It has been broadly accepted that copyright holders in the UAE enjoy absolute discretion to determine the first date of publishing their works. However, this may not remain the situation in Dubai for TVbroadcasters. A judgment issued by the First Instance Court, and recently affirmed by the Appeal Court of Dubai, appears to restrict the exercise of rights granted under UAE copyright law.

Article 5 of UAE Federal law number (7) for 2002 in relation to Copyrights and Neighboring Rights (the "UAE Copyright Law"), stipulates that
"Author and his successors shall enjoy, in respect of the work, moral rights, which are not subject to assignment or a statute of limitations, such rights include:

  • The right to decide to first publish the work.
  • The right to claim authorship [...]"

Media companies, broadcasters, TV and satellite channels that own copyrights of recorded programs and/or interviews have been exercising their legal rights by selecting, modifying, cancelling and changing their broadcasting schedules. The 'first publication of work' doctrine assumes the liberty of copyright holders to determine the first date of broadcasting recorded material. Nevertheless, this has been subject to serious restriction in Dubai as the First Instance Court found a regional media TV broadcaster liable for moral damages because of rescheduling/cancelling of the first broadcast of an interview.

The facts of this case go back to 2008 when a regional TV broadcaster announced its weekly programming and confirmed to an interviewee the first date of airing a recorded interview featuring the interviewee. On the scheduled date of the broadcast, the broadcaster instead decided to air an interview with a different guest. The first interviewee, who became the plaintiff in the case, felt the rescheduling undermined his social standing. He filed a tort action and initiated civil proceedings seeking AED 500,000 as moral damages for emotional distress and embarrassment. The case was filed before Dubai First Instance Court, and was supported with an expert report issued by 'auditors and consultants' to prove the damage.

As per common practice in Dubai, the judge referred the case to a 'court expert' to evaluate the plaintiff's claims and examine other disputed grounds. The expert found the defendant liable for moral damages and affirmed the conclusion made in the expert report initially submitted by the Plaintiff. The court accordingly found the broadcaster liable for damages due to the breach of so called "customary rules, media honor and media professional guidelines". The court found the broadcaster damaged the social standing of the plaintiff after publicizing the date of publishing the plaintiff's interview and then cancelling the same without prior notice or apology.

Furthermore, the court confirmed that although the broadcaster holds the copyright and has the right to decide the first publication date, there are other considerations of good faith that surpass abstract rules of law and that should have been considered. Therefore, the broadcaster was found negligent and liable for the alleged damage suffered by the plaintiff for not publishing the recorded episode at the appointed date. The court identified the plaintiff as a public figure with prestigious social status in the region, and concluded that the broadcaster should be liable for the tortious misconduct and ruled for AED 100,000 as monetary compensation only. The court did not state in the final written verdict the grounds in calculating this amount of damages.

The broadcaster felt the First Instance Court holding to be unjust, groundless, prejudicial to its legal rights and contradictory with the black letter rules of law. Strictly speaking, there are no official documents, references or regulations to find the source of what was cited as "media honors" or "media professional guidelines". The broadcaster appealed before the Appeal Court for lack of legal basis, illegitimate conclusions and on evidentiary and procedural grounds in respect of the court expert's report. The defendant sought from the Appeal Court to implement Article 5 of the UAE Copyright Law and reverse the First Instance Court judgment. The plaintiff also appealed the judgment, alleging that the damages awarded did not adequately reflect the actual damage and requesting the Appeal Court to adjust the value of damage to AED 500,000 as initially sought before the First Instance Court.

The Appeal Court examined the grounds of both parties' appeal cases and decided to accept both parties' appeals in formalities but dismissed the appeals' legal grounds. The Appeal Court affirmed the First Instance Court's judgment, but elaborated that the broadcaster was found liable based on the 'abusive exploitation of rights' doctrine in accordance with articles 104/106 of the UAE Civil Transactions Code. The Appeal Court found the broadcaster misused its rights in an abusive manner that required compensation for the damages caused to the plaintiff.

The broadcaster contested the judgment and decided to seek certiorari from Dubai Cassation Court alleging the misinterpretation of law provisions, prejudice of the broadcaster's rights, and lack of legitimacy/legal reasoning of the lower courts' holdings. The petition before the Cassation Court is still pending for further examination by the Chief Justices Committee. We anticipate that the Cassation Court will issue its ruling before the end of 2010. In the meantime, the Cassation Court initially decided to hold off the execution formalities of the lower courts' judgments until the Chief Justices Committee concludes its judgment.

In light of the current holdings by the First Instance Court and the Appeal Court, media companies, broadcasters, TV and satellite channels operating from Dubai Media City Free Zone are highly recommended to consider this case and the resulting restrictions on the 'first publication of work' doctrine. Media companies should also adopt precautionary procedures to ensure that operational changes, such as rescheduling a planned broadcast, do not result in liability.

If finally affirmed by Cassation Court of Dubai, this decision will substantially limit the discretion of media companies, broadcasters, TV and satellite channels to reschedule and modify their programming.

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