from older Islamic laws.

1. The Right to Disclose the Work to the Public (The Right of Divulgation)

In the UAE, an author has the exclusive right to disclose their work and set the way in which it is to be disclosed to the public. The author has the exclusive right to disclose the work for the first time. In other words, it is the author who decides when to disclose and publish their work to the public. Thus, the fundamental decision when and how to release the work from the private domain to the public resides with the author/creator.

In terms of scope, according to the UAE Copyright Law of 2021 the right to disclose applies to all types of works whereby authorship subsists. As to publication, it is defined as ‘Making the work, sound or visual recording, radio program, or any performance available to the public, by any means whatsoever’. Thus, disclosure is considered to the public at large with unrestricted access to the work. If the work is disclosed to small group of individuals, then it is not considered disclosure.

Courts in the UAE have emphasized that the right to disclose can only be exercised through the author’s explicit consent not by implied consent. Thus, there can be infringement if the author’s work is disclosed without prior approval. Moreover, an author cannot be forced to make their work available to the public.

The right to disclose can be applied only in the case of first publication, but does not extend to later circumstances. It seems that once the right to disclose is exercised, then the right of disclosure is exhausted. However, the author may be entitled to the right of disclosure for each disclosure of the work in a new format. So, for example, when a work is disclosed as a movie, the right of disclosure is not exhausted when the disclosure is made in print format. The UAE Copyright Law of 2021 is not clear on this issue. UAE courts need to step in, when needed, to clarify when first time disclosure of the work in some specific circumstances can lead to the exhaustion of such particular type of the right of disclosure.

Saudi covers the right to disclosure in financial rights (Article 9) rather than moral rights (Article 8), providing the author with the right to communicate ‘the work to the public via any possible means, such as displaying, acting, broadcasting or data transmission networks.’ Article 8 is also very clear that the author shall have the moral right to contest derivative works if he/she finds them to be corrupting or offensive however, those derivative works themselves are owned by the author who made that specific interpretation (Article 3) and in a way that their protection should not interfere with the original authors protection of their work.

Disclosure is governed by article 2 in the Kuwaiti Copyright Law of 2019; the author decides when the work is published or put out into the public domain. Even if the economic rights have been sold or licenced, the author can decide if and when the work is released to the world. As with UAE, there is no specific details as to whether the author would have control over disclosure of the work in a new format, for example a play transferred into a screenplay for television or a film. This would be an area that the courts could need to determine, should the matter be raised. However, if the author felt the new format would be damaging to the honor, dignity, or reputation of either the author or the work, they do have the moral right to prevent that modification.

2. The Right of Attribution

The right of attribution may be defined as the right to be identified as the author of the work. The UAE Copyright Law of 2021 recognizes the right of attribution with no formal requirements. Simply, the author must be identified in a clear way as the creator of a work on the work itself. In addition, the Copyright Law of 2021 does not limit this right to specific works. Rather, the right of attribution applies uniformly to all types of copyright subject matter and to all media, including broadcasting, webcasting, and the Internet. Performers enjoy the right of attribution to their performance, whether live or recorded. Moreover, making a reproduction of newspapers, periodicals, or broadcasting organizations with attribution details are permissible. Even a partial reproduction of the work, will require attribution. The scope of right of attribution under UAE Copyright Law of 2021 is wide enough to encompass all works.

Although there is no clear provision in the Copyright Law of 2021 that authors of anonymous or pseudonymous work enjoy moral rights, the right of attribution can be extended to the right to publish the work anonymously or under a pseudonym. In other words, the author can attribute the work to himself/herself or publish it anonymously or under a pseudonym. In case of anonymous or pseudonymous work, authors are represented in the exercise of these rights by the publisher until such time as they declare their identity.

Using a work without attribution details will trigger liability under moral right of attribution. Even in cases of fair use, there must reference to the author of the work. In relation to a work created by an employee where copyright originally vested in the employer, the right of attribution does not apply to the author. Once the copyright owner, the employer, allowed someone else to make use of the work, the employee- the author, cannot claim breach of the right of attribution. The Copyright Law of 2021 does not recognize a specific right of false attribution or expand the scope of the right of paternity, as in the U.S. and UK, to cover false attribution; i.e., where a person is wrongly named as the author. It seems that in all circumstances, a right of attribution should be observed even in cases where an author of a work dies with no apparent heir. In this case, the Ministry of Economy will exercise the moral rights with the aim of preserving the work, after the expiry of the period of protection of the economic rights prescribed for the work. Thus, in this situation, if false attribution has occurred, then infringement will have occurred.

