I. Categories of protected works

The law establishes a non-exhaustive list of works, subject to copyright protection 26. Some of these instances deserve further commentary.

1. Literary works, including works of scientific and technical literature, journalism and computer programmes.

Any body of verbal work, regardless of its form, is a literary work. Its form of expression is irrelevant to the copyright protection it receives. It can be stored in an information medium, or publicly performed or delivered. Literary works are to be understood in broad terms, and not

limited to literary fiction, poetry, drama, etc.

The law classifies works of scientific and technical literature as a separate category, to avoid the occurrence of any doubts regarding copyright and the protection of scientific works. The law does not provide a definition of computer programmes: it is considered that any definition can be evaded by technology’s development.

  1. Musical works

The characteristic features of musical works are melody, rhythm and harmony, which are protected as a single whole musical work. Although melody is fundamental, it does not represent a separate object of copyright. However, it can be edited and made an independent subject-matter of protection, of course, with the consent of the melody’s author. They can be with or without lyrics. Lyrics are a work of literature, and they become part of a musical work only when in combination with music.

  1. Performing arts works – drama, musical drama, pantomime, choreography, etc.

These are works created for the sole purpose of being performed on stage. These objects are protected by copyright irrespective of whether they are recorded or performed live. A question that often arises in practice concerns the protected subject-matter: is the work itself or the inevitable combination with other works, such as scripts, costumes, music, etc.?

  1. Cinematographic and other audiovisual works

Characteristic of these works is the presence of elements which

can exist independently, alike the aforementioned case of performing arts works.

  1. Works of fine arts, including works of applied art, design and folk crafts

This group of works is characterized by theme, plot, composition, and specific forms of expression, and an indisputable creative element.

  1. Realized architectural works and implemented land-use plans

  2. Copyright in architectural works is held by the creator of the work, even in such cases where the said work is the property of another person.

    The additional provisions of the law offer the following definition of the term: “architectural works” are designs of buildings and structures, land-use plans and schemes authorized under the legislation in place, buildings and other equipment and their elements, durable objects of the synthesis of architecture with other arts, as well as durable interior decorations, registered by a relevant organisation for collective management of rights;

    1. photographic works to which are assimilated works expressed by a process analogous to photography 27

    Copyright in photographic works constituting a portrait shall belong to the author of the photograph. However, the creation of such work requires the consent of the person who appears in the portrait. Such consent is not required in the following cases:

    • when the person’s photograph was taken during their social activity, or in a public place;

    • a person’s image is only a detail in a work of art, demonstrating an assembly, procession or landscape;

    • the person appearing in the portrait has received remuneration for posing for the portrait, unless otherwise agreed between the author and the photographed person.

    1. 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.

      In order to be recognized as a work and to be eligible for copyright protection, projects must be the result of creative, intellectual effort, and not formally arranged, routine work 28. The process of creation of the project does not have to observe a specific model, or algorithm of technical steps, but has to be the result of autonomous decisions that the project’s author has reached through extraordinary intellectual efforts.

      1. Graphic design of printed editions

      This is a new item which aims at providing protection to the illustrations and design of books.

      1. Cadastral maps and state topographic maps

      The following is also subject to copyright:

      1. Translations and adaptation of existing works and folklore creations

      A translation is a new work, created with the consent of the original work’s author. The act of translation produces a new work. The translator shall be the author of the translated work. A translation without the author’s consent may be performed only if the original text is not protected by copyright, for instance, because of expiration of the term of protection. Anonymously communicated works are subject to copyright protection. The consent of the natural person or legal entity that has communicated the work, with the author’s consent, for the first time, is required for the translation of an anonymous work.

      In accordance with §2, p.18 of AP of the law, “transformation of a work” refers to the modifications made to a work to create a new, derivative work, including its adaptation to another genre, and any other modifications made to it.

      Modifications vary – volume reduction, adding, summarizing, writing theses. Adaptation is the most common kind of transformation. Adaptation results in a new work that is an independent object of copyright. Adaptation shall only be done with the author’s consent 29.

      1. Arrangements of musical works and folklore creations

      Arrangement is a reconceptualization of a musical work, subject to separate protection by the law

      1. Periodicals, encyclopedias, collections, anthologies, bibliographies, databases, and the like, which comprise two or more works or materials

      Item 13 refers to collections of works, provided they comprise two or more works or materials. All listed works are derivative works.

