An update from the National Book Council on the Copyright Reform

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Posted on July 7, 2021

The National Book Council would like to update its stakeholders and the general public over its proposed Copyright Reform.

As of July 2021, EU member States have to be in compliance with the EU Directive on Copyright in the Digital Single Market (2019/790). The National Book Council can confirm that government’s transposition of this Directive is not in the spirit of the Directive and the EU’s general legal framework on copyright and related rights. 

The Minister for the Economy, Hon. Silvio Schembri, has presented a Legal Notice to the Cabinet with the intent to transpose Directive (EU) 2019/790 – being Act 261 of 2021. The National Book Council attests that the legal notice presented by Hon. Schembri is not in line with the spirit of the Directive and is not accepted by our industry, for various reasons as will be elaborated hereunder. 

The National Book Council reiterates that government should adopt its proposed bill, which has been the result of years of work and consultations with stakeholders and which constitutes a holistic and future-proof reform of the national copyright framework for the benefit of all involved stakeholders. The proposed Copyright Reform Act has also been approved by the National  Congress of Authors.

While the National Book Council is pleased to note that many of its proposals have been adopted in their entirety, including those relating to optional and minimum harmonisation measures – such as extended collective licensing, out of commerce works and the right of revocation for joint authors – the NBC cannot support a short-sighted, incomplete reform which does not truly provide for a workable copyright framework for the benefit of all stakeholders within the creative landscape.

A central consideration in this respect is the outright disregard of the NBC’s proposal to overhaul the Copyright Board’s composition and functions. This would have ensured that the Board is appointed by entities which are active within the creative landscape, such as rightholders and consumer organisations, rather than the government of the day. It furthermore sought to establish the Board as an alternative, independent and specialised decision-making forum for the resolution of copyright-related issues and disputes – to ultimately improve access to justice for stakeholders and users, before a competent and impartial forum.

In this respect, the NBC expresses its doubts as to whether the retention of the Copyright Board’s current composition – whereby all members thereof are political Ministerial appointees – would suffice in order to satisfy the requirement for impartial out-of-court redress for users of online content sharing platforms – as required under Article 17(9) of the Directive.

The NBC furthermore expresses grave concern over the fact that the legislative changes will be implemented by means of a legal notice, rather than a change to the Copyright Act itself. 

Besides the fact that this course of action essentially bypasses parliamentary scrutiny of the proposed changes, it has the undesired consequence of further convoluting the national copyright framework and creating an unnecessary and baseless distinction between different classes of right holders and between different exceptions to copyright.

The fact that the new neighbouring right granted to press publishers is contained within subsidiary legislation, rather than within the Copyright Act itself, presents grave concerns of legal certainty for this new class of rightholders – since this form of legislation is revokable at the behest of the Minister. 

Likewise, an artificial distinction has been created between the new exceptions to copyright (for text and data mining, cross-border teaching, archival preservation and out of commerce works) and the existing exceptions found within the Copyright Act. Of particular concern is regulation 8 of the legal notice – which may give the impression that one may derogate from existing exceptions to copyright already existing under the Act.

The NBC furthermore expresses concern over the fact that the legal notice has not respected the wording of the Directive in relation to the following:

i. The new exception for cross-border teaching extends also to acts of distribution (and not merely reproduction and communication to the public, as provided under the Directive), and furthermore fails to meet the maximum harmonisation requirement imposed in terms of pre-amble 21 and Article 5(1) of the Directive – to limit the transmission of computer programmes under the cross-border teaching exception to digital transmission;

ii. The new exceptions for text and data mining fail to cover the re-utilisation of databases, as required in terms of Article 3(1) and 4(1) of the Directive;

iii. The present wording of regulation 16(7) of the legal notice may preclude users of online-content-sharing platforms from invoking the new exceptions to copyright introduced by the Directive, when contesting the unlawful removal of their uploads;

iv. The wording of regulation 16(1), paragraph 2 of the legal notice may pose problems for right holders in instances where these are assignees – such that online-content-sharing platforms may be absolved of the requirement to obtain licences from successors in title over copyright protected works;

v. Regulation 16(9)(f) of the legal notice should refer to the exceptions to copyright under Maltese law – since these may differ from those available to users elsewhere across the EU;

vi. The legal notice has failed to include a mechanism whereby extended collective licences are notified to the European Commission, as required under Article 12(5) of the Directive;

In view of the above-mentioned discrepancies, the National Book Council is demanding the immediate repeal of Act 261 of  2021 and the resignation of the members of the Copyright Board, so as to pave the way towards true reform. 

Additionally, the National Book Council hopes that Government takes this matter seriously and engages in direct negotiations with the NBC, so as to avert any legal issues and legal recourse through the relevant EU authorities.

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