S.L. 415.8 Art. 7Preservation of cultural heritage. Conditions regarding exceptions in regulations 4, 5, 6 and 7. Use of out-of- commerce works and other subject matter by cultural heritage institutions. Cross border uses. Publicity measures. Collective licensing with an extended effect. S.L. 415. 01. S.L. 415. 01.

Copyright in an audiovisual work, a database, a literary work a musical or artistic work and the sui generis right accorded to the maker of a database as well as the press publishers’ right provided in regulation 15(1), shall not include the right to authorise or prohibit cultural heritage institutions to reproduce such works that are permanently in their collections, in any format or medium, for the purposes of preservation and to the extent necessary for such preservation.

8.

(1) Any contractual provision contrary to the exceptions provided for in regulations 4, 6 and 7 shall be unenforceable.

(2) The exceptions and limitations provided for in regulations 4, 5, 6 and 7 shall only be applied in those particular cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

(3) Where the application of any effective technological measure to a work prevents any beneficiary of an exception provided for in regulations 4, 5, 6 and 7 from benefiting from that exception, the rightholder shall make available to the beneficiary the means of benefiting from that exception, to the extent necessary to benefit from that exception or limitation:

Provided that the beneficiary shall have legal access to the protected work or subject-matter concerned: Provided further that there is no voluntary measure taken by the rightholder or exclusive licensee or agreement between the rightholder and the other party concerned, the purpose of which is to enable the beneficiary to benefit from the exceptions specified in the above paragraph.

(4) It shall be illegal to knowingly circumvent the technological measures applied voluntarily by rightholders, including those applied in the implementation of voluntary agreements.

9.

(1) A collective management organisation, which is established in Malta, in terms of the control of the establishment and operation of societies for the collective administration of copyright regulations, may in accordance with its mandates from rightholders, conclude a non-exclusive licence for non-commercial purposes with a cultural heritage institution, established in Malta, for the reproduction, distribution, communication to the public or making available to the public of out-of-commerce works or other subject matter that are permanently in the collection of the institution, irrespective of whether all rightholders covered by the licence have mandated the collective management organisation, on condition that:

(a) the collective management organisation is, on the basis of its mandates, sufficiently representative of rightholders in the relevant type of works or other subject matter and of the rights that are the subject of the licence; and

(b) all rightholders are guaranteed equal treatment in relation to the terms of the licence:

Provided that the Board shall determine whether a collective management organisation is able to meet the conditions above in the context of a non-exclusive licence negotiated in terms of sub-regulation (1). In reaching its conclusion as to whether a collective management organisation is sufficiently representative according to the condition in paragraph (a) above the Board shall take into consideration:

(a) the categories of rights it manages;

(b) its ability to manage rights effectively;

(c) the specificities of the relevant creative sector; and

(d) coverage of a significant number of rightholders in the relevant type of work or right:

Provided further that for a collective management organisation to act in respect of all right holders who have not mandated it to do so in the context of a non-exclusive licence DIGITAL SINGLE MARKET

negotiated in terms of sub-regulation (1), it must first apply for and secure authorisation to do so from the Board and in doing so show to the satisfaction of the Board that it meets the conditions listed in paragraphs (a) and (b) above.

(2) Copyright in an audiovisual work, a database, a literary work, a musical or artistic work and the right accorded to sui generis the maker of a database as well as the press publishers’ right provided in regulation 15(1), shall not include the right to authorise or prohibit cultural heritage institutions to make available, for non-commercial purposes, out-of-commerce works or other subject matter that are permanently in their collections, on condition that:

(a) the name of the author or any other identifiable rightholder is indicated, unless this turns out to be impossible; and

(b) such works or other subject matter are made available on non-commercial websites.

(3) The exception or limitation provided for in sub-regulation (2) only applies to types of works or other subject matter for which no collective management organisation that fulfils the condition set out in sub-regulation (1)(a) exists.

(4) All rightholders may, at any time, easily and effectively, exclude their works or other subject matter from the licensing mechanism set out in sub-regulation (1) or from the application of the exception or limitation provided for in sub-regulation (2), either in general or in specific cases, including after the conclusion of a licence or after the beginning of the use concerned.

(5) A work or other subject matter shall be deemed to be out of commerce when it can be presumed in good faith that the whole work or other subject matter is not available to the public through customary channels, after a reasonable effort has been made to determine whether it is available to the public:

Provided that, in any case, a work or other subject-matter shall not be presumed to be out-of-commerce before at least ten years have elapsed from the date on which that work or other subject-matter has last been made available commercially.

(6) A licence as referred to in sub-regulation (1) may be sought only from a collective management organisation that is representative for Malta.

(7) (a) This regulation shall not apply to sets of out-of-commerce works or other subject matter if, on the basis of the reasonable effort referred to in sub-regulation (5), there is evidence that such sets predominantly consist of:

(i) works or other subject matter, other than cinematographic or audiovisual works, first published or, in the absence of publication, first broadcast in a third country;

(ii) cinematographic or audiovisual works, of which the producers have their headquarters or habitual residence in a third country; or

(iii) works or other subject matter of third country nationals, where after a reasonable effort no Member State or third country could be determined pursuant to sub-paragraphs

(i) and (ii).

(b) By way of derogation from sub-regulation (1), this regulation shall apply where the collective management organisation is sufficiently representative, within the meaning of sub-paragraph (i) of sub-regulation (1), of rightholders of the relevant third country.

10.

(1) Licenses granted in Malta in accordance with regulation 9 may allow the use of out-of-commerce works or other subject matter by cultural heritage institutions in any Member State.

