On 21 December 2022, Amendment to Act No. 121/2000 Coll., on Copyright and Related Rights and on Amendments to Certain Acts, as amended (the “Copyright Act” and the “Amendment”) was published in the Collection of Laws. The Amendment implements Directive (EU) 2019/789 of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (the “OSC Directive”) and Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market (the “DSM Directive”).
The Amendment reflects the wording of the first amendment to the Copyright Act prepared by the Ministry of Culture in November 2020. While the OSC and DSM Directives have already been partially implemented in our current legislation, the remaining new rules will be incorporated by the Amendment. Apart from major innovations, such as new types of statutory licences or stricter rules and liability for online platform providers, the Amendment also brings some controversies and vague solutions to some copyright issues and situations.
The following article specifies how the protection of the rights of publishers of press publications is being extended, what the new stricter rules and responsibilities for providers of certain online platforms are, or what new statutory licences should be taken into consideration.
Use of copyright-protected content to share content online
One of the significant changes is the tightening of rules for providers of online content sharing services. The providers have additional obligations and conditions to govern their liability for unauthorised communication of work to the public, i.e. liability for content illegally uploaded by users to their servers. These are providers of certain online platforms used to store and publish a wide range of content where the provider arranges and promotes such user-uploaded content for profit (such as Ulož.to and similar servers). These providers (as defined in the amended wording of Section 46 of the Copyright Act) will have to make their best efforts to obtain the relevant licence for the protected content, and also to immediately prevent access to the work or remove it from their websites upon reasonable notice from the author of the content, and to make their best efforts to prevent its re-upload. Simply put, the provider must not only delete the content reported in this way but also ensure that it is not re-uploaded in the future. The Amendment further specifies these obligations and determines the factors that will be taken into account when assessing whether or not a provider has complied with their obligations.
Minor providers offering these services for less than 3 years and having an annual turnover of less than EUR 10,000,000 are not subject to these new obligations in full: they will not have to deal with preventing the re-uploading of the work in the future but will only have to delete it after notification.
Greater protection of publishers’ rights
Another significant novelty, and a closely monitored change, is the establishment of new rights of publishers of press publications, representing the implementation of somewhat problematic Article 15 of the DSM Directive into the provisions of Section 87b of the Copyright Act. Pursuant to this Section, online service providers are obliged to maintain a fair, equitable and non-discriminatory approach towards the publisher of the press publication when negotiating the granting of the authorisation to exercise the right to use the press publication and to pay a reasonable remuneration to the publisher for the granting of the authorisation to exercise the right to use the press publication.
The existing legislation has encouraged unfair behaviour and practices on the part of large providers, especially multinational companies such as Google, Facebook or Apple, that could in fact legally parasitize the copyright-protected content of media houses and publishers. For example, providers displayed previews of protected publications on their servers, accompanied by advertising from which they benefited but without providing any remuneration to the publishers of the content. This practice will no longer be possible from the effective date of the Amendment, and providers will have to agree with copyright holders (or a collective manager) on the legal treatment of the remuneration and the licence under which they will publish even previews of protected content. Copyright protection under the Amendment will last for two years from the date on which the relevant publication is published.
It is no secret that the operators of large digital platforms are generally unwilling to negotiate licensing agreements, trying to circumvent the rights of publishers in every possible way. An example from abroad, namely France – one of the first Member States to impose this new obligation on providers – may serve as an illustration. Google tried to get around this obligation by giving the publisher a choice: either it would license Google to publish the articles for free, or Google would not offer the publisher’s articles in its search at all. The Antitrust Authority found this to be an abuse of dominance and ordered Google to agree a remuneration with the publishers. Nevertheless, the outcome of the agreement between Google and the publishers’ representatives was not exactly favourable for the publishers, according to many opinions.
Problematic concepts
The Amendment (unfortunately copying the DSM Directive in this respect) contains rather problematic and vague wording. Under Section 87b (8) of the amended Copyright Act (see above) “the right to use a press publication shall not apply to the use of single words or very short extracts from a press publication and to the insertion of hyperlinks”. Unfortunately, neither the Amendment nor the DSM Directive specify what constitutes “a short extract”. According to the Explanatory Memorandum, this concept will be interpreted on a case-by-case basis, in line with the ethos of the DSM Directive, which seems rather problematic, especially in the context of potential litigation before the court, and not conducive to the legal certainty that all legislative efforts should aim for. In this respect, the DSM Directive has not fulfilled its purpose of unifying the legislation of the Member States, more or less delegating to them the responsibility to ensure at least a minimum level of legal certainty for the right holders and service providers as well as for the users. Unfortunately, unlike France or Germany, Czech legislation has not responded to this issue, failing to provide any specification of the vague terminology.