As previously explored, this ties well with Islamic Law, where the rule of attribution is paramount. Even prior to extensive written word, correctly attributing the work to the original author was of the utmost importance when reciting poetry. And whilst there may not have been any written punishments for such, it was mentioned both in the Qur’an and the Hadith that it should not be done, and ex-communication, a likely punishment, would have been a severe penalty in a tribal community. Even where laws have been introduced from Europe, the original culture and Islamic principles would be retained, as per the constitutions, which state that Sharia is a source of the law. It would sit then, that perhaps Islamic law does form a source of the laws of moral rights, at least for some aspects, where the laws of the GCC nations go beyond those of the UK/U.S. and the Berne Convention

In Saudi Copyright Law, attribution is implied whereby the author has published the work with his or her name attached, or if distributed anonymously, the named publisher shall represent the author. Joint or multiple authors are due equal rights and equal compensation for any copyright breaches. Whilst exceptions of use are lawful, such as copying for personal use, they are only lawful if the author(s) is clearly attributed.

In Kuwait Copyright Law of 2019, the moral right to attribution is declared in Article 6(4), as is the right to forgo attribution in anonymity or a pseudonym. As is standard with most countries ratified to international copyright treaties, even with permitted exceptions and “fair use” clauses, attribution should be provided “where possible.” The “where possible” does allow the user to not be liable during use if the author has chosen to be anonymous.

3. The Right of Integrity

Because the work embodies the author’s personality, the right of integrity protects the work from being subjected to derogatory treatment. This right represents one of the two moral rights specifically recognized under Article 6bis of the 1928 Berne Convention.

Under UAE Copyright Law of 2021, the author has the right to safeguard the work from distortion, mutilation, and other amendments which would be prejudicial to his reputation. The UAE does not extend the scope of the right of integrity to cover the destruction of the work. Derogatory treatment means “modification” which can include any addition, deletion, or adaptation of the work. Modification can include also not only physical change to the work but also when the work is put into a “context” that is different from the normal or intended use of the author. The latter case of contextualization can be considered as an “extension” of the right of integrity. Anonymous work does not involve the right of integrity because the author of the work is unknown.

The UAE Copyright Law of 2021 itself does not provide any guidance on the scope of the right of integrity relating to prejudicial harm to reputation. Moreover, despite its legal significance, the term “reputation” is not defined in the law. It is unclear whether it is the reputation of the author as an author or the reputation of the author as a general person that is relevant to the right of integrity. These matters are left to the UAE courts to interpret.

The UAE Copyright Law of 2021 adopts a subjective test for the right of integrity whereby the author simply “opposes” to the treatment. It suffices that the author is himself wronged by what has happened to his work. The author would not have to establish that the treatment accorded to his work is either a distortion or a mutilation that prejudices his reputation. There is no need to show harm. In addition, the author must make a complaint against the action harmful to reputation. The court cannot infer on its own the derogatory treatment for the work.

Similarly, the Saudi Copyright Law provides a moral right where the author may object to essentially any alteration, with the allowance that the author themselves can amend or delete the work at their discretion, including withdrawal from circulation. Although as mentioned, this latter action may lead to a requirement to pay compensation to any licensee or holder of financial rights of the work. Here, with the Saudi Law there is no talk of the third person’s changes “offending” the author, the author can simply object if they disapprove, giving them much greater power than in either Kuwait or UAE, perhaps.

The Kuwait Copyright Law of 2019 provides that the author can object to “any prejudice or modification of the work that may distort or distort it, or lead to damage to the author’s honor, reputation or status.” This is discussed further in the parody section, but as with other legislative systems, the definitions are vague and open to interpretation. It is presumably left to the author, as the plaintiff, to prove that the changes to their work have had a negative impact—although in most cases, this is abstract and subjective. Performers also have the moral right to control the use of their recorded work and prohibit modification. Yet, they do have the option to waive this right as they wish because imitation and parody can be good publicity.

4. The Right to Withdraw the Work

As the author has the right to disclose the work to the public, it comes as a natural consequence that he also has the right to withdraw the work. Withdrawal is made possible after the publication of the work. The right of withdrawal does not apply if the work has not been disclosed. The right of withdrawal extends to both authors and their heirs alike. So, heirs can exercise the right to withdraw after the author’s death.

The right of withdrawal from circulation, as an independent moral right, can consist of two sub-rights: repentance and full retraction. “The right of repentance allows the author to reconsider his earlier approach by modifying the work after publication.” For example, one can envisage a scenario whereby an author makes some alterations to his works if there are new developments in his/her field. Under the UAE Copyright Law of 2021, there is no such right of repentance. The UAE law should offer the author some flexibility to modify their already published works for valid reasons.

