Adapting the National and Union Rules on Copyright in the Digital Era

Author:Amelia Singh
Position:Senior Lecturer, Ph.D, University of Pitesti
Pages:209-217
SUMMARY

Copyright protects the expression of an idea, not the idea itself. The relationship between freedom of creation and copyright has always been complicated, and the current situation of copyright requires that it be re-established as an institution, in order to respond to new challenges. As a result of the evolution of the technique, the introduction and development of new media, information and new communications technologies, there have been constant changes to copyright laws. At the internal level, the last changes made in this field can be found in Law no. 15/2019 for amending and supplementing Law no. 8/1996 on copyright and related rights. Also at the level of the European Union, new provisions on copyright and related rights have been adopted, Directive no. 2019/790, which will be implemented in the national laws of the Member States of the European Union up to the specified deadlines.

 
CONTENT
Adapting the National and Union Rules 209
Adapting the National and Union Rules on Copyright
in the Digital Era1
Amelia SINGH (GHEOCULESCU)2
Abstract
Copyright protects the expression of an idea, not the idea itself. The relationship
between freedom of creation and copyright has always been complicated, and the current
situation of copyright requires that it be re-established as an institution, in order to
respond to new challenges.
As a result of the evolution of the technique, the introduction and development of
new media, information and new communications technologies, there have been constant
changes to copyright laws.
At the internal level, the last changes made in this field can be found in Law
no. 15/2019 for amending and supplementing Law no. 8/1996 on copyright and related
rights. Also at the level of the European Union, new provisions on copyright and related
rights have been adopted, Directive no. 2019/790, which will be implemented in the
national laws of the Member States of the European Union up to the specified deadlines.
Keywords: Private Law, Intellectual Property Law, Copyright, Digital Era
Introduction
Copyright, as an institution, was regulated - for the first time in Romania -
during Cuza's reign by the Law of the Press (1862), which recognized the creators
the right to reproduce, sell and surrender their works. By this law, the right to
transmit the exploitation of the work by inheritance was realized for a period of
10 years from the death of the author. Subsequently, in 1923 a special law
dedicated to copyright, the Law of literary and artistic property, which sets the
date of the work in the public domain 30 years after the author's death, comes
into force. In 1956 the Decree no. 321 regarding the copyright, which repealed the
previous legislation, establishing terms of use of the patrimonial rights3. The
1 The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 22 November 2019.
2 Senior Lecturer, Ph.D – University of Pitesti, email: singh.amelia@yahoo.com.
3 Published in the Official Bulletin no. 18 from June 27th, 1956.
Law Review vol. X, issue 2, July-Decembre 2019, pp. 209-217
210 AMELIA SINGH (GHEOCULESCU)
regulations of this decree were applicable until 1996, when the Law no. 8 on
copyright and related rights was adopted.
Currently, all these provisions are applicable, the law being republished in
20184. The terms of copyright protection are regulated in accordance with
European Union law, and a number of directives in this matter have been
transposed into our legislation. 5.
Currently in the area of copyright is also EU Directive no. 2019/790 of the
European Parliament and of the Council regarding copyright and related rights
in the digital single market and amending Directives no. 96/9 / EC and no.
2001/29 / EC, as well as consequence of the evolution of the society in which we
live and the technique, in this moment it is not being transposed internally, given
its recent adoption by the EP and the EC.
1. The concept of Copyright
Copyright on a literary, artistic or scientific work, as well as on other works
of intellectual creation is recognized and guaranteed, internally, under the
conditions of Law no. 8/1996. This right is related to the person of the author and
has moral and patrimonial attributes.
Although no definition of copyright is given in the law, the Romanian
doctrine defined the institution of copyright as the instrument of protection of
the creators and their works6 or the whole of the legal norms that regulate the
social relations that arise from the creation, publication and exploitation of the
literary, artistic or scientific works. Dr. Stanciu D. Cărpenaru defines, in his
university course, the copyright as social relations arising from the creation and
exploitation of scientific, literary or artistic works7. What can be observed
between the two definitions is that the first one concerns both the creation and
publication, but also the use of works, and the second refers only to the creation
4 Published in the Official Gazette of Romania, Part I, no. 489 of June 14, 2018.
5 Example: Directive of the European Parliament and of the Council no. 96/9 / EC regarding
the legal protection of databases, Directive of the European Parliament and of the Council no.
