Morocco

The requirements for copyright to subsist in a work are that it must be an original intellectual creation in the literary and artistic fields, such as:

(a)   works expressed in writing;

(b)   computer programs;

(c)   lectures, addresses, sermons and other works consisting of words or expressed orally;

(d)   musical works, irrespective of whether they contain accompanying texts;

(e)   dramatic and dramatic-musical works;

(f)    choreographic works and mimed works;

(g)   audiovisual works including cinematographic works and videograms;

(h)   works of fine art, including drawings, paintings, and engravings, lithographs, printing on leather and all other works of fine art;

(i)     works of architecture;

(j)     photographic works;

(k)   works of applied art;

(l)     illustrations, maps, plans, sketches and three-dimensional works relating to geography, topography, architecture or science;

(m)  expressions of folklore and works inspired by folklore; or

(n)   drawings of garment industry designs.

There are also other works in which copyright can subsist, such as:

(a)   translations, adaptations, musical arrangements and other transformations of works and expressions of folklore;

(b)   collections of works, expressions of folklore or of simple facts or data, such as encyclopedias, anthologies and databases, irrespective of whether they are reproduced on a machine-usable carrier or in any other form which, through the choice, coordination or arrangement of the subjects, constitute intellectual creations. The protection of the works referred to in subparagraph (a) should not be prejudicial to the protection of the pre-existing works used to produce these works; and

(c)   the ancient manuscripts held in public libraries or the filings of public or private archives, without, however, the author of this publication being able to oppose the same manuscripts being republished according to the original text.

On the other hand, there are some works that are excluded from copyright protection, such as:

• official texts of a legislative, administrative or judicial nature or the official translations thereof;
• current events; and
• ideas, systems, processes, methods of functioning, concepts, principles or simple data even if they are described, explained, illustrated or incorporated in a work.

There is no specific system for the registration of copyright.  The protection resulting from the copyright law shall begin as soon as the work is created, even if the work is not fixed on physical media.

Moroccan law provides copyright protection for the literary or artistic expression of an idea, and there are no registration requirements to invoke such protection.

In principle, the protection of the economic rights over a copyright lasts the entire life of the author, and 70 years following the author’s death.  The moral rights of authors are imprescriptible, inalienable and transmissible to the successors.

However, the duration of copyright protection varies depending on the type of work, as follows:

• Authors’ rights:

• economic rights: copyright lasts for 70 years after a work’s lawful publication; if no lawful publication has taken place within 50 years of the making, copyright lasts for 70 years after the work’s communication to the public; if no lawful communication to the public has taken place within 50 years of the making, copyright lasts for 70 years after the work is made; and
• moral rights last perpetually.
• Performers’ rights: copyright lasts for 70 years after a work’s lawful publication; if no lawful publication has taken place within 50 years of the performance, copyright lasts for 70 years after the work’s first performance.
• Broadcasters’ rights: copyright lasts for 70 years after a work’s lawful publication; if no lawful publication has taken place within 50 years of the work’s creation, copyright lasts for 70 years after the work’s creation.

There is some overlap between copyright and trademark; design rights and database rights may be protected either by copyright law or industrial property law.  Database or design rights may be protected as a trademark or otherwise, but this will not affect its copyright status.

For example, software may be protected under industrial law as a trademark or patent, but this will not affect its copyright status.  Both protections will exist; it is a question of which protection you use to enforce your rights in the work.  That, in turn, depends on how those rights are violated.  The unauthorised copying of software without a licence (piracy) is considered to be copyright infringement.  The counterfeiting of software is considered to be industrial property infringement.

Copyright law allows certain limitations on economic rights and personal use; that is, cases in which protected works may be used without the authorisation of the right-holder and with or without payment of compensation.

Some exceptions and limitations are provided by international treaties due to the development of new technologies.  Morocco is bound by the following instruments:

• The Berne Convention (on literary and artistic works), since June 1917.
• The WIPO Convention, since July 1971.
• The Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, since June 1983.
• The TRIPS Agreement, since January 1995.

The first owner of copyright is the “author” of the work; the author is the natural person who has created the work.

The owner of the rights could be a natural person or legal entity other than the author as is referred to in Law n°2-00on Copyright and Related Rights, as amended by the law n°34-05, article 1.  Any reference in this Law to the economic rights of authors, when the original owner of these rights is a natural person or legal entity other than the author, shall be extended to cover the rights of the original rights’ owner.

