Czech Republic
Czech Republic

Eurovision DSM contest

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Czech Republic
7

pts.

7

points

Czech Republic

Czech Republic adopted changes to its copyright act, transposing all the provisions of the DSM directive on 21 December 2022. The date of entry into force is 1 May 2023.

Procedure:

3 points

In mid-2019, the Czech Ministry of Culture invited interested stakeholders to participate in expert groups to discuss individual articles of the directive. Copyright and advocacy organizations and other stakeholders were able to join the groups, however these meetings were mainly attended by representatives of rightholders. It was also possible to send written comments and suggestions by, but comments were not responded to or were responded with a significant delay. After the release of the draft, the government has not provided opportunities for the civil society to provide further feedback. The national implementation law was approved by the Parliament, through an ordinary legislative procedure.

Article 17:

3 points

The Czech implementation of Article 17 contains not only a general requirement not to limit legitimate uses, but also specific ex-ante safeguards for users: it provides that the use of automatic content recognition tools may only prevent the uploading of a work where the platform assesses the uploaded content as identical or equivalent to the work, further defining “identical content” as content “without additional elements or added value” and “equivalent content” as content that contains only immaterial modifications “without the need for additional information to be provided by the author and without an independent assessment of the legitimacy of the use”.


The law further introduces remedies for cases where platforms repeatedly block or remove lawful user uploads: it provides that a legal person entitled to defend the interests of competitors or customers may demand a ban on the provision of the service against the platform. While it provides a powerful incentive for platforms not to overblock, the remedy is clearly disproportionate and counterproductive, as invoking it would result in substantial collateral damage that negatively affects the freedom of expression of all other uses of the affected platform: the inaccessibility of all content available on the platform.


The law does not contain any additional transparency provisions towards users. The definition of platforms is narrowed down: only platforms that “compete or may compete with other online services making works available to the same target audience” can be subject to these new rules.

Other:

1 point

The Czech lawmaker maintained its existing non-remunerated education exceptions, which already allowed the use of protected materials for illustration for teaching and scientific research, as permitted by Article 5(3)(a) of the InfoSoc Directive, while implementing new exceptions covering the use of digital materials (other than a work primarily intended for educational purposes or a published musical or musical-dramatic notation) for the purposes of illustration for teaching, as foreseen in Article 5 of the DSM Directive. While the new exceptions possibly restrict the scope of the existing exceptions, unnecessarily, they are not subject to remuneration nor to license availability. It should be noted, however, that the implementation goes partially against Article 5, since certain categories of materials are carved out from the scope of the exceptions, regardless of whether or not a license is available for those materials.


Article 14 was not implemented, as unoriginal reproductions are not protected under Czech copyright law.


The implementation of Article 15 only includes some of the limits foreseen in the DSM Directive: scientific and academic publications are excluded from the definition of press publications; the right does not apply to the use of individual words and very short extracts, nor to acts of hyperlinking. No mention is made to the fact that the right does not apply to private or non-commercial uses by individual users; it is not clarified that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is not subject to all the exceptions and limitations to copyright laid out in the national law.

Bonus:

0 points

Nothing to see here yet

Before drafting the implementation law, the Czech Ministry of Culture invited interested stakeholders to participate in expert groups to discuss individual articles of the directive. The government did not, however, provide opportunities to provide comments on the actual draft law: no public consultations or events were held, and the stakeholders were not invited to comment on the draft. The national implementation law was approved by the Parliament, through an ordinary legislative procedure.

When implementing Article 17, the Czech lawmaker designed specific ex-ante measures that reconcile and give a practical meaning to the general requirements contained in the DSM Directive, inserting some of the core findings of the CJEU ruling — that the deployment of ACR technologies cannot lead to the removal of legitimate content; that platforms cannot be required to block content which, in order to be found unlawful, would require an independent assessment of the content by the platforms; and that it is not enough for the protection of users rights to only restore legitimate content ex post (ie., after its removal) — into the Czech law. 


When devising remedies against abuse, however, the national lawmaker went a step too far. A ban on platforms to provide their service is disproportionate and clearly counterproductive to the intent of promoting freedom of expression, as it would result in the inaccessibility of all content available on the platform.


The Czech Republic maintained its existing non-remunerated exceptions for education and scientific research purposes, while implementing new exceptions based on the DSM Directive, creating an unnecessary overlap in terms of scope of protection. The new exceptions are not subject to remuneration nor to license availability. It should be noted, however, that the implementation goes partially against Article 5, since certain materials are completely carved out from the scope of the exception, regardless of whether or not a license is available for those materials. The caricature and parody exception was amended to include pastiche. Article 14 was not implemented, as unoriginal reproductions are not protected under Czech copyright law. 


The implementation of the press publisher rights does not include all the limits foreseen in the DSM Directive, namely the mention that the right does not apply to private or non-commercial uses by individual users.


Local partners: Our local partner has been Open Content

For more information please see our implementation tracking page for the Czech Republic.


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