Recently, it is very common in practice to encounter cases where various parts of third-party websites are copied, whereby the copied materials are then used for promotional purposes of another entity. Most frequently, this involves copying photographs, graphic elements, texts or entire databases of information created by another entity. Persons who are affected by such conduct are then not entirely certain of its legal assessment. For proper legal assessment of such conduct, particularly important are the nature of the information that is copied and the mutual position of the affected entities in economic competition.

In the event that photographs or graphic works are copied without the consent of the rights holder, this will constitute an infringement of copyright. In accordance with the provision of Section 2(2) of the Copyright Act (autorský zákon) (and in accordance with Community law), photographs and works expressed by a process similar to photography, which are original in the sense that they constitute the author’s own intellectual creation, are protected as photographic works. Use of a work protected by the Copyright Act may only occur with the author’s consent or on the basis of law. If texts are copied from a website, for the assertion of any copyright claims it is necessary to assess whether the texts in question satisfy the prerequisites for copyright protection.

In the event that entire databases of information are copied (e.g. offers for the sale of real estate, offers of package tours, lists of operators of restaurant establishments, etc.), this may constitute an infringement of the so-called sui generis right of the database maker. The sui generis right of the database maker is, in connection with the legislation of the European Communities, protected by the provisions of Section 88 et seq. of the Copyright Act. According to Section 90(1) of the Copyright Act, the database maker has the exclusive right to extraction or re-utilisation of the whole or of a qualitatively or quantitatively substantial part of the contents of the database and the right to grant to another person authorisation to exercise this right (a licence). Without the granting of such authorisation, this constitutes an infringement of the sui generis right of the database maker. Claims in the event of infringement of the sui generis right of the database maker are the same as in the case of copyright infringement.

The broadest legal protection against the aforementioned cases of copying third-party content is provided by the provisions on unfair competition pursuant to Section 44 et seq. of the Commercial Code (obchodní zákoník). However, for any claims arising from unfair competition, it is essential that the affected entities be competitors in economic competition. This condition is not required in cases of copyright infringement or infringement of the sui generis right of the database maker. In the case of exploiting the efforts of another to achieve one’s own advantage, this may thus constitute “conduct in economic competition which is contrary to good morals of competition and is capable of causing harm” to another competitor within the meaning of the general clause on unfair competition pursuant to Section 44(1) of the Commercial Code.

Copying the content of a website may, of course, also constitute other unlawful conduct (e.g. infringement of trade mark rights). The broadest scope of legal claims against the wrongdoer is provided by the Copyright Act, namely, as already mentioned, in cases of copyright infringement or infringement of the sui generis right of the database maker.

In the case of copyright infringement, the claims of the injured entity are broader than in the case of claims arising from unfair competition. The individual entitlements of persons whose copyright has been infringed are specified in greater detail in the provision of Section 40(1) of the Copyright Act. Generally, it may be stated that in practice the most important claims are injunctive relief (prohibition of certain conduct), a claim for damages and a claim for surrender of unjust enrichment. In some cases, the possibility of publishing the judgment at the expense of the party who was unsuccessful in the dispute may also be of interest.

From the perspective of the injured party, the legal regulation of the claim for surrender of unjust enrichment is very interesting. The provision of Section 40(4) of the Copyright Act establishes that “The amount of unjust enrichment arising on the part of the person who dealt with the work without authorisation, without having obtained the necessary licence, shall be twice the remuneration that would have been customary for obtaining such a licence at the time of the unauthorised dealing with the work.” The legal order thus provides rights holders to objects protected by copyright (photographs, texts, databases) with relatively strong protection in the form of a legal presumption of unjust enrichment as twice the customary remuneration. In comparison, for example, with claims arising from unfair competition, the claimant in such a case need not prove the occurrence of damage at all.

In cases where the conduct occurs in the internet environment, it is advisable on the part of the injured party always first to secure existing evidence (subsequently, it may be removed). For securing evidence in the internet environment, it is possible to use the institute of certification of factual events in the form of a notarial (or bailiff’s) record. In the event that proof of authorship is required, the source files of the specific work, etc. may be important. As a certain form of prevention, the placement of various protective elements by rights holders into copyright works is used (this is common for photographs, cartographic works).

In the event that the injured party decides to defend against infringements of its rights, in practice the most common first step is to send a message to the opposing party with a demand to remove the unlawful state and possibly with the assertion of further claims. If satisfactory out-of-court resolution of the entire matter is not achieved, the only option remaining to the injured party (if it does not wish to reconcile itself to the situation that has arisen) is to turn to the court with its claims, by filing an action. In such an action, it is necessary to set out the claims that the claimant is asserting – what, therefore, the claimant seeks to obtain through court proceedings. The action should, of course, be prepared by a competent person.

In connection with judicial enforcement of claims, it is appropriate to mention also the possibility for an entity whose rights have been infringed to file a motion for the issuance of a so-called preliminary injunction (both before the proceedings themselves and during their course). In this motion, as in the action, it is possible to seek an injunction against certain conduct on the part of the wrongdoer. The advantage is that the court must decide on the motion for the issuance of a preliminary injunction within 7 days after it has been filed. The court’s decision on the issuance of a preliminary injunction is binding and enforceable, but has only a provisional nature, until the matter is decided with final effect. However, in connection with the institute of the preliminary injunction, it is possible to mention the obligation of the applicant to pay so-called security to “secure compensation for damage or other harm that might arise from the preliminary injunction”. This security amounts to CZK 100,000 in commercial matters. This is therefore not any sanction, reimbursement of costs of proceedings or fee, but rather the deposit of a certain sum with the court, which is returned to the applicant after the conclusion of the proceedings – if no damage has arisen on the part of the defendant. However, proceedings for a final decision in the matter may take a relatively long time and the funds in question are tied up with the court for the entire period.

This text was translated from Czech to English using an AI translator.