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New Copyright Act in Slovakia

The New Year brings legislative changes relating to Slovak intellectual property law. The new Copyright Act No. 185//2015 Coll. entered into force (the „Copyright Act“) replacing the former Copyright Act No. 618/2003 Coll.

The Copyright Act was introduced in response to the increased use of various works and other protected subject matters on the internet. However, the Copyright Act reflects also international commitments of Slovakia in this field and attempts to harmonise domestic law with European Union law.

The Copyright Act introduces many changes. Therefore, we focus here only on those which may affect the commercial use of copyright and protected work (artistic performance, audio and audio-visual records, rights of broadcasters and rights in a database).

1. Rights of authors

The Copyright Act strengthens the position of authors through the introduction of the right to withdraw from a licence agreement, if a licensee fails to use an exclusive licence in line with its terms or to its agreed extent. The right arises after 1 year commencing on the day the licence was granted and its exercise is conditional upon prior written notice of the licensee asking him/her to use the licence duly in a reasonable period.

A further change relates to the right of an author to fair compensation, i.e. compensation in case of the resale of originals of statutory specified works. According to the former copyright act, the right of an author to fair compensation arose only if the sale price of it exceeded 1.000 EUR. From 1 January 2016, the threshold value has been decreased to a sale price exceeding 100 EUR.

2. Legal concept of protected work in the course arising out of contract and in the course of employment

The Copyright Act no longer governs contracts, the subject matter of which is the creation of otherwise protected works. Instead the Copyright Act introduces the legal fiction of the creation of a work or works. This term essentially relates to an otherwise protected work that is created by an author based on a contract to create that work under the Civil Code. Where such a contract is entered into the Copyright Act now assumes that author defacto grants permission to use the work so created under the contract. In case the work is to be used for any purpose other than that specified in the contract the permission of the author of the work must be obtained.

A special regulation applies for a PC programme, database and cartographical work, if these are the subject matter of a contract placed for its creation. In this case, the work is subject to the regulation concerning the work made in course of employment. For this purpose, the ordering party is considered as being an employer and is entitled to exercise property rights in relation to the work. Moreover, he/she is entitled to make the work public, mark it with his/her (business) name and finish, change or alter the work in any way.

In this respect, it is important to mention that the new regulation considers also any protected work made by members of the managing, controlling or supervisory body of legal persons and work made by a person seconded in the course of employment.

Furthermore, the Copyright Act changes the former regulation of the assignment of property rights from an employer to a third party which caused difficulties in practice. According to the new regulation, the employer may assign the property rights of an author to a third party, if not agreed otherwise. Therefore, the employer does not have to obtain the prior consent of an employee anymore.

3. Collective rights management

With respect to collective rights management, new types of collective licence contracts were introduced by the Copyright Act. These are an extended collective licence contract and a multiterritorial collective licence contract. Based on an extended collective licence contract, a collecting society grants a licence for using the works of those right holders who are not represented by that collecting society until they exclude the collective rights management in the statutory way. In case of a multi-territorial collective licence contract for on-line use of musical work, a collective society grants a licence for using several musical works on the territory of more than one of EU or EEA member state by on-line creating of a reproduction of musical work and on-line communication to the public of musical works.

4. Other changes

The Copyright Act further extends the definition of an author. According to the new regulation, a person whose name is labelled on a work or whose name is stated in the usual way in relation to the work is considered as an author, unless it is shown otherwise.

Further, the Copyright Act introduces other exceptions and limitations on property rights of authors. These are e.g. cases of caricature, parody and pastiche, use of a work through an end use device, use of an architectonic work, use of a work for the purpose of repair or presentation of a device and random use of a work. The Copyright Act further defines the purposes for which the work can be used for the exceptions and limitations on property rights to be allowed (educational, cultural, scientific and religious proposes).

In practical terms, the more positive changes introduced by the Copyright Act are mainly presumption of employee´s consent for using the work made in course of employment for the purpose arising from the contract and removal of the requirement to obtain prior employee´s consent to an employer be able to assign the property rights. Further impact of the new Copyright Act may become apparent after its use in practice.