A brief overview of the Croatian Copyright Agency on the new Copyright and Related Rights Act

October 23, 2021. In 2008, after long discussions and unusually significant media attention and many controversies, the new Law on Copyright and Related Rights entered into force.

One of the more important Directives introduced into our legal system by this law, although there are many of them, is the long-awaited and controversial Directive on copyright in the single digital market.

Digitization and the creation of a single digital market is the main driver of many solutions that have been introduced now, even when it is not obvious at first glance, such as change in copyright ownership in the employment relationship.

The speed with which technology and its application develops in various social relationships, and especially in the exchange of content that is very often the subject of copyright and related rights, is elusive to many other social stakeholders, including legislators.

For this reason, the previous law left the realization of many rights practically impossible, or at least in many cases provided unfair solutions, and the new law, as well as the regulatory activities of the EU on which the Directives and two Regulations are based, strives to ensure the protection of rights and the commercialization of the author’s work which remained uncovered in the conditions of the development of various new digital services on which a large number of works are distributed.

In order to provide a comprehensive and modern service to its clients, the Croatian author’s agency continuously works to improve its services so that they truly follow the evolving needs of our clients, so in accordance with this, we are happy to announce the imminent establishment of the Digital Rights Department. We will try to cover everything necessary to help you exercise all your rights, provide solutions, advise you and represent you on the digital market, all in accordance with the new legal framework and the EU acquis.

In many aspects, the law introduces quite big changes, especially when it comes to digital exploitation of copyrighted works and other protected objects and other issues related to the general digitalization of services, business and social functioning.

In many ways, the law tries to achieve a balance between different interests, between the various rights and interests of their holders, and to cover as flexibly as possible very different situations, activities and ways of exploiting works. From the newly introduced guidelines, we highlight:

  1. Finally catching up with digitally delivered services

When most services are provided and copyrighted works are exploited in digital form, across a sea of stakeholders, it becomes very difficult for authors and other rights holders to take their share of the pie. At the same time, digital exploitation of works with the support of better regulation and knowledge of one’s rights arising from creative work for many means countless more opportunities for content placement, promotion and visibility, i.e. in addition to exploitation and monetization of one’s works faster and through more channels than before .

The right to communicate to the public, as the exclusive right of the author, was clarified in more detail in the new law, so it is now guaranteed that for every communication of the author’s work to the public, the author’s approval must be obtained by contract or in another way.

Likewise, since television companies have expanded the range of their services to the possibility of accessing content outside of regular programming, including via the Internet, the rights that authors have in relation to them regarding the use of their works have been redefined.

It is about, in addition to broadcasting and rebroadcasting, the right of direct transmission; when the broadcasting organization itself does not communicate the work directly to the public, but through signal distributors (e.g. Klasik TV) and accompanying internet services (e.g. HRTi).

The prerequisite for granting and requesting permission for the last two types of exploitation is the initial existence of permission for broadcasting and rebroadcasting, and the rights are exercised exclusively collectively, which means that individual contracts are not concluded.

The following newly introduced exclusive right, as a form of communication to the public, is perhaps one of the most discussed in the media during the adoption of the Directive, related to which there was even a fear of some kind of censorship – giving public access to works uploaded by users of content sharing services via the Internet. In translation, approving the use of one’s works on social networks and all other platforms that serve to share content among users.

The necessary aim of these provisions is to improve the position of rights holders towards large music sharing platforms and social networks, such as YouTube or TikTok. It is important to emphasize that this specifically applies only to those platforms where we as users upload and share content ourselves, as opposed to those that would offer their own content.

Despite fears, the flow and freedom of sharing content, which in such cases is largely subject to copyright protection, is not limited. What has changed is that the aforementioned networks and platforms still bear responsibility for uploaded content, but not their non-profit users. From now on, it is the platform’s responsibility to obtain the approval of the authors and performers for the works and to pay them an appropriate fee according to the amount of their content that is published, shared or streamed .

  1. Limiting rights to existing works in the hope of stimulating further creativity

The new law also introduced some new restrictions and exceptions to copyrights, i.e. a situation where it is not necessary to ask for permission to use someone’s work, and in some cases not even to pay compensation.

The first group refers to cultural heritage institutions, such as museums, libraries and archives.

The reason is primarily to facilitate the aforementioned digitization of works, their availability, visibility and presence on the Internet, as well as the preservation and promotion of cultural content.

An interesting project is Europeanna, which can also be explained as a specific gallery space on the Internet where the works of various artists from all EU member states are uploaded.

Digitization of collections of cultural heritage organizations from the area

of the EU, as well as making them available to the public, takes place to a large extent on that website where the works of cultural heritage are combined into various publicly accessible collections. In its original version, it was established by the European Commission in 2008. years. Many collections were formed as actual exhibitions, with their own curators as well as listing the authors with their works and the member state that made the work available. The works can be downloaded for free and you can create your own collections, which requires registration on the portal, but downloading reproductions of the works in digital form is free.

As for the limitations of rights, they consist in the new right of the aforementioned institutions to enter into “licensing” agreements with organizations for the collective exercise of rights in relation to certain types of works or right holders, e.g. visual artists, without the individual consent of all artists who would fall into that category. All of them are presumed to have authorized the organization, even if an author has not expressly done so. Of course, the author always has the right to request that his works be exempted from this regime.

