By Aylin Zeybek
The Intellectual Property Right and Related Rights Law of 1976 (59/1976) was amended in October 2022. The amendments introduce necessary implementing provisions for compliance with the World Intellectual Property Organisation Performances and Phonograms Treaty adopted in Geneva on December 20, 1996, and its joint declarations.
The amendments also harmonise the national legislation with the European Union Copyright Laws, particularly:
- EU Directive 2019/789 on copyright and related rights applicable to certain online broadcasting services of broadcasting organisations and retransmission of radio and television programmes
- EU Directive 2019/790 on copyright and related rights in the digital single market
- Directive 2006/115/EC as regards giving better alignment on rental right, lending right and on certain rights related to copyright in the field of intellectual property
In this article, we will focus on and analyse how the EU Directive 2019/790 on copyright and related rights in the digital single market has been transposed. We will also consider important issues which have been raised in relation to its implementation.
It is important to note that the new Copyright Law introduces novel concepts to the intellectual property field in Cyprus, which should all be carefully analysed. Although in general the new copyright law is fully harmonised with the EU directive 2019/790, nonetheless it introduces some changes and differences. One of the most important changes introduced by the new law, especially when compared with the previous law, is that the rights of authors are not only recognised, but a sufficient legal basis for authors of press publications is also provided. Thus such authors are given the right to claim compensation and a fair remuneration for their published work.
Among other things, the new copyright law regulates the following matters:
The law aims to protect press publications as a related right by introducing a new right for the benefit of press publishers for the use of their press publications by information society service providers. For example, the legislator under the new law seeks to make it more explicit that, press publishers established in the Republic shall have the exclusive right in respect of their publications to authorise, or to prohibit, their reproduction and the granting of availability to the public in such a way that anyone can have access to the publication where and when they choose.
However, both the EU directive and the implementing national Copyright Law makes it clear that this protection granted to the press publishers does not extend to acts of placing of hyperlinks, or to the uses of individual words or very short extracts of press releases. As such, this means that information service providers who publish news on their website will therefore remain free to use such parts of a press publication, without requiring any authorisation from the publisher. Whenever the part of the press publication which is being used amounts to a very short extract, the right of protection shall not apply.
From the procedural perspective, this provision bestows the burden of proof onto the press publishers. They must prove that the part of their publication that was used by an information society service provider went beyond the publication of a “very short extract” to the extent that, an ordinary reader would not need to seek further information from the source of the press publication in order to be sufficiently informed. This exemption modifies the effectiveness of the rights sought to be protected under the copyright law.
According to the European Commission, the impact on the effectiveness of this new right will be taken into account when assessing what are very short extracts. As such, the term “very short extracts” will in practice need to be interpreted by the courts, leaving a great deal of uncertainty as to how it will be applied in reality.
The use of a “short extracts” exemption has been criticised by many press publishers, who are of the opinion that the application of the law in this way does not protect them. Some believe that such application of the law is contrary to the actual purpose of the law since it leaves them vulnerable to information society service providers using their publications without authorisation.
Another important issue which has been subject of controversy is the implementation of the “every possible effort” concept. In our opinion this sets an excessive threshold and is not a faithful or correct translation of the phrase “best efforts” provided in the EU Directive 2019/790 on copyright and related rights in the digital single market.
It should be noted that the transposition of EU directives into national laws is a very delicate and important balancing exercise. The different interpretations and translations of a directive can lead to inconsistencies in the implementation of the directive within the member states and, consequential confusion. Thus, in such circumstances, the EU directive, the purpose of which is to ensure the equal application of copyright rights in all European Union countries cannot serve its purpose.
The phrase “every possible effort”, corresponds to the provision in the EU directive that imposes an obligation on online content service providers to prove that they are not liable in the case where they perform an act of presentation or, of making material available to the public without having first obtained the required authorisation from the rightsholders.
It has become obvious from the published report of the House committee in Cyprus that the phrase “best efforts”, as indicated in the EU directive, was the subject of an extensive and repeated discussion during parliamentary meetings. Until the last meeting of the House committee, the phrase “best efforts” was discussed as a replacement for the phrase “every possible effort”. However, as is evident from the published Copyright Law, arguments for the phrase “every possible effort” eventually prevailed and this concept is therefore in force.
It also appears from our research that some other EU countries such as Bulgaria, Italy, Spain, Greece, Croatia, Estonia and Latvia have joined Cyprus in opting for an excessive threshold for the phrase “best efforts”. Nonetheless, we are of the opinion that the phrase “every possible effort” should be read to correspond to the phrase “best efforts” in the EU directive.
This is because if the term “every possible effort” is challenged before a Cyprus court, one can reasonably argue that the EU Copyright Directive expressly stipulates that the principle of proportionality is applicable in the cases where an attempt is being made to determine whether or not a service provider has complied with its obligations.
Moreover, in the absence of any guidance, definition or explanations for the interpretation of the term “every possible efforts” adopted under Cyprus Copyright Law, we are of the opinion that a Cyprus court will take into account the guidelines provided by the European Commission’s Guidance on the interpretation of “best efforts” dated 04/06/2021.
Although the guidance is not a binding document, it provides assistance and explains what the notion of “best efforts” should cover and what is expected from the online content sharing service providers in order to meet the requirement of “best efforts” and ensure its correct interpretation.
We are of the opinion that the scope of this requirement is to encourage the development of the licensing market between rightsholders and online content sharing service providers (OCSSPs). Accordingly, whether the OCSSPs have deployed their “best efforts” to obtain authorisation will be determined on a case-by-case basis depending on what constitutes fair terms and a reasonable balance between the OCSSPs and the rightsholders, whilst also taking into account the principle of proportionality.
Aylin Zeybek is a lawyer at Elias Neocleous & Co LLC