Chapters of the article
You may have experienced or heard stories from your parents when you were young, of sitting at the tape deck with the radio on and with your finger on the record button waiting for your favourite foreign song to come on. Today, we find this practice completely absurd. We can get the latest album or film at the click of a button, and if we’re really lucky, we can even get our hands on something that is yet to arrive on the shelves or cinema screens from the comfort of our homes. But some people won’t stick around to watch or listen. They might use a song or excerpts from the film in a new video shared on YouTube or offer them for download on sharing servers. What is the law’s position on all this?
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TheCopyright Act first of all defines what it considers to be a work that is subsequently worthy of protection. It is a literary work and other artistic and scientific work that is the unique result of the creative activity of the author and is expressed in any objectively perceptible form, including electronic form, permanently or temporarily, regardless of its scope, purpose or meaning.
Examples of such works include a song, a composition (musical work), a play or musical (dramatic or music-dramatic work), choreography (choreographic work), photography (photographic work), a book (verbal work) or a film (audiovisual, cinematographic work). The list by no means covers all the possibilities, especially in the visual arts, but we could find many more, for example in architecture. A computer program or game is also considered a work if it is the author’s own intellectual creation.
The author of the work and the moment of creation of copyright
Although we read in the media mostly about the rights of record companies, film producers or publishers, who undoubtedly have significant property rights in works and guard them carefully, copyright in its basic essence is always held by the author of the work, who is the specific individual who created the work. If the work has been created by the creative activity of two or more authors, then we speak of joint authorship.
Copyright in a work arises at the moment when the work is expressed in any objectively perceptible form (but this does not mean merely the idea for the work, the subject matter of the work, etc.). Copyright then survives even if, for example, the work itself (such as a sculpture or painting) ceases to exist.
Copyright includes both personal rights (to decide to publish the work and to take authorship) and property rights. Personality rights cannot be waived by the author or transferred to another person. They are extinguished on death, but even then, of course, no one can assign his or her rights to the work. Property rights include, for example, reproduction, rental or lending of the work, and this part of the rights is transferable to another (for example, to the companies mentioned above).
Anyone can freely use a work for which the term of the property rights has expired (they generally last for the lifetime of the author and 70 years after his death) without further delay. Such a work is considered a free work.
Use of the work
If you want to use the work in any way, this is conditional on you having acquired the property rights (or some part of them), either by being the author yourself, of course, or by entering into a licence agreement with the author.
A specific feature of watching movies or listening to music in recent times is that you almost no longer buy media like cd’s or dvd’s and you don’t acquire the property rights by purchase, but rather by renting them on one of the platforms like Apple Music, Spotify or Netflix or HBO Max in the case of movies. So de facto you own nothing and the moment you stop paying the rent, all the music or movies disappear. Nevertheless, you undoubtedly acquire certain property rights.
Another way of obtaining music or films is by downloading from shared servers. The good news for all premium account holders on sites like ulozto.cz or hellspy.cz is that the law does not consider “use of a work for the personal use of a natural person, the purpose of which is not to obtain direct or indirect economic or commercial benefit“. This sentence implies the important rule that downloading an album, film or book for personal listening or viewing is not criminal or otherwise punishable.
However, this freedom of use does not apply to the use of a computer program, an electronic database, the making of a reproduction or imitation of an architectural work by a building, or the making of a recording of an audiovisual work when it is performed from a recording or transmission. For these cases, you must already obtain a licence in the form of an executed licence agreement.
If you make a reproduction (copy) or imitation of the work, it should be labelled in such a way that it is clear that it is a reproduction and that it should be for your use only.
Dissemination of the work on the Internet
As you may have gathered from the above sentences, we are getting on thin ice here. If you have downloaded a film or album for your own use, that’s fine. But keep in mind that you have not acquired any copyright or other rights in the work. And if you actively share a work online that you don’t own the copyright to, you are already breaking the law. Those who not only download works of authorship on these sharing platforms but also offer them for download, or users of so-called torrent – peer to peer networks where sharing is essentially a requirement, expose themselves to penalties from the owners of the property rights to the works in question.
What about the use of a film or music sample?
The answer here is not entirely clear-cut, and if you want to be 100% sure that you are not breaking the law, consult an attorney for a specific example.
Consider a situation where, for example, you want to create videos that you put on YouTube or another similar platform (not just for your personal use) and you want to intersperse your output with, for example, some film “cues” from the film Vyšehrad or Cinderella (or other clips in their original form). Let us also assume that you do not want to enter into a licensing agreement with Mr. Hřebejk, Štáfek, or the production companies of these films.
A similarly conceived video could be covered by the statutory “quotation of a copyrighted work“. According to its definition, copyright is not interfered with by those who:
- a/ uses, to a reasonable extent, extracts from the published works of other authors in his or her own work,
- b/ uses excerpts from a work or small whole works for the purposes of criticism or review relating to such work, scientific or scholarly work, and such use is in accordance with fair usage and to the extent required by the particular purpose,
- c/ use the work in teaching for illustrative purposes or in scientific research, the purpose of which is not to obtain direct or indirect economic or commercial benefit, and does not exceed the extent appropriate to the purpose pursued.
In such a case , of course, the whole or most of the work may not be used (for example, the whole of a song or film music may not be used in this way). The name of the author and the title of the work must also always be indicated, where possible.
If you do not comply with the conditions for quotation according to the author’s work, this will constitute so-called unauthorised use of someone else’s work. In such a case, the authors concerned will be entitled to use the procedure of the Copyright Act against you.
A well-known example of a copyright dispute is the lawsuit between Zdeněk Svěrák and the Bauhaus chain, which used the famous motif from Svěrák’s song “bake some bread” for its advertising campaign. After six years, Zdeněk Svěrák won an apology and CZK 200,000 in damages from Bauhaus. The court agreed that the company had infringed Svěrák’s copyright.
Intellectual property rights
The issue of downloading, copying and sharing various works on the internet generally falls under intellectual property law. Intellectual property law deals with the protection of intangible goods, which include the results of creative intellectual activity. In the Czech Republic, it is further divided into two areas:
- copyright, which is regulated by the Copyright Act.
- industrial property rights, which include, for example, inventions, utility models, trademarks, etc.
According to the World Intellectual Property Organization, a specialized arm of the United Nations, the definition of intellectual property includes:
- literary, artistic and scientific works
- artistic performances, sound and radio recordings
- inventions in all fields of human endeavour
- scientific discoveries
- industrial designs
- trade marks, trade names and designations
- protection against unfair competition; and
- all other rights connected with intellectual activity in the industrial, scientific, literary or artistic field.