      Reference books are customarily protected by copyright in the presence of a creative effort in the selection or arrangement of the assembled information.

      1. Computer software

      As an object of copyright protection, computer softwares are categorized as literary works. This is to say that computer programmes shall be protected, provided they are the result of creative effort. The law does not offer a specific definiton of the term “computer programmes”. The mechanical association of computer programmes with the category of Protected literary works in Article 3 of CNRA may be explained through the notion established in Article 1 of Council Directive 91/250/EEC on the legal protection of computer programmes. In accordance with the law “Member States shall grant copyright protection to computer programmes as literary works by virtue of the Berne Convention for the Protection of Literary and Artistic Works”. A computer programme must be original, as it is the result of the author’s creative activity. However, as amended, the Directive states that computer programmes which do not differ qualitatively from other antecedent programmes shall be protected too. The German law separates the legal regulation of protection of softwares, as opposed to mechanically associating computer programmes and literary works, whose definition as the result of “creative efforts” is to be interpreted differently. Council Directive 91/250/EEC was repealed by Directive 2009/24 / EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programmes. In accordance with Article 1(4) of of the said Directive”, this “Directive

      applies also to the programmes created prior to 1 January 1993 without affecting any agreements or rights acquired before that date”. The basic legal provisions are preserved in the new Directive, including the Member State’s obligation to protect computer programmes, in accordance with Intellectual property law, as literary works. The fundamental principles and terms introduced by Directive 91/250/EEC are preserved. The meaning of the term “computer programmes” is expanded and clarified in recital (7) of the new Directive 2009/24/EC. It comprises programmes of any form, including those part of a hardware. This term includes also the preparatory work on the development and realization of a computer programme, under the condition that the nature of this preparatory work is such that it can create a computer programme at a further stage of the process.

      Ideas and principles invested in individual elements of the programme are not protected by copyright. Copyright protects the material expression of these ideas and principles. The only criterion allowed to be applied by the Directive, in order to determine the eligibility of a software for copyright protection is “orginality”. The Directive does not permit assessment of the quality or aesthetics of the software in order for its originality to be determined. According to Article 1(3) of the Directive, a computer programme is original if it constitutes the author’s own intellectual creation. Of course, this does not exclude the possibility of more than one author or “a group of natural persons”, as long as collective works are recognised by the Member State’s legislation. In accordance with the domestic laws of Member States, a legal entity may, too, be recognized as the holder of copyright on a computer programme.

      Section VII of CNRA sets out some specific rules regarding the use of computer programmes. Unless specifically agreed by the parties, the law determines the scope of action of the person who has legally acquired the right to use a computer programme. Thus the person may load the programme, project it on screen, perform it, transmit it remotely, store it in the computer’s memory, translate it, adapt, and modify it. The said actions may be

      performed only for the purpose for which the right to use the programme has been acquired. Any use beyond the said purposes shall constitute copyright infringement, despite the fact that the person uses it legally.

      The law further establishes the actions allowed to be performed by the person who has legally acquired the right to use the programme, without the author’s consent without a fixed remuneration. The imperative nature of the rule of Article 71 does not allow any deviation from the listed actions. Such actions are:

      • making a back-up copy of the programme, if necessary for the particular kind of use for which the programme has been acquired;

      • observing, examining or testing the way the programme works, in order to determine the ideas and principles behind any of its elements, if this takes place during the process of loading of the programme, its projecting on screen, performance, remote transmission, or storing it in the computer memory, provided the person has the right to perform the said actions according to Article 70 of the law;

      • translating the programme’s code from one form into another, if this is absolutely necessary to obtain information essential to achieve compatibility between an existing programme and other programmes, under the condition that the information required for the said purpose has not been provided in a complete form, and that this action is performed regarding only the parts of the computer programme necessary for the achievement of compatibility.

      The obtained information may not be used for the creation or distribution of a computer programme that is unsubstantially different from the programme whose programme code is translated, or any other action that may impair the programme’s copyright.

