Mallia Saviour v. Mk Leisure Ltd.

Dr. Silvana Zammit | 19 Sep 2013

Ccmalta Default

Mallia Saviour v. Mk Leisure Ltd.

■ [Terence Cassar], Malta
1. Facts of the case
Saviour Mallia was a former employee of Mk Leisure Ltd. Prior to being employed by Mk Leisure Ltd. he was employed by Barcelo Ltd. , a subsidiary  company of Mk Leisure Ltd.
Mr. Mallia’s job consisted in producing a theatre spectacle based on the Great Siege of Malta. He created the show named ‘Knights Spectacular 1565’, wrote its script, plot and also had a role in the creation of its music. 
A week after having had his employment terminated by Mk Leisure Ltd, Mr. Mallia sent a legal letter to his employer stating that his employer had no right to continue making use of the show he created as he was the owner of the copyright of such show and Mk Leisure Ltd. had no right to continue using it without his prior consent. 
2. Mr. Mallia’s Allegations
Mr. Mallia alleged that he was the owner of the copyright in the show he created and that Mk Leisure Ltd. had no legal entitlement to continue making use of his work without his prior consent.
Mr. Mallia also alleged that he started working on the show prior to his employment with Mk Leisure Ltd. , at the time when he was employed by Barcelo Ltd.
3. Mk Leisure Ltd.’s Allegations
Mk Leisure Ltd. alleged that it was the rightful owner of the copyright irrespective of the fact that there was no written agreement between the parties as Mr. Mallia had surrendered his ownership in the copyright in lieu of the lucrative pay he was receiving, also alleging that had this not been the case he would not have been paid such a high salary. 
Mk Leisure Ltd. moreover stated that the work was a collective work; therefore the copyright was the ownership of the person under whose direction the work had been created. 
4. Court Decision
The court decided that Mr. Mallia is the rightful owner of the copyright and that he is to be paid 3,500€ in damages as compensation for breach of his copyright by Mk Leisure Ltd. 
The court underlined that as per article 24(4) of the Copyright Act, Chapter 415 of the Laws of Malta, a copyright assignment may only take place via a written agreement. Here the parties did not even have a written employment contract and as a result the court did not accept that any copyright assignment could have taken place.
The court made reference to article 11(1) of Chapter 415, wherein it is stated that unless the parties otherwise agree, the copyright shall vest in the person creating the work, that is Mr. Mallia. 
As per the allegation raised by Mk Leisure Ltd. that the presumption should be the contrary since the work is a collective work, the court dismissed this allegation by giving a landmark explanation which highlighted that our position in this copyright issue is identical to that taken by the UK courts. 
A collective work is a work created by two or more persons under the initiative and direction of another person. In such case the ownership of the copyright is owned by the person under whose initiative and direction the work has been created.The court explained that a copyright protects exclusively the expression of an idea and therefore for a work to be deemed ‘collective’ two or more people have to participate in its expression. When one is only contributing ideas and/or suggestions, it has been already settled several times under UK case law that all that one is contributing are ideas which are then expressed by the author. For one to share in the copyright ownership, he has to share in the expression of such ideas and not just the idea behind the creation of the expression. 
In this case the court found that from the evidence compiled through various emails, Mk Leisure Ltd had never participated in the expression of the copyright, in this case being a show, by for example amending the text of the script. The mere fact that it was giving suggestions on how the script should be amended did not equate to having part of the creation per se of the amendments of the script. 
As per the allegation that Mr. Mallia started working on this show prior to starting his job with Mk Leisure Ltd. , such allegation is irrelevant as in any case there was no contract between the parties and the court deemed the work not a collective work, meaning that the result would have been the same. 
The court also noted that the fact that he did not exercise his right during the employment did not equate to having waived his right in such copyright. 
Finally the court could not find any specific parameters on which to base the award for damages although the court felt that the plaintiff had to be compensated for the damages he suffered.
As a result the award in damages was based exclusively on the court’s discretion.  No explanation was given as to theline of thought used by the court in arriving at the sum of 3,500€ which were awarded as damages.

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