On the other hand, the UAE Copyright Law of 2021 grants the author the right of full retraction. Contrary to contract principles, the author can unilaterally withdraw from copyright contracts involving their work against the publisher or producer. Nevertheless, exercising the right to withdraw a work, i.e., full retraction, is strict. There are conditions attached to the exercise of this right. First, there should be a request submitted to the court to withdraw the work from circulation. It is not up to the author based on their discretionary authority to decide to withdraw the work from the market. Ultimately, courts have to assess the seriousness of the author’s request. Second, there should be a “reason” justifying the exercise of this right. The UAE Copyright Law of 2021 does not define the term “reason,” thus keeping the door open for the author to withdraw their work for a myriad of reasons. One example of a “reason” would be when continuous publication or display of the work would be really damaging to the author’s reputation because their ideas have become outdated or proven wrong. While courts in other jurisdictions provide examples of when a valid “reason” exists or not, there are no reported court cases in the UAE in this regard.

While UAE Copyright Law of 2021 recognizes a right of attribution granted to smart applications and computer programs, the right of withdrawal is specifically excluded. The freedom of the software programmers to constantly change the programs they market would be undermined if the right to withdraw was applied to software. It is important to exclude the right of withdrawal to achieve the desired environment for commercial transactions in the software industry and mitigate the chilling impact of the right of withdrawal in software on crucial functions such as banking and health.

It is unfortunate that right of withdrawal under the Copyright Law of 2021 is not conditioned upon providing compensation to an assignee of the work. Lack of compensation can lead to abuse of this right by authors. It is important that the UAE law is modified to provide for compensation to assignees of a work in case of unilateral withdrawal by the author—as this will serve as balancing mechanism in favour of assignees who have no control over the withdrawal of a work. The assignee could have incurred expenses in anticipation of the contract such as printing costs. Therefore, if the author desires to withdraw the work, they must pay a compensation to the assignee. Any reform of the copyright law in the UAE should delineate the nature and amount of compensation and whether such compensation should be made in advance or when the author actually withdraws the work. Moreover, it should be made clear whether the compensation would cover only losses already incurred by the assignee, such as the costs of publishing and distributing the work or if compensation would include both already incurred losses and expected profit losses.

An issue arises in cases of joint work. Individual withdrawal of work can harm the interests of other authors and affect the quality of the whole work. According to the UAE Copyright Law of 2021, if more than one person contributes to a joint work in such a manner that it is impossible to separate the share of each of them from the others, then no author can individually exercise the copyrights except by virtue of a prior written agreement reached between them. This means that there must an agreement among all authors to withdraw the work from circulation. If the contribution of each of the authors to the joint work represents a different and distinct form of art, such that the contributions can be distinguished from one another, then each of them shall have the right to use the part to which he/she contributed separately (provided that this does not harm the use of the joint work). In the latter case, if an author desires to withdraw his/her work from circulation, there is no issue.

For a wider international comparison, under the Copyright Law of the United States (Title 17), authors who qualify for joint authorship each own an equal portion of the work, regardless of their contribution level. With the exception of a bequest of their portion to a third party, each joint owner must gain the consent of all owners for it to be valid. Thus, withdrawal must equally be a joint agreement.

In the case of derivative work such as translation, it is not possible to apply the right of withdrawal without limits. It would be unfair to affect the status of derivative works—where substantial amounts are invested the derivative work—simply because the original author has change of heart to his/her work. Therefore, the UAE Copyright Law of 2021 provides that an amendment to the translation is not considered “an infringement unless the translator has omitted reference to where the cancellation or change occurred or has caused thereby prejudice to the author’s reputation.”

Overall, it seems that the right of withdrawal under the UAE Copyright Law of 2021 is much less used than other moral rights, such as right of attribution, due its vagueness in scope and the requirement that the court must determine whether a valid and serious reason exists for the author to withdraw their work.

The laws in Kuwait and Saudi Arabia are very similar. Article 10, Copyright Law Royal Decree No. M/41 for Saudi, allows the author to withdraw the work from public circulation. The author may also amend, delete from, or add to it, but the law suggests that the author should refrain from doing so as it impacts the rights of those who would use the document—indeed, compensation must be paid for the inconvenience to those with economic rights if no alternative agreement is made.

IV. Popular Culture and Moral Rights: Parody in the UAE, Kuwait, and Saudi Arabia

There are two particularly interesting modern applications of moral rights that present a view on how they are applied in specific cultural contexts. First, the phenomenon of parody, which more relaxed modern sensibilities and the technological dawn of Tik Tok trends, along with internet’s general ease of sharing stories and videos, have made it harder to control and more widespread. Second, the music industry, which has completely changed its audience interaction with more downloads and subscriptions than physical purchases.

