New amendments regarding the legislation on copyright5 April 2022
Significant and impactful changes on copyright were adopted by Law no. 69/2022 for amending and completing Law no. 8/1996 on copyright and related rights (“Law 69/2022”), which entered into force on April 4, 2022.
This law transposed into national law two European legal acts, namely the Directive (EU) 2019/789 on cable and satellite transmissions and the Directive (EU) 2019/790 on copyright and related rights in the digital single market.
The main legislative amendments brought to Law no. 8/1996 concern the following aspects:
♦ Introduction and definition of new terms and expressions
Law no. 69/2022 introduces within the content of art. 21 of Law no. 8/1996 a series of definitions of new notions and expressions, explaining their meaning and the context in which they are to be used. The following concepts are defined as follows:
♦ the publisher of press publications is a service provider under the initiative, the editorial responsibility and control of which is published, in any form of media, written or online, a press publication;
♦ press publication is defined as a collection composed mainly of literary works of a journalistic nature, but which can also include other works or other protected subject matter;
♦ online content-sharing service provider means a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject-matter uploaded by its users, which it organises and promotes directly or indirectly, for example, by using targeted means of promotion for profit-making purposes;
♦ The rights of publishers of press publications and journalists in the online environment
The exclusive right of the publisher of press publications to authorize or prohibit the online use of press publications by information service providers is regulated. Thus, the publishers of press publications will have the possibility to determine the conditions for authorizing the use of their press publications, whether they will ask for remuneration or whether the use of their press publications will be free of charge. These legal provisions will enter into force starting on October 1, 2022.
Exceptionally, the press publications may be used online, without the authorization of the publishers under the following conditions: (a) the press publications are used for private or non-commercial purposes by the individual users; (b) acts of hyperlinking or mere facts reported in press publications; (c) the use of individual words or very short extracts, up to 120 characters.
The rights of publishers of press publications shall expire after two years, calculated from January 1 of the year following the date on which they were published. In other words, after this period, the press publications may be used freely by the information society service providers.
Authors whose works are incorporated in a press publication (such as journalists) should be entitled to an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers. This rule is not applicable to the press publishers for the rights acquired in the context of labour relations.
♦The activity performed by the online content-sharing service providers (news aggregators or online platforms on which content is uploaded by individual users)
An online content-sharing service provider shall obtain an authorisation from the authors, performers, phonogram or videogram producers, as well as from broadcasting organisations and/or publishers of press publications, for example by concluding a license agreement, to communicate publicly or to make available to the public the works or other protected subject matter.
Online content-sharing service providers are responsible for the content uploaded by their users, the exemption mechanism provided by art. 14 para. (1) of Law no. 365/2002 not being applicable. Exceptionally, online content-sharing service providers are not responsible if they prove the following requirements are met:
♦ they have made their best efforts to obtain authorization;
♦ have made, in accordance with high standards of professional diligence in the field, the best efforts to ensure the unavailability of the indicated works;
♦ they acted promptly and efficiently, upon receiving a sufficiently substantiated notice from the rightsholders, to disable access to the notified works or to remove them from their websites.
Law no. 69/2022 provides a special regime for the providers who have made their services available to the public for less than 3 years and who have an annual turnover of less than EUR 10 million.
An effective and expeditious complaint and redress mechanism are also available to users of their services in the event of disputes arising out of the use of the shared works.
♦ Collective licensing and extended collective licensing
Law no. 69/2022 modifies the provisions regarding the mandatory collective licensing and introduces new regulations on the collective licensing with an extended effect, stating also that the rights of reproduction and making available to the public works belonging to the publishers of press publications are subject to extended collective licensing.
Non-exclusive licenses granted by the representative collective management organisation shall apply also to the rightsholders (including publishers of press publications) who have not given a mandate or authorized the collective management organisation in question. These legal provisions will enter into force starting on October 1, 2022.
The authors and the rightsholders who have not authorised the representative collective management organisation may exclude from authorization all or a part of their works or protected subject matter, by sending a notice to the collective management organisation. Upon receiving such a notice, the collective management organisation informs the users, within 30 days, about the exclusion of these works and protected subject matter from the managed repertoire, issues new licenses from which it excludes those protected works and subject matter and updates the licenses in progress until the end of the 30-day period.
The collective management bodies existing at the date of entry into force of the new legislative amendments have the obligation to amend their statutes by October 4, 2022, so that they are adjusted according to the new regulations. Specifically, within this 6-month period, collective management organizations may change their statutes so as to manage the new rights granted to publishers of press publications in the online environment.
♦ Copyright assignment
When granting non-exclusive licenses or assigning their exclusive rights to the exploitation of works or other protected subject matter, authors and performers have the right to receive adequate and proportionate remuneration according to the economic value of the rights authorized or assigned.
A new provision is introduced whereby authors and performers receive information on the exploitation of works and their interpretations or performances by their successors in title or by the parties to whom they have licensed or transferred their rights. The information must:
♦ allow access to recent, complete, relevant and pertinent data on the exploitation of works and interpretations or performances
♦ cover all operating methods and all sources of income (e.g., from promotional products)
♦ to allow the effective assessment of the economic value of the rights in question
♦ be transmitted periodically, at least once a year
Authors are entitled to an adequate and fair additional remuneration when the initially agreed remuneration proves to be clearly disproportionately low in relation to all subsequent relevant net income and significantly higher than the initial estimates obtained from the operation of the works.
A new licensing revocation mechanism is introduced, whereby the author or artist has the right to revoke in whole or in part the license or transfer of rights in the event of non-exploitation of that work or other subject matter.
The new provisions on copyright assignment do not apply to computer programs.
♦ Other newly introduced notions
Law no. 8/1996 has undergone many other changes such as:
Facilities for cross-border broadcasting of satellite programs – the country of origin principle
According to the country of origin principle, the authorization of copyright for the broadcasting of programs by wired or wireless means (e.g., satellite) should only be obtained for the EU country of origin of the broadcasting and not for the EU countries where the programs are broadcast.
The application of this principle shall facilitate the cross-border broadcasting of radio and television programs: (i) news and current affairs programs; (ii) own productions financed entirely by the broadcaster
New exceptions to the copyright exercise limits
Reproductions and extractions from works and other protected subject matter, legally accessible for the purpose of extracting text and data, are permitted and may be retained for as long as it is necessary to extract the text and data.
“Text and data mining” means any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations.
Digital uses of works and other protected subject-matter are allowed, including online and cross-border
The use is permitted, to the extent justified by the non-commercial purpose, for the sole purpose of illustration for teaching, under the condition that such use: (a) takes place under the responsibility of an educational establishment; (b) be accompanied by an indication of the source, the name of the author, unless this proves impossible; (c) has a non-commercial purpose; (d) does not replace or affect the purchase of materials intended for the educational market.
All the above illustrates the fact that, by transposing these European directives, the Romanian legislator aimed to modernize the existing national legislation on copyright by creating the premises for a true digital single market.