COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL SINGLE MARKET REGULATIONS

DIGITAL SINGLE MARKET

SUBSIDIARY LEGISLATION 415.08

COPYRIGHT AND RELATED RIGHTS IN THE

DIGITAL SINGLE MARKET REGULATIONS

18th June, 2021

LEGAL NOTICE 261 of 2021.

The title of these regulations is the Copyright and related

rights in the Digital Single Market Regulations.

The main scope of these regulations is the transposition

of Directive (EU) 2019/790 of the European Parliament and of the

Council of 17 April 2019 on copyright and related rights in the Digital

Single Market and amending Directives 96/9/EC and 2001/29/EC.

In these regulations, unless the context otherwise

requires

"Act" means the Copyright Act;

"Board" shall have the same meaning as assigned to it in the

Act;

"cultural heritage institution" means a publicly accessibly

library or museum, an archive or a film or audio heritage institution;"

"educational establishment" means a college, school or

university as recognised by the Minister responsible for education;

"information society service" means a service within the

meaning of article 2 of the Electronic Commerce Act;

"Minister" shall have the same meaning as assigned to it in the

Act;

"online content-sharing service provider" means a provider of

an information society service of which the main or one of the main

purposes is to store and give the public access to a large amount of

content of copyright-protected works or other protected subject matter

uploaded by its users, which it organises and promotes with the

purpose of making a profit therefrom either directly or indirectly.

Providers of services, such as not-for-profit online encyclopaedias,

not-for-profit educational and scientific repositories, open source

software-developing and-sharing platforms, providers of electronic

communications services as defined in Directive (EU) 2018/1972,

online marketplaces, business-to-business cloud services and cloud

services that allow users to upload content for their own use, are not

"online content-sharing service providers" within the meaning of these

regulations;

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"press publication" means a collection composed mainly of

literary works of a journalistic nature, but which can also include other

works or other subject matter, and which

(a)

constitutes an individual item within a periodical

or regularly updated publication under a single title, such as a

newspaper or a general or special interest magazine;

(b)

has the purpose of providing the general public

with information related to news or other topics; and

(c)

is published in any media under the initiative,

editorial responsibility and control of a service provider.

Periodicals that are published for scientific or academic

purposes, such as scientific journals and websites, such as blogs, that

provide information as part of an activity that is not carried out under

the initiative, editorial responsibility and control of a service provider,

such as a news publisher, are not press publications for the purposes of

these regulations.

"research organisation" means a university, including its

libraries, a research institute or any other entity, the primary goal of

which is to conduct scientific research or to carry out educational

activities involving also the conduct of scientific research

(a)

on a not-for-profit basis or by reinvesting all the

profits in its scientific research; or

(b)

pursuant to a public interest mission recognised

by a Member State;

in such a way that the access to the results generated by

such scientific research cannot be enjoyed on a preferential

basis by an undertaking that exercises a decisive influence upon

such organisation;

"text and data mining" means any automated analytical

technique aimed at analysing text and data in digital form in order to

generate information which includes but is not limited to patterns,

trends and correlations.

Copyright in an audiovisual work, a database, a literary

work other than in the case of a computer programme, a musical or

artistic work and the sui generis right accorded to the maker of a

database as well as the press publishers’ right as provided in regulation

15(1), shall not include the right to authorise or prohibit reproductions

and extractions made by research organisations or cultural heritage

institutions to carry out, for the purposes of scientific research, text

and data mining of works or other subject matter to which they have

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lawful access

Provided that

(a)

copies of work or other subject-matter made in

compliance with the preceding paragraph shall be stored with

an appropriate level of security and may be retained for the

purposes of scientific research, including for the verification of

research results;

(b)

rightholders shall be allowed to apply measures to

ensure the security and integrity of the networks and databases

where the works or other subject-matter are hosted. Such

measures shall not go beyond what is necessary to achieve that

objective.

(1)

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 as provided in regulation 15(1), shall not include the right to

authorise or prohibit reproductions and extractions of lawfully

accessible works or other subject-matter for the purposes of text and

data mining

Provided that reproductions and extractions made

pursuant to the preceding paragraph may be retained for as long

as is necessary for the purposes of text and data mining;

(2)

The exception provided for in sub-regulation (1), shall

apply on condition that the use of works and other subject-matter

referred to above may be expressly reserved by their rightholders in an

appropriate manner, such as machine-readable means in the case of

content made publicly available online.

(3)

This regulation shall not affect the application of

regulation 4.

(1)

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 the digital use of works and other subject matter

for the sole purpose of illustration for teaching, to the extent justified

by the non-commercial purpose to be achieved, on condition that such

use

(a)

takes place under the responsibility of an educational

establishment, on its premises or at other venues, or through a secure

electronic environment accessible only by the educational

establishment’s pupils or students and teaching staff; and

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(b)

is accompanied by the indication of the source, including

the author’s name, unless this turns out to be impossible

Provided that the rightholders shall be entitled to fair

compensation for the use of their works or other subject-matter in

compliance with sub-regulation (1).

