The Slovakian perspective on the DSM and the new Slovakian Copyright Act
As a small country in the European Union, Slovakia has been particularly vulnerable to the consequences of the lack of a digital single market.
As a member of the European Union and a signatory of a number of international treaties dealing with intellectual property rights, Slovakia has implemented a standard regime of protection of intellectual property including, in particular, protection of copyright and databases.
In practice, however, citizens and businesses operating in Slovakia are negatively affected by the fact that there is no digital single market in the European Union and the availability of online services is rather fragmented. For a variety of reasons, the Slovakian market is not one of the most attractive targets for foreign online content providers, such as providers of online music or video services and a number of high profile digital services like Netflix and Amazon Instant Video are not yet available in Slovakia.
Due to the limited size of Slovakian market, many online service providers from other Member States lack the economic motivation to comply with local intellectual property rights and overcome the differences in contract and copyright laws. This results, among other things, in significantly restricted competition in the relevant Slovakian markets. Increased competition could lead to lower prices and a greater variety of online services becoming available to consumers. This in turn could change consumer behaviour for the better in that high-quality online services would most likely replace illegal downloading of content.
The Digital Single Market (DSM) strategy recently announced by the European Commission (Commission) could pave the way for a much more harmonised regime. If implemented as planned, small European countries such as Slovakia, could benefit enormously.
Notwithstanding likely proposals to change the way content is treated in the EU, Slovakia is moving ahead with reforms to its own copyright law and it is highly likely that a brand new Copyright Act will be adopted in Slovakia in the course of 2015. The new Copyright Act (Act) will tackle some of the problems mentioned in the Digital Single Market Strategy.
A need to recodify the Slovakian Copyright Act was announced by the Slovakian government in 2012 in its manifesto for the election period of 2012-2016. The government declared its intention to prepare the recodification of Slovakian copyright law in line with the current European trends in creation, dissemination, usage and protection of copyrighted works, protection of performers, phonogram producers and databases. The new Act was approved by the government on 15 April 2015.
The Act aims to adapt the current statutory framework to make it fit for the rapidly changing internet environment. It is also intended to enhance enforcement of copyright law, introduce greater flexibility and set out optimal conditions for ensuring that consumers have access to copyright-protected content.
There are a number of new provisions in the Act which may be relevant to providers and users of digital content:
- the Act widens the list of exceptions and limitations to the reproduction right and implements Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market;
- for the first time in Slovakian legal history, the rigid statutory regulation of moral rights will become more flexible. Unless they have waived them, authors will have a right to dispose of their moral rights; in particular they will be able to grant third parties consent to carry out activities which would otherwise be considered to be a breach of their moral rights. This reflects the current trends in the area of digital content creation;
- as part of the implementation of the Directive 2014/26/EU, the Act introduces a multi-territorial collective licensing agreement for online use of musical works as a new statutory form of licensing agreement; and
in order to reflect the realities of the digital world, the copyright holders’ right of information will be extended to enable copyright holders to demand information about the making of their work available to the public in breach of their rights. This may include information about the users and providers of electronic communications services, the scale of the use of the copyrighted work and information about whether any direct or indirect monetary benefit has been gained from the infringement.
It is expected that the Act will enter into force on 1 January 2016, provided there are no major setbacks during the parliamentary stages of the legislative process. If, in the meantime, the Commission publishes any concrete proposals regarding the measures falling within the scope of the DSM strategy, it is entirely possible the Act will be further amended to accommodate them.
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Ján Lazur
Ján looks at the implications of the DSM strategy from a Slovakian perspective in the context of the new Slovakian Copyright Act.
"If implemented as planned, small European countries such as Slovakia, could benefit enormously [from the DSM]."