2001/29 / EC regarding the harmonization of certain aspects of copyright and related rights in the
information society, Directive no. 2012 / 28 / EU to the European Parliament and the Council
regarding certain permitted uses of orphan works, Directive no. 2014/26 / EU of the European
Parliament and of the Council regarding the collective management of copyright and related rights
and the granting of multi-territorial licenses for musical works rights for online use in the internal
market, Directive no. 2017/1564 / EU to the European Parliament and the Council regarding
certain permitted uses of certain works and other objects of copyright protection and related rights
for the benefit of the blind, visually impaired or visually impaired reading of printed materials and
amending Directive no. 2001/29 / EC on the harmonization of certain aspects of copyright and
related rights.
6 V. Roş, Intellectual Property Law,Bucharest: Global Lex, 2001, p.49.
7 St.D. Cărpenaru, Civil Law. Intellectual creation rights, University of Bucharest, 1971, p.7.
Adapting the National and Union Rules 211
and use of works. So the difference lies in paying attention to the publication of
the works, a process necessary to bring them to the public's notice.
In Romanian doctrine, the copyright is recognized to the person or
individuals who have performed an original work of intellectual creation in the
literary, artistic or scientific field, whatever the method of creation, the method or
concrete form of expression and independent of their value and purpose, or other
legal holders, natural or legal persons.
Creativity is the natural pursuit of originality, said Edward Wilson, emeritus
research professor at Pellegrino University. Humanity is pushed forward the
instinctive love of novelty8. Creativity is thus the common criterion that
determines the granting of legal protection in the field of technical creations and
copyright, because it individualizes a person's ability to design and invent
something new9, thus creating the work independently and expressing the idea10
in an original way11.
Originality is considered to be an essential attribute, the only condition for
the protection of intellectual creation in the literary, artistic or scientific field12.
But in the specialty literature, the notion of originality has been understood
differently, some authors considering that it involves minimal intellectual effort,
while others consider that the work bears the impress of the author's
personality13. This can be manifested both in the form of expression and in "the
elements of fantasy, choice, material selection or mental processing". 14
But, as stated in English doctrine, copyright protects the expression of an
idea, not the idea itself15.
The relationship between freedom of creation and copyright has always been
complicated, and the current situation of copyright requires that it be re-
established as an institution in order to respond to new challenges. 16
8 The Origins of Creativity, Epublishing House Liveright, 2017, p.11.
9 N.R. Dominte, Some considerations regarding the civilization of copyright and creativity, Romanian
Journal of Intellectual Property Law no. 2/2019, p. 62.
10 C. Nenu, Individual employment contract, Bucharest: C.H. Beck, 2014, p. 221.
11 K. Idris, Intellectual property, a powerful tool for economic development, Bucharest: Publishing
House OSIM, p. 158.
12 C.R. Romiţan, Conditions required for the protection of works under copyright, p. 87 available on
http://drept.ucv.ro/RSJ/images/articole/2007/RSJ1/A10RomitanCiprian.pdf.
13 See widely the supporters of these opinions in C.R. Romiţan, Conditions required for the
protection of works under copyright, p. 87.
14 Y. Eminescu, Copyright, Bucharest: Lumina lex, 1997, p. 77.
15 T.Hart, L. Fazzani şi S. Clark, Intellectual Property Law, Macmillan – Law matters, London: Red
Globe Press, 2013, p. 161.
16 Gh. Gheorghiu, Freedom of creation and moral law as author, Romanian Journal of Intellectual
Property Law no. 3/2018, p. 7.
212 AMELIA SINGH (GHEOCULESCU)
As a result of the evolution of the technique, the introduction and
development of new media, information and new communications technologies,
there have been constant changes to copyright laws.
At the internal level, the last changes made in this field can be found in Law
no. 15/201917 for amending and supplementing Law no. 8/1996 regarding
copyright and related rights.