If the creator of a work has sold the entire copyright, the purchasing business or person becomes the copyright owner.

When a work is commissioned to another person or organisation to create a copyright work, the first legal owner of copyright is in principle the person or organisation that created the work and not the commissioner, unless it is otherwise agreed in writing.

In the case of a work created by an author on behalf of a natural person or legal entity (hereinafter “employer”) as part of an employment contract, unless otherwise specified in the contract, the first owner of the moral and economic rights shall be the author, but the economic rights in this work shall be considered to have been transferred to the employer to the extent justified by the employer’s usual activities at the time the work is created.

Yes, in this regard, a distinction has to be made between the ownership of the rights in collaborative work and the ownership of the rights in collective work:

-          The ownership of the rights in collaborative work

The co-authors of a collaborative work shall be the first joint owners of the moral and economic rights in the work.  However, if a collaborative work can be divided into independent parts (i.e. if the parts of the work can be reproduced, performed or otherwise used separately), the joint authors may enjoy independent rights in these parts, since they are the joint owners of the rights of the collaborative work which is considered to be a single unit.

-          The ownership of the rights in collective work

The first owner of the moral and economic rights in a collective work shall be the natural person or legal entity, at the initiative and under the responsibility of which the work has been created in his name.

The transfer/assignment of ownership of the economic rights must be in writing.

The complete or partial transfer of the copyright in a work inspired by folklore, or the exclusive licence relating to such a work, shall be valid only if it has received the approval of the Moroccan Copyright Office.

Licence contracts must be in writing.

Yes, there are.  Transfers of economic rights and licences for the performance of acts covered by such rights may be limited to certain specific rights in relation to the aims, duration, territorial scope and extent or means of use.

Failure to mention the territorial scope for which economic rights are transferred or the licence granted to carry out acts covered by such rights shall be considered to limit the transfer or licence to the country in which either one or the other is granted.

Failure to mention the scope or means of use for which economic rights are transferred or the licence granted for the performance of acts covered by economic rights shall be considered to limit the transfer or licence to the scope and means of use necessary for the aims envisaged at the time the transfer or licence was granted.

The Moroccan Copyright Office (“BMDA”) is a multi-disciplinary collective management body.  It is established as a civil office, placed under the guardianship of the Ministry of Culture and Communication.

It has a monopoly on the representation, collection and distribution of royalties.

It has the right to institute legal proceedings for the defence of the interests which are entrusted to it by its members and mandators.  It manages the interests of various foreign collective management bodies on the Moroccan territory.

There is no specific regulation related to the collective licensing bodies; all the rights are protected before the aforesaid office (BMDA).

The same rules related to the individual licences are applicable to the collective licences.

The author of a work shall have the exclusive right to carry out, prohibit or authorise the following acts:

(a)   republish and reproduce the author’s work in any way or form whatsoever, whether permanent or temporary, including temporary storage in electronic form;

(b)   translate the author’s work;

(c)   prepare adaptations, arrangements or other transformations of the author’s work;

(d)   carry out or authorise the hiring or public loan of the original or copy of the author’s audiovisual work, or the work incorporated in a phonogram, computer program, database or musical work in graphical form (scores), irrespective of the owner of the original, or of the copy subject to hiring or public loan;

(e)   carry out or authorise the public distribution, by sale, hiring, public loan or any other transfer of ownership or possession, of the original or copies of the author’s work, distribution of which has not been authorised by the author;

(f)    perform the author’s work in public;

(g)   import copies of the author’s work;

(h)   broadcast the author’s work; and

(i)     communicate the author’s work to the public by cable or by any other means.

The hiring and loan rights specified in the point (d) of the above list shall not apply to the hiring of computer programs, in cases where the program itself is not the essential aim of hiring.

Yes, there are moral rights that are protected under Moroccan law.  Article 9 of the law 02-00 as amended and supplemented by the law 34-05 provides that: “Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall,

• have the right to claim to be identified as the performer of his performances  particular the right to have his name affixed to copies of his work and, wherever possible and in the usual manner, in relation with any public use of his work;
• remain anonymous or use a pseudonym;
• the right to be opposed to any distortion or mutilation of the work the right to be opposed to any use of the work that is likely to harm the author’s reputation and honour.”

