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The Law on Copyright and Related Rights affords authors of original works a set of exclusive economic and moral rights. As stated in Article 1 of the law, by providing authors with a just and legitimate exploitation of their cultural products, the law aims to contribute to the development of culture. The law was enacted in 2003 as part of Cambodia’s accession to the World Trade Organization. Cambodia is a member of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) but is not a member of the Berne Convention for the Protection of Literary and Artistic Works. Most recently, on July 5, 2016, the Ministry of Culture and Fine Arts issued a Prakas (declaration) on the Collective Management Organization (CMO). CMOs are formed by copyright owners to manage their rights in common, by administering licenses, collecting royalties, and enforcing rights on their behalf.
[Image Source: Istock]
However, as a least developed country, Cambodia has until July 1, 2021, to comply with TRIPS (with limited exceptions) and thus to comply with the key criteria of the Berne Convention. This is pursuant to the WTO’s Extension of the Transition Period Under Article 66.1 for Least Developed Country Members, which extended the original 2013 deadline for least developed countries to reach full TRIPS compliance by an additional eight years. This is the second time that the deadline has been extended.
A “work” is defined as a product in which thoughts or sentiments are expressed in a creative way, and can be literary, scientific, artistic or musical. The law lists thirteen broad types of copyrightable works:
• All kinds of reading books or other literary, artistic, scientific, and educational documents;
• Lectures, speeches, sermons, oral or written pleadings and other works with the same characteristics;
• Dramatic works or musical dramas;
• Choreographic works, either modern or adapted from traditional works or folklore;
• Circus performances and pantomimes;
• Musical compositions, with or without words;
• Audiovisual works;
• Works of painting, engraving, sculpture or other works of collages, or applied arts;
• Photographic works, or those realized with the aid of techniques similar to photography;
• Architectural works;
• Maps, plans, sketches or works pertaining to geography, topography, or other sciences;
• Computer program and the design encyclopedia documentation relevant to those programs;
• Products of collage work in handicraft, hand-made textile products or other clothing fashions.
Specifically excluded from protection are:
• Constitution, Law, Royal Decree, Sub-Decree and other regulations, and their translations;
• Proclamations (Prakas), decision, certificate, other instructed circulars issued by state organizations, and their translations;
• Court decisions or other court warrants, and their translations;
• Idea, formality, method of operation, concept, principle, discovery or mere data, even if expressed, described, explained or embodied in any work.
It is presumed that the author is the natural person or persons in whose name the work is created and disclosed. Upon creation, the author is the first holder of the moral and economic rights. If the author is an employee and created the work as part of their job, unless stated otherwise in their employment contract, the economic rights are considered automatically transferred to the employer. The employee is still considered the original author, and retains the moral rights to the work.
When two or more persons jointly create a work, they are deemed co-authors of a work of collaboration Unanimous and written consent of all co-authors is required to exercise their rights. So for example, if a collaboration is to be licensed, all co-authors must sign the license agreement. In case of disagreement, they can petition the court for resolution. For audiovisual works (ex. films), it is presumed that the following are co-authors:
• Author of scenario;
• Author of adaptation;
• Author of the spoken text;
• Author of the musical compositions, with or without words, specially created for the sake of the work;
• Author of the graphic arts for animated works.
Every work is automatically protected, though authors and right-holders may, but are not required to, deposit their works at the Ministry of Culture and Fine Arts. Whether or not it is publicly available or disclosed, a work is considered to be created simply when the author’s idea is realized, even if incomplete. Works must be “original”, meaning they are the true intellectual creation of their author.
Works of authors will be automatically protected where:
• The authors are nationals of, or have their habitual residence in Cambodia, including legal entities established under Cambodian law and having headquarters located in the territory of Cambodia;
• Works first published in the Kingdom of Cambodia, including works first published abroad that were then published in Cambodia within 30 days of their first communication to the public;
• Audiovisual works, the producer of which has his headquarters or habitual residence in Cambodia;
• Works of architecture erected in Cambodia and other artistic works incorporated in a building or other structure located in Cambodia;
• Works for which Cambodia has obligation to grant protection under international treaties.
The protection required under international treaties merits particular attention, as many foreign copyright holders mistakenly believe their works are automatically protected in Cambodia. This is not the case, due to an important exception. While Cambodia is a member of the World Trade Organization and thus bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires, through the Berne Convention, to automatically extend copyright protection to foreign works, Cambodia is exempted from this obligation as a least developed country until July 1, 2021. Until this exemption expires, foreign works will not be protected unless they satisfy the requirements specified above regarding a connection to Cambodia.
Any copyright holder who suffers or risks suffering a violation of their rights, may petition the court to prohibit the violation of their rights, if it will be imminent, or to desist from violating their rights, if they are ongoing. In addition, the plaintiff is entitled to compensation for damages, to redress of moral injury, to the return of disputed equipment and materials, and return of any benefits deriving from the infringement. Furthermore, the law also imposes criminal penalties for certain copyright infringement activity. Infringement of production and reproduction rights is punishable by six to twelve months imprisonment and/or 5 – 25 million Riel (Approx. USD 1,250 – 6,250) fine. Natural and legal person interested in exploiting works controlled by the CMO may seek an authorization and pay remuneration. The authorization must be in a contract form and must determine the kind of works to be exploited, the number of works, the place to be used and time period. Finally, the Prakas enables the Ministry of Culture and Fine Arts to settle disputes between CMOs and licensees, as well as between members of the CMO.
Author: Tanya Saraswat, a student of Narsee Monjee Institute of Management Studies (NMIMS), in case of any queries please contact/write back to us via email to firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.