Comments on the new draft to implement the CDSM and the SatCab Directives

The Hungarian Ministry of Justice and the Hungarian IP Office have informed stakeholders (most probably those who submitted a written response to the original May 2020 call for public comments/consultation) on July 31, 2020 that a new draft of was created to implement the CDSM and the SatCab Directives.

The above organizations allowed interested persons to submit their written comments on the draft by the latest of August 14, 2020. My comments were submitted in Hungarian on August 10, 2020, and they are available here: http://copy21.com/2020/08/eszrevetelek-a-cdsm-satcab-atultetesi-koncepciorol/. The key elements of my comments are summarized in English in the followings. (Please note that all translation inconsistencies might be mine.)

Declarative comments:

  • the new Art. 13 of the Copyright Act would introduce a new wording of the right of integrity. In compliance with the original draft’s Option B, the right of integrity might be infringed only, if any misuses have negative impact on the honour or reputation of the author. (The amendment would follow the same terminology and logic regarding the right of integrity of performers.) Art. 13 would, however, not include any extra reference to parodies, as Option A of the draft recommended.
  • The new draft skips to declare the hosting of and giving access to copyright protected subject matter by OCSSPs as a special type of communication/making available to the public [the original draft planned to do so under Art. 26(8a)]. On the contrary, and in a logic that complies with the CDSM Directive, a newly proposed Art. 57/B would declare that OCSSPs uses mean making available to the public (and hence authorization is needed).
  • Cultural institutions might preserve copyrighted contents for a new purpose: in case such preservation is necessary for education. At the same time, the amended Art. 35(4) eliminates the requirement that cultural institutions might only preserve contents available in their repertoire. (It is unclear whether this would allow a full web harvesting, too, but this wording might lead to problems in the future.)
  • The new draft sticks to the logic to regulate TDM allowed for anyone first, and TDM of research institutes second (contrary to the CDSM Directives order). Still, the content of the TDM exceptions are in conformity with the Directive.
  • The new draft calls „online content sharing service providers” as „tartalommegosztó szolgáltató”, that is “content sharing service providers”. Skipping “online” looks to lead to no problems, as the rules make it absolutely clear that the services involved might be only provided in the online space.
  • The new draft – unrelated to the implementation – intends to stress that parties to the procedures of the Hungarian Copyright Expert Board might request to keeping the expert opinion secret. In this case, according to the draft, “the names of the parties and the other factual elements of the case that might allow for the identification of the parties cannot be released”. In fact, this wording might allow to publish fully anonymized expert opinions that might also be significantly abbreviated – but at least published to understand the logic/substantive opinion of the expert body. (Such a rule might allow to stop the growing practice of fully excluding the publication of expert opinions.)
  • The new draft recommends that the rules on out-of-commerce works comes into effect 8 days after the publication of the law; while the rest of the new law would enter into force on June 1, 2021.

Critical remarks:

  • the new draft mixes Option A and B of the original draft regarding the parody exception. As such, the new proposal sounds as follows:

“The work might be used by anyone

  1. for the purposes of critique or review by the indication of the source and the author indicated therein;
  2. for the purposes of caricature, parody and pastiche through recalling the work and by expressing humour or mockery.

The source work might be used only in an amount that is reasonable in light of the purposes of the use.”

As such, the new draft includes caricature and pastiche in point b) (and so follows the more logical Option B of the original draft), and also includes the two Deckmyn requirements, as envisaged by Option A originally. The present solution seems to be a logical compromise.

  • The new draft lists four examples where the new law would not exclude the mandatory requirement to put licenses into writing. Three of these options were already present in Hungary (re journal articles, software and databases), and the fourth – new – option intends to abolish the formality requirement where “the license is concluded by the acceptance of the author’s offer to allow the free of charge, non-exclusive use of the work by non-targeted (undetermined number of) persons”. This new norm would allow the easy use of contents in an online environment, and, as such, sounds like the acceptance of an implied licence logic by the drafters. The explanation of the new draft, however, argues that such an offer enters the relevant contents into public domain. The explanation of the draft is simply an error; it shall be corrected to evade any misunderstandings.
  • The plans to implement Art. 17 of the CDSM Directive went through significant developments, too. The logic of the new draft follows the Directive’s order: authorization by the OCSSPs; alternatively, prior authorization by the users; liability in the lack of authorization of use; exceptions from liability. A new rule will allow for a complaint and redress mechanism for end users. The draft would introduce the general protection of end user limitations and exceptions against misuses by the OCSSPs content removal. (Hence, limitations and exceptions turn to be de facto user rights, but the law is not mentioning that as such.) The draft is not planning to regulate any pre-flagging option for end-users (as the German draft did). Hence, content removal shall be managed by the OCSSPs, however, human review is required in all cases of removal.
  • The new draft’s logic re the news publishers’ right is in line with the directive. The only – mainly technical – problem might be that while the draft requires the authorization of the news publishers regarding the use of the relevant contents, the draft speaks nothing about payment for such use.

The new draft includes plenty other, mainly terminological/technical changes to the original draft. As such, it is very close to a proper implementation of the EU’s new directives.

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