Following the amendment to the Copyright Act implemented by Act No. 216/2006 Coll., we were asked by the editors of LUPY to provide an article concerning the issue of making reproductions of copyright works (or reproductions of other subject matter protected by copyright). Although most readers are relatively well informed in this area, it may certainly be useful to mention in several basic points how these issues are regulated by the amended Copyright Act (Act No. 121/2001 Coll., as amended).

It must be stated in advance that the article deals with cases of use of copyright works in the Czech Republic and therefore does not apply to cases where the use of works occurs abroad, although it is not excluded that the regulation in some countries is very similar to ours (e.g. in other states forming the EEA). At the beginning of the article we also briefly mention the existence of so-called free works. Free works are those works in respect of which the duration of economic rights has expired (the duration of economic rights is regulated by Section 27 of the Copyright Act) and their use is not restricted. Free works may be used by anyone in any manner, for example including their use by communication to the public via the internet or by distribution (sale of CDs, sale of books).

Generally speaking, if it is not a free work, subject matter protected by copyright may only be used with the consent of the author (the person exercising economic rights). Individual methods of use are demonstratively defined in the provision of Section 12(4) of the Copyright Act. These methods of use include reproduction of the work. In the language of the Act, reproduction of a work means “making temporary or permanent, direct or indirect reproductions of a work or part thereof, by any means and in any form”. This includes making reproductions in electronic form. Using a work without the consent of the author is only possible exceptionally in cases expressly provided for by the Copyright Act. The fact that these are exceptions is explicitly stated in the provision of Section 29(1) of the Copyright Act: “Exceptions and limitations to copyright may only be applied in special cases provided for in this Act and only where such use of the work is not contrary to the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” One such exception provided for in the Copyright Act is free use according to its provision Section 30. Free use must always be distinguished from, for example, gratuitous use of a work based on a licensing agreement.

Pursuant to the provision of Section 30(1), use of a work under the Copyright Act does not include “use for the personal needs of a natural person, the purpose of which is not to achieve direct or indirect economic or commercial advantage, unless this Act provides otherwise”. Unlike the previous wording, where the Copyright Act spoke only of personal needs without specifying the type of subject, the amended wording now expressly provides that it must be the personal needs of a natural person. The provision of Section 30(2) of the Copyright Act then adds that “a person who, for their personal needs, makes a recording, reproduction or imitation of a work does not thereby infringe copyright.” The free use now only applies to published works (Section 29(2) of the Copyright Act) and since the amendment came into force, an infringement of copyright is, for example, the making of a reproduction of a hitherto unpublished audiovisual or musical work.

Generally speaking, therefore, the making of a recording, reproduction or imitation of a work (e.g. an audiovisual or musical work) is not an infringement of copyright. However, such free use does not include:

• use of a computer program (including computer games),

• use of an electronic database,

• making a reproduction or imitation of an architectural work by construction,

• making a recording of an audiovisual work during its performance from a recording or its transmission.

From the above it follows that, without the consent of the author, reproductions of computer programs may still not be made, not even for the personal needs of a natural person. In accordance with the provision of Section 66(2) of the Copyright Act, reproduction of a computer program “shall also be deemed to include making a reproduction if it is necessary for the loading and storing of the computer program in the memory of a computer, as well as for its display, operation and transmission.” However, in the area of computer programs, special legal regulation applies in relation to so-called back-up reproductions. Pursuant to the provision of Section 66(1)(c) of the Copyright Act, an authorised user of a reproduction of a computer program does not infringe copyright if they “make a back-up reproduction of the computer program if it is necessary for its use…” When the making of a back-up reproduction of a computer program is necessary for the use of such a program is a matter for the specific case. For the avoidance of all doubt, we state that in the case of use of free software or even freeware, this is not free use (although the rights holders have no claim to remuneration). Some further information regarding the impacts of the amendment to the Copyright Act on legal relationships concerning computer programs can be found here.

The new regulation inserted into the Copyright Act during the legislative process expressly excludes from the regime of free use the making of a recording of an audiovisual work during its performance from a recording or its transmission (see above). What is meant by performance of a work from a recording is provided for by Section 20(1) of the Copyright Act. In simplified terms, it may be said that an infringement of the Copyright Act is now also the making of copies of audiovisual works (films) during their screening in a cinema.

In relation to making reproductions of copyright works for personal needs through peer-to-peer systems, it must be taken into account that some of these systems do not allow the making of a reproduction without at the same time communicating that or another work to the public (sharing). Communication of a work to the public (e.g. making available via the internet) is of course already a use of the work within the meaning of the Copyright Act and if this is done without the consent of the author, it is an infringement of copyright.

The Copyright Act contains special regulation regarding printed reproductions. Pursuant to Section 30a(1), copyright is not infringed by a) a natural person who, for their personal needs, b) a legal person or a natural person carrying on business who, for their own internal needs, “makes a printed reproduction of a work on paper or similar medium by photographic technique or other process with similar effects…” Similarly, copyright is not infringed by a person who makes such a reproduction on the order of the aforementioned persons (e.g. the operator of a copying centre), provided they duly pay remuneration to the collective administrator. It is therefore in accordance with copyright if, for example, a trading company makes a printed copy of a specialist publication, etc.

The making of a reproduction for personal needs is always a possibility given by law, but not a claim of the user against the author (the person exercising rights). For this reason also, the amendment of the provisions regulating so-called effective technological measures for the protection of rights can be considered a very important change. Pursuant to the provision of Section 43(3) of the Copyright Act, effective technological measures means “any technology, device or component which, in its normal function, is intended to prevent or restrict such acts in relation to works for which the author has not granted authorisation, where the use of the work can be controlled by the author through the application of access control or a protection process such as encryption, coding or other modification of the work or the application of a copying control mechanism.” This concept therefore includes, for example, technical measures for DVD media - regional restrictions, Content Scrambling System, Macrovision, etc.

Under the previous regulation, only a person who developed, manufactured, offered (for sale, rental or loan), imported, distributed or exploited for the purpose of achieving financial gain by providing services or in another manner devices intended for the removal of measures for the protection of rights infringed copyright. According to the amended wording of Section 43(1), “a person who circumvents effective technological measures for the protection of rights under this Act infringes copyright without authorisation.” Technological measures for the protection of rights may therefore no longer be “broken through” for the purpose of making a reproduction for personal needs and not even for the purpose of using a work on the basis of statutory licences (e.g. news licence). In the case of statutory licences and in the case of making printed reproductions (see above), the author is merely “obliged to make their work accessible to authorised users to the extent necessary to fulfil the purpose of the said use of the work”.

In some cases, information appears in the media describing any making of reproductions of copyright works for personal needs as unlawful. This information must be described as misleading and the Copyright Act does not restrict the rights of end users so significantly in this way. However, it must be stated that the interests of rights holders to subject matter protected by copyright are increasingly being reflected in Czech legislation as well.

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