Following the publication of the gloss by Aleš Miklík “First legal exchange network discovered?”, a rather extensive and interesting discussion took place among Lupa readers on the stated topic. This contribution should therefore clarify more closely why such a method of “exchange” of works protected by copyright law is legal and how it differs from other cases which may already constitute an infringement of copyright.

For grasping the entire issue, it is essential to distinguish between individual methods of use of a work, that is, between individual methods of dealing with a work as specified in the Copyright Act (Act No. 121/2000 Coll., as amended). The Copyright Act in the provision of Section 13 et seq. enumerates and defines by way of example the methods of use of copyright works – reproduction, distribution, rental, lending, exhibition and communication to the public. From a copyright perspective, there is therefore a substantial difference, for example, between making copies (reproductions) of an artistic work in printed form and making the same artistic work available to the public by means of a website. These constitute different methods of use of the same work.

As is generally known, lawful use of a copyright work may occur either with the consent of the holder of the economic copyright in that work or on the basis of law. Directly on the basis of the Copyright Act, it is possible to use a work, for instance, in the case of so-called free use. However, this contribution will not address in greater detail the issue of free use, i.e. it will not address the questions of in what case and under what conditions it is possible to make a reproduction of a copyright work for personal use. The topic of free use of copyright works has been addressed in more detail, for example, in this article. In this context, it is also possible to point out that the information set out below does not apply to computer programs (including computer games). Computer programs have in certain matters a different legal regime than, for example, books, photographs, audiovisual works (films), musical works. It is precisely to these types of works protected by copyright law (works in respect of which so-called free use is possible) and not to computer programs that the following exposition is devoted.

In the area of distribution of reproductions of copyright works among “end” users, the issue of exhaustion of the author’s rights within the meaning of Section 14(2) of the Copyright Act is particularly important. This provision establishes that by the first sale or other first transfer of ownership of the original or of a reproduction of a work in tangible form which was carried out by the author or with his consent…, the author’s right to distribution in relation to such original or reproduction of the work is exhausted; the right to rental of the work and the right to lending of the work remain unaffected. What does this mean? If the rights holder under the above-mentioned conditions sells a reproduction of a copyright work for the first time (for example, on CD-ROM or DVD-ROM), he loses control over further distribution of that reproduction. Distribution of a reproduction of a work is understood pursuant to the provision of Section 14(1) of the Copyright Act to mean making a work available in tangible form by sale or other transfer of ownership of the original or of a reproduction of the work, including offering them for that purpose. A specific reproduction of a copyright work in tangible form may therefore be further distributed by anyone who acquires it (in the territory of a Member State of the European Communities or other contracting party to the Agreement on the European Economic Area).

What does the above mean for the end user? It means that if I purchase in a shop, for example, a DVD containing a reproduction of an audiovisual work, I am entitled to further sell, donate or exchange that specific reproduction. This enables, for instance, the functioning of second-hand CD or DVD shops. However, the holders of rights in the copyright work retain the rights to rental and lending of the work. Therefore, even though I become the owner of a reproduction of an audiovisual work, I am not entitled without the consent of the rights holder to rent or lend that reproduction.

Rental of a reproduction of a work is understood pursuant to the provision of Section 15 of the Copyright Act to mean making a work available in tangible form for the purpose of direct or indirect economic or commercial advantage by providing the original or a reproduction of the work for a limited period of time. Rental of reproductions of copyright works is carried out, for example, by video rental shops, which, in order to be able to operate this activity lawfully, must, inter alia, obtain the consent of the rights holders to rent their works. In practice, we occasionally encounter circumvention of this provision, where certain entrepreneurs factually rent reproductions of copyright works (on the basis of various legal constructions) without obtaining the relevant authorisations from the rights holders.

Lending of a reproduction of a work is understood pursuant to Section 16 of the Copyright Act to mean making a work available in tangible form by an establishment accessible to the public not for the purpose of direct or indirect economic or commercial advantage by providing the original or a reproduction of the work for a limited period of time. Lending of reproductions of copyright works may be encountered, for example, in the case of libraries. However, it follows from the above definition that “lending” which takes place outside an establishment accessible to the public is not a use within the meaning of the Copyright Act. It is therefore in accordance with the law if, for example, I lend my reproduction of a copyright work to my friend.

The above-mentioned uses of a copyright work are always connected to the tangible form of a reproduction of a copyright work (distribution, rental, lending) and it is necessary to distinguish them from the use of a work by communication to the public. According to the provision of Section 18(1) of the Copyright Act, communication of a work to the public means making a work available in intangible form, live or from a recording, by wire or wireless means, with Section 18(2) of the Copyright Act further adding that communication of a work to the public also includes making a work available to the public in such a way that anyone may have access to it at a place and at a time individually chosen by him, in particular by computer or similar network. It follows from this that making a work available to the public without the consent of the rights holder in that work, for example by means of a website or by means of so-called peer-to-peer networks, constitutes an infringement of copyright, regardless of the manner in which I may have obtained the reproduction of the work.

In the case that it concerns making a work available in a closed computer network, it will probably not constitute a use of the work by communication to the public. However, it is necessary to bear in mind that within this closed network it is not possible from a legal perspective to make reproductions of a work created on the basis of the statutory exception for free use available to other persons. In such a case, it logically does not constitute a reproduction for personal use and such conduct would of course constitute an infringement of copyright.

In conclusion, it is therefore possible to summarise that in the case that the author’s rights in a specific reproduction of a copyright work in tangible form are exhausted, it is possible to further transfer the ownership right in that reproduction without further consent of the rights holder. This may occur by sale, donation or exchange of that reproduction to another person. Exchange of “original” DVDs is therefore in accordance with the law under current legislation. Equally, it is possible to lend this “original” DVD to a third person (not to rent it). However, it is always necessary to strictly distinguish such dealing with a reproduction (copy) of a copyright work in tangible form from communication of a work to the public via the internet. Communication of a work to the public is a different method of use and such use may only occur with the consent of the rights holder.

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