The National Book Council has presented a proposed bill to amend the Copyright Act which seeks to bring it in line with modern realities of the cultural industry.
The proposal intends to transpose the EU’s Directive on Copyright in the Digital Market into Maltese law and address other discrepancies within our national copyright framework. The proposed reform is intended to bolster the rights of creators and other participants within the creation chain while also safeguarding the rights of consumers.
The EU’s latest copyright directive addresses contemporary challenges to the protection of works brought about by the changes in the cultural landscape which have occurred since the last major legislative instrument within this sphere, back in 2001.
Since then, the content industry has undergone a complete transformation, largely due to new modes of consumption of cultural works which have been primarily brought about by the proliferation of portable technological devices and the emergence of new digital platforms for the dissemination of works, such as Spotify, Youtube and Netflix.
The proposed framework introduces a wide array of new rights for authors and performers, which will grant them more control over their work, particularly in instances where they have transferred or licensed their rights to third parties such as record labels, publishers and online platforms.
In such instances, authors and performers will benefit from increased transparency and reporting from assignees or licensees regarding the use and commercial exploitation of their work. Besides assuring creators that they are receiving their fair dues, this comprehensive information will enable them to re-evaluate their agreements with such parties.
A newly-introduced contractual adjustment mechanism will allow creators to renegotiate existing agreements with licensees and assignees, by requesting additional remuneration in instances where it is disproportionately low compared to the revenues and benefits derived from the works in question.
Creatives will also be able to revoke or terminate their agreements in instances where the work is not being commercially exploited by the respective assignee or licensee.
Moreover, the proposal seeks to address the copyright value-gap by ensuring that rightsholders are adequately compensated for the use of their work by online content-sharing platforms.
Such platforms will now be obliged to pay for the content which they disseminate and to act expeditiously to remove infringing content upon receiving a sufficiently substantiated request from the respective rightsholders.
Certain concessions have been permitted with respect to start-up platforms, whose obligations in this respect are significantly less onerous.
Platforms will, however, be prohibited from removing content which does not violate copyright, or which benefits from an exception thereto - including use of works for the purposes of parody, review and quotation.
To this effect, they will be obliged to provide their users with effective complaints and redress mechanisms to be able to contest wrongful removal of non-infringing content.
The proposal furthermore introduces various new exceptions to copyright, all of which have been made subject to certain safeguards intended to protect rightsholder interests.
These include an exception for the purposes of preservation which will allow cultural heritage institutions such as libraries and archives to make copies of works within their repositories, in order to be able to preserve our collective cultural heritage for posterity’s sake.
Such institutions will also be able to make out-of-commerce works available to the public for non-commercial purposes through licences issued by collective management organisations or under a new exception to copyright.
A further exception has been introduced in relation to text and data mining for the purpose of scientific research. This will permit researchers to make copies of vast amounts of protected works (such as scientific papers) for analytical purposes - to discover patterns, trends and other useful indicators which will facilitate medical and technological advances.
The existing exception related to illustration for teaching has been extended to cross-border teaching to facilitate distance learning. Works which are intended primarily for the educational market, such as textbooks, have been excluded from the scope of this exception to safeguard the livelihood of those active within this creative sector.
Moreover, the proposal will introduce a neighbouring right for press publishers, effectively placing them on par with analogous actors in the creative landscape such as music producers. This will allow press publishers to assert their rights over their publications independently of the authors of the works contained therein.
Another salient feature of the bill is a significant overhaul of the Copyright Board’s composition and functions. It is being proposed that the board is appointed by entities which are active within the creative landscape, such as rightsholder and consumer organisations, rather than the government of the day. The bill furthermore seeks to establish the Board as an alternative decision-making forum for the resolution of copyright-related issues.
A novel concept being proposed in our jurisdiction is the ability of board members to attach a separate opinion, concurring with or dissenting from the board’s majority decision; a procedure which has been drawn from the European Court of Human Rights.
Should the proposed act be adopted in its entirety, it will serve to restore balance within the cultural landscape, by ensuring that all actors within the creation chain are adequately compensated for their efforts.
It will furthermore serve to establish a level playing field in content dissemination, by ensuring that all content made available by online platforms is appropriately licensed, while also safeguarding the interests of users and consumers.
Timothy Spiteri is a lawyer practising with Muscat Mizzi Advocates.