The recent amendments to the Copyright Law have implications on the rights of both authors and users of works. The amendments also include substantive changes to the conclusion of contracts with authors for the exploitation of works.
Unfortunately, the long-debated considerations about the need to restrict excessively broad personal rights of the author (i.e., the right to inviolability of the work, to the withdrawal of the work) are not included within the amendments to the Copyright Law. Notably, however, within the IT industry, the author of a computer program is deprived of the right to prohibit the modification of a computer program, as well as the right to recall works. Thus, for other authors, the scope of their personal rights remains unchanged and, for example, the architect or one of the authors of audio-visual works reserves the right to withdraw the work.
The respective amendments also provide art exhibitioners and auctioneers a fairly self-evident right – i.e., the right to use works of art or fragments thereof for the purpose of advertising the event in question, to the extent necessary to promote the event.
The regulation of works created by employees has been made more favourable to employers by providing that the employer acquires, from the moment of creation of the work, the right to use the work for the purpose for which it was created, as well as to the extent appropriate for that particular purpose. Up until now, the Copyright Law only determined the ownership of all economic rights to the employee, unless the employment contract provided for the transfer of rights to the employer. Although the amendments now grant the employer the right to use the work, the scope of the rights can be difficult to determine and therefore it is still advisable to include into employment contracts clauses concerning the transfer of economic rights.
In practice, companies often enter into contracts with the authors of commissioned works for the transfer of all the author’s economic rights to the customer. From now on, one should be careful with the wording in such contracts and specifically indicate the territory to which economic rights are alienated. If the territory is not indicated, it will be presumed the rights are transferred only in respect of the country in which the contract was concluded.
Authors, with the exception of authors of computer programs, are granted a specific advantage with regard to the determination of the author’s remuneration. In addition, the amendments provide that the reservations contained in the contract regarding the author’s waiver of this right are null and void.
In particular, the respective amendments grant authors the right to a generally defined ‘equitable remuneration’ and the author may also exercise this right in respect of contracts already concluded, requiring amendments to the contract and additional payment of remuneration, including going before the courts. However, employees who have created works in the framework of an employment relationship do not have such a right. In particular, it is stressed that authors may qualify for additional remuneration in cases of new uses of the works, or where the significance of the use has increased during the duration of the contract. Thus, merchants who have taken over the author’s economic rights by way of contract or have received the right to use the works must take into account that the remuneration specified in the contract may subsequently be amended if the author does not consider it fair and submits a claim for an increase.
Users of works who have a contract with the author (as well as, subsequent licensees) are obliged once a year to file a report to the author regarding the use of the work – the type of use, revenue generated, remuneration due to the author. In addition, the author’s refusal to receive such information shall not be considered valid. Employers are also obliged to provide such information – however, only at an employee’s request. The exception is only computer programs, the authors of which do not have the right to information. It is difficult to imagine how this obligation to provide information could be fulfilled in certain sectors (for example, works in the field of advertising, architectural works, design works, etc.).
In addition, users of works are also essentially obliged to start using the works within 2 years from the conclusion of the contract or the transfer of the works. Otherwise, the author may unilaterally withdraw from the contract; however, the user is then granted an additional 12-month period to start using the works.
Finally, the respective amendments to the Copyright Law also provide a new framework for the rights of press publishers, online content-sharing platforms, the use of works in a digital environment for educational purposes, the use of works for data mining, the activities of cultural heritage institutions, online services of broadcasters, etc.