Dear Minister of Culture Baxa,
Dear Members of the Czech Chamber of Deputies,
We write to you as representatives of the Czech and international music sectors – including authors and composers, performers, music producers, publishers and collective management organisations – to convey our serious concerns over the Amendment proposed by Deputy Jakub Michálek on the Government’s bill amending Act No. 121/2000 on Copyright and Rights Related to Copyright (the ‘Copyright Law’), Parliamentary Document No. 31 (the ‘Amendment’).
The Amendment is not required by and does not contribute to the transposition of the EU DSM Copyright Directive. It is nebulous in scope and would contravene the EU copyright legislative framework and international treaties in substance. If enacted, it would disrupt longstanding licensing practices and undermine a significant source of revenues for rightholders.
The Amendment suggests removing the obligation to obtain a license for the communication to the public of copyright protected works and sound recordings included in radio or TV broadcasts, where the music is made available “accidentally…” and “…to a narrow circle of persons” when “not of a profit-making nature”1.
By doing so, the Amendment would contravene EU law and be inconsistent with the interpretation of “communication to the public” established by the Court of Justice of the European Union (CJEU). It would be inconsistent with the principles of European law for Czech legislators to foresee a specific definition for the concept in Czech law.
Legally, the Amendment would introduce a new exception to music rightholders’ right of communication to the public, which is not permitted by the exhaustive list provided by the EU ‘InfoSoc’ Directive.2 Moreover, the Amendment would breach several international treaties and conventions to which the Czech Republic is a contracting party, including provisions granting rights under the Berne Convention3, TRIPs Agreement4, the WIPO Copyright Treaty5 and the WIPO Performances and Phonograms Treaty6. If adopted, the provision would fail to comply with the international standard three-step test7 for assessing compliance of provisions on exceptions and limitations and would expose Czechia to the risk of new legal conflicts between users and rightholders.
Practically, the Amendment would significantly and unreasonably limit the scope of rightholders’ exclusive rights, without any justification or legal basis. This would result in substantial losses of revenues due to the commercial and legal uncertainty and potential misinterpretation by users, as a result of which rightholders would need to pursue their claims via the courts, thereby incurring unnecessary costs for all stakeholders. It would cause harm to all operators in the cultural sector, at the present time of economic crises.
Politically, it would fundamentally deviate from the scope of the very EU legislation it transposes – the EU DSM Copyright Directive8. One of the core purposes of this Directive is to boost – not reduce – the licensing of rights and negotiating position of right holders vis-à-vis users.
The Amendment has no comparable equivalent in other national or international legislation and is not supported by any economic analysis or evidence. We urge you to reject the Amendment.
Yours sincerely, the undersigned.