To start with parody, there is a stark contrast between the laws of the GCC with relation to moral rights and how firm the laws on parody are in Kuwait. This appears to differ to UAE, where only the form is protected and less so the content. The Cambridge Dictionary describes parody as “writing, music, art, speech, etc. that intentionally copies the style of someone famous or copies a particular situation, making the features or qualities of the original more noticeable in a way that is humorous.” This is quite a forgiving definition, with the general idea that the parody performer/author is presenting a critical commentary aimed at the creator of the original piece. To look at whether the term translates with the same meaning or tone in Arabic, we can look to Yahya Khalid Abd. Whilst his piece examines the concept from a very linguistically academic perspective, it can be understood that a similar tone or meaning is intended from the word. Abd explains that parody requires a cultural recognition by the audience of the original, whether directly or through style, and that there is then an unexpected alteration, often with a purpose to attack, not always attacking a person, but sometimes the situation). Abd acknowledges that parody can simply be for humour’s sake alone, but may also have an important purpose of challenging unhealthy political or cultural ideologies, or indeed be a way to demonstrate a grudge.

Moral rights contain the right of integrity, which is quite strongly upheld within the GCC nations, particularly as mentioned in Kuwait. Considering that in the UK and the U.S. parody is common and seen almost as a right, and the UK is well known for its frequency at openly and harshly parodying those in government, perhaps the strong denouncement of parody could come from an Islamic source upholding the right to integrity. Indeed, Sura Al-Ankabut, Ayah 8 is likely a strong reason to uphold integrity as a moral right. It states: “[l]et not a people ridicule [another] people; . . . And do not insult one another and do not call each other by [offensive] nicknames. Wretched is the name of disobedience after [one’s] faith. And whoever does not repent—then it is those who are the wrongdoers.”

On the other hand, the parody of a copyrightable piece of work can be an important social statement, driving artistic progression by proposing an alternative assessment to the popular viewpoint of a piece of work, or by demonstrating the evolving, contemporary societal take on past work, or indeed using the past work to say something about culture or society itself, rather than mocking the work. Aside from being an artistic commentary, parodying work is an important part of a social humour, freedom of speech, and democracy. Parody, satire, and challenging the status quo can be important ways of holding those in power to account, raising awareness where change is necessary, and communicating with humour to the masses. There is also evidence that parody existed in ancient Arab poetry and story-telling, or at least “intertextuality” did, the act of alternating and blending previous stories and poems. This could be seen as an attack on integrity, or contrastingly be seen as fair use, depending on how it was used and the extent of material used.

Regardless, if one is attacking, even humorously, the author of a piece of work, the author has the legal, moral right of “integrity, honour and reputation” to deny the parodists the right to work with the material. The author also has the right to withdraw the materials completely from public use and view, paying any licence-holders a fee to cover out-of-pocket expenses that may have been accrued from extracting the material.

A. Moral Rights and Fan Fiction

It does not have to be negative; parody can be a way to show appreciation for a particular piece of work—for example, fan fiction, whereby appreciators of television series, books, or films create stories, artwork, or videos based on the characters or world of the show. Sometimes these are humorous, mocking well-known characteristics of the show’s premise, but they are often made as an homage—a way of the fan-creators to share their appreciation of the show with a community of fans, sometimes prolonging a television show’s life long after it has finished, or changing story events to more fan-satisfying outcomes.

Fan fiction has indeed led to legal disputes with publishers, original authors, or studios, both for infringing copyright and for infringing moral rights. The former tends to be more often carried out by publishers or studios, presumably encouraged by financial reasons and a desire to maintain control over a franchise, whereas the latter tends to be occasional authors or creators, presumably driven more by pride, a wish to maintain control over their creations and indignation over others ‘stealing’ their carefully and painstakingly developed world.

There are many works’ owners and creators that greatly appreciate, or at least tolerate, fan-fiction, as long as the fan-author is not commercially profiting from it and acknowledges the source, recognising that it can build a strong community around the creation, maintaining an interest in the original creator’s work, perhaps generating new fans to the original product, and increasing sales. In Paramount Pictures Corp. v. Axanar Productions, Inc., Axanar made a twenty-one minute fan film based on the American sci-fi show Star Trek, for which Star Trek’s owners, Paramount, sued for breach of copyright, following Axanar’s claim of “fair use.” Specifically, Paramount challenged, “whether it is a fair use to create new works, including movies and film scripts, which use numerous distinctive elements associated with a series of copyrighted fictional works, without authorization and to use such works as promotional tools to raise money.”