Two new articles have been introduced which stipulate that, without the
consent of the owner of any copyright or any related law and without payment
of any remuneration, the reproduction, distribution, communication to the
public, making available to the public, broadcasting, renting and lending of a
work or other protected object, provided that they do not contravene the normal
exploitation of the work and do not prejudice the author or the holders of the
rights, for the purpose, by a beneficiary or a person acting on its behalf, of a copy
in accessible format of a work or other object protected by copyright or related
rights, to which the beneficiary has legal access, for the exclusive use of the
beneficiary; also, for the purpose of obtaining, by an authorized entity, a copy in
accessible format of a work or other object protected by copyright or related
rights, to which the beneficiary has legal access or public communication, placing
at the disposal, the distribution or the loan, without profit purpose, of a copy in
accessible format to a beneficiary person or another entity authorized for the
purpose of exclusive use by a beneficiary person.
The beneficiary person, in the legislator's view, is a person who is blind or
has visual impairments that cannot be corrected to obtain a visual function
equivalent, essentially, to that of a person without such deficiencies and who, as
a result, does not can read works printed to the same extent, essentially, as a
person who is not affected by such a deficiency; also, it can be the person who
has a perception disability or reading difficulties and, consequently, cannot read
works printed to the same extent, essentially, as a person who does not suffer
from such a disability. At the same time, the beneficiary person may also be the
person suffering from a physical disability that prevents them from holding or
manipulating a book or focusing their eyes or moving their eyes to a degree that
would be commonly acceptable for reading.
Also at the level of the European Union, new provisions on copyright and
related rights have been adopted, which will be implemented in the national
laws of the Member States of the European Union up to the specified deadlines.
2. Changes to European copyright directives in order to adapt to the
digital era
Directive no. 2016/0280 regarding copyright in the digital single market18 has been
approved, in the European Parliament, after long discussions and controversies existing
17 Published in the Official Gazette of Romania, Part I no. 33 of January 11, 2019.
18 Journal Officiel de l’Union Européenne, L 280, Octobre 31, 2019.
Adapting the National and Union Rules 213
on the basis of the proposals for the adoption of this Directive. Controversies stem from
the fact that a number of issues could arise, including for ordinary Internet users. They
may no longer be able to refer to news sources that include parts of articles or may no
longer be able to upload content legally, to sites such as YouTube or Facebook, due to
technical limitations that will need to be implemented as a result of obligations of the
directive. It contains a number of provisions that could seriously affect the functioning of
the sites and content posted there, as well as the possibility of the press and smaller
publications to gain exposure.
This is a series of articles, within the draft directive in question, which could lead to
such results: Articles 3, 11 (become Article 15) and 13 (become Article 17).
Article 3 refers to the fact that texts and data from databases can be extracted and
reproduced, exceptionally, without the permission of the copyright holders or rights in
respect of the respective databases, if this is done by the institutes research. Extraction
and reproduction must also be done for research purposes.
The problem with this provision is that it affects innovation, according to an article
published on the Public Knowledge blog19. Due to the fact that the exception is limited to
research institutes that carry out research activities, other persons who would extract
texts and data from databases, for commercial purposes, for example, could be affected,
being forbidden such uses.
There have been problems also with Article 11 (current Article 15)20. It
provides for the protection of press releases, which cannot be reproduced
without the consent of the copyright holders, except for very short excerpts from
the press articles or references to these articles, via hyperlinks.
Ordinary users could be affected from two different perspectives: on the one
hand, Article 11 (15) contains no exceptions other than those mentioned above.
Thus, a user could end up making a reference to a news source, in a post on a
social site. Because he includes in his post, in addition to the link, also fragments
that go beyond the limits mentioned above, he could violate that article. In such a
case, in order to post more than is allowed, you should have a license from the
person who wrote the article or publication.
On the other hand, there is also a problem related to the access of users to
information sources21, with the possibility that certain platforms that refer to
news articles may restrict the information they show to users. This could affect
both users and small publications, which are based on platform exposure. Also, it
seems that giving up displaying excerpts from news articles, by platforms
promoting such articles, could decrease access to news articles.
19 https://www.publicknowledge.org/, accessed at November 24th, 2019.
20 https://www.marketingportal.ro/articole/stiri-81/directiva-europeana-privind-drepturile-
de-autor-din-nou-la-dezbateri-10585.html.
21 N. Sfetcu, Intellectual Property, the European Union, can be found at
https://www.setthings.com/ro/directiva-ue-privind-dreptul-de-autor-pe-piata-unica-digitala.
