Intellectual property rights should develop to achieve appropriate equilibrium between the protection of authors and interests of users.
Article 5 points ii. and iv. of the World Declaration on Intellectual Property in connection with article 29 of the General Declaration on Human Rights
Copyright and its protection
All of us come across with subjects protected by Copyright and rights related to Copyright every day. Also these web pages, with the contents of which you are currently becoming acquainted are an author’s work including their graphic arrangement (webdesign) and cannot be used freely without consent granted by the authors/copyright holders. They consist above all of literary works, illustration, photograph, and a map. Certain webpages also contain illustrations, extracts from musical or audio-visual works or from television and radio broadcasting, i.e. nearly all subjects of protection by the Copyright Act. Timely conclusion of necessary contracts is essential for creation and use of such subjects of protection.
1. The Copyright – together with rights relating thereto – belongs to intellectual property rights, or rights to intangible assets. The basic legal regulation is the Copyright Act – Act No. 121/2000 Coll. on copyright, on rights relating thereto and on amendments to certain laws, as amended by later regulations (hereinafter also referred to as the “CA”), which is a special act completing the Civil Code – Act No. 40/1964 Coll., as amended by later regulations (hereinafter also referred to as the CC).
Subjects of protection in accordance with the Copyright Act:
- author’s rights to his/her work,
- rights relating to the copyright:
- rights of a performers to his/her artistic performance,
- right of a producer of a phonogram to his phonogram,
- right of a producer of an audiovisual fixation to his fixation,
- rights of a radio or television broadcaster to their original broadcasting,
- the right of the person who, after the expiry of copyright protection, publishes a work not published yet for the first time,
- publisher’s right to remuneration in connection with the making of copies of a work published by them for personal use,
- right of a maker to a database to such database [as a special right (sui generis right)].
Protection of the aforementioned rights and also collective administration of copyright and rights relating thereto is part of valid legal regulations.
2. Author’s works are particularly literary works (e.g. books, articles), theatrical works (e.g. theatre plays), works of arts (including graphical works – e.g. graphical designs of designations - logo, lay-out), cartographic (e.g. maps), musical works (with or without a text), audio-visual (such as cinematographic – especially film works), architectural works, works of applied arts, picture logo, computer programs, website, photographs.
Authors’ works also include works created by creative adaptation of another work, including a translation of a work into another language.
The author’s work in the intangible meaning should be distinguished from a tangible thing, through which it is expressed and which is the subject of the ownership right or other property (real) rights in accordance with section 119 of the CC. Those who acquire the ownership right to a thing through which the work is expressed do not become entitled to exercise the right to use the work unless otherwise agreed or unless otherwise provided by law. The owner of a tangible carrier of the work is only a holder of the ownership right to the carrier and acquires the right to use the work in the scope stipulated by the contract.
3. The author, who is an individual (natural person) who has created, through his/her own creative activities, a work complying with features specified in the Copyright Act, may be one person but also more individuals, which is the case of a co-authors’ work or a collective work. Upon creation of the work, the copyright consisting of moral and economic rights is created for the author. A legal entity (e.g. a corporation) may only be a derived holder of copyright, i.e. also in the case of an employee work [authors’ works created by fulfilment of obligations arising from employment, which may be computer programs created by workers of the company or IT department, literary, creative (graphical), audio-visual or other works created by editors and designers (graphic artists) and other creative workers in publishing houses, PR departments, in advertising and media agencies], or a work created to order, i.e. also if it becomes entitled to exercise all economic rights by virtue of law (ex lege).
4. Author’s consent or consent granted by the person who exercises the economic rights to the work, i.e. either the author or another holder of the copyright to the work (an heir or a derived holder) is in principle required for every use of the work. For the purposes of granting the entitlement to exercise the right to use the work (licence) to another person, the law essentially requires the form of a contract, i.e. the licence contract; another person may only use the work without such entitlement in the cases defined by law.
