The Recent Amendment To The Copyright Act And Online Content Sharing Regulation – Copyright

We would like to provide you with a brief summary of two laws
introducing new regulation of the online environment in response to
developments in this area as well as the need to implement EU law.
These are the amendment to Act No. 121/2000 Coll., the Copyright
Act, and a completely new law on video sharing platform
services.

Amendment to the Copyright Act

The recently adopted amendment to the Copyright Act affects many
areas, but one of the most significant changes is the introduction
of the institute of online content sharing services
provider. The main purpose of such service is to publish a
large number of (copyrighted) works to the public, with the
provider organising and promoting these works for profit.
Typically, one can think of services such as Spotify, Netflix,
Disney+ or YouTube, but also of social networks that allow their
users not only to upload content but also to make it available
(share it) with other users, such as Facebook or Instagram.

In contrast, non-profit encyclopaedias and scholarly repositories,
online marketplaces and cloud services that allow uploading content
for personal use only are not online content sharing
services.

The regulation of liability of the online content sharing
service provider for the content shared is worth a note. According
to the amendment, the provider is always liable for any
unauthorised use of an author’s work unless the conditions for
excluding liability are met – these are (i) making best
efforts to obtain authorisation for the work (i.e. obtaining a
licence is preferred to removing the content), (ii) making efforts
to prevent uploading of a work about which the author has provided
the necessary information, and (iii) removing the unauthorised work
without delay after being notified by the author and taking
measures to prevent re-uploading. For start-ups and smaller
providers, the regime is more lenient, but the responsibility for
the content still lies on their side.

In addition, the provider has an information obligation both
towards the author (regarding procedures to prevent unauthorised
use) and towards users (regarding the possibilities of legal use of
the work). At the same time, providers are obliged to put in place
an effective and prompt mechanism for dealing with user complaints
and disputes relating to the prevention of access to or removal of
a work uploaded by them. For the resolution of disputes related to
the provision of online content sharing services, the amendment
introduced the possibility of using a mediator, which was
previously only available for matters relating to collective
management of copyright. The mediator’s scope is also extended
to include assistance in negotiating licence contracts for the use
of audio-visual works and resolving certain licensing disputes.

The amendment also added “supplementary online service of
the broadcaster” to the list of possible uses of a work, which
consists of broadcasting the work online simultaneously with a
television or radio broadcast, making it temporarily available
online after the broadcast and using it to produce trailers and
reviews. This includes the use of copyrighted works, for example,
as a part of online TV broadcast
“iVysílání” of the Czech Television
or internet broadcasts of radio stations; however, this scheme
explicitly does not apply to works included in the transmission of
sports matches. The legal regulation therefore covers essentially
all legal ways of sharing audio-visual works on the internet.

Other changes include a legal licence for digital education (the
possibility of using copyrighted works for illustrative purposes in
teaching) and automatic data analysis, the possibility of
reproducing and making available works unavailable on the market by
libraries and other selected institutions, or the regulation of the
rights of publishers of magazines, especially in relation to their
online use.

The amendment has been published as law on December 21, 2022 and
will become effective as of January 6, 2023

Video Sharing Platforms Services Act

Further regulation of the online environment is also brought by
the new law on video sharing platform services, especially due to
the need to protect minors, consumers and other vulnerable groups
in view of the development of technology and access to it. The new
act defines a video sharing platform as an information society
service whose main purpose or function is to provide programmes or
video recordings created by users to the general public for the
purpose of information, entertainment or education. Unlike the
content sharing services mentioned above, this platform provider
only determines the arrangement of the users’ recordings; the
platform provider does not select or compile the programmes, the
content is created and posted by the users themselves. Therefore,
the platform provider is not editorially responsible for the
content of the recordings, but is responsible for the content that
the provider itself offers to the public via the platform. Only a
part of the content of an online platform can serve as a platform
for sharing video content (for example YouTube, which contains both
user-contributed content and ‘YouTube originals’, i.e.
content published directly by the provider). In contrast, the
regulation does not apply to activities of a non-commercial nature,
such as the provision of audio-visual content on private websites
or the activities of non-commercial associations.

To enable effective supervision across the EU, platform
providers are now registered by the Broadcasting Council in a
special list, based on a mandatory notification made before the
launch of the platform. The list is public, with some data
available online. The law also imposes a broad obligation on
providers to protect both minors from content unsuitable for their
development and the general public from hateful content, content
inciting to violence and content whose sharing constitutes a
criminal offence. The regulation also affects commercials on
platforms – these must be easily recognisable, must not
exploit the trust of minors and must not promote tobacco products
or prescription drugs. However, this obligation is linked
exclusively to the organisation of the content and not to the
content itself (for which the provider is not editorially
responsible) and therefore the adoption of measures specified by
law will be sufficient to comply with it. The Broadcasting Council
will then only supervise whether the platform provider has taken
reasonable measures to protect its users and will not assess the
content on the video sharing platform itself.

The Act on Video Sharing Platform Services was published in the
Collection of Laws under 242/2022 Coll. and came into force on 15
September 2022.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.