PERFORMANCE OR COMMUNICATION OF WORKS IN EDUCATIONAL ESTABLISHMENTS

• May 3, 2022
• Maichael Bessada

A.        ANALYSIS [1]

Out of the 17 countries studied, we found 10 whose copyright laws contain an exception designed to allow the performance or communication of works in educational establishments:

–        Algeria (Article 44)

–        Bahrain (Article 27)

–        Egypt (Article 171(1))

–        Iraq (Article 12)

–        Jordan (Article 17(1))

–        Lebanon (Article 32)

–        Morocco (Article 23(b))

–        Oman (Article 20(6) (b))

–        Saudi Arabia (Articles 15(8) of the Law and 14(1) of the Regulations)

–        United Arab Emirates (Article 22(6))

The following points will be taken up:

1.       The rights in question

2.       Purpose and place of the performance or communication of a performance

3.       Persons exempted

4.       Works likely to give rise to the exception

5.       Other conditions

1.      THE RIGHTS IN QUESTION

For all of the Arab countries whose laws make provision for this exception, it is the right of public performance that forms the subject matter of the exception.

2.      PURPOSE AND PLACE OF THE PERFORMANCE OR COMMUNICATION OF A PERFORMANCE

2.1.   It is generally accepted explicitly or implicitly that the activity which forms the subject matter of the exception must be carried out for purposes of teaching.

2.2.   All of the countries require explicitly or implicitly that the performance must take place inside the educational establishment, or even inside a classroom.

2.3.   However, there appear to be some differences of opinion when it comes to determining whether the students and teachers must themselves stage the performance or if it is enough for a performance to take place in a classroom, regardless of whether or not the students or teachers are themselves the protagonists.

–        One school of thought consists of those countries which require (explicitly or implicitly) that the performance be staged by the students or teachers (Bahrain, Egypt, Lebanon, Oman and United Arab Emirates).

An example of a law which represents this position is that of the United Arab Emirates, which applies the exception to “performing the work by…students in an educational institute….” (Article 22, para 6).

–        A second school of thought takes in those countries which appear to be satisfied if a work is performed in class, without however requiring that the performance be staged by students or teachers (Algeria, Iraq, Jordan, Morocco, Saudi Arabia).

The law which best represents this trend is that of Morocco, which states: “It shall be permissible, without securing the author’s consent and without payment of compensation, to stage a public performance, within the framework of the activities of an educational establishment, of a work, for the staff and students of such an establishment, if the public is composed solely of the staff and students of the establishment or of the parents and supervisors or other persons directly linked to the activities of the establishment” (Article 23).

The difference between these two approaches offers a certain amount of practical interest.  Indeed, the field of the exception can vary, depending on whether the law from the country considered falls into the first or the second group.

For advocates of the first group, works must be staged by students and/or teachers, thereby including “live” performances.  As a result, this also limits the works which are likely to be used.  These can be musical, choreographic, dramatic or literary works or pantomime.  By contrast, they cannot be works recorded in a sound, visual or audiovisual format.

However, for countries in the second group, which merely require that the performance take place in a classroom without stipulating that it be staged directly by students or teachers, the field of the exception is broad.  In this case, one could imagine that pre-recorded or live audiovisual works, music recordings or broadcasts could be performed for an audience composed of students and teachers inside a classroom.  These activities would come under public performances, as with direct performances by students or teachers (see in the same vein Articles 11(1)(i) and 11ter (1)(i) of the Berne Convention, according to which the public performance or recitation of a work may extend to performances or recitations by any means or processes).

2.4.   Some countries, such as Lebanon and Morocco, further require that the audience must be composed solely of teachers, students, parents of students and persons participating directly in the activities of the educational establishment.

3       BENEFICIARIES

3.1.   The various laws examined do not take up this question directly.  The wording used exempts an activity (the performance or communication of a work in a classroom) rather than persons in particular.

Notwithstanding, one can therefore assert that the person who carries out the exempted activity (student or teacher) should also enjoy the same status and not be held accountable. The scope of the exception should also cover the educational establishment within which the exempted activity has taken place.

4.         EXEMPTED WORKS

4.1.      The majority of laws dealing with this exception extend its application to works in general, without limiting the scope to works of a specific genre (Algeria, Egypt, Iraq, Jordan, Lebanon, Morocco, Saudi Arabia and United Arab Emirates).

However, two countries (Bahrain and Oman) specify that the exception must apply to dramatic, musical and choreographic works or pantomime, because in these countries, performances must be staged by the students or teachers themselves.  This having been said, and even from this restrictive perspective, one cannot but wonder why the scope of the exception rules out the reading or recitation of a literary text which, as with the performance of a play, also implies the live staging of the work.

4.2.   Yet despite the fact that with the majority of laws, all works, regardless of genre, are subject to the exception, in practice the answer is probably not as categorical.  Here, we refer the reader to the arguments developed in paragraph 2.3 and to the resulting distinction which we shall recall briefly.

