The Condition of Seizure in the Pledge of Literary and Artistic Property Rights under Iraqi Law: A Comparative Analytical Study

Abstract

Abstract:

This research examines the requirement of possession in the pledge of literary and artistic property rights under Iraqi law. It analyzes the concept of possession, its legal function in the formation and enforceability of possessory pledge, and the possibility of applying it to the economic rights arising from literary and artistic works. The study proceeds from the special nature of copyright, which combines moral rights connected to the author’s personality, reputation, attribution, and protection of the integrity of the work, with economic rights represented by exploitation powers and financial revenues generated through publication, distribution, performance, broadcasting, and licensing. the research distinguishes between moral and economic rights, concluding that moral rights cannot be subject to pledge or possession because of their personal and non-transferable nature. In contrast, economic rights may be pledged where they are clearly identified, legally transferable, and capable of enforcement. The study further explains that possession in literary and artistic rights cannot usually take the traditional physical form applicable to tangible property. Instead, it takes the form of constructive or legal possession, which may be achieved through the transfer of documents and contracts evidencing the economic right, notification of the debtor of the relevant revenues, or placing the proceeds generated by the exploitation of the work under the control of the pledgee or a neutral third party. the research concludes that possession constitutes a fundamental safeguard for the completion of possessory pledge and for its enforceability against third parties. Its absence prevents the pledgee from exercising the rights of retention, priority, and tracing. The study recommends that the Iraqi legislator adopt special provisions regulating the pledge and publicity of authors’ economic rights, particularly in relation to digital works and the revenues derived from them, while expressly excluding moral rights from the scope of pledge.