The court held, in favour of Paramount that, amongst other factors, the film “[did] not have ‘a further purpose or different character, altering the [Star Trek works] with new expression, meaning, or message’” and were not parodies because they did not “criticize the substance or style of the prior work[s].” Resultantly, rather than use their legal might to stifle all such copyright breaches, Paramount launched guidelines for fans wanting to make films based on Star Trek, including limiting the film length to a maximum of two parts of fifteen minutes, clear acknowledgement in the film title that it is “A Star Trek Fan Production,” a limit to the maximum (not-for-profit) funds permitted to be raised by the distribution of the film, and a ban of offensive language or scenes. There have also been moves by large Hollywood film studios to set up a new system of licencing, encouraging fan-fiction creators to obtain a free licence, ensuring that they are credited as owners, that they maintain control over the characters and worlds, and that the characters/worlds are not used in a direction that does not conform to the brand. Fagundes and Contreras discuss how whilst actors and public figures currently still legally control their own images, the stories of their lives are open to the literary interpretation of United States’ film-makers, protected by the First Amendment.

It is suggested that there is a general difference in the treatment of copyright and parody between civil law and common law nations, with common law favouring economic rights with no support for parody and civil law strongly supporting moral rights as well as economic rights. Although, things do not seem to be that clear cut. The US, following common law, does not highlight parody as a specific “limitation on exclusive rights” in its Copyright Act of 1976. But parody is often allowed if it does not violate one of the four factors of “fair use”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In a U.S. case where the rappers “2 Live Crew” used Roy Orbison’s song, “Oh Pretty Woman,” the Supreme Court, ruled that parody must “[add] something new, with a further purpose or difference character, altering the first with new expression, meaning, or message,” not just copy it, or an aspect of it. If this and the four factors are fulfilled, the parody is considered fair use, and allowable. If not, it is deemed satire and considered a breach of copyright and perhaps just lazily copying the original.

In France, Canada, the UK, and Australia, parody is specifically coded into the law as an exception. In Deckmyn v Vendersteen, Mr. Deckmyn, a campaigning politician distributed, free of charge, a calendar with a cartoon on the front. The cartoon image was similar in style and content to a well-known book by Mr. Vandersteen (the rights held by heirs and a non-profit), but with the image changed slightly to deliver a political message, mocking society, but not mocking the original book. The preliminary ruling was to request the Court of Justice of the European Union (CJEU) to provide a legal definition of the term “parody” to determine if this was a permitted exception to copyright law. The ruling was that “parody” should:

1. “evoke an existing work while being noticeably different from it,”
2. “constitute an expression of humour or mockery,”
3. “be attributed to a person reasonable be attributed to a person other than the author of the original author,” and
4. “that it should relate to the original work itself or mention the source of the parodied work.”

In this specific case, it was left for the national court of Belgium to “strike a fair balance” between the rights of freedom of expression of the new artist and the moral rights of the representatives of the Vandersteen estate. The latter were particularly poignant as the new imagery was classed by the CJEU to be discriminatory in theme to racial and cultural minorities and therefore contravening EC directives and the UN Charter of Fundamental Rights. As such they could argue the moral right for the original work to not be associated with this defamatory work.

This case is interesting from two points of view. Firstly, from what we have seen of U.S. law, this case would likely be considered satire, not parody, and therefore in breach of copyright law, even without the defamation of the source material. Secondly, European laws are interesting from an origin point of view, as non-Sharia law in GCC countries tends to have a base in French civil law. French and other European civil law countries have an ancient history of classical art, and art commissioned by someone. As such there is a stronger relationship with idea of legislation protecting the artist, the art and the owner of the art, rather than a First Amendment, American ideal of protecting freedom of speech, a right to parody and a stronger focus on financial rights. European copyright has a stronger focus on moral rights, as mentioned, and maintains an idea of the personality of the creator and the right to protect the “artistic integrity” and their “creation.”

Certainly, within Sharia, as commented earlier, written work was held in high regard, particularly if originally much of it was in the form of poetry to glorify Allah, then any mocking of this would be completely forbidden, understandably so. This overall mindset, of respect of creative works and the labour poured into such works, may have continued into modern times. However, parody of general literature, art, film, political speeches should be recognised as separate from anything copying or mocking religious material. Considering that over recent years parody media has increased in the Arab world, it is logical that copyright laws be reformed to account for this, to recognise and protect that creativity and the opportunities to openly discuss the political counterpoints that parody presents. There is of course a balance to be found, one that protects the uniqueness and the reputation of the original artist, that upholds the laws surrounding religious and moral values of society and that allows for freedom of expression to challenge political views and hypocritical actions for the growth and betterment of society.

