European Union: The New Copyright Law: Fresher Air For Authors, Copyright Holders And Others

Last Updated: 18 July 2016
Article by Eni Kalo

After years of discussions on a copyright law, it was enacted by the Parliament in March 2016 was published in the Official Gazette no. 64 on 20.4.2016, but will be effective 6 months after its publication (the New Law). The New Law has transposed EU acquis and relevant european practices, as Albania is preparing itsel to be invited to join the EU. Copyright protection and related obligations set out in the Stabilisation and Association Agreement between the European Union and Albania 1 are considered as an important milestone for its EU integration.

The New Law marks a significant turning point: it guarantees a higher and stronger level of protection for authors, artists and right holders, and also introduces a stronger copyright enforcement system, encouraging the creativity in art and culture and promoting competitiveness between authors and artists.

Stronger protection for authors and artists through a better clarity

No-formal process required to benefit protection: The New Law maintains the automatic protection of the rights of the author, without any request or formality: the recognition of the authors' rights is based simply on the creation of the works . However, authors may opt for the voluntary registration of their works.

Distinction between "moral" and "economic" rights: The New Law has maintained the same concept of "moral" and "economic" rights: the right of the author, arising from the moment of creation of an artwork, regardless of the moment of publication of the work, grants to the author moral rights and economic right over that work). Moral rights, which protect the moral interest of the author, include the right to make the work public, the right to recognize and mention the author's name, the right of honour, personality and reputation; the right to withdraw the authorization of exploitation of the work, are imprescriptible, untransferable and cannot be waived. On the other hand, economic rights which tend to protect the economic value of the works, grant to the author the exclusive right to enjoy, authorize or stop the use of the original work and copies. Under the New Law, exclusive economic rights specifically include the right to reproduce the work, the right to distribute the work, the right of communication of the work to the public, the right to create derivative works. The above economic rights may be transferred under a written assignment agreement. The New Law strengthens the legal certainty of the parties through well-defined contracts of transfer of economic rights. An entire chapter of the law is consecrated to the assignment of economic rights, a section of which concerns to general provisions of assignment providing for the general principles of assignment of the rights which shall be observed by both parties in the assignment agreement as to ensure the validity of such. In its second section, the New Law specifically provides for special copyright contracts such as publishing contracts, contracts on theatric/musical shows, undertaking agreements, and rental contract. Furthermore, the New Law provides for detailed rules related to works created under an employment agreement, conferring to the employee a larger protection compared to Old Law.

Duration of protection: While moral rights are perpetual and after the death of the author pass to the author's successors through succession, the duration of economic rights is fixed up to 70 years after the death of the author. After the death of the author, economic rights will be transferred to the author's heirs, under the specific legislation governing succession. While in this point nothing changes compared to the Old Law, the novelty of the New Law consists in the extension of the duration of protection of related rights. The economic rights of artists/performers 3 is normally 50 years from the date of creation, but the New Law provides up to 70 years for some cases.

Limitations and exceptions of copyright: In the efforts of balancing the legitimate interest of the authors and users, the New Law provides for some cases of limitations and exceptions of copyright which are specifically and exhaustively provided under such law. Such limitations and exceptions include temporary reproduction, reproduction for personal use, reprographic reproduction, temporary recordings, reproduction of works for educational, research, scientific purposes, use of works in court procedures, use of works in the scope of public information, partial reproduction of the work, reproduction of works permanently displayed in public places, posters and catalogues, parodies and caricatures, use of works in the scope of promotion and testing of devices, use of databases. Under such limitations and exceptions, the holders of the right are obliged to ensure the access to the works.

Fair compensation: The author is entitled to financial compensation for transfer of economic rights. Under the New Law compensation should be pro rata to the profits obtained from the utilization of the work taking into account the type and scope of the work, its financial success, the genre and volume of the work, the duration of the utilization, the existence of the agreements between authors' and users' associations which provide for the amount of fair compensation and other elements that may help to determine the fair compensation. If the contract fails to provide for compensation or if such is not logical in terms of the profits the other party has, the author asks the competent authorities to rule upon compensation.

Another novelty the New Law brings is the introduction of private copying levy. To ensure fair compensation of holders of rights, the New Law introduces the concept of private copy levy or remuneration. Under this concept, an author whose works is reproduced without authorization, through photocopy, voice, video, image, text recording, is entitled to receive a fair compensation from the technical means that enable the reproduction of text, voice or image and of those that enable recording of copyrighted works. A fair compensation is considered the compensation granted under a contract, taking into account the likelihood of damage caused to the author, in case the work is reproduced for private use without authorization, the technological protection measures, and other circumstances that may be deemed as fair for a reasonable compensation. The list of devices that are affected by the private copy levy and applicable tariffs is yet to be determined by a Council of Minister's Decision. Under this system, the levy will be paid by sellers or importers of the above devices and authors cannot waive the right of compensation for private copy. The New Law also provides for the levy distribution scheme under which authors are entitled to receive 40%, artists and interpreters 30% and phonogram, video and film producers 30%. The effective implementation of such scheme as well as its economic impact is yet to be tested in practice. The New Law also provide that the author of an original work of art, benefits a royalty from resale (i.e. droit de suite). The condition presedent is that works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs should be authentic or reproductions signed by the artist. The New Law provides 500 EUR as threshhold for the resale price to trigger the royalty, which in any case may not exceed 12,500 EUR.

