Draft of the new Czech Copyright Act has leaked

[Michel Bauwens]

Via Pirate News,

full version at https://www.ceskapiratskastrana.cz/wiki/:en:zo:docs:pn_autz_draft

Pirate News have got their hands on a draft of the new Czech Copyright Act which has been unsuccesfully requested by the Czech Pirate Party (PPCZ). The Ministry of Culture has declined the request of PPCZ to have access to the document three days after the draft has been sent out to organizations affected by the proposal for feedback. The draft presents a storm of “improvements” which grant millions of euros from public sector budgets to collecting societies ¹⁾. The law is being written completely out of public control.

The Ministry of Culture, collecting societies (OSA, Dilia, Intergram, OOA-S, Gestor) and The Association of Copying Services Entrepreneurs have prepared a large-scale amendment to the copyright law. Where are the ordinary citizens who will be affected by this amendment? They are represented by the Ministry of Culture comparably to how the collecting societies represent authors on whose behalf they collect royalties.

The amendment will hurt users of copyrighted works, authors themselves and especially libraries and public sector budgets. It will also give support to further attempts to control the Internet. In addition, it will also grant the collecting societies access to citizen registry, whose trial operation we have reported about earlier.

The amendment is extensive and it consequently erases even the slightest improvements achieved in the past years. Some sections even put us back before November 1989 ²⁾ because they propose compulsory registration of printers under penalty of fine.

Current draft hampers the use of copyleft licenses (eg. Creative Commons) almost to the point of making it impossible. It grants the collecting societies the right to control orphan works and collect royalties for their use and it prohibits their distribution and reproduction without permission. It reintroduces the obligation to report all live performances to OSA including a detailed program. It strengthens the monopoly of current collecting societies and reduces competition in this segment. In addition, it abolishes the obligation of collecting societies to distribute collected royalties with respect to policy of supporting works and performances important to culture. It decreases compensation of authors and financially hurts public libraries and schools.

The Pirate Newspaper has brought you the Czech original of the leaked draft.

The Ministry of Culture says that the Internet is television

The biggest change is the redefinition of “broadcast” which has so far included only television and radio transmissions. The Ministry of Culture took inspiration from the Audiovisual Media Services Directive and the Audiovisual Media Services on Demand Act which has been criticised by PPCZ. Inclusion of webcasting – Internet transmission of successive programmes (e.g. Internet radio or TV) – into the definition of “broadcast” brings webcasters the obligation to register at the Radio and Television Broadcast Committee which will supervise their operation.

The Internet broadcaster rights would become yet another neighbouring right, whereas the only creative act is the sequencing of individual programmes together. Such legislation is completely superfluous as streaming servers and Internet radios don't need it. They broadcast without it just fine and its introduction will have little to no impact. The only consequence will be the widening of gap between legislation and Internet radio operation in practice.

According to section 101a paragraph c) of the draft, Internet broadcasters would have to request license to the collectively administered right to broadcast. For example OSA, which administers rights to music works, would have complete control over Internet radio.

Creative Commons and copyleft licenses

The Copyright Act draft contains a controversial section on the temporal effect of copyleft licenses (e.g. Creative Commons, also called public licenses in legal terminology). It imposes the obligation to notify collecting societies on authors each time they decide to publish their works outside the strict copyright framework. The legislation thus disrupts the idea of quick and simple publishing enabled by public licenses and forces bureaucratic elements into the system. Collecting societies would also have complete overview of copyleft works.

The draft states that: “If a rightholder not represented on the basis of the agreement expresses his will to exclude the effect of cumulative agreement while providing gratuitous license, the effect of cumulative agreement is excluded to the extent of provided license in respect to the collective administrator at the moment when the collecting administrator is provably notified of the provided license.”

That means that in order to achieve free distribution of copylefted work, the author has to notify the collecting society and he carries the burden of proof, that is, he has to prove that license has been provided, or if you like, the user of gratuitous license has to prove the collecting society has been notified, which is even harder. The amendment draft thus violates the declared support of public licenses.

Collecting societies will grow and collect money for orphan works

The draft introduces the category of orphan works (section 27a of the draft) whose authors are not known or impossible to locate. The collecting societies would administer rights of these authors according to section 100c paragraph 1 of the draft: “The collective administrator represents the author of an orphan works even in the exercise of rights that are not subject to mandatory collective administration.” Collected royalties would be stored for three to five years, the collecting society would deduct 20 percent overhead each year and the remainder would then be transferred to the national cultural or film fund.

