Under the Microscope

The decision by Dubai’s Court of Cassation to reject the anti-piracy arguments of the Business Software Alliance (BSA) and find in favour of the defendant — National Engineering Company — has sparked intense debate within the UAE. The engineering company was allegedly found to be using unlicensed copies of Microsoft Windows and Autodesk’s Autocad on four machines.

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By  Greg Wilson Published  November 26, 2001

Ruling|~||~||~|The decision by Dubai’s Court of Cassation to reject the anti-piracy arguments of the Business Software Alliance (BSA) and find in favour of the defendant — National Engineering Company — has sparked intense debate within the UAE. The engineering company was allegedly found to be using unlicensed copies of Microsoft Windows and Autodesk’s Autocad on four machines.

The Court of Cassation — the highest court in the UAE’s legal system — upheld a an earlier Court of Appeal ruling made in July of this year. “The case in question has shed a lot of light on the grey areas of the copyright law in the UAE,” says legal expert, Rashid bin Shabib, of Dubai-based Rashid bin Shabib & Associates — Lawyers & Legal Consultants.

“Immediately after the judgement was issued, the Ministry of Information (MoI) and all the relevant departments in the UAE acted to bring more awareness to the relevant authorities and particularly to the court in the UAE,” explains Bin Shabib.

In a joint press briefing, the BSA’s regional director, Jawad Al Redha and legal representative Essam Al Tamimi, managing partner in Al Tamimi & Company described the outcome as “the wrong application of the law.”

The National Engineering Company ruling flies in the face of two previous end-user anti-piracy convictions. In Abu Dhabi earlier this year, two engineering firms were fined for using illegal copies of software. “The law is clear… a license is needed from the author, without that software cannot be copied, sold or imported,” says Al Tamimi.

According to both the BSA and Al Tamimi & Company, the confusion over the application of copyright law appears to stem from a report prepared by an IT specialist.

According to the ‘IT expert,’ the installation of software on a PC cannot be considered copying, and is consequently not in breach of the law.

Bizarrely, it was the Public Prosecution (PP) that consulted the expert at the time of the investigation. “As per established procedure, when a criminal complaint is filed the PP will investigate and may consult experts in order to frame charges and assess evidence,” explains Al Tamimi. “The court has complete discretion whether to accept or refute the findings of the expert,” he adds.

Despite contradictory evidence from the MoI stating that the seized PCs were loaded with illegal software, the opinion of the IT expert was enough to cause “reasonable doubt” in the mind of the Judge, says Al Tamimi.

Both the BSA and Al Tamimi & Company are convinced that the findings of the IT expert failed to take into account international treaties such as the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, which refers to the Berne Convention. “I believe that by relying on a report prepared by an IT specialist who is neither familiar with the application of the Copyright Law nor the UAE’s obligations under international treaties, such as TRIPS and the Berne Convention, the court has not applied the law in a proper manner,” explains Jawad Al Redha.

Further details on the role, responsibilities or qualifications of the judicial IT specialist appear unclear. Although the court has the ‘last say’ in appointing an IT expert, it can at its own discretion, appoint an expert should it be puzzled or confused by the evidence. The court can also appoint an expert at the request of either party.

However, it remains unclear just why another expert wasn’t requested by the prosecuting party or by the court when faced with conflicting evidence. “It is not clear why the court has not looked [at] other experts who may be more aware of the copyright law,” says Bin Shabib.

“However, it is our understanding that the court was satisfied with the evidence submitted… [The court] has the sole discretion to appoint experts and as we understand it, it did not see the necessity in appointing a second expert,” comments Bin Shabib.

Although the National Engineering Company case has tarnished the UAE’s good copyright protection record there are hopes that the recent decision will spark an IT awareness drive among the local judiciary. “Finding qualified IT experts in the legal industry is always going to be a problem,” says Al Tamimi.

“We strongly insist on appointing somebody qualified in this field. There has already been some communication about this… there should be training for the judiciary very soon,” explains Al Tamimi.

According to Rashid bin Shabib, the recent ruling by the Court of Cassation could lead to a more stringent enforcement of copyright issues within the UAE.

“IT [companies] and other entities are demanding guarantees from the UAE law to protect their interests and copyright,” says Bin Shabib. “Moreover, as part of the UAE’s subscription to the WTO it is the most likely that the current regulations will need to be amended and relevant authorities will have to improve their awareness of legal issues generated by the use of IT,” he adds.

The MoI is currently redrafting the existing 1992 copyright legislation. The working version incorporates greater TRIPS obligations.

However, in the short-term, the BSA is concentrating on handling the implications of the Court of Cassation’s ruling.

A strong line on protecting intellectual property has proven key in attracting foreign investment — particularly from the IT community.

Consequently, Al Redha is anxious that the ruling not be misinterpreted. “This shouldn’t send out the wrong message… the BSA and the [MoI] will continue to prosecute people for the use of illegal software,” he adds.
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