The law provides a comprehensive definition of the term “performing artist”. According to Article 74 of CNRA, “A performing artist is a person who presents, sings, plays, dances, recites, acts, directs, conducts, comments upon, dubs into another language or otherwise performs a work, circus or variety act, a puppet show or a work of folklore”. This definition is even more comprehensive than that of the Rome Convention of 196197.
The law protects the moral and property rights of performing artists.
I. Moral rights
The legal framework of the protection of performers’ moral rights is established in Article 5 of the WIPO Performances and Phonograms Treaty.
The moral rights set out in the Treaty are as follows:
the performer shall have the right to claim to be identified as the performer of his performances;
the performer shall have the right to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
The remedies adopted to guarantee such moral rights shall be governed by the legislations of the contracting party, in the territory where protection is sought.
EU law does not provide protection of the moral rights of performers.
Moral rights in accordance with CNRA are:
the peformer’s right to demand that his name, pseudonym or stage name be indicated or otherwise communicated in the customary manner at each live performance, or on every use of a recording of that performance when it is reproduced or used in any other manner; This right is inalienable.
the right to demand the preservation of the completeness and integrity of a recorded performance in case of reproduction or use in any other manner. This right may only be alienated explicitly and in writing.
In case of collective performances the name of the ensemble or group as a whole shall be mentioned or announced in the customary manner; the names of the soloists, the conductor and the director of the stage performance shall be announced individually, unless otherwise agreed with these persons(Article 80, CNRA).
II. Performers’ property rights
The international regulation of property rights is primarily provided for by the Rome Convention, which protects the right to authorize:
broadcasting and public communication,
recording of an unfixed performance and
reproducing a fixation of their performance.
The Rome Convention is constituted upon the principle of national treatment, complemented by the rules of minimum protection the Convention. Member States of the Convention (mainly the common law countries) may formally demand placement of the symbol (P), accompanied by the year of the first publication, placed in such a manner as to give reasonable notice of claim of protection.
The Geneva Convention
The WIPO Performances and Phonograms Treaty provides for the following rights of performers:
to authorise the recording of their unfixed performances and their wireless broadcasting, and the communication to an unlimited number of persons of their unfixed performances, except for when the performance has already been broadcast by wireless means;
- to authorise the direct or indirect reproduction of their performances fixed in phonograms;
to authorise the making available to the public of the original and copies of their performances fixed in phonograms;
- to authorise the commercial rental to the public of the original and copies of their performances fixed in phonograms
toauthorise the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.
Unlike the Rome Convention, this Convention is not constituted upon the principles of national treatment and minimum Protection. The only factors for the granting of protection by the Convention are the performer and the producer’s nationality (Article 3).
Pursuant to Article 14, paragraph 1 of the TRIPS Agreement, performing artists shall have the right to prohibit the fixation of their unfixed performance and the reproduction of such fixations, as well as to prevent the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
EU law protects the following property rights of performers:
fixation right (Article 7 of Directive 2006/115), which provides for performers the exclusive right to authorise or prohibit the fixation of their performances;
right of broadcasting and communication to the public (Article 8 of Directive 2006/115), which provides for performers the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.
distribution right (Article 9 of Directive 2006/115), which provides for performers the exclusive right to make available to the public, by sale or otherwise, the fixations of their performances;
right of reproduction of fixations of their performances (Article 2 of Directive 2001/29), which provides for performers the exclusive right to authorise or prohibit the direct or indirect, permanent or temporary reproduction by any means and in any form, in whole or in part;
right of communication to the public of works and right of making available to the public of their works (Article 3, Directive 2001/29) in such a way that members of the public may access them from a place and at a time individually chosen by them;
the exclusive right to authorise or prohibit the rental and lending of fixations of their works.
Article 76 et seq. of CNRA provide for the property rights of performers. The property rights of performers are represented by a performer’s exclusive right to authorise in exchange for compensation:
1. the broadcasting of a performance of his by wireless, cable or other technical means, and the sound or video fixations of the performance, the reproduction of the fixations in audio or video media and their distribution.
the public performance and the broadcasting by wireless, cable or other technical means of such fixations.
the making available to an unlimited number of persons, by wireless, cable or other technical means, of his fixed performance or 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.
import and export of copies of the fixation of the performance of the work in commercial quantities, irrespective of whether they have been manufactured legally.
Rental or lending of fixations of his performance. Performers are entitled to a compensation for any use of the work and any subsequent use of the same kind.
