These are actually the only rights owned not by a natural person, but by a legal entity102. The broadcasts of radio-television organisations are the protected subject matter. A television programme may contain various works: literary, musical, dramatic, etc. which are granted copyright protection. It may comprise various performances also protected under neighbouring rights. In all cases, radio and television organisations shall be protected by being granted a neighbouring right. Authors’ copyright and performers’ neighbouring rights, and the rights of radio and television organisations co-exist.
The rights of co-authorship apply accordingly to the neighbouring rights of broadcasting organisations. When a programme is created by two or more broadcasting organisations, the neighbouring right is joint, irrespective of whether the programme constitutes an inseparable whole or consists of independent parts. A neighbouring right may not be exercised in a manner which might result in infringing or restricting copyright. This basic principle is enshrined both in EU Law and our national law (Article 72a of CNRA).
Until proven otherwise, a rightholder, under Article 72, is considered to be the entity whose name, title or other identification mark is indicated in the usual manner in the course of presentation of the programme.
The development of technology has brought changes to the principles of creative activity, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted as to respond adequately to economic realities such as new forms of exploitation
I. International legal framework of the rights of broadcasting organisations.
The international legal framework of the rights of broadcasting organisations derives from two sources:
The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention of 1961)104.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The sources of EU law that govern the rights of broadcasting organisations are:
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version);
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services.
The directives above are transposed into the national law in:
The Copyright and NeighbouringRights Act;
Radio and Television Act.
First of all, radio and television organisations have the exclusive right to authorise or prohibit the fixation of
theirbroadcasts, irrespective of whether these broadcasts are transmitted by wire or over the air, including by cable or satellite105. (Article 13(b) of the Rome Convention; Article 14, p.3 of TRIPS and Article 7(2) of Directive 2006/115). “Audiovisual programme” means a set of moving images with or without sound constituting an individual item within a programme schedule or a catalogue established by a media service provider and whose form is comparable to the form and content of television broadcasting (Article 2(3) of the Radio and Television Act). Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama (Article 1(1)(b) of Directive 2010/13/EU).
Right of reproduction
Broadcasting organisations are entitled to reproduction of their fixed works.
Right of broadcasting and public communication
Radio and television organisations may include a programme in their broadcast and communicate it to the public or broadcast it by wireless means, provided the author has consented to the communication of his work to the public by wire or wireless means, including the making available to the public of his works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Three European Directives consider the principal director to be the author of a cinematographic or audio-visual work106. Article 2, § 1 of Directive 2006/116, entitled “Cinematographic or audiovisual works” lays down a rule according to which the principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors and Member States shall be free to designate other co-authors. Thereupon, this provision is to be interpreted in the sense that irrespective of the national legislature’s choice, the principal director of a cinematographic work, unlike the other authors of
such works, shall enjoy the status of an author in all cases, by virtue of the aforementioned Directives107.
As already mentioned, CNRA considers the authors of a film to be the director, the author of the screenplay and the director of photography. The copyright in cartoons shall belong also to the artist-director. In regard to other audio-visual works and programmes, the Bulgarian law does not provide for expansion of the circle of authors of audio-visual works other than films.
When broadcasts contain works protected by neighbouring rights, radio and television organisations may include a programme in their broadcast and communicate it to the public or broadcast it by wireless means, provided they have been given consent by the performers, who have the exclusive right to authorise or prohibit the broadcasting by wireless means or the public communication of their works, except where the performance is itself already a broadcast performance or is made from a fixation.
The right of equitable remuneration of performers and producers.
In accordance with Article 8, § 2 of Directive 2006/115, Member States shall provide a right which ensures that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public. It follows from this provision that the person using a phonogram for the purpose of broadcasting or communication to the public shall be considered a “user” within the meaning of the provision at issue. The user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give access to a broadcast containing the protected work to its customers. In the absence of that intervention, its customers, although physically within the area covered by the broadcast, would not, in principle, be able to enjoy the broadcast work. The public must comprise an indeterminate number of potential listeners and a fairly large number of people that cannot be characterised as a “private group”.
The concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant. In that connection, not only is it relevant to know how many persons have access to the same work at the same time but it is also necessary to know how many of them have access to it in succession. The profit-making nature of the communication to the public is irrelevant. The public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance108.
The term “communication to the public”, set out in Article 8 § 2 of Directive 2006/115, is to be interpreted in view of and consistently with the relevant concepts used specifically in WPPT, while also taking into account the context of their use, and the purpose of the relevant provisions of the pertinent international acts.
Right of distribution
Broadcasting organisations shall have the exclusive right of distribution in respect of fixations of their broadcasts109. They will have the right to distribute programme services and programmes solely after copyright and neighbouring rights have been settled in advance110. The exclusive right of authors, in respect of the original of their works or of copies thereof to authorise or prohibit any form of distribution to the public by sale or otherwise is also set out in Article 4(1) of Directive 2001/29. The right of distribution is not limited within the EU, except for when the first sale of the subject matter at issue in the Community is carried out by the rightholder or with his consent. The right of the broadcasting organisations to authorise or prohibit the rental and lending of originals and copies of fixed or reproduced broadcasts and programmes is not exhausted by the sale or other act of distribution of such originals and copies of broadcasts, programmes or parts of programmes
- Transposition of EU Law in the Bulgarian Copyright and Neighbouring Rights Act.