Introduction of technological protective measures and information rights management: New Law dedicates a full chapter to the "technical measures and information rights management" , defining it as "any technology, device or accessory part designed to prevent or limit the actions related to the copyrighted works . Such actions can be considered "effective", when the use of a protected work or the subject of the related rights is controlled by the holder of the right through an access control or encryption, decryption or other alterations of the work or through a mechanism of the copy control. New Law prohibits the circumvention of any effective technological measures, as well as the manufacturing, importation, distribution, sale, rental, advertisement, or possession for commercial purposes of devices, products, services promoted or created for the purpose of enabling or facilitating the circumvention of, any effective technological measures. However, the provisions related to technological measures do not apply to softwares. New Law provides the "information rights management", i.e. information rightholders give for the identification of the work, author or other rightholder, or information about the terms and conditions of use of that work and relevant codes relating to such information. The New Law prohibits unauthorized persons who intentionally deletes or alters any electronic rights-management information, the distribution, importation for distribution, broadcasting, communication or making available to the public of works that enjoy protection under the New Law.

Improvement of the collective management system and enhancement of the institutional scheme

Management through collective agencies: Authors and artists administered their rights personally, or collectively by collective agencies, i.e. non-for profits organizations established under the provisions of the law upon a 3-year license issued by the ministry responsible of culture. While the above was does not differ from the collective management under the Old Law, the New Law has introduced significant changes in the collective management system which tends to suppress the arbitrary methods in the distribution process used under the Old Law. First of all, license is granted by the ministry for a duration of 3 years and may be renewed, however the decision of the ministry to license an agency is now based on well-defined criteria which has been introduced in the aim to raise the transparency and competitiveness between agencies. The most important turnaround is the obligation of collective agencies to conclude contracts with authors, which shall stipulate in particular the authorization of representation from the author, the type of works and rights to be administered as well as the duration of which shall not exceed 3 years and may be renewed. The New Law also imposes mandatory collective administration for a set of rights, such as right of re-broadcasting of audiovisual works, the right to rent musical works/records for authors, performers and phonogram producers, obtaining fair compensation for private copying etc. In the ambit of facilitation of the collection process, collective agencies must design a unique agency that will be in charge of receiving the payment from users. This "one stop shop" system will undoubtely benefit to users, who under the Old Law were obliged to contact any of the collective agencies and pay any of the agencies separately. In addition the law provides for the possibility of creation of users' associations that will group users working in the same business, and which will represent the users in front of collective agencies.

Institutional scheme: As per the institutional structure proposed by the New Law, apart the ministry responsible of copyright protection which is actually the Ministry of Culture, the main administrative bodies which depend from the ministry, are the Copyright Directorate, the National Copyright Council. One of the major tasks of the Copyright Directorate remains the surveillance of the activities of collective agencies, as well as proposing legal acts on copyright protection, organizing events, promotional campaigns, etc., as to raise the awareness on the importance of copyright and related right protection and enforcement. Under the New Law, the Copyright Directorate proposes to ministry in charge of copyright the licensing of agencies under the criteria set out by the law, and is also in charge of creating and holding the pubic register which will include the data on copyrighted works which has been registered under the voluntary registration system, those of works falling into the public domain, data on the licensed collective agencies and their activity as well as data on the users and the contracts, authorization issued by the licensed collective agencies.

As per the responsibilities of the National Copyright Council, the New Law lists the approval of the methodology and level of the compensation fees of collective agencies as well as the determination of criteria and procedures for works of national values, determination of the unique agency when collective agencies fail to reach an agreement among them, etc. The New Law introduces a mediation and arbitration procedure, which is expected to improve the management system for both copyright holders and users once the New Law enters into force.

Remedies and sanctions against copyright infringement under the New Law

Remedies:

The infringement of any right guaranteed under the New Law, is subject to civil and administrative liability, but can also be considered as contravention or criminal offence. Authors/right holders may initiate court proceedings against copyright infringer within 3 years from the date the right holder has become aware of the infringement and identity of the infringer. If initiation court proceedings, the authors/right holders may seek injunctions, damage compensation, publication of the court decision with the expenses of the infringer, destruction of unlawful copies and means used to reproduce copies, as well.

Sanctions: New Law provides fines up to 500 000 ALL for the infringement of the rights (fines can also be imposed on legal entities). The provisions related to the applicable sanctions are well defined and encompass any of the specific rights provided under the New Law. Penalties are also imposed to right holders that do not respect the cases of limitation or exceptions of copyright. New Law provides for specific sanctions applicable in case of unauthorized collective administration or in violation of the license granted by the ministry and also provides for administrative sanctions and penalties for collective agencies which breach the principle of transparency, by failing to declare tariffs, submit their annual balance sheets or provide accurate data on their income.

Conclusion:

The approximation of the New Law with the EU relevant directive, has introduced several new concepts and mechanisms that will require a period of adaptation for all concerned parties (in particular for collective agencies which have to comply with the requirements set out under the new collective management system). It is for this reason that the effectiveness of the New Law is deferred to 6 months after its publication in the Official Gazette. However, one of the crucial points related to the enforcement of this law, remains the enactment of secondary legislation act, which under the law are expected to enter into force within 1 month from its enactment, so assumingly such acts should be in the course of preparation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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