Chapter 1. Copyright

§1. Sources of the Bulgarian law on copyright and neighbouring rights

I. International treaties 1

In accordance with Article 5(4) of the new Constitution of Bulgaria, adopted on 12 July 1991, international treaties ratified according to a constitutionally established procedure, promulgated and entered into force in respect of the Republic of Bulgaria, become part of the domestic law of the country. The provisions of such treaties take precedence over the contradictory rules of domestic legislation. This is a fundamental shift in the constitutional approach to international law, which accepts and emphasizes the superiority of international law over domestic law. Such superiority is of paramount importance for international treaties in the field of copyright and its neighbouring rights, due to their significant role in the regulation of relations with an international element.

According to the aforementioned constitutional provisions on ratification, official publication, and entry into force in respect of Bulgaria, international acts shall not only become part of national legislation and their self-executing rules shall be applied without any subsequent internal legal act, but they shall also take precedence over the existing internal legal rules that contradict them and provide less favourable conditions for the authors.

Bulgaria’s participation in international conventions on copyright and neighbouring rights is to be considered in the light of this concept.

Bulgaria’s participation in the revised Berne Convention for the protection of literary and artistic works (BC)2

Bulgaria joined BC, fulfilling its obligations under the Treaty of Neuilly-sur-Seine, which marked the end of World War I for Bulgaria3 In accordance with the obligations under the Treaty of Neuilly-sur-Seine, the National Assembly adopted the Copyright Act of 1921. This was done prior to Bulgaria’s accession to the Convention. The following Copyright Act of 1951 4 did not meet the “minimum standard” of copyright protection provided by BC, although Bulgaria continued to be a member of the Berne Union. The most important amendments to the Copyright Act were, without a doubt, adopted in 1972. The said amendments introduced, though not completely, the principal protection provided by the Convention.

Universal Copyright Convention Bulgaria joined the Universal Copyright Convention (UCC) with National Council Resolution No.2944 of 1974. On the date of ratification of the Universal Copyright Convention, Bulgaria already had a Copyright Act in place that ensured the protection of all fundamental economic and moral rights of the authors. The law on copyright in Bulgaria permitted the protection of the rights laid down in Article IV and Article V of the Convention: the right of translation, reproduction and distribution; the right of public transmission; the right of radio and television broadcasting.

The specific requirements of the Convention were established in the Bulgarian legislation through a Regulation of the Ministry of Culture, resulting from Bulgaria’s accession to UCC. This is Regulation No.16, requiring the use of a distinctive Copyright sign 5. The Regulation was issued pursuant to Article 31 of the Copyright Act, and Article 3 of the Universal Copyright Convention. Due to the fact that our country joined the Paris version of UCC of 1971, which entered into force for the Republic of Bulgaria on 7 June 1975, and Regulation No.16 was issued in mid 1977, it is debatable whether the works published during the period, between the entry into force of the Convention and the issuance of Regulation No.16, may be protected under the Convention, although they do not have a copyright protection symbol “©”.

The measures taken by Regulation No.16 refer to the implementation of protection under UCC with regard to works published in Bulgaria for the first time. The instructions issued in 1977 do not contradict the requirement of Article X, § 2 of the Convention: each country, at the time of deposit of the instrument of ratification, approval or accession, must be able to apply the provisions of the Convention in accordance with the national legislation. Despite that, because of the abovementioned two-year period, the works published in Bulgaria without a copyright symbol cannot be considered unprotected by the Convention.

Another issue worth mentioning is the placement of a copyright symbol on the works of authors, nationals of the BC Member States, which are translated and used in Bulgaria. § 5 of Regulation No.16’s additional provisions states that placing a copyright symbol on such works is not mandatory. “Not mandatory” is to say that such a symbol may or may not be placed. Depending on whether the copyright symbol is placed, the work shall be subject to protection by the Convention in all Member States of UCC, irrespective of whether the work is published for the first time outside Bulgaria, in a country participating in BC, but not in UCC.

Bulgaria’s Participation in the Conventions of Neighbouring Rights

In April, 1995, the Bulgarian Parliament ratified the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention of 1961)6 and the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (the Phonograms Convention, Geneva 1971)7. A reservation is included in the act for the ratification of the Rome Convention8.

Why is it necessary to ratify these two conventions? When the Copyright Act was drawn up, Article 102 stated that the rights of foreign performers, producers of phonograms, and radio and television organisations shall be protected in accordance with the international treaties regarding neighbouring rights to which the Republic of Bulgaria is a party, when the latter had not occurred in the territory of the Republic of Bulgaria, and had not simultaneously occurred and been published in the territory of the Republic of Bulgaria.