214 AMELIA SINGH (GHEOCULESCU)
However, there are also issues with Article 13 (the current Article 17), which
provides that platforms on which content promoted or created by users of the
platform appears, must take certain measures, including technical ones, to
protect the copyright holders of content that could affect such rights. This would
mean the use of upload filters, and the existence of such measures could severely
affect users of some platforms. The risk that technical measures, such as upload
filters, also affect users who use legal content is extremely high. Therefore,
because of such measures, the effects could extend beyond what was intended.
Although the directive seemed to provide for additional benefits for
copyright holders, the vague language and overtightening of exceptions could
create more disadvantages than benefits, affecting the end user.
But in 2018, negotiations on the copyright provisions have begun. Andrus
Ansip, Vice President of the European Commission, said that Europeans deserve a
copyright law that is appropriate for the digital era: it is good for creators, platforms and
ordinary internet users22.
Following the long negotiations and during the Romanian Presidency, the
EU Directive no. 2019/790 of the European Parliament and of the Council on
copyright and related rights was adopted in the digital single market23.
In a joint statement, the Vice President for the Digital Single Market, Andrus
Ansip, Commissioner for Internal Market, Industry, Entrepreneurship and SMEs,
Elzbieta Bienkowska, and Commissioner for Digital Economy and Digital
Society, Mariya Gabriel, welcomed the result of the vote which shows that it is
the first regulation in the world that addresses the challenges of business
relations within the economy of online platforms, representing an important
stage of the digital single market that lays the foundations for future
developments. They says their rulings will not only improve confidence,
predictability and legal certainty, but will also provide new and accessible
options in terms of remedial measures and dispute resolution between
businesses and platforms. 24 At the same time, the Copyright Directive protects
freedom of expression, a fundamental value of the European Union, and
establishes solid guarantees for users, stressing that the use of existing works for
the purpose of citation, criticism, review, caricature and parody is explicitly
allowed in the whole of Europe; it protects creativity in the digital era, ensures
broader access to content for EU citizens, as well as new guarantees for the full
protection of their freedom of expression in the online environment. 25
22 https://www.marketingportal.ro/articole/stiri-81/directiva-europeana-privind-drepturile-
de-autor-din-nou-la-dezbateri-10585.html.
23 https://eur-lex.europa.eu/eli/dir/2019/790/oj.
24https://www.finzoom.ro/articole/comunicat-presa/piata-unica-digitala~053ab5af-050c-
471d-8134-30013a93c80e/.
25 https://www.portal-resurseumane.ro/companii-si-industrii-163/directiva-privind-
drepturile-de-autor-ce-beneficii-aduce-aceasta-celor-care-lucreaza-in-domeniu-15935.html.
Adapting the National and Union Rules 215
Although there have been numerous controversies regarding the provisions of the
Copyright Directive from 2016, from which the negotiations started, the need to adopt
regulations in this regard was imposed, given that the last provisions in this field were
from 2001, when there were no social networks, video programs, online courses. The
reasons that led to the adoption of Directive no. 2019/790 are found in its preamble:
technological developments, new business models, legal uncertainty regarding certain
uses, including the digital one, the need to introduce exceptions or mandatory limitations
for the use of extraction technologies of text and data, for didactic illustration in the
digital environment and for the preservation of cultural heritage.
The main objectives of the Directive were to harmonize EU law with the rules of
international law, as established by the 1996 treaties of the World Intellectual Property
Organization, nicknamed the Internet Treaties, the strengthening of intellectual
property, the reduction of copyright conflicts between Member States and the provision of
a appropriate remuneration for content producers.26
Its purpose and scope are to further harmonize Union law in the field of copyright
and related rights in the internal market, taking into account digital and cross-border
uses of protected content, while also establishing rules on exceptions and limitations of
copyright and related rights, facilitating licenses, ensuring a performing market for the
exploitation of works and other protected objects.
The aspects regarding the new technologies that allow the automated numerical
analysis of the information in digital form, such as texts, sounds, images or other data,
are also known as the extraction of text and data. This process makes it possible to process
large volumes of information for acquiring new knowledge and discovering new trends,
supporting innovation, being beneficial to universities and other research organizations,
as well as institutions of cultural heritage conservation.27
The Directive also regulates the establishment of a unique online legal portal on
which the information received from cultural heritage conservation institutions, collective
management bodies or relevant public authorities will be available, in order to identify
works or other protected objects outside the commercial circuit. The portal will be created
and managed by the European Union Office for Intellectual Property in accordance with
EU Regulation no. 386/201228. Member States have the opportunity to take additional
publicity measures, as necessary, to raise awareness of rights holders at a general level.