The GCC states, as intimated, have similar articles in their legal framework to those found in other civil law systems; for example, Oman’s Constitution (Article 29) guarantees “freedom of opinion and expression thereof through speech, writing and other means of expression.” Almawla discusses this matter in more depth, investigating the copyright laws within the GCC and their treatment of parody. Parody does not feature in Kuwait’s legislature. Kuwait’s Copyright Law in Article 9 lists exceptions to moral rights, where the author, once their work is published, must accept the public’s, journalists’, educators’ etc. use of short quotations, analysis reports and criticism, provided the original work is correctly cited, providing the name of the work and author. Whilst Almawla believes Article 9 to be “sufficiently flexible enough” to incorporate and allow for parody, this article seems much more steered towards the use of material in education and research, than for parody. For the UAE, similar exemptions exist, provided it is for non-profit use. Saudi Arabia stands out, in that it omits the freedom for others to publicly “criticize” a copyrighted work. Otherwise, as Saudi Arabia follows the stated international Copyright Laws, the majority are similar to Kuwait and UAE and upon death, economic rights pass to the Ministry of Justice. Private copyright exemptions exist to allow spare copies of computer software and personal, non-commercial gain use of music etc. Exemptions also exist for educational establishments, schools, libraries. All reproductions must be within the limits of need.

Article 21 of The Cairo Declaration of the Organization of Islamic Cooperation on Human Rights allows for freedom of expression, providing the laws are upheld within that. Specific laws that are mentioned include those on the protection of ‘national integrity,’ no ‘advocacy of hatred’ or disrespect for the ‘reputation of others.’ Many cases of parody that have led to court appearances tend to be less copyright based, and indeed much more likely to be political satire than parody or copyright infringement. Therefore most moral rights infringement that is legally challenged in the GCC is likely to be more straightforward publishing or copying of works.

V. Enforcement of Moral Rights

In the past, whether it has been moral rights or economic rights, enforcement has been left wanting. This has impacted international investment, with a lack of trust that the investment will be protected by holding those who would infringe to account. It may also deter artists, authors and creators from seeking out a creative profession if they do not feel their moral rights and creations are legally protected. But with agreement to international policies and guidelines, there is more international visibility and therefore more pressure, to clarify laws, and remedies and to enforce them. Kuwait, UAE, and Saudi Arabia are all signatories of TRIPS. The agreement dedicates Part III Enforcement of Intellectual Property Rights to guidance on remedies, specifically 2. Civil and Administrative Procedures and Remedies, Article 41. TRIPS provides that procedures of enforcement of copyright infringements should be “fair and equitable . . . not unnecessarily complicated or costly, or entail unreasonable time-limits,” and that there should be the opportunity for a judicial hearing with legal counsel (although a specific judicial system is not required). Member countries have the authorisation to seize goods that infringe on intellectual property/copyright rights. With imported goods, this can be directly after they have cleared customs. The damages and remedies may depend on the law of the country, with a minimum of “adequate compensation” to remedy the infringement, where the infringement was intentional, or where the defendant had “reasonable grounds to know,” and in some cases even when they genuinely did not know. Compensation may include legal fees or recovery of profits. The infringing goods can be disposed of at the discretion of the authorities “outside the channels of commerce.”

Saudi Arabia launched the National Committee for Enforcement of Intellectual Property to build a collection of cases and reports. Saudi Arabia uses these to develop legislation, regulatory systems and work with other stakeholders and government entities to improve enforcement of those regulation. From these have come updated penalties for infringing on copyright are provided in Article 22. Penalties are moderate for a first-time offence, beginning with a warning, a maximum fine of 250,000 riyals, confiscation of the infringed material, closing of the participating establishment for up to two months, and/or a maximum prison sentence of six months. The SAIP also states that those involved with the infringement must remove the infringement and reverse the defamation, in a way the committee judges satisfactory, as the cost of the perpetrator. Additionally, compensation may be granted to the copyright owner at the cost of the offender should the perpetrator repeat the infringement, they risk being served double the maximum penalty.

The Committee in question is the Committee for the Consideration of Copyright Infringements, but any situations whereby a heavier punishment is served, such as imprisonment, licence cancellation of a licence or a fine in excess of 100,000 riyals, the decision is referred to the Board of Directors and then on to an appropriate court. Saudi Arabia has specialized courts for IP disputes, the Commercial Courts, as per the Commercial Courts Law, Royal Decree No. M/93 of 15/08/ /1441H (8 April, 2020), art 16 which cover IP laws in addition to other commercial matters. Judges also received specialized training in IP cases, provided by SAIP, the ‘authority for intellectual property rights . . . enforcement procedures.’

