- a response to changing times
A long process has finally resulted in the passing of a new Copyright Act (No
LXXVI of 1999) ('the Act') in Hungary, which entered into force on 1 September
1999.
Copyright was regulated by legislation in Hungary as early as 1884. The 1884
Act, which was influenced by German and Austrian legislation, was followed by
the Copyright Act of the socialist era in 1969 which, however, maintained
basically all essential elements of the copyright system. Political and
economic changes in the region, rapid technical development and ever-increasing
international regulation of this field of law have meant that changes in
domestic Hungarian law are inevitable. Furthermore, Hungary has had to face the
challenges imposed by joining the European Union.
Hungary has also joined all major international treaties on copyright, such as
the Berne Convention, the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPs), the WIPO Copyright Treaty and the Performances and
Phonograms Treaty. A number of further obligations have been imposed on Hungary
in concluding the bilateral Agreement with the USA on Intellectual Property in
1993 and by joining the Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations in 1994, as well as by
the 1991 Agreement between Hungary and the European Communities on Associated
Membership.
The new Act was eagerly awaited as it was expected to: · harmonise local copyright law with Hungary's international obligations;
Following the general provisions, there are separate chapters concerning the
individual genres of works and of related rights, collective administration of
rights, legal consequences of infringement and, at the end, miscellaneous and
closing provisions that provide for transitional regulation as well as for
dates of entering into force.
In connection with the protection of software, Hungarian courts were among the
first courts to deal with this issue, passing a judgment on copyright
protection of computer programs in 1972. Following judicial decisions, Hungary
was the third country, after Austria and Germany, to provide for direct legal
provisions on copyright protection of software. The Act now includes a whole
chapter dealing with rights in software, rendering Hungarian legislation fully
compliant with the respective European Directive 91/250. Accordingly, the Act
includes provisions on the transferability of financial rights in software,
secures the right for any authorised user to study and try out the software and
to make a security back-up copy. Provisions also allow a user to rearrange,
make use of, copy, translate and modify such software, unless otherwise agreed,
provided in each case that such acts are done in compliance with the ordinary
purpose of the given software.
Legal requirements introduced by European Directive 96/9 meant that the Act had
to cover the protection of databases. Databases have secured copyright
protection whether or not their parts and contents are afforded protection. The
Directive and the Act also aim to increase the available protection for
multimedia works which, until now, have been less well regulated.
One of the most hotly disputed issues related to the above is the legal
evaluation and regulation of the internet and the various ways of using it. The
main difficulty with the internet is that it contains non-traditional
'material'. Also, the use of copyright protected works and transmission of
works to the public takes place in non-material ways. This kind of unlimited
flow of information is contrary to the basic principle of copyright law which
secures exclusive rights to permit multiplication and transmission to the
public of copyrighted intellectual property. The new Act has addressed the
problems arising from the application of formerly established definitions of
'use', 'multiplication' and 'making public' to the internet, although not
mentioning them expressly in the wording of the Act. This may seem curious, but
not particularly significant, since the standpoint of the Hungarian Act is - in
accordance with that of the European Union - that the internet is not a new
copyright law category to be regulated individually, but rather a new medium
for making use of works.
Accordingly, the legal definition of use has been amended and is defined
broadly including but not limited to the following:
In particular, storing a work in a digital form on any electronic equipment and
production in a material form of works transmitted by a computer network both
qualify as multiplication. Similarly, due to the distribution of protected
works via computer networks becoming more common, an internationally recognised
provision has been incorporated in the new Act, whereby a work can be made
available to the public even where the user may select the place and time for
downloading of the work. In addition, the presentation of protected works on a
screen or making such works visible on a computer qualify as public performance
and transmission to the public, respectively.
During the last two decades, the need to extend the basis of royalty claims has
arisen with respect to large-scale copying for personal use. Accordingly, the
Act has introduced reprography royalties to be paid for reprography equipment
by their producer or importer, as well as for commercial reprography
activities. A number of detailed provisions on the distribution of such
reprography royalties have been incorporated into the Act, also applying to
book and music publishing companies. Due to the period of time required for the
many people affected by these provisions to comply, the provisions concerning
reprography and royalties will not come into force until 1 September 2000.