For countries which require that the performance be staged directly by the students and/or teachers, the exception could only apply in practice to works which can be performed live by human beings, as for example a literary work, a play, a choreography, a musical work or a pantomime.  Accordingly, this eliminates sound recordings and phonograms, as well as audiovisual works that could be performed with appropriate equipment.

5.      OTHER CONDITIONS

5.1.   A number of countries stipulate that a performance staged in class may not lead to direct or indirect financial gain (Bahrain, Egypt, Iraq, Oman, Saudi Arabia and United Arab Emirates).

5.2.   Two other countries (Jordan and Oman) require a reference to the source and the name of the author, if the name appears in the source.

B.     RELEVANT LEGAL PROVISIONS

ALGERIA

Article 44 

         The free performance of the work shall be lawful:

• in educational or training establishments for their strictly pedagogical needs.

BAHRAIN

Article 27

A public performance of a dramatic or musical work or a dramatic or musical work, or dance or pantomime work or any other artistic work created for dramatic performance shall be permitted, without obtaining permission from the author and without payment of compensation, in the following cases:

         …

(b)     Purposes of face-to-face educational activities inside recognized and non-profit educational institutions in similar educational classes or places.

In all cases, it shall be required that no financial gain shall be achieved directly or indirectly.

EGYPT

Article 171

Without prejudice to the moral rights of the author under this Law, the author may not, after the publication of the work, prevent third parties from carrying out any of the following acts:

1)      Performing the work in a family context or student gathering within an educational institution, to the extent that no direct or indirect financial remuneration is obtained.

IRAQ

Article 12

It is not permitted to the author, after the publication of his work, to prevent its rhythm, performance or addressing thereof, if such thing was made in family audience, or in a meeting of special society, club or school, if such meeting shall not produce directly or indirectly amounts of money.

JORDAN

Article 17

Published works may be used without authorization from the author according to the conditions and in the cases that follow:

(1)     Presenting, displaying, reciting, acting or performing the work if it occurs….at an educational….institution and for purposes of educational clarification, provided the performance does not generate any financial returns and that mention is made of the source and the name of the authors, if the name is in the source.

LEBANON

Article 32

The exhibition or public performance of a work shall be lawful without the author’s permission and without payment of compensation during:

•      the activities of educational establishments, when the work is used by the teachers or students, provided that the audience is composed solely of teachers, pupils, parents of pupils and persons participating directly in the activities of the educational establishment.

MOROCCO

Article 23

Notwithstanding the provisions of Article 10 above, it shall be permitted, without the author’s consent and without payment of compensation, to stage a public performance of a work:

         …

(b)     In conjunction with the activities of an educational establishment, for the staff and students of such an establishment, if the audience is composed solely of the staff and students of the establishment or the parents and supervisors or other persons directly linked to the activities of the establishment.

OMAN

Article 20

Subject to the moral copyrights stipulated under this Law, the following uses of works shall be lawful even without the author’s consent, provided that the source and the name of the author are mentioned if listed in the work and provided that free use shall not be allowed if such use conflicts with the normal exploitation of the work, performance, or phonogram or unreasonably prejudices the legitimate interests of the author, performer, or producer of phonogram: 

…

(6)     Public performance of a dramatic, musical or dramatic musical, choreographic, pantomime work or any other work, created for dramatic performance, if:

(a)     religious ceremonies to the extent justified by the nature of these celebrations.

(b)     purposes of face-to-face learning activities in approved non-profit educational institutions, in classrooms or similar places dedicated to education.

         In both cases, it is provided that no financial gain may be obtained, directly or indirectly.

SAUDI ARABIA

Copyright Law Royal Decree No. M/41 2 Rajab, 1424

Article 15

The following uses of the copyrighted work, in its original language or in translation, are lawful without obtaining the permission of the copyright owner.  These forms of use are:

…

(8)     Music playing, acting, performing or showing any work, after publication, by government troupes or public corporate entities or school theatre, as long as such playing, performance or acting does not lead to direct or indirect financial gains.

Copyright, Regulations (Consolidation), 29/05/2004 (22/06/2005), No. 1688/1 (No. 1640

Article 14  

It shall be deemed an infringement of performance rights if the work is performed in school theatres or the like unless the performer of the work obtains the prior approval of the owners.  It shall be deemed lawful use in accordance with article 15 (8) of the law if the performance of the work is in the classroom for purposes of education.

UNITED ARAB EMIRATES

Article 22

Without prejudice to the literary rights of the author stipulated in this Law, the author after the publication of his work must not prohibit a third person from performing one of the following acts:

(6)     Performing the work in family meetings or by students in an educational institute for no direct or indirect remuneration.

---

[1] – study on limitations and exceptions for copyright for educational purposes in the Arab countries, world  intellectual  property  organization, geneva, standing committee on copyright and related rights, Nineteenth Session, Geneva, December 14 to 18, 2009, prepared by Victor Nabhan (President, International Literary and Artistic Association (ALAI)), SCCR/19/6, Section I, page 45