However, in order to get a license to orphan work from a collecting society, you'd have to prove that the work is orphan and make effort at your own expense to find the author, whereas the draft references here the future explanatory report to the act (sic!).

The new, so called extended collective administration, includes the authorization to approve distribution and artistic performance (section 101a paragraph g) of the draft) in a computer or similar network. That means that for example a school campus can ask OSA for license to share music on local network. Extended collective administration should also include educational license to copy on paper and present copyrighted works and artistic performances (above the extent of exceptions) and a license to include work into collections (paragraph j). If the author himself wants to manage these rights, he has to notify the collecting society.

The legislation also aggravates the requirements for registration as a new collecting society. Current collecting societies would therefore uphold their monopoly (section 98 paragraph 3 of the draft). Collecting societies won't have to distribute royalties with respect to policy of supporting works and performances important to culture anymore. The Ministry of Culture has removed this criterion as “undue and unfair for distributing royalties.”

OSA returns to concerts

OSA has suggested and the ministry has tentatively accepted proposition of amendment of section 100 paragraph 5 which reintroduces previously abolished obligation of live public music performance organizers to report the playlist to OSA in advance. The law would however introduce legal fiction for unreported performances under which the organizer would settle not with the author but with the collecting society:

“If the producer of a live public musical performance fails to report the playlist to the relevant collective administrator, he is obliged to fulfil his obligations accruing from use of music works through this collective administrator.” That would return us to the time when the author couldn't perform his own works without regularly reporting all details about his performances to OSA.

Publishers increase profits, libraries pay twice as much

Did you think that copyright law should serve the authors? Wrong, the ministry cares mainly about publisher profits. That's why they've proposed to change the distribution of lending royalties originally given only to authors. This would create yet another special right of publishers (section 87 paragraph 2 of the draft). Instead of original 100 percent of lending royalties, the authors would get only 60 percent and the remaining 40 percent would go to publishers (section 104 paragraph 3 of the draft).

Dilia will accept this redistribution only under condition that the royalty for lending a book increases from €0.02 to €0.04. This will double library expenditures subsequently paid by the public. Libraries will have smaller budgets for digitizing projects and other services for readers like exhibitions and lectures.

The libraries will also pay more due to the new printer regulation which sets royalties based on the number of printers on the premises instead of actual copies made (clause 6 of appendix). The printer regulation will also weigh heavily on government offices in the time of depression. Medium sized government office with 6 copiers will pay €1,360 ³⁾ a year in royalties. Do the ministries copy copyrighted works as part of their activity or what? There's no other explanation for government offices paying royalties to Dilia. However, a library or school with 6 copiers will pay €4,720. Commercial copy centre with much higher income will pay the the lower rate of €1,360

Higher fines to deter unregistered printers, hotels lose an exception

The amendment plans to introduce List of liable entities (section 100b) that own or manufacture printers, along with data about the number of printers and record reproduction devices and their type. The fine for entities that don't meet the registration obligation will increase from €2,000 to twice as much.

Since a heated debate in 2005, hotels had an exception (section 23 of Copyright Act) so the fee for performing the radio or television broadcast was limited by 50 percent of the respective license fee prescribed by law and they could negotiate with only one collecting society. The draft applies the same rules on hotels as on any other broadcast provider so they would have to pay much higher royalties to collecting societies.

The ministry justifies the draft by saying that current legislation violates the Constitution of the Czech Republic (sic!), international treaties (TRIPS) and European Union directives. If the ACTA agreement negotiated in secret by the Ministry of Culture is passed, then apparently everything will violate international treaties.

Conclusion

The amendment favours entrepreneurs and collecting societies but obviously harms public libraries and schools. The question is why has such a harmful proposal been put forward by the ministry.

The proposal doesn't address the greatest absurdities of current legislation which are unsustainable even under current copyright law. For example the fact that the rights of record producer last longer than rights of performing artist, or database rights under which the Supreme Administrative Court claims copyright on its rulings. The draft still contains legislative mistakes (for example in section 28, paragraph 2 is dropped but a reference to it in paragraph 1 is not, the pleonasm “authorized publishing” still appears etc.) and the regulation of orphan works depends considerably on European Commission pushing the Orphan Works Directive through. The directive was announced for the second half of this year.

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