The provisions of this directive protect the press releases in case of online use, giving
the press publishers the right of reproduction and the right to make the publications
26 M.L.Creaţă, A.M. Marinescu, EU Directive no. 2019/790 of the European Parliament and of the
Council of 17 April 2019 regarding the copyright and related rights of the single digital market and
amending Directives no. 96/9/EC and no. 2001/29/EC, Romanian Journal of Intellectual Property Law
no.2/2019, p. 43.
27 M.L.Creaţă, A.M. Marinescu, EU Directive no. 2019/790 of the European Parliament and of the
Council of 17 April 2019 regarding the copyright and related rights of the single digital market and
amending Directives no. 96/9/EC and no. 2001/29/EC, Romanian Journal of Intellectual Property Law
no.2/2019, p. 45.
28 Published in the Official Journal of the European Union L 129 /1 from May 16th, 2012.
216 AMELIA SINGH (GHEOCULESCU)
available to the public. At the same time, the rights and interests of the rights holders on
works and other protected objects incorporated in a press release are protected, being able
to exploit their works independently of the press publication in which they are
incorporated. In the case of requesting the right holders' access to their works or other
specific protected objects or the elimination of those works, duly justified, a quick and
efficient mechanism for resolving complaints and appeals has been introduced.
Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by June 7, 2021. They shall forthwith
inform the Commission thereof. When Member States adopt those provisions, they shall
contain a reference to this Directive or be accompanied by such a reference on the occasion
of their official publication.
Conclusions
The fast-technological developments continue to transform the way in which
works and other protected objects are created, produced, distributed and
exploited. New business models and new actors are emerging. It is essential that
the relevant legislation is designed in such a way as to allow its application in the
future, in order not to limit technological developments. This is why it was
necessary to adopt legislation to cover the legislative shortcomings.
The Digital Rights Copyright Directive (Directive no. 2019/790), approved
by the EP and the Council in April 2019, is the result of a legislative proposal
made by the EC in September 2016, Directive no. 2016/280. It had an extremely
difficult route, with numerous debates and votes in Parliament and Council. The
directive has sparked lively debate on how large internet platforms and news
aggregators, such as Google or YouTube, will provide the right fees for content
creators (musicians, actors, journalists, etc.) and provide them in the online
environment, the same benefits as in the offline environment.29
The Copyright Directive contains a number of varied provisions that
constitute a significant updating of European Union Copyright Law which will
reduce the difference between national copyright regimes and allow for wider
access to and use of copyright protected works benefitting the creative sectors,
press publishers, researchers, educators, cultural heritage institutions, and
citizens. This includes removing digital barriers between Member States by
introducing several mandatory copyright exceptions to widen the scope of use of
materials in the fields of education, research and facilitating cultural heritage
institutions to make copies of works in their collections to the extent necessary
for their preservation. In addition, the Directive also makes provisions for
licensing of “out-of-commerce” works.
29 G. Drăgan, http://ier.gov.ro/wp-content/uploads/2019/07/newsletter_iulie_2019_
ro_final.pdf.
Adapting the National and Union Rules 217
One of the main objectives of the Copyright Directive is to address the ‘value
gap’, whereby rightsholders are receiving less remuneration despite the
increased usage of their works in recent years. The relevant articles aim at
ensuring that authors and rights holders receive a fair share of the value that is
generated by the use of their works, particularly by online platforms that give
access to user-uploaded content, while being minimally burdensome on
platforms. The provisions will allow press publishers to receive remuneration for
the online exploitation of their works by news aggregators, without preventing
users from making lawful use of those works and will help ensure the
sustainability of the publishing industry. The Directive also imposes additional
transparency obligations on online platforms in licensing negotiations with
rightsholders and provides for a contract adjustment mechanism where the
remuneration originally agreed under a license or a transfer of rights is
disproportionately low compared to the revenues generated, effectively allowing
a renegotiation of contracts.
Finally, the Directive introduces a mechanism which will allow authors or
performers the right to revoke the license related to their works should they not
be exploited in a reasonable timeframe.30
30 https://dbei.gov.ie/en/Consultations/Consultations-files/Consultation-transposition-
Copyright-Directive-EU-2019-790-Articles-13-17.pdf.