As mentioned in question 4.2, in all circumstances the copyright owner is entitled to restrain subsequent dealings in works under the conditions specified in the abovementioned article 9 (mutilation, distortion or others).

The Copyright Office of Morocco (Bureau Marocain du droit d’auteur) has “the right to litigation” for the defence of the interests which are entrusted to it.

Yes, the Copyright Office of Morocco (Bureau Marocain du droit d’auteur) may conduct such action.

Under Moroccan law, the civil action is brought against the direct infringer of any protected owner’s rights, for the prejudice suffered as a consequence of the act of infringement.

Criminal action is brought against any willful infringement of an owner’s protected right which is committed unlawfully and in any way for the purposes of commercial exploitation.

Accordingly, the action should be brought in principle against the principal infringer, however, if the prejudice consequences of the act of infringement are established, the action may be brought against a secondary infringer.

Yes, they are.

The Customs and Exercise Authority:

If the Customs and Excise Authority establishes or suspects that imported or exported merchandise, or merchandise in transit is counterfeit or pirated, the Authority shall, of its own motion, suspend the release for free circulation of such merchandise.

The Court:

In cases of infringement of the provisions of this Law, the competent court may order the following preventive measures and subsidiary penalties, provided that a prior order or judgment on the same subject has not already been issued against the same parties:

1. the impounding of all copies made in infringement of the provisions of this Law, the packaging, the implements that could be used to commit the infringement, the assets linked to the infringement and the documents, accounts or business papers referring to such copies;
2. the confiscation of any assets with which a link with the unlawful activity may be established and, except in exceptional circumstances, all the copies made in infringement of the provisions of this Law and their packaging, materials and equipment used to manufacture them, without any compensation of any kind for the defendant;
3. the destruction, except in exceptional circumstances, of these copies and their packaging, materials and equipment used to manufacture them or, in exceptional cases, their destruction in another reasonable way, outside commercial circuits so as to reduce to a minimum the risks of further infringements, and all of the above without any compensation of any kind for the defendant;
4. the permanent or temporary closure of the establishment used by the perpetrator of the infringement or his/her accomplices; and
5. the publication of the condemnatory sentence in one or more newspapers designated by the competent court, at the cost of the person convicted, although the costs of this publication must not exceed the maximum of the applicable fine.

The amount of damages shall be fixed in keeping with the provisions of the Civil Code, taking into account the importance of the material and moral prejudice suffered by the rights owner, as well as the size of the infringer’s profits attributable to the infringement.

It should be noted that the rights owner shall have the possibility of choosing between damages actually sustained, plus any profit resulting from the prohibited activity that has not been taken into account in the calculation of those damages, or the pre-established damages of between five thousand (5,000) dirhams and twenty-five thousand (25,000) dirhams, as deemed equitable by the court to compensate for the prejudice suffered.

The typical costs of infringement proceedings are judicial expenses which depend on the type of the procedure and the claim amount (between 1% and 2% of the claim amount depending on the value of the amount).  Typically, infringement proceedings take between one and four years (first instance and appeal).

Yes, there is a right of appeal from a first instance judgment; the grounds on which an appeal may be brought depend on the grounds of the judgment rendered.

In the appeal, all the circumstances of the case could be discussed and, generally in the appeal, all the allegations against the grounds of judgment should be invoked.

There is a specific period in which an action must be commenced; however, the prescription provided by the general rules is applied.

If the action is public (before the criminal court): the Criminal Procedure Code provides for a four-year limitation period.

If the action is commercial: the commercial code provides for a five-year limitation period unless a special provision exists such as the disposal of the same code.

If the action is brought to a civil court: the Civil Code (DOC) provides for a fifteen-year limitation period.

Yes there are criminal offences relating to copyright infringement.

Any willful infringement of the following committed unlawfully and in any way for the purposes of commercial exploitation, shall be punished by imprisonment for a period of between two and six months and a fine of between ten thousand (10,000) and one hundred thousand (100,000) dirhams, or just one of these. 

If the perpetrator of one of the acts mentioned in Article 64 commits a new act that constitutes an infringement of copyright or related rights less than five years after a first judgment that has become final, he shall be punished by a term of imprisonment of between one and four years and a fine of between sixty thousand (60,000) dirhams and six hundred thousand (600,000) dirhams, or just one of these penalties.

Since the last reform took place in February 2006, there have been no significant legislative changes.

As the field is still new, we have not noticed any other noteworthy issues.