(2) The uses of works and other subject matter under the exception or limitation provided for in regulation 9(2) by cultural heritage institution established in Malta shall be deemed to occur solely in Malta.

11.

(1) The information for the purposes of the identification of the out-of-commerce works or other subject matter, covered by a licence granted in accordance with regulation 9(1), or used under the exception or limitation provided for in regulation 9(2), as well as information about the options available to rightholders as referred to in regulation 9(4), and, as soon as it is available and where relevant, information on the parties to the licence, the territories covered and the uses, is to be made permanently, easily and effectively accessible on a public single online portal established and managed by the European Union Intellectual Property Office from at least six(6) months before the works or other subject matter are distributed, communicated to the public or made available to the public in accordance with the licence or under the exception or limitation:

Provided that:

(a) the information for the purposes of the identification of the out-of-commerce works or other subject matter, covered by licences granted in accordance with regulation 9(1) shall be made accessible by the collective management organisation or the culture heritage institution concluding the relevant licence under said sub-regulation. DIGITAL SINGLE MARKET

(b) the information for the purposes of the identification of the out-of-commerce works or other subject matter, covered by or used under the exception or limitation provided for in regulation 9(2) shall be made accessible by the culture heritage institution utilising the exception under said sub-regulation.

(2) If necessary for the general awareness of rightholders, additional appropriate publicity measures are to be taken in Malta regarding the ability of collective management organisations to licence works or other subject matter in accordance with regulation 9(1), the licences granted, the uses under the exception or limitation provided for in regulation 9(2) and the options available to rightholders as referred to in regulation 9(4):

Provided that if there is evidence, such as the origin of the works or other subject matter, to suggest that the awareness of rightholders could be more efficiently raised in other Member States or third countries, such publicity measures shall also cover those Member States and third countries.

12.

(1) The Minister may by notice in the Gazette provide that where a collective management organisation established in Malta enters into a licensing agreement for the exploitation of works or other subject matter, in accordance with its mandates from rightholders, such an agreement can be extended to apply to the rights of rightholders who have not authorised that collective management organisation to represent them by way of assignment, licence or any other contractual arrangement, by first obtaining the approval of the Board with regards to such extension.

In such cases, collective management organisations may submit an application to the Board, for the approval of the extension, which application must indicate the:

(a) type of licence;

(b) purpose of the licence;

(c) type of work or subject-matter or rights covered by the licence;

(d) identity of the licensees; and

(e) electronic mail address where rightholders may submit requests relative to the licence.

In reaching a decision as to whether or not to approve the collective licence with extended effect, the Board must ensure that:

(a) the collective management organisation is, on the basis of its mandates, sufficiently representative of rightholders in the relevant type of works or other subject-matter and of the rights which are the subject of the licence;

(b) all rightholders are guaranteed equal treatment, including in relation to the terms of the licence;

(c) the licence relates to an area of use, where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction unlikely, due to the nature of the use or of the types of works or other subject-matter concerned;

(d) appropriate publicity measures have been taken by the collective management organisation as provided in sub-regulation (2); and

(e) the territorial scope of the licensing agreement in question is limited to the territory of Malta;

(2) At least six (6) months prior to the commencement of the use of works or other subject-matter under a licence with extended effect pursuant to sub-regulation (1), the collective management organisation intending to grant such a licence must take appropriate publicity measures related to that licence, which must at least include a notice in the Gazette and in two daily newspapers, in order to inform rightholders about:

(a) its ability to licence works or other subject-matter with extended effect;

(b) the licensing with extended effect which is intended to take place;

(c) the option to exclude their work or other subject-matter from the licence with extended effect; and

(d) the electronic mail address where rightholders may submit requests relative to the licence.

(3) Rightholders who have not authorised the collective management organisation granting a licence with extended effect pursuant to sub-regulation (1), may at any time, whether before or after the commencement of the use of their work or other subject-matter under that licence, exclude their works from that licence by communicating a request to this effect by electronic means to the collective management organisation’s electronic mail address provided pursuant to sub-regulation (1)(v).

Upon receiving such a request and ascertaining the identity of DIGITAL SINGLE MARKET

the rightholder in question, the relevant collective management organisation shall act expeditiously to exclude the work or other subject-matter indicated in the request, from the licence in question within a period not exceeding three (3) months from the date of the request.

(4) Collective management organisations which have granted a licence with extended effect pursuant to sub-regulation (1) shall ensure that all rightholders are guaranteed equal treatment, including in relation to:

(a) the terms of that licence;

(b) the distribution of amounts due under that licence; and

(c) transparency and reporting obligations applicable under regulations 26 to 30 of the Control of the Establishment and Operation of Societies for the Collective Administration of Copyright Regulations.

(5) In reaching its conclusion as to whether a collective management organisation is sufficiently representative for a particular type of work or right, for the purposes of paragraph (a) of sub-regulation (1), the Board shall take into consideration:

(a) the categories of rights it manages;

(b) its ability to manage rights effectively;

(c) the specificities of the relevant creative sector; and

(d) coverage of a significant number of rightholders in the relevant type of work or right.

(6) The provisions of regulation 7 of the Control of the Establishment and Operation of Societies for the Collective Administration of Copyright Regulations, shall apply to collective management organisations that provide a licence with extended effect pursuant to sub-regulation (1).

(7) Should any dispute arise in relation to a licence with extended effect pursuant to sub-regulation (1), a rightholder may refer the dispute to the Board for its determination:

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

(8) This regulation shall not affect the application of collective licensing mechanisms with an extended effect in accordance with other provisions of the law, including provisions that allow exceptions or limitations, such as under regulation 9.