Copyright and related rights

Law no.69 for the modification and completion of Law no.8/1996 on copyright and related rights was published in the Official Gazette (Part I) no.321 of 1 April 2022 and is in force as of 4 April 2022.

The Act defines a number of terms relating to the field of copyright, namely ancillary online service, retransmission, managed medium, direct introduction, research organisation, text and data extraction, provider of an online content sharing service, etc.

ancillary online service – an online service consisting of the provision to the public, by or under the control and responsibility of a broadcaster, of television or radio programmes, simultaneously with their broadcast by the broadcaster or during a defined period of time after such broadcast, and of any material which is ancillary to such broadcast;
retransmission – any simultaneous, unaltered and unabridged retransmission, other than cable retransmission, for reception by the public of an initial transmission from any Member State of television or radio programmes intended for reception by the public, where such initial transmission is by wire or wireless means, including satellite, but not online;
managed environment – an environment in which an operator of a retransmission service provides a secure retransmission to authorised users;
direct introduction – a technical process by which a broadcaster transmits its programme-carrying signals to a body which is not a broadcaster, so that the programme-carrying signals are not accessible to the public during that transmission;
- research organisation – a university, including its libraries, a research institute or any other entity whose primary purpose is to conduct scientific research or to carry out educational activities that also include the conduct of scientific research, on a non-profit basis or by reinvesting all profits in scientific research or by virtue of a public interest mission recognised by law, so that access to the results generated by such scientific research cannot benefit, on a preferential basis, an entity exercising a decisive influence over such organisation;
text and data mining – any automated analytical technique that seeks to analyse text and data in digital form to generate information such as, but not limited to, patterns, trends and correlations;
cultural heritage preservation institution – a library open to the public or a museum, an archive or a film or sound heritage preservation institution, and any other public cultural institution carrying out activities in the field of education, organised outside the formal national education system, with the aim of preserving and promoting national culture;
press publication – a collection consisting mainly of literary works of a journalistic nature, but which may also include other works or other protected objects;
publisher of press publications – a service provider at the initiative, on the editorial responsibility and under the supervision of whom a press publication within the meaning of this Law is published in any form of media, written or online;
- information society service – a service as defined in Art. 4 para. (1) point 2 of the Government Decision no. 1.016/2004 on the measures for the organisation and implementation of the exchange of information in the field of technical standards and regulations, as well as of the rules on information society services between Romania and the Member States of the European Union, as well as the European Commission, as amended and supplemented;
  - provider of an online content sharing service – a provider of an information society service whose main purpose or one of its main purposes is to store and provide public access to a significant volume of copyrighted works or other protected subject matter uploaded by its users, which it organises and promotes directly or indirectly, for example, through the use of targeted promotional means, for profit.

According to the Act, a work or other protected subject matter is considered to be outside the channels of commerce when it can be assumed in good faith that the entire work or other protected subject matter is not available to the public through normal commercial channels, after a reasonable effort has been made to determine whether it is available to the public.

Reproduction and extraction of text and data by research organisations and cultural heritage institutions for scientific research purposes from works or other protected objects to which they have lawful access is permitted.

Reproductions and extractions from legally accessible works and other protected objects for the purpose of text and data extraction are permitted, provided that the use of the works and other protected objects has not been expressly reserved by the rightholders in an appropriate manner, such as machine-readable media in the case of content made public online.

According to Article 94^1, paragraph (1) of Law no.69/2022, the publisher of a press publication has the exclusive proprietary right to authorize or prohibit the online use of its own press publications by information society service providers through:

– direct or indirect, temporary or permanent reproduction, by any means and in any form, in whole or in part, as well as permanent or temporary storage on devices of any kind and in any form;

– making them available to the public, by wire or wireless means, via the Internet, other computer networks or by any other similar means, in such a way that they can be accessed, at any place and at any time individually chosen by the public.

The rights provided in the previous paragraph do not apply in the following cases:

the use of press publications for private or non-commercial purposes by individual users;
the introduction of links to web pages, as well as in the case of reporting in the press publications some simple facts;
the use of individual words or very short extracts, up to 120 characters, from a press release, insofar as it does not affect the effectiveness of the rights previously provided or does not lead to the replacement of the press release or the determination of the public not to access the press release.

