AMENDMENT TO THE COPYRIGHT ACT

At the end of 2020, the Ministry of Culture submitted to the Government of the Czech Republic a draft amendment to Act No. 121/2000 Coll., on Copyright, on Rights Related to Copyright and on Amendments to Certain Acts (hereinafter referred to as the “Amendment”). The Amendment to the Copyright Act is necessary for the implementation of Directive (EU) 2019/789 of the European Parliament and of the Council laying down rules for the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (“OSC Directive”) and Directive (EU) 2019/790 of the European Parliament and of the Council on copyright in the digital single market (“DSM Directive”).

It is expected that in the coming days, the government will submit the draft Amendment to the Copyright Act to the Chamber of Deputies, as the last possible date for transposition of the above-mentioned directives is 7 June 2021.

The current wording of the Copyright Act already partially incorporates the legislation contained in the aforementioned OSC and DSM directives, and the remaining new rules should be addressed by the Amendment currently under preparation. In the following article, we will present the forthcoming changes to the Copyright Act, and briefly elaborate on the new obligations for internet service providers and exceptions to copyright - the so-called statutory licenses, such as data mining. We will also outline the new possibilities of using copyrighted content for teaching and cultural heritage purposes, or for the purposes of caricature, parody and pastiche. We will conclude the article by mentioning the newly defined additional online services of broadcasters.

New obligations for certain internet service providers

Greater protection of publishers’ rights

Perhaps the most significant new feature of the forthcoming Amendment is the proposed provision of Section 87b, which will implement Article 15 of the DSM Directive. According to the wording of the aforementioned provision, new rights will be established for publishers of press publications and new obligations will be imposed on providers of information society services (“providers”). Due to the vague wording of the draft Amendment, it is not yet certain exactly which providers will be affected by the Amendment to the Copyright Act, but we can already say with certainty that it will at least affect multinational companies such as Google, Apple or Facebook, which will now have to pay a certain amount to the authors of the content they download, based on a licence. What is happening nowadays is, to a certain extent, that these multinationals sponge on copyright holders, such as media houses and publishers, in the area of media content. They show previews of these publishers’ publications and attach their advertising to them, which they monetise while providing no remuneration to the publishers. This is a problematic behaviour that is addressed by the newly proposed wording of the Copyright Act. From the entry into force of the Amendment, providers will be obliged to agree with copyright holders on the licence and the method of remuneration for the publication of their works, even if it only includes previews of these works. The Ministry of Culture also proposes the introduction of an optional extended collective management scheme where individual copyright holders could be represented by a collective manager to facilitate negotiations with providers. According to the proposed wording of the Amendment, the above-mentioned copyright protection would be granted for two years from the publication of the work.

France was one of the first European countries to impose this new obligation on providers in line with the wording of the DSM Directive. It did not take long for Google to try to circumvent this standard using its position of dominance. Publishers could make a choice of either offering Google a licence to publish their articles for free or accepting the fact that Google will not offer their articles in its search or news previews. However, the local antitrust authority correctly assessed such conduct as an abuse of dominance and ordered Google to cease the conduct and to agree on a reasonable remuneration with the publishers. Incidentally, the first agreement between Google and publishers’ representatives, which many publishers believe to be unfavourable, has already been reached in France. It may give us at least some idea of how and to what extent copyright holders can be remunerated in this area.

Using protected content to share content online

Article 17 of the DSM Directive, which is implemented in the proposed Amendment in Sections 46 to 51, introduces further significant changes aimed at strengthening the rights of authors of protected works and reaching a compromise and agreement between online content-sharing service providers and copyright holders.

The Amendment will add further obligations to the defined providers in relation to the exclusion of their liability for unauthorised disclosure of works on their servers to the public. In particular, they will have to make every effort to obtain a licence for the copyrighted content or to ensure that it is unavailable if reported by the copyright holder. Thus, providers will now have to ensure in some way that reported works do not appear on their servers, even in the future. According to the current legislation, this obligation only applies to accurately reported content and in practice it is therefore unnecessary for copyright holders to report their works to providers, as they will reappear on their repositories within days.

The amendment then elaborates on other obligations of providers and provides for some relaxation of new obligations for smaller providers.

New statutory licences

Data mining

When data are mined, they are automatically analysed. The result of this activity is the extraction of information about the interrelationships and correlations within the data, which can then be used, for example, for scientific research or even for commercial purposes. As this is an automated activity, it also involves the analysis of copyrighted works. This brings at least some uncertainty about the infringement of the rights of the authors of these works by the data processors.

In the future, the Amendment should strengthen the legal certainty of authors and copyright holders in particular, and also that of “data miners”, by clearly defining the limits and boundaries of data mining. The new licence for making a copy of a work for the purpose of exploitation will be regulated in the provision of Section 39c of the Copyright Act.

The Amendment also provides for special licences for scientific and cultural heritage institutions. These institutions will not interfere with copyright under the given conditions if they make a copy of a work specifically for the purpose of data mining for scientific research.

Use of copyrighted works for educational purposes

In the field of education, the Amendment allows schools and other educational institutions to use copyrighted works for teaching purposes under certain conditions according to the new wording of Section 31a. While this authorisation should not apply to works that are primarily intended and sold for educational purposes, the vague wording of the proposed provision raises the question of which works educational institutions will ultimately be able to use free of charge.

Licence to use the work for caricature, parody and pastiche

According to the proposed Section 38g of the Amendment, a person who uses a work for the purposes of caricature, parody or pastiche will not interfere with copyright.

Making copies of works unavailable on the market by cultural institutions

A cultural heritage institution does not infringe copyright under certain conditions under Section 37b if it reproduces or communicates to the public for non-commercial purposes a work that is not available on the market and is in the institution’s collection. It will always be necessary to include at least the name of the author of the work, who may, however, object to such publication, even in advance.

Ancillary online services offered by broadcasters

The Amendment redefines and regulates ancillary online services offered by broadcasters in the proposed provision of Section 21a. These will include services such as simulcasting, catch-up or other ancillary material (e.g. trailers, reviews, photographs from filming). In addition to these ancillary services, the Amendment introduces a new country of origin principle to be applied between broadcasters and copyright holders (or collective managers).

Should the broadcaster wish to provide and make available its programme in other EU/EEA countries, the licence for such use in the territory of the Czech Republic will be a sufficient legal title to do so according to this principle.

Conclusion

The Amendment to the Copyright Act is expected to introduce several new definitions and institutes into the Czech legal system. It promises to strengthen the rights of copyright holders and to improve the accessibility of copyrighted works. In certain areas, the Amendment also raises concerns, for example, about insufficiently defined entities for which it introduces new obligations. Internet service providers may prefer to filter the content of their services more strictly in fear of possible sanctions, which may ultimately limit the availability of these works. However, we hope that these uncertainties will be resolved in the legislative process and that the Amendment to the Copyright Act will be adopted in early June. In practice, this will help to straighten out the current environment and help authors both in terms of the protection and availability of their works and in terms of fairer remuneration for them while not limiting the availability of their works on the internet.

Mgr. Martin Sojka,

Junior Associate

and

Mgr. Michal Štrof,

Partner

PPS advokáti s.r.o.

Source: epravo.cz