I. Moral rights.

International legislation: Berne Convention 46.

Moral rights were provided for, for the first time, in the Berne Convention, Article 6bis, paragraph 1. This text protects two rights: the right of paternity and the right to the integrity of the work. These two moral rights represent only

a fraction of the list of moral rights protected in different countries.

Moral Rights under CNRA

Eight moral rights are set out in Article 15 of the Bulgarian CNRA.

The first of these is the traditional “right of communication of the work”47. According to Article 15(1)(1), the author has the right to decide whether the work created by him or her may be disclosed and determine the time, place and way of the said disclosure. This right is not guaranteed to authors of films and other audiovisual works, authors of realized architectural works and applied land-use plans, authors of approved architectural projects, approved land-use projects, maps, schemes, blueprints and other works related to architecture, spatial planning, geography, topography, museum activity, or any other field of science and technology. Exercise of this right in said cases shall be arranged by contract.

A characteristic of the right of communication is that it is always realized in combination with another right of the author: for instance, through publication of a literary or scientific work, or public performance of an artistic work. During the author’s lifetime, he may not be forced by anyone to disclose his work, even if the said work was created as a result of obligations under an employment relationship48.

The second moral right recognized by the law is the so-called right of paternity, “droit de paternite”. This is the author’s right to demand recognition of his authorship of a work. This right is inseparable from the author’s identity and may not be alienated on any grounds, including under a contract, or through succession. The right of authorship arises with the mere fact of creating the work. The law provides for six other moral rights related to this right:

• the author’s right to decide whether his works shall be made available to the public anonymously or pseudonymously and

  • the author’s right to require that his name, pseudonym or other identifying mark be identified in a suitable manner whenever his work is used;

  • the right to authorial reputation and integrity is the author’s right to preserve his or her reputation and the integrity of the work. The law adds “oppose any changes therein as well as any other actions that may violate his legitimate interests or personal dignity.”

  • the author’s right make alterations in the work inasmuch as this does not prejudice rights acquired by other persons.

  • the author’s right to have access to the original of the work when it is in the possession of another person and whenever such access is necessary for exercising non-economic or economic rights under this Act.

  • the author’s right to halt the use of the work due to changes in his beliefs, with the exception of already implemented architectural works, providing compensation for the damages incurred by persons who have lawfully obtained the right to use the work. The specificity of author’s rights in architectural works is that the author of an architectural design shall not be entitled to oppose the wish of the owner of the already completed structure to destroy the latter, reconstruct it, add a superstructure or an annex thereto, as long as such actions are undertaken in conformity with existing regulations. The owner of the architectural work may file a request to the relevant collective management organisation, which is obligated to consult them in order to determine the way such alterations are to be made.

The Bulgarian legislation recognizes only two moral rights as inalienable. These are the author’s right to claim authorship of their work and the right to demand indication of their name, pseudonym or any other identification mark at any use of the work. The other six moral rights can be alienated, however only explicitly and in written form.

According to CNRA, all moral rights, except for the right to alter the work and the right to halt the work due to a change of the author’s beliefs, shall be transmitted to the successors and may be exercised until expiry of the term of copyright protection.

Two other moral rights must still be protected after expiry of the term of copyright protection – the author’s right to claim the work in his name and the right to preserve the integrity of the work. This is the way of preserving cultural heritage for next generations.

II. Property rights

International legislation: Berne Convention

The convention sets out the rights related to the use of works which Member States undertake to protect. The property rights protected by the Convention (Articles 8 – 14) are uniform for the national legislations of EU’s Member States 49.

Property rights under the TRIPS Agreement

Article 9 of the TRIPS Agreement is rather brief – it establishes the obligation of WTO Member States to comply with the aforementioned provisions of the Berne Convention.

National regulations on property rights in accordance with CNRA

A list of protected property rights in the Bulgarian legislation is set out in Article 18 of CNRA. The main principle here is that the author shall be entitled to the exclusive right to use the work created by him and to permit its use by other persons except in the cases when this Act provides otherwise.

