بسم الله الرحمن الرحيم
Mahmoud Ahmad Al-krisat
Master of privet law
Attorney at law
Intellectual Property Rights
As a part of the intellectual property, in its wide concept
which comprises computer programmes and the literacy
compilations, the author's right has suffered from the
jurisprudential contention about identifying the law that should
This problem was solved locally in every country
according to the national legislation which results in a general
base on the issue. (1)
2- What is meant by the intellectual property '? (2)
It expresses all of the industrial, technical and literary
rights. There was a several argument about the nature of these
rights. Some jurists said that these rights are different from the
legal nature of the property. There is another theory on the issue
which is the theory of 'personal rights'. The third theory is based
in the fact that this right has two aspects. The first one is
spiritual while the other is tangible (physical).
As a result, there must be special rules to protect it and
some countries really found the suitable rules to do so.
In addition to the local rules (laws) international conventions
have been decided to regulate this right and to protect it as it
was issued in one of the countries which signed the convention.
Because of the wide usage of these rights, there are rules
in the countries that signed the conventions so that the same
solutions can be applied on the industrial and literary rights, and
any contradictions in the laws of the countries can be avoided.
The intellectual property is the author's right only as it
comes as a result of his own mind and effort whatever its form
is. It is called as 'The description of mental rights'. (3)
) عامر الكسواني :القانون الواجب التطبيق على حق المؤلف، مجلة نقابة المحامين، الملحق ( 21 )، أيلول )
. 2005 .ص 50
2) د. حسن الهداوي، و د. غالب الداودي، القانون الدولي الخاص، القسم الثاني، ط 1، بغد اد. )
141 ، و د. رمضان أبو السعود الوسيط في شرح مقدمة القانون المدني، الد ار الجامعية، 1983 - ص 139
.571 - 3) د. رمضان أبو السعود، المرجع السابق، ص 570 )
(1-2) The author's rights qualities:
1. Absolute rights (which means that no one has the right
to deal with them).
2. Cannot be valued.
3. Cannot be endorsed to the others.
4. Cannot be influenced or affected by the laws. (Related
to human nature).
5. Cannot be inheritable, only in the cases of protecting
the author's right.(4)
(2)The applicable law on the author's right.
(2-1)- Basic rule:
With regard to this rule, jurisprudence considers the law of
'the place of origin' the one that should be applied as it is the law
of the country where the first compilations were published.
The publication gives the author the right while the other
legislation is based on submitting the author to the law where
the first compilations were issued.
Bern convention for the literary compilation protection
takes this opinion; the author's right is submitted to the law of
the country where the first compilation was published.
With taking into consideration applying this theory
without having difficulties particularly wherever the compilation
ha not been published yet.
Wherever the compilation was published in different
countries at the same time.
The legislation tends to apply the law of the country where
the author resides (lives) as the compilation is the result of his
own thought, which means that these things are related to the
character of the author so the best law that should be applied is
the law of the author's nationality.
533 - 4) د. رمضان أبو السعود، المرجع السابق، 530 )
(Bern) convention for the protection of the compilations
takes this law into consideration.
Some difficulties may arise, such as publishing the
compilation in different countries and at the same time, but this
problem can be solved by applying the law mentioned before.(5)
(2-2) The attitude of the Jordanian law toward the law that
should be applied on the author's right.
The Jordanian legislation has recognized the importance of
protecting the author's right and so he formed the suitable law
based on a legal base in which all the compilations of the
Jordanian authors are protected by the law. Moreover, all the
compilations of the foreign authors are protected except those
which are published aboard for the first time. (6)
The publications and the compilations of the foreign
authors which are published for the first time in a foreign
country are not protected by this law unless they are protected in
this country on the condition of comprising the Jordanians and
their compilations and protecting them by the law of the foreign
Article 53 of the Jordanian law covers the rights of the
Jordanian authors and the foreign ones included in paragraph 3
article 3 within the kingdom and outside it.
Jordan joined a number of international conventions to
protect the author's rights, but in case of having the possibility of
not applying the law in Jordan, the principle which is followed
is the reciprocity. All the citizens of the countries which are
members in the international conventions are included in the
، د. هشام علي صادق، تناز ع القوانين، منش أة – 5) د . عامر الكسواني، المرجع السابق، ص 50 )
.142 - 815 ، د. حسن الهداوي، المرجع السابق، ص 141 - المعارف، 1997 ، ص 813
6) د عامر الكسواني، المرجع السابق، ص 54 )
In conclusion, Bern's convention did not take any
particular opinion with regard to the law that should be applied
on the author's right as it appeared in the first place supporting
to the law but later the situation became different as it adopted
the opinion which says that the law of the country which
requires the protection should be applied.
The reason for this change according to some legislation
was that the concept of the convention was changed, in other
words, the law can be changed according to the adoption of the
author's right. So two directions (opinions) appeared.
The first one is that the author's right is a personal one
while the other considers it as monopoly. But the convention,
according to the articles of the law in 1886, took the first one
This opinion (direction) was changed in Berlin's
convention, 1900 which considered the second opinion the
author's right is monopoly, which restricts the thought freedom
and restricts the industrial property too, and it is relates to the
civil security issues which will submit it to its legislative
د. عامر الكسواني ، المرجع السابق، ص 60 )
3- The decided protection for the author's right.
The author's right as always under the control of the
country's law in which the first compilations were issued, and in
case the compilations are not published, the law which must be
applied is the author's law is the nationality law. (Article 30)
which decided to protect the author's right for 30 years and after
that it becomes as a part of the national heritage. (UNESCO
convention 1972). (8)
The author's mental rights are related to the results not the
ideas, so there were different opinions about the nature of these
8) د. ممدوح عبد الكريم، القانون الدولي الخاص- تنازع القوانين، دار الثقافة، 2005 )
. ص 157
) عامر الكسواني :القانون الواجب التطبيق على حق المؤلف، مجلة نقابة المحامين، )
. الملحق( 21 )، أيلول 2005
2) د. حسن الهداوي، ود. غالب الداودي، القانون الدولي الخاص، القسم الثاني، ط 1، بغداد. )
. 3) د. رمضان أبو السعود الوسيط في شرح مقدمة القانون المدني، الدار الجامعية، 1983 )
4) د. هشام علي صادق، تنازع القوانين، منشأة المعارف، 1997 )
. 5) د. ممدوح عبد الكريم، القانون الدولي الخاص- تنازع القوانين، دار الثقافة، 2005 )