      1. Databases

      According to §2 p.13 of the Additional Provisions of CNRA, a “database” is a collection of independent works, data or other materials arranged systematically or methodically and individually accessible by electronic

      or other means. By virtue of law, “databases” are not computer programmes used for the creation or functioning of databases, recordings of separate audio-visual, literary or musical work, or CD-collections of musical phonograms.

      Directive 96/9 / EC of the European Parliament and of the Council on the legal protection of databases defines the term “database” as “a collection of independent works, data or other materials, arranged systematically or methodically, and individually accessible by electronic or other means”. In its decision of 9 November 2004, on C-444 / 0230 , the Court of Justice has ruled that “the notion “database”, by virtue of Article 1(2) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials”. The Court has also ruled that: “a collection’s classification as a database requires that the materials in it be systematically or methodically arranged and individually accessible by one means or another”. According to the Court, despite the fact that it is not necessary for those materials to have been physically stored in a systematic manner, in order to meet the requirement of recital (21) of Directive 96/9/EC, the collection must be contained in a specific base of some sort and include technical means, such as electronic, electromagnetic or electro-optical processes or other means, such as index, table of contents or a specific plan for or method of classification, in order to enable the retrieval of any of its independent materials”.

      The term database, as defined in article 1, § 2 of Directive 96/9 / EC, refers to a collection of works, data or other materials separable from one other without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.

      Copyright protection can be sought by both the persons who hold copyright over the separate works in the collection(database), and the persons who have selected

      systematically arranged the works. The criteria used to determine whether a “database” should be protected by copyright are defined in accordance with the fact that the selection or the arrangement of the contents of the database is the author’s own intellectual creation.

      The directive also protects a third group of persons – data producers. The purpose of the legal protection of data producers’ rights is to protect the substantial investments made in modern systems for processing and storage of information. Directive 96/9 / EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases has determined “to introduce a stable and uniform legal regime for the protection of the rights of data producers”. The rights of data producers are protected, provided they have made a qualitatively or quantitatively substantial investment related to the obtaining, verification and presentation of the contents of a database. The term “investment in obtaining … the contents” of databases in Article 7(1) of Directive 96/9/EC should be understood as referring to the resources used in the search of independent materials and their assembly in a database.This term does not include resources used for the creation of materials that make up a database’s contents.

      Chapter 11a provides for the protection of data producers in the Bulgaria CNRA. A data producer is a natural person or legal entity that has taken the initiative and risk to invest in the obtaining, verification and use of the contents of a database, provided this investment is made qualitatively or quantitatively.

      The data producer’s right arises regardless of whether the database or the database’s elements are protected by copyright or related rights. The producer must exercise their rights in a way that does not lead to impairment or limitation of copyright or related rights of the contents of the database. The data producer is entitled to prohibit:

      • retrieval by permanent or temporary transfer of the contents of the database or a qualitatively or quantitatively substantial part of it onto another medium, in any way or in any form;

    3. re-use of the contents of the database or a qualitatively or quantitatively substantial part of it through communication in any form, including dissemination of its copies, its rental or its public presentation by electronic means.

      The said rights may be completely or partially alienated or ceded to third parties by the producer.

      The producer is protected also when an unsubstantial part of the contents of the database has been violated, provided the actions be performed repeatedly and systematically in a way that contradicts the normal exploitation of databases, or may prejudice the legal interests of the producer.

      The law expressly excludes lending from the scope of the terms “retrieval” or “reuse”.

      The law defines the term information retrieval from a database as “permanent or temporary transfer of the contents of a database, or a qualitatively or quantitatively substantial part of it onto another medium in any way or in any form”, which represents a separate violation of the producer’s rights to re-use the information. These are two separate violations, for which CNRA does not provide legal definitions. The content of these terms is defined in Directive 96/9/EC. According to Article 7(2)(a)(b), “retrieval” means the permanent or temporary transfer of all or a substantial part of the contents of the database to another medium of information in any way and in any form, and” reuse ” means any form of public transmission of all or a substantial part of the contents of the database through dissemination of copies, rental by on line or other means.