Similar enforcement laws exist in UAE, with actions and penalties covered in the new Copyright Act of 2021, in Articles 35–44. The reformed Act in general increases penalties for infringing on moral or financial copyright rights from 50,000 AED to 100,000 AED. As per TRIPS, the authorities can hold items coming into the country at customs that they belief to infringe, for a maximum of twenty days, allowing the author and right holder to inspect the goods. Revenue earned and any infringement items can be seized, including materials used to reproduce or perform the works in question. The penalties for infringing on moral and/or financial rights by reproducing, selling, or making public copyrighted works are similar to those in Saudi Arabia, with a minimum imprisonment of two months and a maximum of six months, with fines ranging from 10,000 dirhams to 100,000 dirhams. For repeat offenders, the fine increases from 100,000 to 500,000 dirhams and a minimum of six months incarceration. More serious infringements, such as mass production and circulation of copyrighted/licenced items attract a much larger penalty starting at six months with a fine ranging from 100,000 to 700,000 dirhams, with repeat offences drawing a prison sentence of a minimum of nine months, with a fine up to one million dirhams. The reformed law includes Article 41 which states that the use of smart apps, computers and databases without permission will draw a fine of 30,000 to 100,000 dirhams, rising to one million for repeat offences. In addition, for any of these infringements, both to moral and financial rights, the author has the right to claim compensation.

Again, Kuwait has also updated its penalties for those who infringe on the moral and financial rights of authors. Additionally, they have also bestowed a monitoring role to the National Library of Kuwait, observing publishing houses, printing presses and other libraries for signs of infringement and the authority to engage police support, should they spot such, with the Public Prosecution Service holding sole authority to prosecute such cases. The initial incarceration periods in Kuwait are higher than KSA and UAE, ranging from six months to two years, with fines between 500 KWD to 50,000 KWD, rising to 100,000 KWD for those using smart technology to counteract protections put in place by work’s owners.

Analysis of the laws of all three countries demonstrates that enforcement mechanisms for infringements against moral versus economic rights differ. It has been discussed that both are important, but the level to which each is important may depend on the artist, their purpose for the work and who holds the economic rights. For purely artistic work, a creator may favour protection of their moral rights, the right of attribution, for example, may be particularly important to those starting out who rely on spreading awareness of their work in order to build their name. The moral integrity of their work may be important to those with a political or social message or who wish to maintain the purity of their work. Those who rely on their work financially, or those who have bought economic rights or where licences exist will likely be keen to pursue infringements on economic rights. Of course, most would begrudge someone illicitly making money from their hard work.

Moral rights tend to be enforced via procedural protections, so instilling legal provisions and civil rights for the creator and prohibiting their infringement. We see this in the UAE’s Federal Decree-Law no. (38) of 2021, Article 5, Saudi’s Royal Decree No. M/11, 19 Jumada I 1410 [December 17, 1989], Chapter 3, Article 8 and Kuwait’s Copy Copyright Law No. 75 (2019), Article’s 6 and 7. Whilst financial compensation is prescribed within each of the systems, the range is large and amounts are not denoted specifically for moral or economic infringements, this is left for the courts to decide on a case-by-case matter. Jordanian law provides more differentiation; but it is still very context driven, specifying that the level of financial compensation has to be fitting dependent on the level of moral damage suffered, the artistic and/or scientific value of the work, status of the creator, level of infringement and the degree of benefit the infringer obtained. For disputes over translation, the judge can order the document to be verified as correct and will specify compensation for use of architectural drawings. “Infringing on the right to modify the work that shows the work in a distorted manner” holds a greater value of compensation than just infringing the right to publish the work, as it can cause more reputational damage. While the compensation is unlikely to fully negate the damage, it can mitigate it. Compensation for moral damages may be financial or may be more practical to reverse the effects of the damage. In some cases, it may be publishing the decision of the court in local newspapers to publicly mitigate any moral damage done.

Moving to economic rights, enforcement includes physical action. Law enforcement officials have the right to confiscate the stolen works, as well as any equipment being used to reproduce and distribute the copies. For minor first-time offences a warning would be given, but for more severe infringements, confiscation will come in addition to damages to remedy the loss of royalties not obtained by the creator and possibly prison. These damages are not specified outside of the maximum value provided in Copyright Law Royal Decree No. M/11, 19 Jumada 1410 [December 17, 1989] (Saudi Arabia); Copyright Act of 2021, in Articles 35–44 (UAE); and Law No. 75 of 2019 on Copyright and Related Rights (Kuwait), however it is much simpler to calculate damages of lost royalties, than for moral damages to reputation and offence.

