The Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (the Copyright Directive) has finally been transposed in Cyprus law.
The relevant new legislation (Law ) have introduced a bundle of provisions which aim to harmonise Cyprus law with the Copyright Directive as well as the Directive 2019/789/EU regarding the exercise of copyright and related rights in certain online transmission of broadcasting organisations and broadcasts of television and radio programs, the Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of copyright and fully implement the provisions of the World Intellectual Property Organisation Performances and Phonograms Treaty (WPPT) adopted in Geneve on 20 December 1996 and Joint EU Declarations.
What is the new Copyright Directive about?
The Copyright Directive provides for new rules to ensure fairer remuneration for creators and rightholders, press publishers and journalists, in particular when their works are used online, and increases transparency in their relationships with online platforms. It also includes new guarantees to fully protect the EU citizens' freedom of expression online, who will be able to legitimately share their content. Moreover, the new rules create further opportunities for using copyright-protected material online and across borders for education, research and preservation of cultural heritage purposes.
Digital technologies have transformed the way creative content is produced, distributed and accessed. The Copyright Directive is a new piece of EU legislation that brings the copyright rules up to date with those changes and with the online world. It aims to create a comprehensive framework, which will benefit a wide range of players acting in the digital environment: internet users, artists, journalists and the press, film and music producers, online services, libraries, researchers, museums and universities, among many others.
What are the main objectives of the Copyright Directive?
The Copyright Directive focuses on three main objectives:
What are the new rules for online content-sharing platforms?
One of the objectives of the Copyright Directive is to reinforce the position of creators and rightholders to negotiate and be remunerated for the online use of their content by certain user-uploaded content platforms. Accordingly, the platforms covered by the new rules are considered to be carrying out acts covered by copyright (i.e. performing acts of communication or making available to the public) for which they need to obtain an authorisation from the rightholders concerned.
In situations where there are no licensing agreements concluded with rightholders, the platforms need to take certain actions if they want to avoid liability. In particular, they need to: (i) make best efforts to obtain an authorisation; (ii) make best efforts to ensure the unavailability of unauthorised content regarding, which rightholders have provided necessary and relevant information; and (iii) act expeditiously to remove any unauthorised content following a notice received and make also their best efforts to prevent future uploads.
What is the special regime for smaller enterprises foreseen in relation to the new rules for online content-sharing platforms?
New small platforms will benefit from a lighter regime in case there is no authorisation granted by rightholders. This concerns online service providers, which have less than three years of existence in the Union and which have a turnover of less than 10 million euros and have less than 5 million monthly users. In order to avoid liability for unauthorised works, these new small companies will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the unauthorised works notified by rightholders from their platform. However, when the audience of these small companies is higher than 5 million monthly unique viewers, they will also have to prove that they have made their best efforts to ensure that works that have been notified by rightholders do not reappear on the platform at a later stage.
How does the Copyright Directive ensure a fair remuneration of authors and performers?
The Copyright Directive aims to increase transparency and balance in the contractual relations between content creators (authors and performers) and their producers and publishers. The Copyright Directive contains five different measures to strengthen the position of authors and performers:
How does the new Directive support the press and quality journalism?
The new press publishers' right applies to online uses of press publications by information society services providers, such as news aggregators or media monitoring services. The objective of this right is to help the press publishing industry benefit from a fairer market place and to promote the best possible environment to develop innovative business models. The new right strengthens the bargaining position of press publishers when they negotiate the use of their content by online services. Journalists, as authors of the contributions, i.e. the articles, in press publications, are essential in the press sector for providing reliable and quality journalistic content. By facilitating the online exploitation of press publications and making the enforcement of rights more efficient, the Directive has a positive impact on them. Also, in order to make sure that the journalists benefit economically from the press publishers' right, the Directive provides that they will receive an appropriate share of the revenues generated by it. By ensuring the sustainability of the press sector, the new right fosters plural, independent and high-quality media, which are essential for the freedom of expression and the right to information in our democratic society.
Does the new press publishers' right also cover parts of press publications (so-called ‘snippets')?
According to the Copyright Directive, the use of individual words and very short extracts of press publications does not fall within the scope of the new right. This means that online service providers remain free to use such parts of a press publication, without requiring an authorisation by press publishers. When assessing what very short extracts are, the impact on the effectiveness of the new right is taken into account.
Does the Copyright Directive impose upload filters online?
No. The Directive does not impose upload filters nor does it require user-uploaded platforms to apply any specific technology to recognise illegal content. Under the new rules, certain online platforms are required to conclude licensing agreements with rightholders - for example, music or film producers - for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make their best efforts to ensure that content not authorised by the rightholders is not available on their website. The ‘best effort' obligation does not prescribe any specific means or technology.
Does the new press publishers' right affect individual users?
The Directive does not target individual users, but online uses of press publications by large online platforms and services, such as news aggregators. Internet users continue to be able to share content on social media and link to websites and newspapers (acts of hyperlinking). Moreover, the acts of hyperlinking and the re-use of single words or very short extracts by online platforms and services is excluded from the scope of the new right granted to press publishers of press publications.
How do the new copyright rules protect users and their freedom online?
The Copyright Directive protects freedom of expression, a core value of the European Union. It sets strong safeguards for users, making clear that everywhere in Europe the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed. This means that memes and similar parody creations can be used freely. The interests of the users are also preserved through effective mechanisms to swiftly contest any unjustified removal of their content by the platforms. The new provisions on user-uploaded platforms facilitate the conclusion of licences between commercial players and contribute to improve the remuneration of creators. To take one example: the new rules applicable to the use of press publications online only apply to commercial services such as news aggregators, not to users. This means that internet users continue to be able to share such content on social media and link to online newspapers.
What are the main particularities of Cyprus law in relation to the Copyright Directive?
The amendments introduced by the new legislation protect the press releases as related right. The authors of works that are incorporated in a press release must receive an appropriate share of the revenues that press publishers receive for the use their press publications. Moreover, the provisions concerning the protection of related rights are aligned with the provisions concerning the protection of copyright, where it is deemed necessary. In the same way, mandatory exceptions to these rights are provided in order to enable the provision of wider access to knowledge, in order to facilitate cultural heritage institutions such as libraries, museums and archives, to digitalise and disseminate their collections online.
Regarding the use of protected content by online content-sharing services it is provided that the providers of online services have to obtain an authorisation from the rights holders to publicise the works uploaded by their users. If no licencing agreement is concluded, the concerned platforms benefit from a mechanism to mitigate their liability, but they have to take all necessary steps to ensure that there is no available unauthorised content on their websites.
Regarding the provision of online services by broadcasters it is provided that for certain programmes, broadcasters have to obtain an authorisation from the rights holders of the works and other objects contained in them to broadcast them. This rule applies to all radio programmes and certain types of television programmes.
The beneficiaries may exercise their right to grant or refuse authorisation for these broadcasts only through a collective management organisation, with the exception of rights already held by the broadcasters concerned.
Regarding the disputes that may arise with regard to the authorised use of works that the beneficiaries of copyright and related rights grant to providers or users for transmission and broadcasting services, as well as any other authorised use of works in online services resolution mechanism through arbitration.
Lastly, the new legislation provides that the provisions on the protection of copyright do not affect the exercise and the respect of the protection right of personal data and freedom of expression.
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