Provided further that with regards to works or other

subject-matter which are intended primarily for the educational

market, the educational establishment shall obtain the appropriate

licences, if these are available.

(2)

The digital use referred to in sub-regulation (1) shall be

understood to cover the specific accessibility needs of persons with a

disability in the context of illustration for teaching.

(3)

The use of works and other subject matter for the sole

purpose of illustration for teaching through secure electronic

environments undertaken in compliance with regulation 6(1) under the

responsibility of an education establishment established in Malta shall

be deemed to occur solely in Malta.

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.

(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

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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.

(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

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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 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 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

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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.

(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.

(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.

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(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.

(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

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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

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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

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with other provisions of the law, including provisions that allow

exceptions or limitations, such as under regulation 9.

(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.

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.

(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;

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(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

mutandis in respect of the rights provided for in sub-regulation (1).

(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.

(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

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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

alia, by concluding a licensing agreement

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

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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

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(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.

17 . Where authors or performers licence or transfer the

exclusive rights for the exploitation of their works, or other subject-

matter, they are entitled to receive appropriate and proportionate

remuneration. In the absence of agreement on the remuneration

payable under this sub-regulation, the amount of such remuneration

shall be determined by the Board

Provided that in determining the appropriate and

proportionate remuneration to the actual or potential economic value

of the licensed or transferred rights, account shall be taken of the

author’s or performer’s contribution to the overall work or other

subject matter and all other circumstances of the case, such as market

practices or the actual exploitation of the work.

Fejn l-awturi u l-artisti jagħtu liċenzja jew jittrasferixxu

d-drittijiet esklużivi tagħhom għall-isfruttament tax-xogħlijiet jew ta'

materjal ieħor tagħhom, ikunu intitolati li jirċievu rimunerazzjoni

xierqa u proporzjonata. Fin-nuqqas ta’ ftehim dwar ir-rimunerazzjoni

pagabbli taħt dan is-subregolament, l-ammont ta’ tali rimunerazzjoni

għandu jiġi determinat mill-Bord

Iżda meta jkun qiegħda tiġi stabbilita r-rimunerazzjoni

xierqa u proporzjonata skont il-valur ekonomiku attwali jew potenzjali

tad-drittijiet liċenżjati jew trasferriti, għandu jittieħed kont tal-

kontribuzzjoni tal-awtur jew artist lejn ix-xogħol jew materjal ieħor

ġenerali kif ukoll ċirkonstanzi oħra tal-każ, bħal prattiċi tas-suq u l-

isfruttar attwali tax-xogħol.

(1) Authors and performers are to receive on a regular

basis, at least once a year, and taking into account the specificities of

each sector, up to date, relevant and comprehensive information on the

exploitation of their works and performances from the parties to whom

they have licensed or transferred their rights, or their successors in

title, in particular as regards modes of exploitation, all revenues

generated and remuneration due

Provided that where these rights have been sub-licensed,

authors or performers, or their mandated representatives, shall at their

request receive additional information from the respective sub-

licensees, in the event that the original licensee does not hold all the

information that would be necessary for the purposes of the above sub-

regulation. Where that additional information is requested, the first

counterpart of authors and performers shall provide information on the

identity of those sub-licensees.

(2)

The obligation set out in sub-regulation (1) shall be

proportionate and effective in ensuring a high level of transparency in

every sector

Provided that the parties or their successors in title to

whom the rights were licensed or transferred may make claims

substantiated by representations to the Board indicating

(a)

duly justified cases where the administrative

burden resulting from the obligation set out in sub-regulation

(1) would become disproportionate in the light of the revenues

generated by the exploitation for the work or performance;

(b)

that obligation be limited to the types and level of

information that can reasonably be expected in such cases

Provided further that the Board may refuse such claims.

DIGITAL SINGLE MARKET

(3)

The transparency obligations set out in this regulation

shall not apply in respect of agreements concluded by collective

management organisations which are regulated in terms of the Control

of the Establishment and Operation of Societies for the Collective

Administration of Copyright Regulations.

(1) In the absence of an applicable collective

bargaining agreement providing for a mechanism to claim additional

appropriate and fair remuneration, authors or performers or their

mandated representatives shall be entitled to claim such additional,

appropriate and fair remuneration from the party with whom they have

entered into a contract for the exploitation of their rights, or from their

successors in title as the case may be

Provided that such a claim can only be made when the

remuneration originally agreed upon turns out to be disproportionately

low compared to all the subsequent relevant revenues derived from the

exploitation of those works, performances or other subject-matter

Provided further that when assessing whether such

remuneration is disproportionately low, account should be taken of

(a)

all revenues relevant to the case in question,

including, where applicable, merchandising revenues,

(b)

the specific circumstances of each case, the

contribution of each author or performer and the specificities

and remuneration practices in the different content sectors.

