The implementation act has been published on 21 December 2022.
The implementation act has been published on 21 December 2022.
Act no. 429/2022 Coll., act on the amendment of the act no. 121/2000 Coll., on Copyright and Related Rights and on Amendment to Certain Acts (the Copyright Act) and other acts.
The implementation Act is in effect as of 5 January 2023
Amendments to existing law
The draft bill is compliant with Article 26(2) of the DSM Directive, i.e. the provisions of the draft bill will apply to copyright works and other objects of protection protected by Czech copyright on the date of entry into force of the bill and later.
The draft bill introduces Section 39c and 39d into the Czech Copyright Act which regulates text and data mining in order to implement Articles 3 and 4 of the DSM Directive.
Under the draft bill, anyone who makes a copy of a work for the purpose of automated analysis of texts or data in digital form, carried out for the purpose of obtaining information including, but not limited to, patterns, tendencies and correlations, does not infringe copyright. He/she is entitled to keep the copy only for the time necessary for the purposes of this automated analysis of texts or data.
This does not apply to copies of a work whose author has expressly reserved such use in an appropriate manner.
A university which carries out scientific research as part of its activities, or a legal entity whose principal objective is to carry out scientific research or to carry out an educational activity involving scientific research, shall not infringe copyright if the scientific research of that university or legal person is carried out in such a way that access to its results should not be given priority to those who exercise decisive influence over the university or legal entity, and that the research is carried out in the public interest or on a non-profit basis or that all profits are reinvested in scientific research of the universities or legal entities.
A cultural heritage institution shall not infringe copyright if, for the purposes of scientific research, it reproduces a work for the automated analysis of texts or data in digital form, carried out for the purpose of obtaining information including, but not limited to, patterns, trends and correlations. It shall be obliged to store the copy thus made with an appropriate level of security and may keep it for the purposes of scientific research, including the verification of research results.
The draft bill introduces Section 87b into the Czech Copyright Act which regulates the new press publishers' right and Sec. 25b, which regulates the author's right to equitable remuneration for the publisher's exercise of this right when containing the author's work.
The definition of press publications is largely identical to the definition found in Art. 2(4).
There is no explicit provision in the bill to exclude private or non-commercial uses by individual users.
When negotiating the granting of the right to use the press publication, the provider of the information society service is obliged to maintain a fair, equal and non-discriminatory approach towards the publisher and to pay the publisher a reasonable remuneration for the granting of the authorisation to exercise the right to use the press publication.
The bill provides further protection of the press publisher by stipulating obligations of the service providers in Sec. 87b(14) to refrain from acting in a way that circumvents the publisher's right to its press publication, in particular by (a) refusing to negotiate in good faith for the grant of the authorisation to exercise the right to use the press publication, including the payment of reasonable remuneration for such use; (b) arbitrarily restricting or modifying an information society service in a discriminatory manner so as to exclude the necessity of obtaining the authorisation to exercise the right to use a press publication from a particular publisher, without having a fair reason for such restriction or modification (applicable only to providers with dominant position on the market) and (c) abusing its dominant market position in order to obtain authorisation to exercise the right to use a press publication on terms which are disproportionately unfavourable to the publisher.
The draft bill introduces new part 6 (Section 46 and following) into the Czech Copyright Act which regulates the liability of online content-sharing service providers (OCSSP).
The draft definition of OCSSP includes an extra criterion that the service "competes or may compete with other online services making works available to the same target audiences", which draws from Recital 62.
The draft bill is relatively close to the wording and structure of the DSM Directive.
The liability is formulated differently, as the draft bill states that OCSSPs may not rely on the safe harbour provisions and subsequently that the OCSSP "is not liable if" (rather than "is liable unless he proves that", as is the case in Art. 17).
On top of the conditions set out in Article 17(4) and (5), the new Section 47(3) introduces conditions for the use of automatic content recognition tools. When using such tools, the prevention of uploading and re-uploading of the work may only occur where the OCSSP assesses the uploaded content as identical or equivalent to the work identified by the author. Identical content means identical content without additional elements or added value. Equivalent content means content that differs from the work identified by the author only by modifications that can be considered as insignificant without the need for additional information to be provided by the author and without a separate assessment of the legitimacy of the use of the work according to the provisions under this Act.
Lastly, the draft law has gone beyond the provisions set out in the DSM Directive and introduced a new Section 51a, in which it stipulates that where an OCSSP repeatedly and unjustifiably prevents the uploading of a work, prevents access to a work or removes a work in order to absolve itself of liability for unauthorised acts of communication to the public in breach of the prohibition on restricting the availability of a work in cooperation between OCSSPs and rightsholders, a legal person entitled to defend the interests of competitors or customers may seek an injunction against the provider, restraining him from providing the service.
The parties are entitled to use one or more mediators from the list of mediators maintained by the Ministry of Culture. The request for mediation shall be submitted in writing to the mediator or guest mediator by any of the parties in the mediation. In the request, the party shall state the current state of negotiations, attach its proposal and communicate the opinion of the other parties in the mediation.
The principle from Art. 18 is formulated into Sec. 2374(1) of the Civil Code, whereby stipulations regarding remuneration shall in particular take into account the purpose of the license, the manner and circumstances of use of the work, the size of the author's creative contribution and the territorial, temporal and quantitative scope of the license. Remuneration may be agreed as a lump sum only in justified cases and taking into account the specificities of each industry sector.
The bestseller paragraph was already present in Sec. 2374(2) and (3) of the Civil Code, the wording of which is now being changed slightly. The author may not forfeit his right to additional remuneration. In the absent of agreement regarding its amount, it can be decided on by a court.
In contrast to the Directive, the draft bill abandons the formulation that the licence is not "used sufficiently" and instead sets the requirement that the work is "not used at all".
The draft bill introduces new Section 2374a in the Czech Civil Code, which implements the transparency requirements of Art. 19, and Section 98 (8) of the Czech Copyright Act, which corresponds to the exclusion in Art. 19(6).
The draft implementation corresponds closely to Art. 19. It can however be pointed out that the obligation is set for "licencees to whom a remunerated licence has been provided" - the requirement that the licence is remunerated does not follow from the Directive.
The Act is in effect from January 2023, therefore it is long overdue compared to other European jurisdictions.
The draft bill and relevant comments are available in Czech here