Over two years passed before the international conventions for neighbouring rights were ratified, and the fact that the national legislation had not adopted the regulations of the latter two conventions led to an increase of piracy in Bulgaria. Thus Bulgaria’s accession to these conventions has helped to improve Bulgaria’s reputation in the field of intellectual property. It is well known that the absence of such international commitment constitutes a negative image of the country. Current practice indicates that the piracy, widespread in some countries due to the absence of international commitments, results in economic attacks on these countries. This is the idea behind the implementation of the TRIPS Agreement 9 Returning to the topic of declarations, it should be said that the first declaration

aims at the payment of remunerations by consumers in Bulgaria (radio and television organisations), only if the producers are nationals of a State, party to the convention. The second declaration introduced the principle of reciprocity with respect to remuneration for secondary use of phonograms.

TRIPS

The Republic of Bulgaria is party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) since 01.12.1996.

The TRIPS agreement was signed by the European Union and approved on the basis of Decision 94/800. Therefore, this agreement is binding upon the institutions of the Union and on its Member States. (item 38 of the ECJ Judgment in case C135/10). According to the settled case-law of the Court, the provisions of the agreements concluded by the EU are a part of its law 10 and are therefore applicable to it.

With regard to whether private legal entities may refer directly to the provisions in the TRIPS Agreement, according to the case-law of the Court of Justice, their participation in the legal order of the EU is not a sufficient condition. It is also necessary that the said provisions be unconditional and sufficiently concrete in their content, and that their nature and structure enable such reference11. As far as the TRIPS Agreement is concerned, according to the last recital of Decision 94/800 of the Court of Justice, direct reference to the Agreement establishing the WTO or its annexes shall not be made before the courts of the EU and its Member States. The Court has ruled that, due to their nature and structure, the provisions of the TRIPS Agreement do not have a direct effect and cannot provide private legal entities with rights that the latter can refer to directly before the court by virtue of the Union’s law 12.

Sources of EU Law

Since Bulgaria’s accession to the European Union, thesources of EU law have been in effect here. There exist multiple sources in the field of copyright. The most important among them are:

  • Directive 2012/28 / EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphans works13;

  • Directive 2011/77/ЕU of the European Parliament and of

The Council of 27 September 2011 on amending Directive 2006/116/EC on the term of protection of copyright and certain related rights14;

  • Directive 2004/48/ЕC of the European Parliament and of

the Council of 29 April 2004 on the implementation of intellectual property rights 15;

  • Directive 2001/84/ЕC of the European Parliament and of

the Council of 27 September 2001 on on the resale right for the benefit of the author of an original work of art16;

  • Directive 2001/29/ЕC 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 17;

  • Directive 98/71 / EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of industrial designs 18;

  • Directive 96/9 / EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases19;

  • Directive 93/83 / EEC of 27 September 1993 on the coordination of certain rules relating to

    copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission20. 

    • Directive 2006/115/ EC of the European Parliament and of the Council of 12 December 2006 on rental and lending rights and on certain rights related to copyright in the field of intellectual property 21;

    • Directive 2009/24 / EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programmes22;

    • Directive 2014/26 / EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market Text with EEA relevance23;

    • Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with certain tasks related to the protection of intellectual property rights, including the assembling of public and private sector representatives in the European Observatory on violations of intellectual property rights 24;

    • Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 on the protection of intellectual property rights carried out by the customs authorities, and repealing Council Regulation (EC) No. 1383/2003 25;

    II. National Sources

    Historical context: 1896 -1993

    Protection of Copyright has a nearly century-long history in Bulgaria.

    The first rule regarding copyright was introduced in

    the Criminal Code of 1896, which provided for punitive action. The first Bulgarian law on copyright, adopted in 1921, contained comprehensive rules. The Russian copyright law of 1911 had been previously followed.

    After World War II, copyright in Bulgaria developed, adhering closely to the legal principles of Soviet Russia. Freedom of contract was abolished in 1947. The state monopoly was introduced in all spheres of the cultural industry. The law on copyright of 1951 has been amended three times: in 1956, 1972, and 1990. The second amendment is of the greatest importance, as it amended the ratification of then Berne Convention’s Paris Act. The last amendment of the law of 1990 was limited. It implemented more effective measures to combat piracy.

    The Constitution of 1991.

