16. 12. 2013

ANEM PARTICIPATION IN PUBLIC DEBATE ABOUT AMENDING THE LAW ON COPYRIGHT AND RELATED RIGHTS

Ministry of Education, Science and Technological Development, in cooperation with the Intellectual Property Office, conducted a public debate on the Draft Law on Amendments and Supplements to the Law on Copyright and Related Rights in the period from 18 November to 16 December 2013. ANEM has actively participated in both roundtables held in Belgrade on 25 November and 5 December 2013, and on 16 December submitted to the Intellectual Property Office its written comments on the draft law.

In comments ANEM noted that the Law on Copyright and Related Rights Act since its enactment in 2009 was amended several times, which is not good for legal certainty, and that the changes, including proposed, are always sporadic and do not solve all the problems faced by the law during implementation, which is why it is important in the future reform of the law to have all relevant stakeholders included, in the very process of creation of the draft law.

Specific ANEM remarks on the Draft law include:

• Article 1 of the Draft law that changes hitherto Article 6 of the Law on Copyright and Related Rights by making a list of what is not considered part of the copyright work extends to "news of the day and other news, having the character of media information" - ANEM has proposed deletion of this article for the following reasons: because it considers it not to be in compliance with Article 2 Paragraph 8 of the Berne Convention, to which the legislator refers, which excludes from copyright protection news or, more precisely, the factual allegations that are part of media reports - the proposed wording goes even wider and can lead to exclusion from copyright protection of all media content; the reasoning of the proposed provision - to disable the copyright protection in preventing the free flow of daily information ( facts) - is already achieved by the existing wording of Article 43 Paragraph 1 of the current Law, which refers to the permitted use, under certain conditions, of objects of copyright without author`s permission and without paying royalties within the framework of informing of the public through media coverage of current events, which makes proposed amendment to the Law neither necessary nor justified;
• Article 16 of the Draft relating to the amendment to Article 170 Paragraph 5 of the Law on Copyright and Related Rights provides that in determining the tariffs be taken into account the tariffs of collective organizations in other countries - ANEM requested refinement of the provision, or to amend this article in such way to amend hitherto Paragraph 5 and add new paragraphs 6 and 7, by which, in addition to tariff of collective organization in other countries, the situation in the relevant market where the subject of protection is exploited would also be legally taken into account, as well as the Office obliged to publish on its website and regularly update information about the tariffs of collective organizations of other countries; ANEM believes that these changes necessary taking into account past experience in negotiation and problems due to lack of precise criteria for determining tariffs;
• ANEM proposed additional amendments of the Law, specifically amending Article 176 relating to the determination of tariffs in the situation when the negotiations of collective organization and the representative associations of users end unsuccessfully - Article 176 of the Law provides that, in case of failing to reach an agreement, the Board of Directors of the collective organization determines the tariff proposal which the Intellectual Property Office approves, whereas the procedure before the Office in general is not legally defined - that means that the Office may only give consent or withhold it, which can lead to the setting of extremely unfavorable tariffs for users; ANEM has therefore proposed amendment of this Article, which gives the Office the authority under certain conditions to independently determine tariff, all for the protection of legal certainty and equal respect for the interests of both negotiating parties;
• ANEM has proposed additional amendments of the Law, in particular the amendment to Article 177 which refers to the process of determining the tariff when there is a failing to reach agreement on tariff fees for the use of the case law related to copyright - the change is in accordance with the previous, i.e. refers to the delegation of authority to the Office to under certain conditions independently determine the tariff in the case of failing to reach agreement between collecting organizations for the protection of related rights and the representative associations of users;
• ANEM has proposed deletion of Article 201a - 201g relating to the procedure for approving the tariff in the case of accepting suggestions of ANEM in relation to Article 176 and 177 of the Law.

To read ANEM comments (available only in Serbian), please click here