Effectively Protecting a Copyright in the Czech Republic

Article chapters:

• What’s a copyright?
• Copyright versus Copyleft
• What’s considered a creative work in the Czech Republic?
• Who’s an author in legal terms?
• What rights do authors gain regarding their work in Czechia?
• How to protect a creative work?
• Copyright Act – the law protecting authors’ rights
• When may a work be used without its author’s permission?

 

What’s a copyright?

A copyright protects creative work and the creators’ rights for a period of time defined by the law. Only the author has the right to decide how their work is to be used, whether it be sale, lending, rental, exhibition, or another use.

Copyright versus Copyleft

As far as software, film and music are concerned, the copyright laws don’t keep up with the present days, when pieces of work are easily digitalized and anonymously shared via the Internet. For that reason, a number of alternatives to a copyright have appeared that are commonly referred to as Copyleft and are marked with the phrase “some rights reserved” instead of “all rights reserved.” With software, you might be familiar with GNU or GPL Copyleft licences, while Creative Commons has become widespread with other creative works. These licences allow for publishing a piece of work (eventually their editing as well) under the conditions set by the author.

What’s considered a creative work in the Czech Republic?

The work must be a unique outcome of the author’s creative activity, i.e., the result of creativity, not plagiarism. At the same time, it must come in an objectively perceivable form, that is, an idea itself doesn’t suffice. Electronic forms, on the other hand, are acceptable.

Examples of creative works:

• a composition,
• a film,
• literature,
• fine artwork,
• an architectural or urbanistic work,
• software,
• photography,
• a dramatic piece,
• and others specified in the Copyright Act.

What doesn’t count as creative work in the Czech Republic

• The work’s theme as such,
• daily news,
• a principle, technique, method or procedure,
• a discovery, a scientific theory,
• a mathematical formula, a statistical graph.

Who’s an author in legal terms?

Unlike the Anglo-American conception, where a legal person may become an author, only physical persons are deemed creative in the Czech Republic. The natural person who created the work becomes its author. Naturally, the law takes into account that they may be unknown or that the work was created by several people:

• Anonym / pseudonym – according to law, a piece of work may be published without the author’s name or under a pseudonym. The author’s identity may be revealed only with their consent.
• Co-authorship – the authors share the copyright. The following is excluded from joint authorship:
• The final work comprises several stand-alone parts, e.g., the music and the script that together constitute a film,
• A person or persons contribute with a piece of advice, provide an incentive or help to create the work

In order to use a jointly-owned work, the permission of all its co-authors is required regardless of to what extent they contributed to its creation. If one of the co-authors groundlessly rejects the use of their work, the others may take the matter to the court, seeking to substitute the missing consent with its judgement.

What rights do authors gain regarding their work in Czechia?

Upon creating a piece of work, its author gains the rights defined in the Copyright Act. These are divided into economic and moral rights.

Economic rights

Economic rights entitle the author to exclusively decide about further use of their work. No other person may use it in any way without their permission. However, the author may grant a licence to use their work. The economic rights apply during the author’s whole life, plus an additional 70 years after their death.

An interesting detail regarding copyright economic rights: With an audio-visual piece of work, the 70-year period begins on the day the last of the following persons becomes deceased: the director, screenplay writer, music composer.

Your Attorneys Online advise: In our practice, we often deal with situations when our client is approached by the holder of copyright economic rights to, e.g., a photo that the client used on their website. In such a case, the claim to licence fee payment is undoubtedly justified; however, we strongly recommend turning to a solicitor to make sure the amount is adequate.

The rights to use a copyrighted work include:

• the right to reproduce a work,
• the right to distribute an original or copy, e.g., publishing an article or e-book on the     Internet,
• the right to rent an original or copy,
• the right to lend an original or copy,
• the right to communicate the work to the public (e.g., via television or the radio).

Moral rights

As the name suggests, these are directly connected with the author’s personality, and therefore can’t be transferred to anyone else. These rights apply only as long as the author lives. However, this doesn’t imply that the work may be used freely when the author becomes deceased, as their death has no effect on protecting the authorship itself – it can’t be appropriated (the author’s name must always be stated when further distributing their work) or used in a way that would decrease its value. The author’s relative or another close person may claim the right to protect the authorship even when the property rights are no longer valid.

