What are the options available to artists who are not represented by a copyright collective society and exercise their rights directly on their own and independently vis-a-vis the users (sometimes even the unauthorized ones) in their country as well as abroad?
Excercise of Rights without Representation by a Copyright Collective Society
- Copyright law in the Czech Republic
- Limitations and exeptions
- Tips for negotiating a contract
- Copyright collective societies
Exercise of rights without representation by a copyright collective society
- What is different in dancing and theatre
- Good to know
- Czech and Slovak copyright law compared
- Useful websites of public bodies mediation agencies and other information portals
A Danish artists interested in new trends in audiovisual arts wants to use part of a dance performance of a Finnish dance company. The Finnish dancing group is not represented by a copyright collective society.
As the Finnish group is not represented by a copyright collective society and exercises the rights directly and independently, the Danish artists should ask the Finnish crew for a written consent to use the parts of their dancing performance, or of its recordings. It is also advisable to specify in the request for consent the part of the dancing performance in question (e.g. define the footage or specific parts) and propose a license fee.
A Brazilian theatre company that has seen a German theatre play at a festival wants to adapt and translate the play to stage it in Brazil. The author is not represented by a publishing house, agency or copyright collective society.
If the adaptation involves creative artistic changes in an extent greater than standard technical one, then such an adaptation (and a translation) will constitute interference with the author’s moral rights; therefore, the Brazilian theatre company must obtain a consent to make the adaptations and translation from the Swedish playwright (in line with the principle of territoriality, this applies only if the respective Brazilian law acknowledges moral rights for authors).
The Swedish playwright, who is not represented by a copyright collective society or a publishing house, will grant consent to adapt and translate the play; naturally, the playwright may also prohibit the adaptation, translation or staging of the play by any person.
Adaptations and Changes in the Play:
The written consent should explicitly state all intended adaptations and changes to which the Swedish author grants the consent; for the avoidance of doubt, the consent may also explicitly state any intended changes which he or she does not authorize. If the Brazilian theater company does not comply with the approved adaptations or changes, this constitutes copyright infringement and the Swedish playwright may seek that the situation be remedied and, in extreme cases (if the situation fails to be remedied without undue delay, even though a prior notice is not required), prohibit any further staging of the play, including any satisfaction either in the form of an apology and/or financial compensation.
Translation into a Foreign Language:
The consent should specify the language to which the play may be translated. Moreover, the Swedish author may insist that the play be translated by a specific translator (e.g. because the Swedish playwright has good prior experience with the translator’s work). The Swedish playwright may also make the consent conditional by his approval of the final translation.
Prohibition to Adapt and Stage the Play:
If the Swedish playwright does not agree with the proposed changes and translation (whatever the reason) or if the playwright grants the consent, but the Brazilian theatre company violates its terms, this constitutes infringement of the moral rights and the Swedish playwright may prohibit any further staging of the play using his or her text, including the right to seek satisfaction either in the form of an apology and/or financial compensation.
Artists who do not exercise their rights through a collective copyright society or an agency must, unfortunately, enforce their interests, rights and claims themselves, at their cost and liability.
In practice, damages are awarded only rarely; if any damage occurs at all, it must be assessed and substantiated, which is usually difficult due to lack of evidence.
On the contrary, action for unjust enrichment is much easier to pursue from the procedural point of law as the usual license fee is easier to establish than the damage incurred. After the usual license fee has been determined (based on one’s own assessment or on the basis of an expert opinion, which is a more reliable option), it is doubled, and thus the amount of unjust enrichment is established and substantiated.
It is also a problem to find and identify the person responsible. The primary responsibility lies with the owner/administrator/operator of the server or website where such photos have been uploaded. In reality, such an owner/administrator/operator is a person other than the person who uploaded the photos on the website. In addition, the owner/administrator/operator of the website need not be directly liable for the copyright infringement. There are statutory limitations to the liability of certain types of owners/administrators/operators of websites for copyright infringement. Eventually the owner/administrator/operator of the website need not be liable for the content published on the website, but must designate the person that uploaded the photos on the website (unless it was the owner who uploaded the photos and provided that the owner knows the person). Then the designated person must be contacted e.g. by e-mail, and the respective claims must be raised.
Even if you manage to get into touch with the infringer, the enforcement of the claims is usually quite difficult. In the case discussed above, the infringer was from Japan, that is a non-EU country. Usually you have to hope that the infringer complies with your requirements voluntarily. Any legal action you may take is effective and economical only if large amounts are at stake, which does not seem to be the case here.
It must be noted, however, that the enforcement of online copyright is rather complex issues exhibiting many specific aspects, and the conclusions presented above have been simplified to a reasonable extent.
We recommend the following procedure in cases of copyright infringement:
- First, try to collect and retain as much evidence as possible. In the case of literary works, try to get hold of a copy of the book or its part. In online cases, record the exact date, time and website (hyperlink) where the work was made public. Try to support any real evidence with a witness statement, in writing, if practicable.
- Identify the infringer. In the case of newspapers, magazines, books and internet, use the logo, statements, contact details, name of the publisher, distributor, domain administrator. If the website lacks any information about its owner/administrator/operator, try to identify the infringer online through internet search engines or portals containing information about website owners/administrators/operators. If the owner/administrator/operator of the website is not liable for the infringement (under conditions stipulated by law), they should provide information about the person that is, or could be, liable for the infringement (having considered all circumstances).
- Send a written notice of infringement asking the infringer to remedy the situation. The notice should be sent by registered mail with proof of delivery. The proof of delivery is considered an authentic instrument and can be easily used to establish that notice was sent and received. The notice should require the addressee that he or she remedy the situation by a set deadline (within three, five or seven days of the delivery of the notice) and refrain from any further copyright infringement. It is advisable that the notice mentions the possible civil or criminal penalties available (enforcement of satisfaction, damages, unjust enrichment, or report on a crime or administrative infraction committed).
- Irrespective of the previous points, you may seek damages for the unlawful use until this moment. The damages should not exceed a double of the standard license fee.
Any claim raised by a Czech national may by be enforced in any EU member state under the same conditions. Czech artists have the same rights vis-a-vis Czech or German infringers. Certain limitations may apply in some EU member states: a lawyer specializing in such matters should be used to enforce any claims in foreign countries.
It is reasonable to take legal action against users with registered office or place of residence outside the EU only if the infringement is so extensive that the damages or unjust enrichment amount to substantial amounts. Otherwise, taking legal action is not convenient and economical.
Any legal action in the United States is extremely costly. You will also always need to hire a US attorney due to the complexity of the US legal system and your lack of its knowledge.