In accordance with Article 95 of CNRA, a person who infringes the copyright or a neighbouring right under this Act shall owe a compensation to the holder of copyright or the person to whom the user right has been exclusively granted. Such a claim for damages shall be considered as deriving from the general claim for damages laid down in the Obligations and Contracts Act (Article 45 Obligations and Contracts Act (ЗЗД)).
Which damages are compensable?
This special claim is governed by a set of general provision of Civil law, among which is the rule that all damages which are a direct and immediate consequence of the right infringement may be claimed (Article 95(2) CNRA). An example of the above is if a periodical uses a crossword puzzle without the consent of its author and publishes and distributes it on the periodical’s last page, without citing the name of the crossword puzzle’s author. In this case, the direct and immediate damages for the author are both property (the author cannot realise a profit from authorising the use of the crossword puzzle) and moral (as the author’s name is not cited where the work is used, which infringes the author’s right of paternity.)
The specificity of copyright, however, and the need to ensure effective protection of the author give rise to the need to create a number of special rules regarding claims for damages. The principal rule is that the compensation must be fair and the law (Article 95 of CNRA) defines fair compensation as “having a restraining and warning effect on the infringer and the other members of society.” Apart from their purely compensatory function, compensations for damages have a restraining function too. The compensation settled by the court shall compensate the author. This corresponds with the classical concept of liability in civil law. In addition to their compensatory function, CNRA sets out a restraining function of the compensations for damages for the infringement of copyright and neighbouring rights. The compensation will have a “restraining” effect on the infringer, if it exhausts the benefits for the infringer stemming from the infringement. Thereupon, Article 95(3) of the Act provides that, when settling the amount of compensation, the court shall take into account
the profits realised by the infringer as a result of the infringement. If we consider the example above, the amount of compensation settled by the court will vary depending on the revenue generated from the sale of the print-run. If the sales are higher, the court should increase the amount of compensation.
Authors are granted further benefits upon claiming damages under Article 95 of CNRA. In derogation from the general provisions of civil law, which require complete proof of the total damages, when the grounds of the claim have been established, but there is not sufficient information about the amount of the compensation, the plaintiff may demand in place of compensation between five hundred and one hundred thousand BGN, the exact sum being fixed at the discretion of the court where all relevant circumstances shall be considered.
Other claims granted to the author for the protection of his rights are set out in Article 95 (b) of CNRA. In case of infringement of a right under CNRA, the author and the other persons provided for by the Law may submit the following claims:
claim to determine the act of infringement;
claim to restrain the unlawful use or prohibit activities which will constitute unlawful use;
seizure and destruction of illegally produced copies of the work, including negatives, master copies, printing blocks and other material used for the purposes of copying;
seizure and disablement of the copying, decrypting and reproduction equipment used exclusively for committing the infringement;
delivery to the author of the unlawfully reproduced copies and all other articles related to said reproduction.
disclosure of the court’s judgement, at the expense of the infringer, in two newspapers and on national television, at a time determined by the court.
Collective management organisations and professional organisations for protection of rightholders are also entitled to the aforementioned claims.
The infringement of copyright and neighbouring rights is governed by the general jurisdiction. No special courts have been established.
The law’s only special requirement is that such disputes be heard by the District Courts of first instance, irrespective of the price of the claim.
Special rules are established with respect to the provision of evidence in interim proceedings. The Court may, at the request of the claimant, oblige the defendant to provide access to bank, financial and commercial documents under his control. The submission of evidence about a single unlawful use of protected subject-matter shall be considered sufficient for the enforcement of this measure. The Court may, at the request of the claimant or a third person, provide information regarding circumstances relevant to the case settlement.
Case-law of the Court of Justice
The EU Court has extensive experience in interpreting Directive 2004/48/EC.
Thus, the European Court of Justice ruled in a Judgement of 29 January 2008 on case С 275/06 that Directive 2004/28 and Directive 2002/58 shall not oblige Member States to lay down an obligation to disclose personal data, in order to ensure effective copyright protection in the context of civil proceedings112. At the same time, this Community law requires that Member States monitor the interpretation of these Directives at their transposition, which contributes to the harmonisation of different fundamental rights protected by Community law. Furthermore, when implementing the measures for transposition of the aforementioned Directives, the official bodies and jurisdictions of Member States shall, on the one hand, interpret their national law in accordance with these Directives, and also preclude any interpretation of the latter that would conflict with the settled fundamental rights or other general principles of Community law, such as the principle of proportionality.
The Court of Justice considers in regard to case С-557/07 and more specifically Article 8, § 3 of Directive 2004/48 in connection with Article 15, § 1 of Directive 2002/58 that Member States may lay down an obligation of communication of personal traffic data of
third private entities, so that they may bring a civil act against copyright infringement113.
In another Judgement, the Court of Justice rules that the interpretation of Directive 2006/24 does not exclude the implementation of national law adopted in accordance with Article 8 of Directive 2004/48 and permits that the Internet service provider be obliged, for the purpose of identifying an Internet service subscriber or a user of such service, to provide the copyright holder or the person who is granted exclusive rights by the rightholder with information regarding the identity of the subscriber that has been given a particular IP address by the Internet service provider, which is alleged to have been used for the infringement of copyright.
With regard to possible collisions between the Law for Protection of Personal Data and the protection of intellectual property, the Court of Justice considers in Judgement C461/10 that Directives 2002/58 and 2004/48 must be interpreted as permitting national legislations to compare, to the extent that the national legislation allows the national jurisdiction seized by the request of a duly party for issuance of an injunction for the disclosure of personal data, the respective opposing interests by taking into consideration the circumstances of the particular case and duly accounting for the requirements pursuant to the principle of proportionality114.
The Court of Justice rules in favor of the disclosure of the bank secret when this is necessary for the effective exercise of the copyright holder’s right to judicial protection against infringement of his author’s right. Bank secrecy may interfere largely with the fundamental right of effective judicial protection and ultimately with the fundamental intellectual property right to which rightholders are entitled. Consequently, the Court of Justice considers that Directive 2004/48 must be interpreted as precluding a national provision that grants bank institutions the unlimited and unconditional right to refuse, under Article 8(1)(c) of this Directive, information regarding the name and address of account holders, invoking bank secrecy115.
Along with this simplification of the procedure, the plaintiff may request the court to impose a number of safeguard measures ensuring a successful trial and the implementation of the Court’s Judgement. At the beginning of the proceedings the court may:
prohibit the performance of the activity alleged to constitute or to be about to constitute an unlawful use of a work;
seize the copies of a work alleged to have been unlawfully reproduced;
seize or seal equipment alleged to have been used or to be about to be used to commit infringement;
seal the premises alleged to have been used or to be about to be used to commit infringement;
These safeguard and interim measures may be imposed both on the defendant and on third persons, when there is sufficient evidence that the latter are involved in an activity alleged to constitute or to be about to constitute unlawful use.
The Court of Justice implements such arguments to deny the possibility of imposing an obligation on a hosting provider for general and constant filtering of information for the benefit of copyright holders116.
The Court of Justice precludes the possibility of imposing on an Internet provider the obligation to completely disable the Internet connection as a measure to stop the infringement of copyright. The application of such measure would prejudice the entity’s right of commercial initiative, even if providing access is only an additional economic activity, as such application, in fact, prohibits the performance of this activity altogether in order to preclude a restricted copyright infringement without providing for measures less prejudicial to this freedom117.