(2)

In the absence of agreement on the additional

remuneration payable under this sub-article, the amount of such

additional remuneration shall be determined by the Board.

(3)

Sub-regulations (1) and (2) shall not apply with respect

to agreements concluded by collective management organisations

which are regulated in terms of the Control of the Establishment and

Operation of Societies for the Collective Administration of Copyright

Regulations.

In any disputes concerning the transparency obligation

provided in Regulation 18 or concerning the contract adjustment

mechanism provided in regulation 19, authors or performers or their

mandated representatives may submit such dispute for resolution

before the Malta Arbitration Centre or the Malta Mediation Centre in

accordance with procedure and formalities of the Malta Arbitration

Act and the Malta Mediation Act respectively

Provided that representative organisations of authors and

performers may initiate such procedures at the specific request of one

of more authors or performers.

Provided further that this shall be without prejudice to an

DIGITAL SINGLE MARKET

author’s or performer’s right of recourse before the Civil Court, First

Hall.

(1) Where the author or performer has licensed or

transferred his or her rights in a work or other protected subject matter

on an exclusive basis, the author or performer may revoke in whole or

in part the licence or the transfer of rights where there is a lack of

exploitation of that work or other protected subject matter for a

continuous period of five (5) years

Provided that the author or performer in question shall by

means of a judicial act, set a time-limit of not less than six (6) months

within which the exploitation of the licensed or assigned rights by the

respective assignee or licensee, must take place

Provided further that in the case of sound recordings, the

time limit established by a performer shall not be less than one (1)

year.

(2)

If the respective assignee or licensee fails to exploit the

rights concerned within the stipulated time-limit, the author or

performer in question may choose to revoke the licence or transfer of

rights, in whole or in part, or terminate its exclusivity by referring the

matter to the Board for its determination.

(3)

In the case of works of joint authorship or collective

works, the judicial act referred to in the preceding paragraph may be

filed by any joint author or joint rightholder. However, prior to

determining whether or not to revoke the licence or transfer of rights in

question or to terminate its exclusivity, as the case may be, the Board

shall set a time-limit within which all other joint authors or joint

rightholders may make their submissions relative to revocation or

termination of exclusivity, as the case may be

Provided that in reaching a decision in relation to the

preceding paragraphs, the Board shall assess the relative importance of

the individual contributions of each joint author or joint rightholder

involved, as well as the legitimate interests of all joint authors or joint

rightholders affected by the application of the revocation or

termination of exclusivity, as the case may be.

(4)

Sub-regulation (1) shall not apply

(a)

in the case of audiovisual works or databases; or

(b)

in the event that the lack of exploitation of the

work or other subject matter is predominantly due to the

circumstances that the author or the performer can reasonably

be expected to remedy; or

DIGITAL SINGLE MARKET

(c)

with respect to contractual provision derogating

from the revocation mechanism where these form part of

agreements concluded by collective management organisations

which are regulated in terms of the Control of the

Establishment and Operation of Societies for the Collective

Administration of Copyright Regulations.

The

reproduction,

translation,

distribution

communication to the public of a work for the sole purpose of

illustration for teaching or scientific research only to the extent

justified by the non-commercial purpose to be achieved, and as long as

the source, including the author’s name, is, unless this is impossible,

indicated , provided for in article 9(1)(h) the Act shall be on the

condition that the rightholders receive fair compensation

The exceptions and limitations provided for in these

regulations shall not be prejudiced or limited in scope as a result of

articles 9(1)(d) and (h) and 26(2)(b) of the Act.

(1) Any contractual provision that prevents

compliance with regulations 18, 19 and 20 shall be null and void in

relation to authors and performers and unenforceable in their regard.

(2)

Regulations 17 to 21, both included, shall not apply to

authors of a computer program within the meaning of Article 2 of

Directive 2009/24/EC.

25 . Agreements for the license, assignment or transfer of

rights of authors and performers shall be subject to the transparency

obligation set out in regulation 18 as from 7 June 2022

Provided that this regulation shall apply to agreements

which come into force as from that date and in respect of those

agreements entered into before that date which are still in force.

Ftehimiet għal-liċenzja, assenjament jew it-trasferiment

tad-drittijiet tal-awturi u l-artisti għandhom ikunu soġġetti għall-

[ L.S 415.08

RELATATI FIS-SUQ UNIKU DIĠITALI

obbligu tat-trasparenza stabbilit fir-regolament 18 sa mis-7 ta’ Ġunju

2022

Iżda dan ir-regolament ma għandux japplika għall-

ftehimiet li daħħlu fis-seħħ minn dik id-data u fir-rigward ta’ ftehimiet

li jkunu saru qabel dik id-data u li għadhom fis-seħħ.