S.L. 415.8 Art. 13Negotiation mechanism. Works of visual art in the public domain. Protection of press publications concerning online uses. S.L. 415. 05. S.L. 460. 36. Use of protected content by online content-sharing service providers. Cap. 426. Cap. 426. Cap. 426.

(1) Where parties are facing difficulties related to the licensing of rights when seeking to conclude an agreement for the purpose of making available audiovisual works on video-on-demand services, including regarding any rightholder authorisation which may be required, any party thereto may call upon the assistance of one or more mediators appointed by the Malta Mediation Centre. The mediators shall be so selected that their independence and impartiality are beyond reasonable doubt. The tasks of the mediators shall be to provide assistance with negotiations and to help the parties to reach an agreement, including, where appropriate, by submitting proposals to them.

(2) Both participation in the procedure outlined in sub-regulation (1) as well as the conclusion of any agreement pursuant to the procedure, shall be entirely voluntary and shall not affect the contractual freedom of any party thereto.

(3) Where the negotiation involves parties from Malta and another Member State and where those parties decide to rely on the negotiation mechanism, the parties are to agree beforehand on the competent Member State.

14. When the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation. 15.

(1) Publishers of press publications shall have the exclusive right to authorise or prohibit in respect of any online use by information society service providers:

(a) the direct or indirect, temporary or permanent, reproduction of their press publications;

(b) the making available to the public of their press publications, by wire or wireless means, in such a way that members of the public may access them from a place and a time individually chosen by them.

(2) The rights conferred by sub-regulation (1), shall not extend to mere facts reported in a press publication and shall not include the right to authorise or prohibit:

(a) private or non-commercial uses of press publications by individual users;

(b) acts of hyperlinking; DIGITAL SINGLE MARKET

(c) the use of individual words or very short extracts of a press publication.

(3) The rights conferred on publishers of press publications by virtue of sub-regulation (1) shall leave intact and shall in no way affect the rights of authors and other rightholders, in respect of the works and other subject matter incorporated in a press publication. The rights provided for in sub-regulation (1) may not be invoked against authors and other rightholders in respect of the works and other subject matter incorporated in a press publication and, in particular, shall not deprive them of their right to exploit their works and other subject matter independently from the press publication in which they are incorporated.

(4) When a work or other subject matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights provided for in sub-regulation (1) shall not be invoked to prohibit the use by other authorised users.

(5) The rights provided for in sub-regulation (1) shall not be invoked to prohibit the use of works or other subject matter for which protection has expired.

(6) The provisions of articles 9 and 42 of the Act, the Certain Permitted Uses of Orphan Works Regulations, and the Permitted Use of Certain Works and Other Subject Matter Protected by Copyright and Related Rights for the Benefit of Persons who are Blind, Visually Impaired or Otherwise Print-Disabled Order shall apply mutatis in respect of the rights provided for in sub-regulation (1). mutandis

(7) The rights conferred by this regulation on press publications shall have a duration of two (2) years from the end of the year following the date on which that press publication is published.

(8) The rights provided by sub-regulation (1) shall not apply to press publications first published before the 6th of June 2019.

(9) Authors of works incorporated in a press publication shall receive an appropriate share of the revenues that publishers of press publications receive for the use of their press publications by information society service providers:

Provided that in the absence of agreement on the remuneration payable under this sub-article, the amount of such remuneration shall be determined by the Board.

16.

(1) An online content-sharing service provider shall be deemed to perform an act of communication to the public or an act of making available to the public when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

An online content-sharing service provider shall therefore obtain an authorisation from the authors, performers, phonogram producers, film producers and/or broadcasting organisations, as the case maybe, in order to communicate to the public or make available to the public copyright-protected works or other protected subject matter:

Provided that such authorisation may be obtained, inter by concluding a licensing agreement: alia,

Provided further that rightholders shall not be obliged to give an authorisation or to conclude licensing agreements.

(2) Where an online content-sharing service provider obtains an authorisation, that authorisation shall also cover acts of communication to the public and, or acts of making available to the public where such acts are carried out by users of the services when the users are not acting on a commercial basis or where their activity does not generate significant revenues.

(3) (a) When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in these regulations, the limitation of liability established in article 21 of the Electronic Commerce Act shall not apply to the situations covered by this regulation.

(b) The preceding sub-regulation shall not affect the possible application of article 21 of the Electronic Commerce Act in relation to those service providers for purposes falling outside the scope of these regulations:

Provided that the limitation of liability as established in article 21 of the Electronic Commerce Act shall not apply to service providers, the main purpose of which is to engage in or to facilitate copyright piracy.

(4) If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the DIGITAL SINGLE MARKET

relevant and necessary information, and in any event,

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with paragraph (b).

(5) In determining whether the service provider has complied with its obligations under sub-regulation (4), and in light of the principle of proportionality, the following elements, shall inter alia be taken into account:

(a) the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and

(b) the availability of suitable and effective means and their cost for service providers;

(6) In respect of new online content-sharing service providers the services of which have been available to the public in the Union for less than three years and which have an annual turnover below ten million euro (€10,000,000), calculated in accordance with Commission Recommendation 2003/361/EC, the conditions under the liability regime set out in sub-regulation (4) are limited to compliance with paragraph (a) of sub-regulation (4) and to acting expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites:

Provided that where the average number of monthly unique visitors of such service providers exceeds five (5) million, calculated on the basis of the previous calendar year, they shall also demonstrate that they have made best efforts to prevent further uploads of the notified works and other subject matter for which the rightholders have provided relevant and necessary information.

(7) The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation in terms of the Act.

The rights provided by the Act and these regulations shall not preclude online content-sharing service providers from uploading and making available content generated by users on online content-sharing services in the context of:

(a) quotation, criticism, review; and

(b) use for the purpose of caricature, parody or pastiche.

(8) (a) The application of this regulation shall not lead to any general monitoring obligation on online content-sharing service providers.

(b) Online content-sharing service providers shall provide rightholders, at their request, with adequate information on the functioning of their practices with regard to the cooperation referred to in sub-regulation (4) and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements.

(9) (a) Online content-sharing service providers shall put in place an effective and expeditious complaint and redress mechanism that is available to users of their services in the event of disputes over the disabling of access to, or the removal of, works or other subject matter uploaded by them.

(b) Where rightholders request to have access to their specific works or other subject matter disabled or to have those works or other subject matter removed, they shall duly justify the reasons for their requests.

(c) Complaints submitted under the mechanism provided for in sub-regulation (1) shall be processed without undue delay, and decisions to disable access to or remove uploaded content shall be subject to human review.

(d) Users of online content-sharing services may refer any dispute relating to the disabling of access to, or the removal of, works or other subject-matter uploaded by them, or regarding the use of an exception or limitation to copyright and related rights, to the Board for its determination:

Provided that this shall be without prejudice to users’ right of recourse before the Civil Court, First Hall.

(e) These regulations shall not affect legitimate uses, such as uses under exceptions or limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of personal data, except in accordance with Directive 2002/ 58/EC and Regulation (EU) 2016/679.

(f) Online content-sharing service providers shall inform their users in their terms and conditions that they can use works and other subject matter under exceptions or limitations to copyright and DIGITAL SINGLE MARKET

related rights provided for in Union law.