Actions such as the ones listed below shall be considered as uses within the meaning of the law:

  1. reproduction of a work;

  2. distribution of the original of the work or copies thereof among an unlimited number of persons;

  3. public presentation or performance of the work;

  4. wireless transmission of the work;

    1. transmission and retransmission of the work by cable;

    2. public display of a work of art or a work created by photographic or similar means;

    3. translation of the work into another language;

    4. revision and synchronization of the work. Revision shall be the adapting of the work and the introduction of any modifications thereto as well as the use of the work to create a new derivative work;

    5. implementation of an architectural design through the building or manufacture of the object described in it;

    6. transmission by wireless or cable of access to the work or part thereof for an unlimited number of persons in a manner which permits that access to occur from a place and at a time individually chosen by each one of them;

    7. import or export of production specimens in commercial quantity regardless of whether manufactured legally or in violation of copyright.

    The actions set out in 3 – 8 must be performed in a way designated for direct reception by an unlimited number of persons. The author is entitled to remuneration for any use of the work and any subsequent use of the same kind.

    1. The right of reproduction – Article 18, paragraph 2, item 1

    In accordance with the legal definition set out in §2 p.2 of AP of the law, “This is the direct or indirect reproduction of one or more copies of the work or parts of it in any way and in any form, permanent or temporary, including storage in digital form in electronic files”.

    The law established exceptions to the right of reproduction. The need to introduce a specific exception was given rise to in connection to the development of technology. The Berne Convention leaves it to national legislations to permit the reproduction of protected works “under specific circumstances”. Article 24 of the Bulgarian Act indicates several ways of free use of works as permissible, which ways impose

    certain restrictions on the right of reproduction. The scope of permissible cases of free use of works does not cover computer programmes.

    1. Right of distribution – Article 18, paragraph 2, item 2

    Distribution of a work is the sale, exchange,

    donation, lending, as well as storage of substantial quantities of and offers to sell or lend the original work and copies of it (§2 p.4 of AP of CNRA).

    The distribution right shall be terminated upon the first sale or other transaction performed in the territory of the Member States of the European Union, which transfers the ownership of the original work or a copy of it 50. The transaction must be made by the copyright owner or with his consent, and it shall result in termination of the right of distribution of the copies in this territory, except for the right to their subsequent lending. This termination does not affect the author’s right to a compensation at resale of a work of art, when one of the parties is a trader of works of art. This is an inalienable right of the author and any waiver of it shall be invalid.

    1. The right of public presentation or performance of the work – Article 18, paragraph 2, item 3

    A rule of the Bulgarian law regulates the public presentation or performance of a work. As a right, public presentation refers to works of drama, musical drama and music (“performing arts”). Performance refers to the performance of a musical or literary work in publicly accessible places. The presentation may be carried out in any form and any way. It does not necessarily have to be exhibited “live”. This can also be carried out by technical means.

    In terms of public presentations, the author of the performing-art work grants a user the right to present the work, and the user undertakes to present it and pay remuneration to the author. In terms of public performances, the author of a musical, literary or audio-visual work gives prior written consent through a registered organisation for collective management of rights, or a registered independent management entity for

    management of rights. The work is communicated in advance, and consent is given individually for its public performance, live or on record, as well as its wireless or cable transmission.

    1. The right of wireless transmission of works – Article 18, paragraph 2, item 4

    One of the powers of copyright holders is the right to wireless transmission of the work, designated for direct reception by an unlimited number of persons. Wireless transmission and broadcasting of a work are separate and independent ways of using the work that are distinct from its public performance.

    According to § 2, p.5 of AP of the law, “transmission of a work by wireless means” shall mean its transmission on radio and television by ground, as well as its incorporation in an incessant communication chain leading to a satellite and from there back to Earth through signals bearing programmes, under the control and at the responsibility of the broadcasting organisation with a view to its reception, either directly or individually by the public, or through the mediation of organisation different from the broadcasting authority.

    Any transmission of the work by a person different from its author that has not been granted relevant rights shall constitute copyright infringement.

