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The provisions of the DSM directive were transposed into Maltese law by way of an implementation decree issued by the Minister for the Economy and Industry on the 18th of June 2021.
Procedure:
Malta's transposition of the Directive was mainly taken up by the National Book Council, who took it upon themselves to carry out the bulk of the work preparing the draft implementation decree. In 2020, the Ministry responsible for Industrial Property organized a public pre-draft consultation, which was mainly based on written submissions and replies to pre-set questions with a possibility to put forward any other suggestions. There are also reports of stakeholder meetings with educational establishments. No further opportunities have been provided to stakeholders to take part in the process. There was no substantive discussion and no vote on the Maltese implementation in parliament.
Article 17:
The Maltese implementation of Article 17 simply restates the text of the Directive. As such, it contains only a general requirement not to limit legitimate uses, but does not contain any ex-ante safeguards for users rights or additional transparency provisions. It also does not narrow down the definition of platforms affected by these rules.
Other:
When implementing Article 5 of the DSM Directive, the Maltese lawmaker maintained its broad exception for purposes of illustration for teaching and research, but turned it into a compensated exception. This exception is based on Article 5(3)(a) of the InfoSoc Directive and already permits any uses (including digital uses) by any users. The lawmaker decided nevertheless to introduce a new exception covering digital uses for the purposes of illustration for teaching, as foreseen in Article 5 of the DSM Directive. In addition to possibly restricting the scope of the existing exception, unnecessarily, the lawmaker introduced compensation for both exceptions, moving away from its tradition of allowing educational and scientific research uses without compensation. Furthermore, the national lawmaker decided to subject the exception to license availability for teaching materials.
Article 14 has been implemented literally.
The implementation of Article 15 includes all 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 private or non-commercial uses by individual users, to the use of individual words and very short extracts, nor to acts of hyperlinking; the right cannot be invoked against uses permitted by non-exclusive licenses nor against the use of public domain works; and the right is subject to the exceptions and limitations to copyright laid out in the national law.
Bonus:
As part of the provisions enabling the use of Out of Commerce works by cultural heritage institutions the Maltese implementation decree requires collective management organisations to obtain a certification that they are sufficiently representative for one or more types of works. This mechanism provides a much needed clarity for cultural heritage institutions to understand if the licensing mechanism applies or if they can make use of the fall-back exception.
The provisions of the DSM directive were transposed into the Maltese law by way of an implementation decree issued by the Minister for the Economy and Industry on the 18th of June 2021. There was no substantive discussion and no vote on the Maltese implementation in parliament.
The implementation of Article 17 largely restates the text of the Directive. As such it does not narrow down the definition of platforms affected by these rules, does not contain any specific ex-ante safeguards for users rights or additional transparency provisions.
The new education exception, overlaps with a broader one, and is subject to license availability. In addition, both exceptions are now subject to remuneration, breaking with the Maltese tradition of not requiring payment for uses permitted under copyright exceptions.
Local partners: Our local partner has been Wikimedia Community Malta
For more information please see our implementation tracking page for Malta.
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