We mention that the rights provided in art.94 ^ 1m par. (1) may not be invoked:

a) against the authors or other holders of rights whose works or other protected objects are incorporated in a press publication, their rights remaining intact, so that they can exploit their works and other protected objects independently of the press publication in which they are incorporated, in accordance with the law and the agreements between the parties;
b) to prohibit the use by other authorized users, when the right to incorporate a work or other protected object in a press publication has been granted on the basis of a non-exclusive license;
c) in the case of the use of works or other protected objects whose protection has expired.

Users may rely on any of the following existing exceptions or limitations when uploading and making available user-generated content to online content sharing services:

a) quotations, critiques, reviews;
b) use for purposes of caricature, parody or mockery.

News on non-exclusive licences:

According to the newly introduced Article 40^1, when non-exclusive licenses are granted or the exclusive rights for the exploitation of works or other protected objects are transferred, authors and performers have the right to receive an adequate and proportionate remuneration in relation to the economic value of the authorized or assigned rights, taking into account the contribution to the work as a whole or other protected objects, or its / their actual exploitation, as well as the market practices. Without being the rule and in the absence of contrary clauses, the payment of a lump sum may constitute an adequate and proportionate remuneration.

Basically, the principle of contractual freedom and that of a fair balance between the rights and interests of the parties are taken into account, using mechanisms such as collective agreements or collective labor agreements, as the case may be.

According to Article 40^2, paragraph (1), authors and performers shall receive from their successors in title or from the parties to whom they have granted a licence or transferred their rights, information on the exploitation of their works and their performances, according to the particularities of each sector.

The information provided must:

a) allows access to recent, complete, relevant and pertinent data regarding the exploitation of works and interpretations or performances;
b) covers all modes of operation and all sources of revenue, including, where applicable, revenue generated by promotional products or relevant revenue generated worldwide;
c) either on the understanding of the author or of the performer and to allow the effective evaluation of the economic value of the rights in question;
d) be transmitted periodically, at least once a year.

Where the rights referred to in Article 40^2(1) have subsequently been licensed, authors and performers or their representatives shall, on request, receive from subcontractors additional information if their first contractual partner does not have all the information that would be required for the purposes of paragraph 1. (1).

Where additional information is requested, the first contractual partner of authors and performers shall provide information on the identity of the subcontractors. Requests may be addressed directly to subcontractors by authors or performers or may be addressed through the author’s or performer’s contractual partner.

The obligation provided for in paragraph (1) shall be proportionate and effective to ensure a high level of transparency in each sector.

In duly justified cases, where the administrative burden generated by the obligation provided for in paragraph 1 would become disproportionate in relation to the net revenue generated by the operation of the work or the performance, the obligation shall be limited to the types and level of information that can reasonably be expected in such cases.

The obligation laid down in paragraph (1) shall not apply where the author’s or performer’s contribution is not significant in relation to the work or performance as a whole, unless the author or performer indicates that he or she needs the information in order to exercise his or her rights under Article 45^1 para. (1) and (2) and requests the information for this purpose.

It is important to mention that the obligation laid down in paragraph (1) does not apply to contracts concluded by collecting societies or independent management entities.

In the absence of collective agreements or collective employment contracts providing for a mechanism comparable to the mechanism laid down in this Article, authors and performers shall be entitled, including through their representatives, to adequate and equitable additional remuneration from the party with whom they have concluded a contract for the exploitation of their rights or its successors in title, where the remuneration originally agreed is clearly disproportionately low in relation to all subsequent relevant net revenues and significantly higher than originally estimated, obtained from the exploitation of the works or performances.

The above provisions shall not apply in the case of contracts concluded with collecting societies or independent collecting societies or where the author or performer is remunerated in proportion to the net revenues generated by the use of his works or performances.

Legal basis:

-Law 69/2022 for the modification and completion of Law 8/1996 on copyright and related rights.