    1. The right of transmission and retransmission by cable – Article 18, paragraph 2, item 5

    There is no legal definition of “retransmission”in the Bulgarian CNRA. In §1 of AP of the Radio and Television Act, “retransmission” is the simultaneous and unchanged reception and transmission regardless of the used technical devices, entirely and with no changes of radio and television programmes or of big parts of them, broadcast for reception by the wide audience. This law, however, provides only for media service providers who provide audio-visual transmissions exclusively through electronic communication networks. This excludes the activity of cable operators, who make up a considerable number of copyrights users.

    Under Directive 93/83 / EEC of 27 September 1993 on the coordination of certain rules relating to copyright and related rights, applicable to broadcasting via satellite and retransmission by cable, “cable

    retransmission” means 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. Chapter III of Directive 93/83 / EEC, titled “Cable Retransmission”, fully regulates the subject of the right of cable retransmission, the exercise of this right, means of negotiation, appointment of mediators in the conduct of negotiations, and ensures that the negotiations are conducted in good faith. Under the Directive, Member States shall ensure that the right of copyright owners and holders of related rights to grant or refuse authorization to a cable operator for a cable retransmission may be exercised only through a collective managmentorganisation.

    According to a judgement of the Bulgarian Court 51 “regulations of Community Law should not be implemented in the presence of regulations in the national legislation, from which the meaning of “retransmission” may be inferred, especially since the said regulations in the national legislation, relating to copyright, do not contradict the European one. The Court infers the meaning of the concept of “retransmission” from the provisions of Article 21 of CNRA. According to the Court’s Judgement: “cable transmission” is conducted when

    the work is simultaneously broadcast by a radio-television organisation and by wireless means, entirely unchanged and within the territory that has been granted the right of transmission. “Retransmission”, on the other hand, is conducted when the work is transmitted via cable, however, by an organisation different from the radio-television organisation, simultaneously with the work’s wireless broadcasting in an entirely unchanged form. The abovementioned requires permission by the organisation for collective management of copyright, in accordance with Article 21, paragraph 2 of CNRA. The regulation of paragraph 5, sentence 1 of the same Article states even more explicitly that cable operators shall be “the “retransmission broadcasters” of programmes to radio-television operators.

    When the Bulgarian Court implements the national legislation that introduces EU law, it shall comply with the autonomous

    interpretation of concepts, provided in the established case-law of the Court of Justice. We could not agree that the meaning of the concepts used by the EU law could be inferred from national regulations. EU law must be interpreted and implemented uniformly in the territories of all Member States, as any national “colouring” of the concepts’ content will result in inefficient harmonisation and lack of predictability of the judgements rendered within the common market.

    1. Public display of a work of art or a work created by photographic or similar means – Article 18, paragraph 2, item 6

    Among the so-called “other rights” of the author, Article 18, par. 1, item 6 of the Act governs the right of public display of a work of art or a work created by photographic or similar means. The Act’s additional provisions explicitly exclude public display from the scope of lending an object of copyright protection. Displays of photographs and works of art are customarily carried out in the form of expositions, which do not allow access to an unlimited number of persons, and do not exhibit the works for sale. The right of public display is rather an extension to the author’s right of distribution. The law introduces a presumption, according to which in the cases where the ownership of works of art and works created by photographic or similar means is transferred, it is presumed that the right of public display of the works is transferred to the buyer as well. The author may refuse to assign this right, explicitly and in written form irrespective of the transfer of property.

    1. The right to authorize the translation of a work into another language – Article 19(2)(7) and The Right to Revise and Synchronize a work – Article 18(2)(8).

    Under the law, revision shall be the adapting of the work and the introduction of any modifications thereto as well as the use of the work to create a new derivative work52. The aforementioned action shall be carried out with duly

    authorization by the work’s author, explicitly and specifically. Otherwise, its copyright would be infringed.