If the special conditions for collective licensing are not met, an exception applies, on the basis of which cultural heritage organizations have the right to communicate the work to the public via the Internet, without the author’s approval, but also without making a profit or charging a fee from the user.

Another exception conditioned by the digital age was introduced in relation to the so-called data mining. It is a function that essentially represents the automated search, sorting, processing and sometimes storage of large carts

type of data in order to find regularities, trends, correlations among them with the help of modern technologies and reach the conclusions necessary for the realization of a project or research.

The exception represents good news for science because those who conduct research, provided that access to the work is based on some legal authorization (contract, subscription, open access per se), acquire a very useful tool for faster access to new results and insights.

The same exception has been introduced for other types of data mining and various other needs, but in that case the author has the right to reserve the right to use and thus prevent this kind of exploitation of the work. This is achieved by the general terms of service or by “locking” the website.

The third of the most important restrictions is certainly the one introduced to facilitate cross-border or digital teaching. For some time now, the Internet has been flooded with platforms that offer courses or even complete and certified education in the most diverse fields, and even giants such as Harvard or Cambridge offer their services in this way. Now, in the EU as well, the way has been officially opened to this informal, but increasingly accepted way of acquiring qualifications. This will be useful for higher quality implementation of such educations, but also for regular faculties and other institutions of higher learning that want to expand their reach. The new legal solution allows copyright works to be used in digital form for the purpose of giving examples in class without a prior procedure, i.e. without obtaining the rights holder’s approval and without paying a fee. This applies to organizations with European headquarters, but it is also applicable to classes with a cross-border or international element. What is important is that the works are used only within an educational institution or in a secure digital system with an adequate level of verification and authentication of users – teachers and students.

  1. Publishers and journalists – new related rights and pre-existing rights of exploitation

For the first time, this law introduced the related right of publishers of informative publications, i.e. publishers of newspapers, magazines and other media formats in material or digital form, to the exclusive right of reproduction, distribution, processing, as well as other types of exclusive property rights.

In the same way, journalistic works are included in the list of author’s works, with the fact that the exploitation of these copyrights is also left to the publishers with whom the journalists are employed or write for them, with a fair division of the fees received from them. Their rights are exercised collectively, and these collective rights also include the right they have towards information society service providers.

Namely, aggregators such as Google News, which transmits content for it, must pay a fee to the publishers of the published content that they transmit, and the share of this fee will belong to the journalists-authors of the texts according to the law. The right of attribution was also introduced, which insists on mentioning the publisher and author when, for example, another portal broadcasts “someone else’s” news. Daily and current news as such are not protected by copyright, but this solution contributes to the quality of reporting and is an important step in achieving greater transparency, clarity and verifiability of information in the media space.

  1. Migration of the presumption of ownership of copyright from the author to the employer

According to the previous regulation of the ownership of copyright in works created in the employment relationship, the presumption was valid that the works of authorship were created in the employment relationship, if not otherwise

and regulated by an employment contract or otherwise, belong to their author without restrictions. Such a solution has now been rejected, and according to the new law, the rights initially belong to the employer, unless otherwise arranged.

Such a solution can also be explained by the needs of the digital market and the accompanying need of the employer for legal certainty on the digital market, i.e. easier determination and notification of copyright ownership. Likewise, it enables more direct and simpler monetization based on the author’s work. In addition, the provisions are fully dispositive and it is still possible to arrange contractual relations differently.

According to the new Law, when the employment contract, another act regulating the employment relationship or a third contract does not stipulate otherwise, it is considered that the employer has acquired exclusive copyright property rights to the work created in the employment relationship, in the scope and content necessary for performing a regular activity, regardless of the termination of the employment relationship during which the act was created. The author of the work retains his moral rights, such as the right to mention his name or artistic sign, respect for the work, honor and reputation, and more.

The compensation is realized within the income that makes up the worker’s regular salary. An employment contract or other act may provide for the right to special appropriate compensation when and if the employer, by exploiting the work created in the employment relationship, would significantly increase the scope of business, increase profit or the level of income, regardless of when the work was created and regardless of the eventual termination of the employment relationship .

With regard to works created within the higher education system, the rights regarding works created by students in the performance of their student obligations belong to students without limitations, if limitations are not prescribed by law or stipulated by contract. Nevertheless, in accordance with the foreseen copyright restrictions, which in this case also supports the liberalization of access to data, it is stipulated that the student cannot object to making his work available to the public on the public online database of the university or other related library, or on the public online database of final theses National and university libraries.

On the other hand, the provisions that apply to works created in the civil service are applied to works created in the performance of teaching and educational activities within faculties, higher education institutions or scientific institutes, to teaching staff and their works, which are appropriately applies the described regulation of copyright to works created in the employment relationship.

The law is dispositive in many respects and leaves the parties free to choose the exact regulation of their relations. In addition, we are aware that some of its provisions, especially when it comes to complex legal or technological terms, are quite abstract. We therefore hope that you will not hesitate to ask us for advice or interpretation on any aspect of the law. We are here to help you protect and exercise your rights as well as possible. Likewise, we are always at your disposal to assist you in organizing your contractual relations as efficiently as possible to the satisfaction of all involved parties, as well as for representation and mediation services.