In accordance with the European Directive, the exclusive distribution rights of
the author now include the lease as well as the hire of the work to the public,
with a royalty to be paid to the author. However, certain organisations may be
exempted from the payment of such royalty, eg public libraries may freely hire
individual copies of a work (with the exception of software and electronic
databases).
In relation to related rights, the Act secures the exclusive right for
performers and producers of phonograms and films to multiply and distribute
their respective works. This includes the right to make them available to the
public for hire or by any other means whereby individuals may select the time
and place for downloading of the work. This also reflects provisions of the
WIPO Copyright Treaty and Performances and Phonograms Treaty, which were
ratified by the Hungarian Parliament in 1998.
Prior to the Act, collective administration of rights was regulated by a
Government Decree, the content of which has been greatly modernised,
differentiated and incorporated into the Act. The effective operation of such
organisations, each operating practically as a monopoly, has also been
acknowledged by competition law practice and legislation within the European
Union. Accordingly, the Act provides for the mandatory and exclusive
registration of such an organisation for the administration of rights in each
of the following fields:
Detailed provisions of the Act assure that each of these organisations shall
have appropriate representation and shall possess reasonable computer and
database infrastructure and the required expertise.
Hungarian legislation implemented changes in copyright law in 1994 to comply
with European Directive 93/98. This lengthened the protection period to 70
years post-mortem auctoris for copyright and up to 50 years from the year of
transmission to the public, or first distribution of the work, for related
rights. The only aspect in which harmonisation with the Directive proved to be
missing was the lack of copyright and neighbouring right protection with
respect to works and performances for which protection had already lapsed at
the time of the modifications. This defect, which was particularly unacceptable
in terms of the TRIPs Agreement, has been rectified by the present Act, which
secures protection for all works and performances for the full period of the
respective protection. There are provisional rules to regulate any use of these
works in the meantime, which allow the distribution of already produced copies
of protected works for an additional year.
Among the international conventions, the TRIPs Agreement provides the most
severe legal consequences for infringement of copyright. In general, the
Hungarian regulations now conform to the international requirements. The new
Act gives a full coverage of civil law sanctions including material and
immaterial damages as well as the grant of preliminary injunctions by a court
prior to the full hearing of a case. New provisions of the Act provide
protection against evasion of respective technical measures used for the
protection of copyright and related rights and for appropriate data protection
during the collective administration of rights by the respective organisations.
As well as the Act, a separate Government Decree in 1997 set up a framework for
legal steps and procedures for effective immediate measures by Customs
Authorities including the seizure of counterfeit or pirated goods and other
steps against infringers of copyright or related rights.
As to criminal sanctions for copyright infringement, one may note that the
Hungarian Criminal Act has been imposing grave sanctions against the
infringement of copyright and related rights for several years. The effective
enforcement of these provisions has been aided in the field of computer
technology, among others, for several years by the Business Software Alliance
(BSA). As a consequence of carrying out a number of successful raids and
initiating legal proceedings and as a result of the higher level of awareness
of the increased number of applicable legal provisions, the use of counterfeit
or pirated software products has dramatically decreased in Hungary.
Corresponding to the enactment of the new Act, a Bill on the overall revision
of the Criminal Act has been passed by Parliament and the respective provisions
will come into force on 1 March 2000. These include even wider protection
against the infringement of intellectual property rights and, within that,
copyright and related rights.
The new Copyright Act provides for clear and effective regulation of copyright to replace the former, partially obsolete, legal framework which dealt with copyright unreasonably on several levels of law. There are several disputed aspects of new technologies which will still have to be addressed by the legal profession, such as MP3 compressed files, the storage of works in digital form and the digital protection opportunities provided by a watermark. The Act is noteworthy for its flexible approach. It avoids any onerous lists and references, allowing new forms of works and new forms of use to be included without the need for further structural changes to the Act. By concise modernisation of the fields covered in the Act, Hungary has met its harmonisation obligations in this field, which can only contribute to a smoother joining of the European Union in the near future.