5. Conclusion of a contract is in principle necessary for both creation and use of an author’s work or any other subject of protection. Conclusion of a contract for work governed by the Civil or Commercial Code may be assumed to regulate the legal relationship between the subjects in the case of creation of an author’s work or any other subject of protection, while for their use it is conclusion of a licence or sublicence contract or a contract on assignment (cessation) of the rights (i.e. both assignment of a licence or assignment of the right to exercise economic rights or rights of phonogram producers, rights of producers of audiovisual fixations, rights of database makers, etc.). In addition to standard contracts, non-standard contracts are also often concluded; they usually contain a few contracts within one deed, conclusion of the so-called unnamed contracts may be considered in particular. As for the field of information technologies/software, especially contracts on system integration, implementation contract, contracts on maintenance and support, escrow contract (on storage of source codes) and on outsourcing may be considered – in addition to contracts on creation of a computer program/documentation upon order and licence contracts. It is typical of publishing companies/agencies that they conclude e.g. contracts for work with licence (or only licence publishing) contracts. Nevertheless an enormous number of other contracts may be considered – depending on the specific features of concrete cases between various subjects participating in creation and exploitation of authors’ works or other subjects of protection (authors, performing artists, distributors). Therefore it is also e.g. conclusion of contracts regulating relationships (e.g. between authors) in the case of works created by more authors or between the employee (author) and the employer that may be recommended.
With regard to possible consequences due to (non-)conclusion of a valid contract it may be recommended that a professional legal assistance should be sought in advance, i.e. in order to avoid a case of liability for infringement of the copyright.
6. The author whose rights have been or appear to be infringed illegally may enforce protection of their rights in accordance with the Copyright Act, the Administrative Infractions Act and the Criminal Code.
Protection of copyright according to the Copyright Act (private-law) – the Copyright Act specifies a demonstrative summary of claims against infringement of or threat to the copyright. In addition to traditional rights – such as injunction relief right, removal and satisfaction right, the Copyright Act also mentions the right to determine authorship, the right to disclose data and the right to publish the judgment. The right to receive compensation for damage and to return unjustified enrichment is governed by general regulations; as for the amount of unjustified enrichment, the Copyright Act contains a special regulation that is repressive in its nature. Unlike liability for damage, liability for infringement of copyright is based on the principle of objective liability, i.e. regardless of the fault. Therefore it may only be recommended to seek professional legal assistance in advance in order to avoid origin of such liability.
7. Protection of the copyright as well as of the other intellectual property rights becomes more and more important in connection with the phenomenon of the information society and possibilities of information technologies, including and especially the computer network Internet and mobile networks (including access on-demand, webcasting, provision of ringing and welcoming tones). Making access to authors’ works or other protected subjects through the Internet does not mean that they are freely available to anybody and that they may be used freely without any other conditions. Such works or other protected subjects used in the Internet environment are protected by the Copyright Act in the full scope and consent for their use granted by the copyright holder must be obtained as mentioned above.
8. A number of public-law regulations are closely connected with the sphere of copyright problems; they include e.g. the Press Act (Act No. 46/2000 Coll.), Publishing Act (No. 37/1995 Coll.), Act on regulation of advertising (Act No. 40/1995 Coll.), Act on radio and television broadcasting (Act No. 231/2001 Coll.), Act on free access to information (Act No. 106/1999 Coll.), Act on electronic signature (Act No. 227/2000 Coll.), Act on information systems in the public administration (Act No. 365/2000 Coll.), Act on certain services in the information society (Act No. 480/2004 Coll.), Act on electronic communication (Act No. 127/2005 Coll.).
9. Particular cases should be considered in a comprehensive manner, not only from the viewpoint of Czech legal regulations but also with regard to the Contract on Accession of the Czech Republic to the European Union and provision of articles 10 and 10a of the Constitution of the Czech Republic, according to which the international treaties or the European Community law supersede the law of the Czech Republic, and also in the context of international treaties and the European Community law in the field of copyright and rights relating thereto.
JUDr. Irena Holcová