Montenegro has recently amended the Copyright and Related Rights Act (“Copyright Act“). The amended law aims to align domestic legislation with EU Directive 2019/790 on Copyright in the Digital Single Market (“DSM Directive“) and Directive 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programs (“SatCab Directive“). The law entered into force on 24 October 2024.
Below we present the key novelties in the Montenegrin legislative framework related to copyright.
Text and data mining exception
Amendments to the Copyright Act, borrowing from the DSM Directive (Articles 3 and 4), establish the right to conduct text and data mining in certain circumstances. As defined in the amended Copyright Act, data and text mining involves the use of automated analytical techniques to analyse text and data in digital form in order to generate information that includes but is not limited to patterns, trends, and correlations. Since data and text are typically protected by copyright, the mining is potentially infringing. However, the Copyright Act introduces two exceptions to exclusive rights.
First, research organisations and cultural heritage institutions can reproduce lawfully accessible works in order to carry out, for the purposes of scientific research, text and data mining of works without any obligation to pay a fee.
Second, anyone with lawful access to copyrighted works may reproduce the work for the purpose of text and data mining without paying a fee. However, this exception is limited, insofar as the rightsholder may expressly reserve the right of reproduction.
Additionally, a new software copyright exception in connection to data and text mining is established in Article 113a of the Copyright Act. The provision stipulates that anyone with lawful access to works protected by copyright may, for the purpose of data and text mining, reproduce, alter, translate, adapt, or modify software in part or in whole.
Online content-sharing service providers
The amended Copyright Act dedicates a section to online content-sharing service providers, in a manner similar to the DSM Directive, Article 17. Online content-sharing service providers are information society service providers who, for profit, store, give the public access to, organise, and promote a large amount of copyrighted works or other protected subject-matter uploaded by its users. The law stipulates that online content-sharing service providers must obtain authorisation in accordance with the newly added Article 167 from the rightsholders to make the copyright-protected works available to the public.
Article 167, which transposes Article 12 of the DSM Directive, creates a mechanism of collective licensing with an extended effect, meaning that the agreement between the collective management organisation and a provider applies both to the rights of rightsholders who have authorised that collective management organisation to represent them and the rightsholders who have not given such authorisation.
Those providers of online content-sharing services who do not obtain authorisation from the rightsholders in accordance with Article 167 are liable for unauthorized acts of making protected works available to the public. The Providers will be held liable unless they demonstrate that (i) they have made best efforts to obtain authorisation, (ii) they have made best efforts to ensure the unavailability of specific works, and (iii) they have acted expeditiously, upon receiving a sufficiently substantiated notice from the rightsholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and have made best efforts to prevent their future uploads.
The amended Copyright Act allows the use of copyrighted works, without payment of fee, for the purpose of caricature, parody, or pastiche (Article 52b). That amendment to the Copyright Act is taken from the DSM Directive (Article. 17.7), where the context relates to the uploading and making available of user-generated content on online content-sharing services. In the Montenegrin law, the exception has a general application, i.e. it applies online and offline. Before the latest changes, the copyright law in Montenegro allowed the adaptation of a work for the purpose of caricature, parody, or pastiche, but the law did not contain a provision that the “use” of the work was allowed for these purposes.
Press publications and online uses
A new provision in the law introduces the protection of press publishers in the event that press publications are used online by information society service providers. This provision transposes DSM Article 15, probably the most controversial provision in the Directive at the time of its adoption. Press publishers may authorise or prohibit the information society service providers from reproducing or making available to the public protected works for a period of two years from the date of publication.
The press publisher’s right does not apply to the private or non-commercial use of press publications by individual users, acts of hyperlinking, and the use of individual words or very short extracts from press publications.
Clarification of the scope of the right to communiction to the public
The amendments clarify the scope of the right to communication to the public, by transposing certain provisions from the SatCab Directive (Articles 4 on retransmission and 8 on direct injection).
The Copyright Act already included a provision on the right to cable retransmission. An amendment now introduces retransmissions other than cable. The newly introduced retransmission means any simultaneous, unaltered, and unabridged retransmission by wire and over the air including that by satellite, but not by online transmission. The authorisation for retransmission of programmes may be granted or refused by the holders of the exclusive right of communication to the public.
The amendments also introduce the concept of “transmission of programmes through direct injection”. Direct injunction is defined as a technical process in which a broadcasting organisation transmits its programme-carrying signals to a signal distributor in such a way that during transmission those programme-carrying signals are not accessible to the public, and the signal distributor subsequently transmits those programme-carrying signals to the public. The law considers that the broadcasting organisation and the signal distributor participate in a single act of communication to the public in respect of which they must obtain authorisation from rightsholders.
Rightsholders may exercise their right to grant or refuse the authorisation for retransmission and direct injunction only through the collective management organisation.
Revocation and termination if the work is not being adequately exploited
The DSM Directive in Article 22 stipulates that the author or performer may revoke in whole or in part the license or the transfer of exclusive rights on the protected work or other protected subject matter, or terminate the exclusivity of the contract if the work is not being adequately exploited. That provision is now incorporated in the amended Copyright Act in Montenegro, only in relation to authors. The difference compared to the earlier provision in the law is that the author can now choose to terminate the exclusivity of the contract instead of revoking the license or transfer of the rights.