    The Constitution of the Republic of Bulgaria plays two significant roles. Firstly, the role in establishing the fundamental principles that govern the civil society and social state in Bulgaria. Secondly, Chapter II of the Constitution, which deals with the fundamental rights and freedoms of citizens, declares that intellectual property rights shall be protected by the law. Article 54(3) states that copyright and related rights shall be protected by the law.

    Copyright and Neighbouring Rights Act; Basic Concepts.

    Article 1 defines the subject of the law. The law regulates the relations connected with the creation and distribution of works of literature, art and science. The law states further that the author’s copyright on works of literature, art and science arises upon creating the works. An author is any natural person who gives existence to a creative work. Other natural persons or legal entities may be copyright holders only in the cases provided for by the law. In the Bulgarian legislation, legal entities are not entitled to holding original copyright. Legal entities may only hold derivative copyright, i.e. by virtue of a legal transaction, inheriting, when the work has been in an employment relationship or carried out as performance of a contract for works created under mandate.

    The author is not required to have any legal capacity, as his or her work

    isthe product of factual actions, and not legal actions. An author can be any natural person, regardless of his or her age, sex, ethnicity, etc. The author’s work may be brilliant or mediocre, but that does not affect its protection by the law. Compliance with formalities is not required to obtain or exercise copyright. Giving existence to the work in any form (objectification) is a sufficient factor. The author does not have to be famous. Legal protection is given to anonymous works too.

    The original holder of any copyright is the creator or, in the case of collaborative works (including film productions), the creators. This is due to the fact that creative work is characteristic of people only.

    The law introduces a presumption of authorship. According to Article 6, “In the absence of proof of the contrary, the author of the work is the person whose name or other identification mark is indicated in the usual manner in the original work, the work’s copies and/or its packaging”.

    Copyright in works created by two or more persons shall belongs to them jointly, irrespective of whether the said works constitute one indivisible entity or consist of separate parts each having individual significance. The work must be the result of the creative efforts of more than one person, when the purpose is the creation of a single piece. Mechanically joining two separate works is not considered co-authorship. The individual significance of each of the parts is not to say that every part is a separate work. The work is the result of joint creative efforts and the copyright on the work is common for all authors, regardless of the specific extent of their contribution to the work. Subsequently, any use and reproduction of the work requires the consent of all co-authors. In the absence of agreement among the authors, the matter shall be resolved by the court. When the court has authorized a certain use of the work, or the co-authors have mutually agreed to such use, none of the authors shall object to such following use. The law allows such objection only if a “justified reason” requires it.

    In Article 8, the Bulgarian law on copyright distinguishes between the cases where a work is created as an inseparable whole(collaborative

    work), and the cases where a work, created by two or more persons, consists of independent parts. All co-authors must give their consent for any use or adaptation of the work. When a work of co-authors consists of parts of independent significance (composition or a combination of works), every author may authorize the separate use of their own part, unless otherwise specified by the co-authors, provided this does not affect the use of the whole work. Conversely, collaborative works (inseparable wholes) generally cannot be used separately. Once a certain use of the work has been agreed to or authorized by the court, none of the co-authors may object to the further use of the work in the said way, unless required by a justified reason.

    Co-authors shall negotiate the allocation of the profit generated from the use of the work. If co-authors cannot reach an agreement, the allocation ratio is considered to be equal. In the event of a dispute, the court examines the contribution of each of them, and then determines what part of the total remuneration shall be granted to each co-author.

    The content of the fundamental legal concepts implemented by the Bulgarian Copyright and Neighbouring Rights Act are set out in the additional provisions of the Act. § 2 of the Additional provisions of the Act provides legal definitions of 20 legal terms. Among the more important ones are:

    • “communication of a work” is bringing

    the work to the notice of an unlimited number of people, with the consent of its author, for the first time, regardless of the form and method by which it is carried out;

    • “publication of a work”is bringing a

    work to the notice of an unlimited number of people through reproduction and distribution of its copies, including phonograms or film recordings and recordings of other audio-visual products, in sufficient quantities, which are determined by the nature of the work;

  • “reproduction of a work” 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;

  • “communication to the public” is making a performance available to the public through any means, excluding wireless transmission, that enables the audience to listen to and/or watch it;

  • “users of works” are natural persons and legal entities, such as publishers, theaters, concert organizers, radio and television organisations, enterprises providing publicly available electronic communications services through electronic communications networks for the distribution of Bulgarian or foreign, radio or television programmes, catering and entertainment establishments, producers of phonograms, film producers, providers of Internet content, and others, who bring the work to the notice of readers, viewers, and listeners, directly or through other persons – distributors;