Limitations of copyright are necessary for maintaining the balance between two conflicting public interests: the public interest related to the compensation of authors and the public interest related to distributing the works as widely as possible, which is also to the advantage of the users of such works. The law includes two groups of limitations of the author’s exclusive right to his work:

  • cases in which the use of works is declared free;

  • cases in which under certain conditions, one being payment of fair compensation, a work can be used without prior consent of the author;

I. Free use of works.

In most European legislations, free use of works is rendered as “limitations” and “exceptions”. The Bulgarian law governs different cases of exceptions separately in Chapter V, titled “Free Use of Works”. The exceptions to copyright are provided for in all copyright laws, but the legal framework is established by international laws.

International regulation.

In accordance with Article 9(2) of the Berne Convention: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not prejudice the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”60.

Later, Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) considers only the following limitations and exceptions:

“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.

Sources of EU Law

On 22 May 2001, the EU accepted Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, which obliges Member States to harmonize their national legislations by 22 December 2002, by explicitly referring to the Directive. The Directive aims to eliminate the existing discrepancies concerning limitations and exceptions and guarantee proper functioning of the domestic market in the field of copyright and related rights.

Article 5 of the Directive comprises an exhaustive list of the limitations and exceptions to the right of reproduction and the right of communication to the public. They are imposed on the authors and the holders of related rights and refer to twenty specific hypotheses in which the exploitation of a work without consent and/or without payment of compensation is permissible. Some limitations or exceptions apply only to the right of reproduction, and others refer to both the right of reproduction and the right of communication to the public, while recognizing the existence of a new electronic distribution environment. This list accounts for different legal traditions of Member States, while also guaranteeing a well-functioning common market. In general terms, there hypotheses include acts of temporary reproduction, which are transient or incidental reproductions with no economic value on their own, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made.  Other hypotheses set out cases such as educational and scientific purposes, for the benefit of public institutions such as libraries and archives, for purposes of news reporting, for quotations, for use by people with disabilities, for public security uses and for uses in administrative and judicial proceedings. What these have in common are the three conditions which

these acts are to fulfil, set out in Article 5(5) of the Directive. These conditions reinforce the established principles of free use of works. According to the regulation: “The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.” The combination of these criteria constitute a legal algorithm called three-step test. It defines the steps (conditions) which the free use of works is to meet.

National regulations in CNRA.

The Bulgarian CNRA fully adopts the international legal framework and introduces, in its Chapter V, the principles established in Directive/2001/29/EC, under which works may be used freely. In accordance with Article 23 of the law, the free use of works shall be permissible in the simultaneous fulfilment of the following three conditions:

  • the cases of free use are explicitly indicated by the law;

  • the normal use of the work is not hindered;

  • the legitimate interests of the copyright holder are not prejudiced;

Article 24 of this law contains an exhaustive list of the cases of royalty-free use. These cases do not apply to the use of computer programmes, whose regulation was specified above.

II. Royalty-free use – Article 24

The following uses shall be permissible without consent of the copyright holder and without paying royalties:

  1. Temporary reproduction of works, having transient or incidental character, without economic value on their own, constituting integral and essential part of the technological process and with the sole purpose to enable: a)transmission in a network between third parties by an intermediary, or b) another permitted use of a work;

  2. Use of quotations from works of other persons already made available to the public at criticism or overview, provided the source and the name

    of the author be cited, unless impossible. The quotation must comply with the usual practice and to be in amount, justified by the purpose;

    1. Use of parts of published works or of a small number of works in other works in an amount, necessary for analysis, commentary or other kinds of scientific research; Such use shall be permissible only for scientific and educational purposes, provided the source and the name of the author be cited, unless impossible;

    2. Use of speeches, reports, preaches, etc. and parts thereof, presented at public meetings, as well as pleading, pronounced at court procedures as current information in periodicals and the other mass media, provided the source and the name of the author be cited, unless impossible;

    3. Mass media reproduction of articles on current economic, political and religious topics already made available to the public, unless such use has been explicitly forbidden, provided the source and the name of the author be cited, unless impossible;

    4. Reproduction in photographic, cinematographic or analogous way, as well as by phonograms or video records of works related to current affairs, in order for these works to be used by the mass media in a limited extent justified by the informatory purpose, provided the source and the name of the author be cited, unless impossible;

    5. Use of works, permanently exhibited in streets, squares and other public places without mechanical contact copying, as well as wireless broadcasting or transmitting by cable or other technical device, if done with informatory or other non-commercial purpose;

    6.  Public presentation and public performance of published works in educational or other learning establishments, provided that no pecuniary revenues are received and no compensation is paid to the participants in the preparation and realization of the presentation or the performance;

