Regarding enquiries from journalists from Právní rádce concerning the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, advocate Josef Aujezdský from our office provided comments. A transcript of the questions and our answers can be found below.

I would like to know from you what you perceive as the most important, or conversely the most controversial, in Directive 2019/790, where problems can be expected in practice?

The Directive on copyright in the Digital Single Market addresses very diverse and unrelated relationships. The media has already discussed quite extensively the issues of liability of “online content-sharing service providers”, or regulation related to the operation of news aggregators, specifically the corresponding rights of publishers. However, in these cases it concerns “merely” the regulation of partial relationships. In our view, the new and generally conceived information obligation towards authors and performing artists may have far more extensive practical impacts. This was conceived primarily in the interests of artists in the field of audiovisual or music industry; however, it appears that it will also affect other business entities working with copyright (marketing agencies, advertisers). It cannot therefore be excluded that it will have an impact on the entire chain of contractual relationships in creative fields of human activity.

Does the directive respond sufficiently to the rapid changes in the field of digital content?

Every legal order and law as a whole necessarily lags behind social development. For example, in the area of EU law we would estimate this temporal “handicap” at 10 years and in the case of Czech law at 15 years. This directive is not exceptional in this regard either, as it reflects social relationships which, in our view, began to be relevant as early as between 2005 and 2010.

What may be different in practice (the directive has not yet been implemented into the Czech legal order, but it can be expected which direction this legislative work will take).

For example, in relation to the operation of news aggregators, the directive does not bring about a substantial substantive legal change. The directive merely states that publishing news articles online constitutes their use from a copyright perspective, which in our view was never even disputed. Therefore, in this area no significant change in social relationships can be expected.

In our view, the impacts associated with the above-mentioned regular information obligation towards authors and performing artists may be far more problematic and at present less predictable. This may also extend to situations for which it was apparently not intended (graphic designers, authors of articles, copywriters). However, as you correctly state, it will also depend on the specific implementation of these provisions into the Czech legal order, as the directive leaves Member States room for their own invention in this area. Moreover, in the Czech Republic it is not so unusual that the legislative regulation subsequently does not really correspond to the directive.

What will be the position of publishers who will newly be responsible for uploaded content at internet platforms and repositories?

Considering the interests of various groups within the legislative process, the adopted regulation of liability of “online content-sharing service providers” is relatively complicated. Different legal regimes are to exist for different providers of these services, inter alia depending on the nature of the services provided, the duration of its operation, its traffic, or the legal status of its “provider”. To this must be added that the newly prepared Digital Services Act is to further intervene in this area.

In our view, it can be expected that as a result of pressure from rights holders, a number of smaller shared content service providers will move into illegality (services will be operated under various offshore entities and on exotic domains) or will attempt to exploit gaps in the new regulation, whilst there will apparently be more open possibilities for concealing the actual state of affairs.

Will this change affect the position of multinational giants such as Google, Facebook, Twitter?

Naturally, they will at least formally adapt to the new regulation; however, their economic position should not be negatively affected in any way. Most of the most controversial and socially most dangerous practices of these corporations have from the outset stood entirely outside the law (continuous monitoring of users, trading in information about users, including for the purpose of systematically influencing public opinion, etc.).

A number of legislative initiatives within the EU have recently been motivated by an effort to prevent certain practices of specific multinational companies which have a dominant position in certain areas of electronic commerce (Facebook, Inc., Alphabet Inc., Amazon.com, Inc.). However, in our view these legislative endeavours, whose declared aim is to support small and medium-sized enterprises from the EU, paradoxically have the opposite consequence. Whilst large multinational companies will cope with any new regulation without problems (and will not really change their practices in any way), a number of small and medium-sized enterprises from the EU will be affected by the burden of detailed regulation (to the point of irrationality), which they may not be able to bear. Their competitiveness vis-à-vis these giants will certainly not be strengthened in any way.

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