The personality rights include:

• the right to decide about making their work public,
• the right to claim authorship (including the right to decide whether or not it will be indicated upon publishing and further use),
• the right to the work’s inviolability – the author is entitled to make decisions regarding any alteration of the work; when another person uses the work, they must not decrease its value in any way.

An example from the practice of copyright: You might have heard about the dispute between the Prague Zoo and the painter Michal Cihlář, who took action to have fine artwork removed from the zoo’s premises. Although he wasn’t its author, the artwork strongly resembled his original work that he had created for the zoo. The Prague Municipal Court took Cihlář’s side and ordered the zoo to remove the exhibited artwork. The reason was that the zoo negotiated an unclear licence agreement with the painter. In the end, the zoo managed to win the case in 2018, but only after ten years of dragging legal disputes.

How to protect a creative work?

A creative work is automatically granted legal protection once it’s created. It needn’t be registered as industrial rights (trademarks, patents, registered designs, etc.) do. However, to gain a better legal position, you may wish to register with a copyright collective, also known as a licensing agency or copyright collecting agency. These are legal persons that have been granted the mandate by the Ministry of Culture to exercise collective administration. In other words, they may represent a number of physical persons and collectively apply and protect their property rights

Currently, the following copyright collectives exist in the Czech Republic:

• OSA – for authors of musical pieces and lyrics, for musical labels,
• OOA-S – for creators of fine artwork, architects, photographers, film editors and software graphic designers,
• DILIA – for authors of literature and musical-dramatic works, for publishers,
• INTERGRAM – for performers and audio / audio-visual recording makers.
• GESTOR – when reselling a fine art original,
• OAZA – for sound engineers.

How does collective representation work in practice?

When a writer writes a book, they usually sign a publisher’s licence agreement, upon which the book is published and the writer receives royalties from the publisher – the reward for writing the book and, frequently, also a share of its sales. However, the writer is also free to sign a contract with DILIA, owing to which they may receive a sum of money for making their book available in libraries.

What to keep in mind:

• To be represented by a copyright collective, you need to sign an agreement with them and pay an entrance fee (for instance, OSA charges 605 CZK).
• You need to report each work in the year it was completed by filling in a special form.
• In the subsequent year, the author is paid a share of the total royalties.

Your Attorneys Online advise: If you create a work of value and choose not to register with a licensing agency, do keep any and all preparatory materials (sketches, handwritings, original text versions…) or have a notary keep them safe for you.

Copyright Act – the law protecting authors’ rights

The modern digital age favours using a work without its author’s permission, i.e., copyright infringement. Advertising campaigns regularly contain pictures downloaded from the Internet, and copied text can be found on numerous websites. Naturally, the question arises whether the current legal system is sustainable and whether to expect a major reform.

Nonetheless, according to the Copyright Act, in such a case, the author may demand:

• recognition of their authorship,
• prohibition of exposure of their rights – for instance, a ban on production, sale or export of a copy or imitation,
• remedying the consequences of the infringement – e.g., removing the photograph or text from the website or the market,
• adequate satisfaction for the non-financial damages and claiming unjust enrichment or damages,
• a ban on the provision of the product or service.

Naturally, the author is entitled to damages and restitution for unjust enrichment. They may claim twice the royalty for any unauthorized use.

Your Attorneys Online advise: Keep in mind that copyrights are inherited. Thus, the author’s heir retains the same rights as long as the court acknowledges the inheritance during the probate.

Although authors usually defend their rights by means of civil litigation, copyright infringement may be deemed a criminal offence as well. The violation is punishable by a penalty, asset forfeiture, or even up to 2 years of imprisonment (up to 5 years if substantial profit was made or the offence was committed on a large scale, mainly if the infringement was systematically repeated).

Your Attorneys Online advise: Instead of jumping into legal action, why not try contacting the person or company who infringed on the copyright? You could give them a warning followed by the offer to purchase a licence. In addition, you could negotiate further conditions of using your work (e.g., that it may be used only in a certain country or for a limited period of time, define how it will be promoted, specify the amount of promotion materials, and so on).

When may a work be used without its author’s permission?

The Copyright Act allows for use without permit if:

• the work is freely used – this means use for personal needs by a natural person without seeking to achieve direct or indirect economic benefit,
• the work is used under so-called Compulsory Licences – simply, this means for public interest with the prohibition of commercial use. Among examples are a Reporting Licence (e.g., to illustrate an article on a news server or on television), promotions of exhibitions, use for religious purposes, etc.