New Law on Copyright enters into force in Kosovo

A new Law on Copyright and Related Rights entered into force on October 27, 2023. The new law aims to harmonize the legislative framework with, among others, the Directive 2019/790/EU on copyright and related rights in the Digital Single Market and Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.

An important novelty introduced by the new Law on Copyright concerns the definition of the “originality”. The previous law did not include any definition on originality, leaving thereby to the discretion of the court to define the scope of originality. The new Law, however, outlines the extent of originality in Article 5 while defining protected works to mean any production in the field of literature, art or science that is original in the sense that it is the author’ own intellectual creation. No additional criteria apply for such a creation to be recognized as a work.

Other important changes concern the transposition of the Copyright Directive of the Digital Single Market (DSM), such as:

1. Article 76 of the Law on Copyright transposes Article 15 of the DSM Directive. This provision grants publishers the right to be compensated when their press publications are shared online. .
2. The much-debated Article 17 of the DSM Directive which introduced rules for online content-sharing platforms, making them liable for copyright-protected material uploaded by users is also transposed in Articles 59-63 of the new Law on Copyright. According to these rules, online service providers will be exempt from liability only if certain conditions are met. In principle, an online service provider shall only be exempted from the liability for infringements of copyright or related rights committed by the users of its service if it, as soon as it obtains information on the basis of which it knows or has reasons to know that its services are used for hosting any material infringing copyright or related rights, acts promptly to remove such a material from its system or to disable access to it.
3. Extending the application of exceptions and limitations provisions by permitting certain other uses of copyrighted works. For instance, the new law enables cultural institutions to make out-of-commerce works available online while respecting copyright holders’ rights. Additionally, the recent law also introduced provisions for text and data mining on copyrighted content, along with elaborating on other mandatory exceptions and limitations. These include reproducing works for private and personal use, permitted use of orphan works, and various other authorized purposes.

The new Law on Copyright also introduces the concept of mandatory equitable remuneration in specific situations. For instance, the right of performers and producers of phonograms to a single equitable remuneration for broadcasting and communication to the public of phonograms published for commercial purposes or the right of cable retransmission of works and objects of related rights can be exercised only through licensed CMOs.

A very important part of the new Law concerns the CMOs, their operation, membership, governance, collection and distribution of revenues, transparency, complaints and dispute resolution procedure as well as other topics of related to the proper functioning of the collective management of rights. The Law introduces a novel solution for resolving potential disputes between CMOs and users when setting the tariffs. Namely, the Law obliges the CMOs to publish the tariffs for the upcoming year within a certain period. If an objection is raised by any of the users' representatives, the approval of the tariffs will be suspended. Subsequently, the involved parties are required to engage in good-faith negotiations and, if necessary, may commence mediation within a 60-day period or within 120 days in the case of cable retransmission. If these negotiations prove unsuccessful and mediation is not pursued, or if a mediator's proposal is not submitted or is objected to, an additional 10-day window is provided for the users to initiate arbitration or court proceedings. The approval of fees will only occur if no arbitration or court proceedings are initiated or upon the issuance of a final decision by the competent authority.

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Published : 23 November 2023