Today, an amendment to Act No. 121/2000 Coll., on copyright and rights related to copyright, was published in the Collection of Laws (hereinafter referred to as the “Copyright Act” and the “Amendment”). 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 (hereinafter referred to as 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 (hereinafter referred to as the “DSM Directive”).
The Amendment approved by the Government reflects the original wording of the first draft prepared by the Ministry of Culture already in November 2020. In our current legislation, the OSC and DSM Directives have already been partially implemented, whereas the rest of the new rules will be incorporated by the current Amendment. Apart from certain major innovations, such as new types of legal licences or stricter rules and liability for online platform providers, the Amendment also brings some controversy and vague solutions to certain copyright issues and situations.
In the following article, you can find out how the protection of the rights of publishers of printed publications is to be extended, what are the new stricter rules and liability for providers of certain online platforms or what new statutory licenses to expect.
Using copyright protected content to share content online
One of the significant changes is the tightening of rules for online content sharing service providers, which adds additional obligations and conditions to govern their liability for unauthorised communication of works to the public, i.e. liability for content illegally uploaded by users to their servers. These are providers of certain online platforms that serve to store and publish a wide range of content, where the provider arranges and promotes such user-uploaded content for profit (e.g. “Ulož.to” and similar servers). Such providers (as defined in the proposed provision of Section 46 of the Copyright Act) will have to use their best efforts to obtain the relevant license to the protected content; furthermore, they will be obliged to immediately disable access to the work or remove it from their websites upon reasonable notice from the author of the content, while using their best efforts to prevent its re-upload. In simple terms, the provider must not only delete the reported content, but also to ensure that it is not re-uploaded in the future. The Amendment further specifies these obligations and sets out the factors that will be taken into account when assessing whether or not a provider has complied with its obligations.
For smaller providers who have been offering these services for less than 3 years and whose annual turnover is less than EUR 10,000,000, these new obligations do not apply in full; for example 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 introduction of new rights of publishers of printed publications, whereby the somewhat problematic Article 15 of the DSM Directive is implemented into the provisions of Section 87b of the Copyright Act under the Amendment. According to this provision, information service providers are obliged to maintain a fair, equal and non-discriminatory approach towards the publisher of a printed publication when negotiating the granting of the right to use such publication and to pay the publisher a reasonable remuneration for the granting of such right.
The existing legislation has encouraged unfair behaviour and practices on the part of large providers, in particular multinational companies such as Google, Facebook or Apple, where it has been possible for them to legally exploit the copyrighted content of media houses and publishers. The providers frequently displayed previews of protected publications on their servers and attached advertising to them, from which they profited, but without providing any remuneration to the publishers of this content. This practice will no longer be possible under the Amendment and providers will have to agree with the copyright holders (or the collective administrator) how the remuneration and the licence under which they will publish previews of protected content will be legally regulated. Copyright protection under the Amendment will then last for 2 years from the use of the publication.
It is known that operators of large digital platforms are generally unwilling to negotiate licensing agreements and try to circumvent the publishers’ rights in every possible way. An example from abroad, namely France, which was one of the first Member States to impose this new obligation on providers, will serve as an illustration. The Google company tried to circumvent this obligation by giving the publisher a choice: they would give Google a licence to publish articles free of charge or Goole would stop offering the publisher’s articles in its searches altogether. The local antitrust authority found this conduct to be an abuse of Google’s dominant position and ordered Google to agree on remuneration with the publishers. Even so, the outcome of the agreement between Google and the publishers’ representatives was not exactly advantageous for the publishers according to many opinions.
Problematic terminology
The Amendment (unfortunately copying the DSM Directive in this respect) also contains somewhat problematic and vague terminology. According to Section 87b(8) of the Amendment’s version of the Copyright Act (see above), “the right to use a press publication shall not apply to the use of single words or very short excerpts from a press publication and to the insertion of hyperlinks“. However, what constitutes a “short excerpt” is not specified in the Amendment nor the DSM Directive. According to the explanatory report, this concept will be interpreted on a case-by-case basis, in line with the ethos of the DSM Directive, which, especially in the context of potential litigation before the courts, seems rather problematic and not on favour of the legal certainty that all legislative efforts should aim for. In this case the DSM Directive has somehow failed to fulfil its purpose of unifying the legislation of the Member States and instead it has delegated to them the responsibility of ensuring at least a minimum degree of legal certainty for the right holders and service providers themselves, but also for the users. Unlike France or Germany for example, the Czech legislation has unfortunately not responded to this and does not specify the vague terminology any further.