Moral rights are considered higher in importance that economic rights as without moral rights to establish the attribution and maintain the integrity of the creation, there are no economic rights. There are those who believe that the moral rights protection in copyright law should be immutable and indeed it should maintain the force of legal protection beyond the death of the creator to honor that creative process and to inspire other creators. The protection of economic rights also inspires people to create and innovate, maintain national economies, and drive culture and social ideas forward. Yet, the right to have free access to works after a specified period of time is also important. For example, because of a permanent moral right and an economic right with a finite period, the world knows the works of Shakespeare and Mozart, but can equally experience them at will, performed in public free of charge, or enjoyed at home merely paying the cost of the medium (book printing or scanning), because they are out of copyright. Their presence benefits human society and culture and teaches us about history, music and society, as well as simply generating joy. There is more to protecting creative works than just protecting the economic rights to generate money, therefore courts and law enforcement need clear legislation and workable powers to be able to protect moral rights, both nationally and across international borders. It would benefit the UAE, Saudi Arabia and Kuwait to introduce further article amendments, similar to those found in Jordanian Copyright law.

VI. Conclusions

“Islam is a religion of laws in every dimension. Islam acquired its characteristic as a religion uniting itself in both the spiritual and temporal aspects of life.” Therefore, a Muslim must ensure that everything he does is consistent with Sharia. Understanding of the sources of Islam is crucial in deducing the concepts that support protection of copyright.

“One cannot reduce millennia of reflection under Sharia to a single formula”. But conceptually, it is fair to state that “there is more confluence than conflict in the relationship between Sharia and intellectual property protection, particularly if one takes a historical perspective.” “Intellectual property is not alien to the Muslim world. Although there remains a debate among Muslim scholars, intellectual property has been interpreted as a part of private property. Sharia recognized some basic forms of intellectual property rights.” Within the Hadith, respecting the identity of authors of literary works was shown to be considered important and to hold severe penalties held for transgressions.

So, whilst the Qur’an does not provide direct guidance on intellectual property laws, copyright and moral rights, and certainly, of course, not to the very specific detail of the pages of copyright law that exist in today’s modern Arab civil law statutes, the ideals and culture to respect them did exist in the ancient Arab world, and indeed in the Sunnah, the cultural and spiritual practice of those following the faith. Therefore, it could not be out of place to presume that Islamic judges and scholars would have used Qiyas—analogies within the Qur’an, the Hadiths, or the Sunnah—and discussed these to reach ijmā, or scholarly consensus, and then resulted in a similar judgement as one might in today’s civil law courts, albeit possibly a different punitive outcome. Hadiths show a strong belief in the moral rights of literary creatives, particularly in preserving an author’s attribution and integrity. So not honestly or accurately identifying the original author and inaccurately orally conveying or transcribing their work was seen as a crime worthy of excommunication; particularly if the work was a chant in the name of Allah, or a sura spread by the Prophet Muhammad (s.a.w).

In a modern context, the UAE, Kuwait and Saudi Arabia were signatories of the Arab Copyright Treaty in 1981, but have since signed global copyright treaties, such as the Berne Convention, WIPO and TRIPS. As such, there is a lot of overlap, but with some clear distinctions. In general, moral rights are inalienable and give the author the rights of divulgation, attribution, integrity, and withdrawal of the work. The copyright laws for all three countries have recently been updated, the UAE and Saudi Arabia in 2021 and Kuwait in 2019. These modifications accommodate recent global cultural and technological changes, such as shifts in digital technology and how it is used, and better protections for the entertainment industry with aims, in particular, to prevent piracy of music. But, there is an understanding with industries, where some parody in the form of memes, skits, stories and songs can be beneficial, as long as credit is given for the original. There is a clear effort towards improving enforcement for true infringement of copyrights. Moral rights are fundamental and remain with the creator; their importance clearly defined in the legal provisions to protect the creator and their integrity, with strict, although not well defined, penal and financial penalties for moral damages. Infringement of economic rights focus on confiscation of all copies, prevention of future copies being made and remedies for lost royalties, while moral rights are enforced via procedural protections. New organisations such as Saudi Arabia’s SAIP, should help creators better understand and defend their rights.

There is no doubt that GCC civil codes need updating, and perhaps more importantly enforcing, to reassure and encourage international trade and investment. To encourage such uptake, rather than enforce Western laws and ideals that do not exactly fit the business model and culture of these areas directly onto GCC states, a merger of modern Western copyright laws with Islamic principles, just as Al-Sanhuri succeeded in doing when he first blended civil law with the existing Islamic principles for the Arab nations, would be most effective. Reform is progressing, however, as international trade expansions command it, including likely, near-future changes as global players decide how best to manage advances in artificial intelligence and copyright ownership of AI-written creations. Working groups, such as the US-Saudi Arabia TIFA, should be utilized to explore best practice for regulatory, stakeholder liaison and enforcement practices, along with more clearly defined remedies for clearly defined infringements, with the GCC extracting what could be usefully applied in their nations, rather than being pressured to conform. As mentioned, there is some increase in conservatism and movement towards enforcing stronger Sharia law, which may impact laws in the future. In the area of moral rights in copyright, however, there is unlikely to be a large impact.