- Autonomous qualification
The main part of our domestic law is adopted in order to transpose the EU law in regard to the aforementioned directives. These directive, 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 Union98. 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, while taking into consideration the international origin of the legal framework.
- Free use
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 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. The following shall be permissible without payment of compensation:
temporary reproduction of works provided the act is transient and incidental, has no independent significance and is an integral and essential part of a technological process, and whose sole purpose is to enable transmission in a network by an intermediary, or other lawful use of the work.
reproduction by a photographic, cinematographic or another analogous process, as well as by way of sound or video recording, of works related to current events, for the purposes of the mass media, to a limited extent justified by the purposes of information;
public presentation and public performance of published works in schools and other educational establishments, provided that there are no pecuniary revenues and no compensation is paid to the participants in the preparation and carrying out of the public presentation or performance;
reproduction of parts of films or other performances fixed in audio or video means schools or other educational establishments, and their use for educational purposes;
the single recording of performances by radio and television organisationsauthorised by the author, for the purpose of broadcasting the work by wireless means;
use of works during religious ceremonies or during official ceremonies organised by the public authorities;
reproduction of performances for private use only. This authorises
the performers whose performances have been fixed for compensatory remunerations when the fixations are
As mentioned above, in this case remuneration shall be paid by the persons producing or importing blank audio or video media. By analogy, the distribution right of phonogram operators or the right to distribute video media shall not be exhausted after the first sale or another contract which transfers the ownership of the original. This does not prevent
the subsequent rental of audio or video media.
- Term of protection under CNRA
The rights of performing artists shall remain in force for fifty years after the date on which the performance occurred. If the performance has been fixed in a phonogram and lawfully published or lawfully communicated to the public within this fifty-year period, the term of protection shall run for seventy years after this event. If both events have occurred, the seventy-year period shall commence at the earlier date among the two. The term shall run from the first of January of the year following the year in which the recording of the performance was published, or, and where the recording has not been published or the performance has not been recorded -at the beginning of the year, following that in which the first performance was held.
Case-law of the Court of Justice
The EU Court had the opportunity to interpret Article 10(2) of Directive/2006/116/EC, considering that, under this provision, Member States shall apply the terms of protection provided for by Directive 2006/116 to all works or subject matter which were, on 1 July 1995, protected as such in at least one Member State. Thus it may be concluded from the text in Article 10, § 2, mentioned above, that the alternative requirements under that provision concern the prior existence of protection for the subject matter at issue in at least one Member State. The provision does not require this Member State to be the State in which protection is sought. (paragraph 22 of the Judgement). In order to guarantee unimpeded functioning of the internal market, the Directive aims to harmonise the legislations of Member States in such way as to ensure that the terms of protection are the same in the whole Community. The differences between national Laws may impede the free movement of goods and the freedom to provide services, and also distort the competition in the common market. Thus, in accordance with Article 10, § 2 of Directive 2006/116, the term of protection laid down in the Directive applies even when the subject matter at issue has not been protected at any time in the Member State in which the protection is sought, and it shall apply to all works and subject matter that were protected, on 1 July 1995, in accordance with
the provisions in the field of copyright and neighbouring rights of at least one Member State. Not only does the Directive harmonise the terms of protection in Member States, but it also applies to the existing cases where a neighbouring right occurred prior to the entry into force of the Directive, and, as of 1 July 1995, the said right was protected in at least one Member State.
- Collective representation
Collective representation of performers is necessary in three cases:
when they exercise the so-called “small rights”;
- when they receive the portion of compensatory remuneration due to them;
- when the fixations in phonograms or video media are reproduced for private use.
- Protection of the names of groups of performers.
Article 83 of the law provides for the protection of the names of groups of performers. This type of protection is, to an extent, similar to the protection granted to trademarks. The fundamental principle in the Bulgarian legislation is that a name registered by one group must not be used by another. The law takes into account the fact that musical performances are collective in many cases. The name of the group of performers shall be registered by the Ministry of Culture. The names of groups of performers must be registered in the Cyrillic alphabet alone. If requested by the applicant, the same name may also be added in another alphabet. The law stipulates that if another group has used the same or a similar name prior to the registration, it may seek the annulment of the register entry. Disputes over the similarity of names, or other rights shall be settled by the court. The group of performers’ name shall be protected for ten years after the end of the activity of the group of performers. The term shall run from the first of January of the year, following that in which the activity was discontinued.