The Copyright Act has been amended several times over the past three years:
In 2021 it was amended to implement the SatCabII Directive and articles 15 and 17 of the DSM Directive on press publications and on online content-sharing service providers, respectively; and in 2023 it was amended to implement the rest of the DSM Directive, including the text and datamining provisions and measures to improve licensing practises and achieving a well-functioning marketplace for copyright.
On 4 June 2024 more amendments to the Danish Copyright Act were enacted by the Parliament. The main purpose was to modernise the Act to better reflect the technological development. In addition, there are various other changes.
The enactment followed a proposal that was sent for hearing with deadline for comments in January 2024, some adjustments to the text, a bill presented in Parliament in March and further parliamentary treatment in April and May.
The amendments include a codification of the parody, caricature and pastiche exception with reference to the InfoSoc Directive article 5(3)(k) in the wake of the May 2023 Danish Supreme Court judgment in the so-called Little Mermaid case that upheld the unwritten parody principle that Denmark has relied on until now. Thus the Danish Copyright Act only included directly in the law a special provision on parody in connection with online content-sharing service providers in line with the DSM Directive Article 17, but no general parody exception.
Under the new provision, the right to claim authorship of the work and the right to object to any derogatory action in relation to the work, i.e. the moral rights, are expressly not applicable to a parody – and, besides, not harmonised at EU level - but according to the explanatory notes, the three-step test of the InfoSoc Directive article 5(5) must be complied with in order for a parody to be legal.
In the hearing answers it was widely criticised that the new parody exception includes the condition that there must be legal access to the work used for parody, as the EU Deckmyn judgment does not mention such condition. However, in the explanatory notes the Danish Ministry of Culture upheld the legal access condition, noting that it was aware of the Deckmyn judgment and did not find anything in EU law that would be a hindrance to the said condition. The Ministry of Culture stressed that the new general parody exception is intended to reflect EU law.
In relation to text and datamining and AI training the amendments enacted mean that rights holders’ consent may be necessary, as pointed out in the explanatory notes. It is indicated that the existing general extended collective licence could be used in connection with agreements following copyright holders’ reservation of rights in connection with text and datamining. A prerequisite for this licence would be the Ministry of Culture’s prior approval, as for other agreements under the general extended collective licence. Use of extended collective licence agreements would secure fair remuneration to rights holders and easy access to rights clearance for users.
Further, the enacted amendments introduce a mediation possibility if the parties face difficulties agreeing on an extended collective licence agreement. Thus the amendments intend to promote agreements in this respect. The Ministry of Culture notes in the explanatory notes that for example in the field of AI and text and datamining, there are often large international players, and experience has shown that there may be a need to formalise discussions in negotiations with large tech companies, and mediation can contribute to that.
The amendments further include the introduction of new specific extended collective licence provisions regarding television stations’ and online service providers’ on-demand offers. In conclusion, the amendments lead to a strengthening of the Danish extended collective license system. Also, the competence of the Copyright License Tribunal is expanded.
Furthermore, the amendments include various adjustments throughout the Copyright Act to bring it in line with EU copyright law, for example an adjustment of the public performance provision to cover also retransmission of tv taking place in a restaurant and internet streaming of music or films, etc., and it is no longer sufficient to determine on the basis of special indicators that there is public performance in commercial situations; now this is subject to a concrete evaluation in each case.
Finally, gender-specific wording throughout the Act is replaced by neutral wording.
The amendments to the Copyright Act enter into force on 1 July 2024.
The Danish Copyright Act – 3 amendments within the past few years:
- 2021: (L205) implementation of the SatCabII Directive and articles 15 and 17 of the DSM Directive on press publications and on online content-sharing service providers, respectively.
- 2023: (L125) implementation of the rest of the DSM Directive, including the text and datamining provisions and measures to improve licensing practises and achieving a well-functioning marketplace for copyright.
- 2024: (L145) modernizing to better reflect the technological development, and various other changes, among other things codification of the parody, caricature and pastiche exception.
References:
- Hearing on proposal for amendments to the Danish Copyright Act, with deadline for comments 12 January 2024 (in Danish) https://hoeringsportalen.dk/Hearing/Details/68225
- 20 March 2024 Parliament bill to amend the Danish Copyright Act, where the explanatory notes are included (in Danish): https://www.ft.dk/samling/20231/lovforslag/L145/som_fremsat.htm
- 4 June 2024 Act on amendments to the Danish Copyright Act, as enacted (in Danish): https://www.ft.dk/samling/20231/lovforslag/L145/som_vedtaget.htm
- Deckmyn judgment (c-201/13) of 3 September 2014: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62013CJ0201
- “The Little Mermaid” Danish Supreme Court judgment of 17 May 2023 (in Danish): https://domstol.dk/media/teena5gf/24506-2022-dom-til-hjemmesiden.pdf
21 June 2024
Terese Foged
(This article was published in IRIS Newsletter (European Audiovisual Observatory, under the European Council)