Another rather fundamental deficiency of the Amendment is the so-called extended collective management (provisions of Section 97e et seq. of the amended Copyright Act), which will operate in an opt-out mode where the collective manager will represent all right holders unless they explicitly opt out. The above shortcomings open up a very wide scope of issues for potential litigation.
New statutory licences
On the other hand, there are several benefits that the Amendment brings, comprising a number of new statutory licences allowing, inter alia, easier access to otherwise copyright-protected content for educational and cultural purposes:
Licences for automated text or data analysis – data mining
Automated analysis of texts or data occurs during data mining (the process of extracting data from a digital master). This process subsequently provides information about the interrelationships and correlations within the data. This information is usually further used not only for scientific but especially for commercial purposes. These analyses are also conducted for copyright-protected works (because it is an automated activity). The Amendment is intended to strengthen legal certainty for authors and copyright holders, as well as for miners, who until now have been operating in a “legal fog” without clear definitions and boundaries. The new licence to reproduce a work for the purpose of automated analysis of texts or data provided for in Section 39c of the Copyright Act aims to clearly define these boundaries and to strengthen legal certainty for all stakeholders.
The Amendment also stipulates special licences for scientific institutions, e.g. universities conducting scientific research as part of their activities, certain legal entities that meet the statutory conditions, and cultural heritage institutions (specified in more detail in Section 39d of the amended Copyright Act). If they make a reproduction of the work specifically for text and data mining for the purposes of scientific research, these institutions will not interfere with copyright under the circumstances.
Licence for the use of a work not available on the market
According to the conditions set out in the amended provision of Section 37b of the Copyright Act, an institution of cultural heritage (such as a museum, archive, etc.) will be able to communicate to the public or reproduce a work unavailable on the market that is in the institution’s collection for non-commercial purposes without infringing copyright. The institution will have to provide the name of the author, if known, as well as the title of the work and the source. The author of the work will be able to object to such disclosure or reproduction (even in advance).
Licence for digital learning
Another improvement is the possibility for schools and other educational institutions to use works that are otherwise protected by copyright for illustrative purposes in teaching free of charge under the conditions set out in the amended provision of Section 31a of the Copyright Act. This should not apply to works that are primarily intended for educational purposes and to sheet music or musical and musical-dramatic works.
Licence for pastiche
The Amendment also modified the provision of Section 38g of the Copyright Act (licence for caricature and parody), according to which the copyright will not be interfered with by those who use the work for the purposes of pastiche, i.e. an artistic work that creatively imitates the style or elements of the work, or the work of another artist or artists.
Like any exception to copyright protection, the new statutory licence for pastiches is subject to the test specified in Section 29 of the Copyright Act (i.e. even in this case there must be no conflict with the normal use of the work or unreasonable prejudice to the legitimate interests of the author).
Ancillary online broadcaster services
The Copyright Act newly regulates the so-called ancillary online services of the broadcaster (see Section 21a of the Copyright Act). These services will include simultaneous (parallel) broadcasting, catch-up viewing options and other supplementary broadcasting materials, such as trailers or reviews of the broadcast show. The country of origin principle will apply between broadcasters and copyright holders (or the collective manager, as these services are covered by the newly introduced extended collective management – see above); unless otherwise agreed, the use of the work will be deemed to take place in the territory of the EU/EEA Member State in which the broadcaster’s headquarters are located.
Conclusion
The DSM Directive and the subsequent Amendment to the Copyright Act were adopted to extend and strengthen the rights of copyright holders, to limit the exploitation of loopholes by large internet companies, and to improve the accessibility of copyright-protected works for meritorious purposes such as education and scientific work. One of the primary objectives was to provide better and fairer legal treatment of the issue of remuneration and protection of authors’ and publishers’ rights in the online environment. Innovative institutes and procedures are being introduced in an effort to straighten out the current internet environment and make it more predictable and fair, as it is an area that is constantly expanding in both its content and its reach, and in general, the agenda relating to the internet and internet platforms is becoming more and more complicated.
However, the Amendment was rather unfortunate in addressing some of the newly introduced institutes and concepts, failing to provide sufficiently clear definitions and frameworks of obligations; as such, in addition to the warm welcome from, for example, publishers, the Amendment raises quite justified concerns, especially from internet service providers. It remains to be seen how these controversies (in particular insufficient, vague or even absent definitions) will be addressed in practice. However, we can optimistically summarise that the changes introduced in this form and the move towards a comprehensive and coherent EU-wide copyright protection system are a step in the right direction.
Mgr. Tereza Dvořáková,
attorney-at-law
JUDr. Tadeáš Petr,
partner
PEYTON legal advokátní kancelář s.r.o.
Futurama Business Park
Sokolovská 668/136d
186 00 Praha 8 – Karlín
Tel.: +420 227 629 700
e-mail: info@plegal.cz
Source: epravo.cz