Article 91 of the Copyright and Neighbouring Rights Act provides for the exclusive rights of radio and television organisations that have made the initial broadcast of their own programme:
1. the right to grant permission in return for compensation for re-broadcasting of the program by wireless means or retransmission thereof by electronic communication networks ; Alike phonograms, broadcasting is a derivative activity. It grants broadcasting organisations the exclusive right to authorise, in return for compensation, re-broadcasting of the program by wireless means or retransmission thereof by electronic communication networks without the consent of the holders of copyright or neighbouring rights. Directive 93/83/EEC defines the concept of “cable retransmission” as the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public. Despite the use of the word “cable”, the definition itself allows for the retransmission to be conducted by another microwave system, though without specifying the exact type of this other system. The term “microwave system” should be interpreted in the widest sense possible in order to cover all methods and means of transferring television and radio programmes designated for public reception. The Bulgarian Electronic Communications Act offers one such broad interpretation of the term. §1, item 15 of the Additional Provisions of this Act offers the defines the term “electronic communications network” by setting out a comprehensive definition of the means of conveyance of signals: by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity distribution networks, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable electronic communications networks used for broadcasting of radio and television programme services, irrespective of the type of information conveyed. Here, the term “retransmission by an electronic communications network” is to be interpreted in accordance with “cable retransmission” for
the purpose of this Directive and is to cover all means for signal transmission. Legal provisions grant broadcasting organisations not only the right to authorise retransmission by electronic communications network but also to authorise re-broadcasting. This right, however, is covered by the right of retransmission because, as already established, it includes retransmission both by cable and by wireless means. The provisions of Article 91(1)(1) of CNRA implement into the Bulgarian law the provisions of Article 8(3)(1) of Directive 2006/115/EC.
The right to authorise in return for compensation the recording of the program and reproduction and distribution of the recordings (Article 91(1)(2) of CNRA). This provision of the Bulgarian law implements the provisions under Article 7(1), Article 8(1) and Article 9(1)(d) of Directive 2006/115/EC mentioned above.
The right of offering to an unlimited number of persons, by wireless, cable or other technical means, of access to the film or a part thereof in a manner permitting the access to be had from any place and at any time individually chosen by each one of those persons(Article 91(1)(3) of CNRA). This text considers the hypothetical access to a given broadcast or programme via the Internet or a similar information network;
The right of public performance of a programme, where this is carried out in places available to the public after payment of an entrance fee (Article 91(1)(4) of CNRA). This provision implements into Bulgarian law the provisions under Article 8(3)(2) of Directive 2006/115/EC.
The main part of our domestic law is adopted in order to transpose the EU law in regard to the aforementioned Directives. These Directives, on the other hand, are largely aimed to bring into force the international agreements to which the EU is a party. Pursuant to the settled case-law of the Court of Justice, the provisions under the law of the Union should be interpreted, as far as possible, by taking into account international law, especially when the aim of such provisions is to bring into force the international agreements concluded by the Union111. Our domestic law, which adopts European Directives, is to be interpreted in accordance with the meaning of such Directives and their interpretation by the EU Court. It follows from the above
that common interpretation of the provisions at various levels (international, EU and national) should be sought.
Right of remuneration
Broadcasting organisations are entitled to remuneration for any use of the work and any subsequent use of the same kind.
- Free use
Directive 2001/29/EC provides for the free use of the subject matter of neighbouring rights of radio and television organisations. It sets out sixteen cases with regard to broadcasting organisations where Member States may provide for free use. As the right of free use of works is an exception to the general right of protection of broadcasting organisations, the cases specified in the Law must be interpreted restrictively.
Free use of works shall be permissible only in the cases specified in the Law, provided that it does not prejudice the normal exploitation of the work and does not prejudice the legitimate interests of the copyright holder. As for the free use without consent by the broadcasting organisation and without payment of remuneration, temporary reproduction of works shall be permitted provided the act is transient and incidental, has no independent significance and is an integral and essential part of a technological process, and its sole purpose is to enable transmission in a network by an intermediary, or other lawful use of the work.
Free use is permissible also with regard to excerpts (parts) of programmes already made available to the public at criticism or overview, provided the source and the name of the organisation, holder of neighbouring rights be indicated, unless impossible. The quotation must be done in the usual manner and be in an amount justified by the purpose.
The use of previously broadcast programmes in other works in an amount, necessary for analysis, commentary or other kinds of scientific research shall be permissible without the broadcasting organisation’s consent or payment of remuneration. Such use shall be permissible only for scientific and educational purposes, provided the source and the name of the author be indicated, unless impossible.
Free use is granted to schools and other educational institutions when using programmes for educational purposes.
Free use of broadcasts and programmes is permissible for the purposes of national security, in judicial or administrative proceedings or parliamentary practice, as well as in religious ceremonies or official ceremonies organised by public authorities.
Under no circumstances may free use be carried out in a manner which involves removal, damage or disruption of technical means of protection without the consent of the copyright holder. Users whose right of free use is recognised by the law, but hindered by technical means of protection are entitled to request that the rightholder grant them a reasonable degree of access, justified by the particular purpose.
- Duration of neighbouring rights
The neighbouring rights of radio and television programmes shall be protected for fifty years. The term shall commence on the first of January of the year following the year of the first broadcast or transmission of the programme.
CHAPTER 3. INFRINGEMENT AND REMEDIES.
Although Bulgaria joined the TRIPS agreement in 1996, prior to our accession to the EU the Bulgarian Copyright Act did not have traditionally strong mechanisms for copyright protection. Earlier, means of protection such as confiscation of illegal copies or materials, or equipment used for the manufacturing of illegal copies did not exist. In cases where the old legislation provided for compensation for losses, the latter were estimated by the Court on account of the tariffs adopted by the Council of Ministers.
The Copyright and Neighbouring Acts right has created a much stronger mechanism of protection. After our accession to the EU in 2007, this Act implemented in the Bulgarian law Directive 2004/48/EC on the enforcement of intellectual property rights. The Bulgarian law provides for three types of remedies: criminal, administrative and civil.