THE AMENDMENT TO THE COPYRIGHT ACT IMPOSES A “NOTICE & STAY DOWN” OBLIGATION ON REPOSITORIES
Amendment to the Copyright Act introduces the “notice & stay down” principle for online content-sharing service providers.
On 5 January 2023, an amendment to the Copyright Act (Act No. 121/2000 Coll., on Copyright and Related Rights and on Amendments to Certain Acts, as amended) came into force. It was published in the Collection of Laws on 21 December 2022 under No. 429/2022. The amendment was prepared under the charges of the Ministry of Culture of the Czech Republic. It implemented the not yet adopted provisions of 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, 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”).
In addition to the Copyright Act, related legislation was amended, in particular the relevant provisions of the Civil Code (Act No. 89/2012 Coll., as amended). The new legislation therefore introduced into the Czech legal system a new EU regulation of copyright and rights related to copyright, which had not been included in the national legislation at all or only partially. The amendment thus introduced, among other things, new statutory licences, new obligations for online content-sharing service providers, licence fees for commercial use of articles, regulation of collective management and, last but not least, regulation of licences, including new reporting obligations.
The significant changes introduced by the amendment comprise the new obligations imposed on online content-sharing service providers in connection with the communication of works to the public (with exceptions stipulated by law for small providers), i.e. the transition from the “notice & take down” regime to the “notice & stay down” regime. In principle, prior to the amendment, platforms and repositories, i.e. online content-sharing service providers, were not liable for the presence of a copyright-protected work on their platforms and repositories without the author’s consent until the author brought the defect to their attention. After that, the work had to be removed in order for the provider to be exempt from liability.
However, this principle has fundamentally changed with the amendment, as these providers must now make their best efforts to obtain a licence for legally protected content. Similarly, providers are obliged to make the work inaccessible or remove it from their websites immediately after receiving a sufficiently substantiated notification from the author of the unauthorised communication of the work to the public. Only if they meet the obligation, they are not liable for unauthorised communication of the work to the public. The “notice & stay down” principle should thus strengthen the protection of the legitimate interests of copyright holders.