    7. Reproduction of already published works by publicly accessible libraries, educational or other learning establishments, museums and archive institutions, with educational purposes or with the purpose of preservation of the works, unless serving for commercial purposes;

      1. Reproduction of works, already made available to the public, with Braille script or other analogous method , unless done for profit;

      2. Granting access to individuals to the works in the collections of organisations (libraries, universities, etc.), provided that this is done for scientific purposes and is not of commercial nature;

      3. Temporary recording of a work by radio and television organisations, to which the author has ceded the right to use the work through their own technical devices and for the needs of their own broadcasts within the limits of the granted permission; Records of important documentary value can be preserved in official archive;

      4. Use of works for the purposes of national security, in a judicial or administrative proceedings or in parliamentary practice;

      5. Use of works during religious ceremonies or at official ceremonies, organised by the public authorities;

      6. Use of a building, which is an architectural work, or of a plan of such building for the purpose of its reconstruction, carried out following coordination with a relevant organisation for collective management of rights.

      1. Free use of works upon payment of fair compensation

      The other cases set out in Articles 24, 25, 25a, and 26 of CNRA relate to payment of compensation.

      In accordance with Article 25 of CNRA, reproduction without the consent of the copyright holder shall be permissible in the following cases:

      1. reproduction with non-commercial purposes of printed works, except note materials, on paper or other similar means by reprography or another technique, ensuring a similar result;

      2. reproduction of works, regardless of the medium, by a natural person for personal use, unless done with commercial purposes.

      This provision only governs the act of reproduction, as it obliges the user to pay the copyright holder “fair

      compensation”. In accordance with the reasoning in Directive 2001/29/EC, the particular circumstances of each case should be taken into account in determining such fair compensation. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. “In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due.  In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise”61.

      1. Authors’ Compensation for Free Use – amount and allocation.

      Authors of works, performers,producers of phonograms and producers of initial recordings of films or other audio-visual works shall be entitled to a compensatory remuneration, where the recordings are reproduced for personal use. The authors and publishers of any printed work are also entitled to compensatory remuneration when the works in question are reproduced reprographically for personal use. Any waiver of the right to compensatory remuneration by rightholders shall be invalid. Persons producing blank media or importing such media from third countries shall be obliged to pay compensation to the authors of audio­visual works. Compensatory remuneration shall be due for sales of information media in the territory of Bulgaria that are primarily intended for reproduction of works for personal use by natural persons.

      The amount of remuneration shall be determined annually by organisations for collective management of rights agreed upon with representative organisations of the obligated persons. Upon negotiating the types of media and the amount of remuneration, the storage capacity of the media and extent to which the media are used for reproduction shall be taken into account. The amount of remuneration shall not be lower than 1.0 percent or exceeding 1.5 percent of

      1. 5 per cent of the supply value according to the accounting standard for processing the stock reserves of the respective blank media. Remunerations shall be paid by organisations for collective management of copyright and related rights that represent different categories of rightholders in respect with their right to compensatory remuneration, and have an established mechanism for individual allocation of those remunerations among their members. These organisations allocate remunerations among their member associations. Before allocation, 30 per cent of the collected amounts shall be deduced and deposited to the account of the National Fund “Culture”. The obligated persons shall be deemed to have fully performed their obligations under this article with the payment of the remunerations to the respective organisation. The collected amounts shall be allocated among the individual categories of rightholdersin the following way, as set out in Article 26(9) of CNRA:

      1. remunerations of the authors of works, performers, producers of phonograms and producers of initial recordings of films or other audio-visual works:

      а) a half – to the authors;

      b) a quarter – to the performers;

      c) a quarter – to the producers;

      1. remunerations of authors and publishers of any printed works when such words are reproduced reprographically for personal use:

      а) 50 percent – to the authors;

      b) 50 percent – to the publishers.

      Compensatory remunerations for blank media shall not be due, or, if such have been collected, they shall be restored in the cases indicated in the exhaustive list of Article 26(10) of the law. When compensatory remunerations have been collected and are subject to restoration, the facts and circumstances justifying the right to restoration shall be proved by the persons claiming it. The persons obliged to pay compensatory remunerations (or accordingly their representative organisations) shall be obliged to provide summarized information regarding the types and total supply values according to the accounting standard for processing the stock reserves of sold media of each type, for which compensation is due,

      to the relevant organisations for collective management of rights, within one month after the end of every calendar semester. No further information may be requested than the information required for the purpose of allocating the remunerations. The received information shall not be made public or used for any other purpose except for collecting and allocating the remunerations. Claims and proofs shall be submitted to the relevant organisations for collective management of rights. The organisations shall review the claims within one month from the date of their receipt. The amounts due for restoration shall be paid by the organisations within one month after the date indicated on the confirmation protocol regarding the claims and proof.