    Any subsequent revision or translation requires separate consent of the author. If an existing translation is revised with the purpose of the work’s adaptation to another genre, this shall require the consent of the existing translation’s author. The Bulgarian Court gives its ruling on a dispute over the violated copyright of a translator, who performed and published the translation of a play, with the author’s consent 53. Subsequently, the defendants in the case transform the translation and deliver the play using the transformed translation without obtaining the consent of the published translation’s author. In accordance with the judgement, “using the translation of a dramatic work for its public performance or transforming the said translation in order to adapt it for the stage, without the consent of the translation’s author, is also a form of use of a protected object that infringes the subjective right of the translator whose work (the translation into the respective language) has been used for the creation of an adaptation and/or for its on-stage implementation”.

    1. Implementation of an architectural project through the building or manufacture of the object described in it – Article 18, paragraph 2, item 9

    As stated above, copyright in an architectural work created through implementation of the project belongs to the person who created the architectural design. CNRA considers as “use” actions such as the implementation of an architectural design through building.

    1. Transmission by wireless means or cable of access to a work or part thereof for an unlimited number of persons in a manner which permits that access to occur from a place and at a time individually chosen by each one of them. – Article 18, paragraph 2, item 10

    The rules for transmission by wireless means or cable of access to the work or part thereof for an unlimited number of persons in a manner which permits that access to occur from a place and at

    a time individually chosen by each one of them are also set out in the “Property rights” section.

    In accordance with the settled case-law of the Court54 “catch up TV” is a form of use of works under Article 18, paragraph 2, item 10 of CNRA. This is an Internet television service that users can access via desktop browsers as well as smartphone and tablet applications. The Court considers as use of the works under Article 18, paragraph 2, item 10 of CNRA the use which: “corresponds with non-linear media services under Article 3(3) of the Radio and Television Act(RTA) – media services provided by provided by a media service provider for the viewing of/listening to broadcasts at a time individually chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider (“on demand media services”). Pursuant to an argument of Article 4(2) of the Radio and Television Act(RTA), this activity is not an activity of a radio or television operator, due to which and in accordance with Article 105(1), and Article 125(1) of RTA, licensing/registration is not required for its performance. The provision of non-linear media services is subject only to declaration formalities – Article 125 g (1) of RTA. Persons providing media services on demand (non-linear services) shall notify the Council for Electronic media, which keeps a public register – Article 125(1)(4) of RTA. One of the purposes of the declaration formalities and the public register is the identification of the users of works, as set out in Article 18(1)(10) of CNRA, and consequently, the identification of their representative organisation, if there is one.

    In another one of its judgements55, the Bulgarian court considers that recording programmes (television programmes in this case) and keeping them on a streaming server, which gives access to a web site, which, in its turn, may be accessed by an unlimited number of persons in a place and a time individually selected by each one of them, is a form of use under Article 18(2)(10) of CNRA. According to the Court, communication by wireless means is also maintaining a video archive on a web site, which archive comprises broadcast TV shows containing specific musical works, the use of which has not

    been authorized. The performance of these acts – recording contents on a streaming server and maintaining an active website containing archived works – shall be considered use, as laid down by Article 18(2)(10) of CNRA.

    1. Right to compensations at resale – Article 20 and Article 20a

    Initially, the resale right was included in the Bulgarian legislation due to the adoption of the reciprocity principle regarding the exercise of this right, taken by the Berne Convention. The implementation of the Convention’s material reciprocity was considered necessary, as the extent to which the right is promoted in different Member States of the Berne Union, varies significantly. The fact that droit de suite is among the property rights protected under the Bulgarian legislation enables any Bulgarian artist to claim compensation for sales in the territory of another country, party to the Berne Convention. It is also possible for foreign artists to claim this right in Bulgaria, only to the extent permitted by the Bulgarian Law.

    Article 7 of the Treaty establishing the European Economic Community prohibits its Member States from different implementation of their competitive law in regard to the concerned parties, on the grounds of nationality. In a Judgement56 the Court of Justice ruled that “Article 7, § 1 of the Treaty shall be interpreted as meaning that the contained principle of non-discrimination may be implemented directly before a national court by an author or performer from another Member State, or from those which enjoy their rights, for the purpose of seeking the protection reserved for national authors and performers”. It follows that rights of citizens of other Member States, granted by national authors, cannot be refused on the grounds of national laws containing reciprocity clauses.