Another rather fundamental shortcoming of the Amendment is the so-called extended collective administration (the provisions of Section 97e et seq. of the amended version of the Copyright Act as amended by the Amendment), which will operate on an opt-out basis, where the collective administrator will represent all the right holders, unless they themselves explicitly opt out. The above shortcomings therefore open up a wide scope for potential litigation.
New legal licenses
On the other hand, a welcome benefit of the Amendment is a number of new statutory licenses that will, among other things, allow easier access to otherwise copyrighted content for educational or cultural purposes:
License for automatic text or data analysis – data mining
Automatic analysis of text or data takes place during text mining (the process of extracting data from a digital template). This process then extracts information about the interrelationships and correlations within the data. This information is usually further exploited not only for scientific purposes, but especially for commercial purposes. These analyses also occur in cases of copyrighted works (precisely because it is an automated activity). The Amendment thus intends to strengthen legal certainty for authors and copyright holders, as well as for extractors, who have so far been in a ‘legal fog’ without clear definitions and boundaries. The new licence to reproduce a work for the purposes of automated text or data analysis, as provided for in Section 39c of the Copyright Act under the Amendment, aims to clearly define these boundaries and strengthen the legal certainty of all parties involved.
Furthermore, the Amendment provides for additional special licences for scientific institutions such as universities, which conduct scientific research as part of their activities, as well as for certain legal entities that meet the statutory conditions as well as cultural heritage institutions (specified in more detail in Section 39d of the Copyright Act as amended by the Amendment). If they make a reproduction of a work specifically for the purpose of extracting texts and data for the purposes of scientific research, these institutions will not interfere with the copyright under given conditions.
License for the use of a work not available on the market
Under the conditions set out in Section 37b of the Copyright Act, a cultural heritage institution (e.g., museum, archive etc.) will be able to communicate to the public or reproduce for non-commercial purposes a work not available on the market that is in the institution’s collection, without infringing copyright. To the extent known, it will also have to provide the name of the author 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 novelty is the possibility, under the conditions set out in the proposed provision of Section 31a of the Copyright Act, for schools and other educational institutions to use otherwise copyrighted works for illustrative purposes in teaching free of charge. This should not apply to works that are primarily intended for educational purposes and to written musical records or musical and musical-dramatic works.
Licence for pastiche
The Amendment also updates the provisions of Section 38g of the Copyright Act, according to which the copyright will not be interfered with by those who use the work also for the purposes of a pastiche, i.e. an artistic work that creatively imitates the style or elements of the work(s) of another artist or artists.
Like any exception to copyright protection, the new statutory licence for pastiche is subject to the general test set out in section 29 of the Copyright Act (i.e. there must be no contradiction with the standard way of use of the work nor any unreasonable interference with the artist’s legitimate interests).
Additional online services of the broadcaster
The Copyright Act newly regulates the so-called additional online services of the broadcaster (see Section 21a of the Copyright Act under the Amendment). This will include services of simultaneous broadcasting, back-viewing options and other supplementary material to the broadcast, such as trailers for the broadcast or reviews of the broadcast. The country-of-origin principle will apply between broadcasters and copyright holders (or the collective administrator, as these services are also covered by the newly introduced extended collective administration – see above), whereby, 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 copyrighted works for legitimate purposes such as education and scholarship. One of the primary objectives was also to provide better and fairer legal treatment of the topic 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, in short, 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 around the Internet and Internet platforms is becoming more and more complicated.
The Amendment has, however, implemented some of the newly introduced institutes and concepts in a way that lacks sufficiently clear definitions and frameworks of obligations, which (in addition to the generally warm welcome from publishers, for example) has raised some legitimate 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 summarise with some optimism that the changes introduced and the move towards a comprehensive and coherent EU-wide copyright protection system is a step in the right direction.
If you have any questions about the Amendment to the Copyright Act, or any other substantive copyright-related issues, we are at your disposal, so please do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – dvorakova@plegal.cz
JUDr. Tadeáš Petr, partner – petr@plegal.cz
21. 12. 2022