    Since 2006, the resale right in CNRA has been governed by an amendment to Article 20 and the introduction of Article 20a. The abovementioned provisions harmonise our domestic law with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001

    regarding the resale right for the benefit of the author of an original work of art. The Directive applies to all original works of art which fall within its scope and which, as of 1 January 2006, were still protected by the copyright laws of Member States or met the protection criteria in accordance with the provisions of the Directive in place on this date.

    The Directive provides for “all original works of art”, namely: “”works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided that they have been created by the author himself, or are copies considered to be original works of art”57.

    A fundamental principle of the Directive is that the resale right is a non-transferable and inalienable right, inherited by the author’s successors after his death, and protected during the term of protection of copyright, in accordance with national law. The resale right is a productive right which enables the author to receive compensation for subsequent transfers of the work.  The scope of the resale right covers all cases occurring in the professional art market, with the only exception of resales conducted between private individuals. Member States may also determine that the resale right does not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed EUR 10 000. Member States are obliged to set a minimum sale price as of which sales will be subject to the resale right. This minimum sale price may not exceed EUR 3 000, taxes not included. The compensation received by authors shall be calculated as a percentage of the sale price of their works. The differences in wages under the national legislations of different Member States have an impact

    on the competitive environment, and their harmonisation by observing the limits specified in Directive 2001/84/EC contributes to a system of fair competition in the domestic market of works of art.

    Our legislation provides that at resale of an original work of art, when one of the parties in the transaction or the intermediary is a trader of works of art, in this number art gallery and auction house, the author of the work shall have the right to receive compensations from the sale price. As for the concept of “original works of art”, our law does not deviate from the Directive and considers as such works of graphic art or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided that they have been made entirely by the author. This also includes works recognized as originals under § 4 of AP of CNRA58. The resale right shall be inalienable except at inheriting and any waiver of the right shall be invalid. It shall continue as long as the copyright in the work is being protected.

    The scope of the law shall not cover acts of resale at a price lower than the lev equivalent of 300 EURO and acts of resale where the seller has acquired the work directly from the author less than 3 years before the date of the resale and where the resale price does not exceed the lev equivalent of 10 000 EURO.

    1. Rights at rental or lending – Article 22a

    Council Directive 92/100/EEC of 19 November 1992 on the right of rental and lending and with respect to certain rights related to copyright in the field of intellectual property aims to eliminate the discrepancies between the legislations of different Member States and establish uniformity of the legal protection that is provided in regard to the implementation of the right of compensation at rental or lending by reinforcing the regulation of the copyright and related rights conventions. It follows from this that, under the Directive

    an author’s rights cannot be extinguished prior to expiry of the term established in the Berne Convention for the Protection of Literary and Artistic Works, and the rights of performers, producers of phonograms, and broadcasting organisations cannot be extinguished prior to expiry of the relevant terms, provided for in the Rome Convention. The Directive applies to all works subject to copyright, performances, phonograms, broadcasts and first fixation of films which, as of 1 July 1994, continue to enjoy protection under the legislation of Member States in the field of copyright and related rights. The Directive does not apply to acts of use committed prior to 1 July 1994 59

    According to the Directive, Member States shall ensure the right to permit or prohibit the rental and lending of originals and copies of the works of authors and other subject-matters indicated in Article 2 of the Directive. For the purposes of this Directive, ‘rental’ means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage, and “lending” means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public.

    These concepts are reproduced entirely in § 2, p. 15 and p.16 of AP of our CNRA. The law further specifies that the hypothesis of “rental” shall explicitly exclude making available of works or other subject matter of rights under this law, if they do not leave the premises of the lending establishment; making available of phonograms or film copies for the purposes of their lawful use; making available of fine art and photograph works for public exhibition Article 22a of the Bulgarian CNRA speaks of “fair compensation”, which is paid on the basis of rental or lending and is separate of any other author compensation. This compensation shall be unconditionally paid and any waiver of it by the author shall be invalid. Compensations at rental or lending shall be collected only through organisation for collective management of

    the respective categories of copyright, and the amount and method of payment shall be arranged by agreement between these organisations and the obliged persons.