      As part of a legal dispute concerning the termination of the alleged unlawful retrieval or reuse of substantial parts of the whole legal information system, SCC required from the Court of Justice a reference for a preliminary ruling on Article 7, § 1 and § 2 of Directive 96/9/EC, on the basis of which case С-545/0731was initiated. The Court ruled that the event of retrieval from a protected database,

      as indicated in Article 7, is consistent with the event of fixation of the elements that are transferred onto a medium, different from the medium of this database. This term of retrieval is not dependent on the purpose of the said action’s perpetrator, or on any modifications to the content of the transferred elements, made by the perpetrator. The said term does not depend on possible changes in the structural organisation of the relevant databases.

      According to the Court, it is irrelevant whether the transfer is permanent or temporary. It is accepted that the permanent or temporary nature of the transfer may be taken into consideration during evaluation of the severity of a possible infringement of the right, and, subsequently, the extent of the damage with right to reparation. The Court of Justice further states that the determination of infringement takes into account not only the volume of information retrieved, but also the ratio of the retrieved and reused material to the information contained in the whole database(quantitative criterion). When determining the ratio, the investment, which is incorporated in the extracted information, must also be considered. According to the Court’s, if this information can be divided into subgroups, the question of whether the individual subgroups constitute a separate database should be considered. Then, the ratio will be determined between the amount of retrieved information and the amount of information per subgroup.

      As far as “substantial part” of the retrieved information is concerned, in terms of the qualitative criterion, the amount is determined in relation to the investment in obtaining, verification or presentation of the contents the database, subject to retrieval and/or reuse. A significant personal, technical or financial investment in obtaining, verification or presentation in reality may represent an insignificantly small part of a database, in quantitative terms.

      As stated above, the content of the producer’s protected right over a database also includes the right to prohibit reuse of the contents of the database or a qualitatively or quantitatively substantial part of it by communication in any form, including distribution of copies, rental or presentation by electronic means. In accordance with SCC’s established case-law, the term of reuse refers to

      any unauthorized act of public distribution of the contents of the protected database or a substantial part of such content.

      The rights and obligations of lawful users of databases are set out in Article 93 of CNRA. A person that has legally acquired the right to use a database or its copies is free to use the said data and perform actions, related to the possible results of its translation, transformation, processing, or any other modifications made to the database in the cases where those are necessary to access the contents of the database and for its normal exploitation.

      When a database has been disclosed in any form, its producer may not, for any purpose, prevent the retrieval or reuse of an unsubstantial part of its contents by a person who has legally acquired access to it. In this case, the legal user’s only restriction is not to perform actions that contradict its normal exploitation or impair the legal interests of its producer. Similarly, the legal user may not impair the rights of the holder of copyright or related rights on works or other objects contained in the database.

      II. Main characteristics of protected subject-matter.

      The list of protected subject-matter laid down by the law is indicative and non-exhaustive 32. The main characteristics of subject-matter protected by copyright are 33:

      • works

      • which are the product of creative activity

      • must be expressed in a material form.

      However, since Bulgaria’s accession to the EU, the EU’s sources of copyright, which, too, contain some of the aforementioned terms, have also been in place in the country.

    4. The concept of “work” is set out in Article 2(a) and Article 3, § 1 and Article 4, § 1 of Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society. However, no legal definition of the concept is provided in the Directive or another source of EU law. Directive 2001/29/EC does not contain any reference to national law, concerning the concept of “work”.

      In accordance with settled case-law of the Court, the need for uniform application of EU law and the principle of equality both require that provisions of the Union’s law which make no express reference to the law of Member States for the purpose of determining such provisions’ meaning and scope must normally be given an independent and uniform interpretation throughout the European Union. This should be done by taking into account the context of the provision and the purpose of the legal remedy under review34.

      Pursuant to this jurisprudence, the term “work” shall be regarded as corresponding to an autonomous concept of EU law, the meaning and scope of which shall be identical in all Member States. Consequently, the Court must ensure uniform interpretation of this concept in the European Union’s legal order 35.

      As an autonomous concept of EU law, the concept of “work” shall not be subject to different or additional rules in Member States. Consequently, EU law shall not allow national law to provide copyright protection to subject-matter beyond the framework provided by Directive/2001/29/EC.

      In case of doubt whether given subject-matter is within the scope of the concept of “work” under Article 3 of CNRA, and whether it is eligible for copyright protection, national courts should refer to the interpretative case-law of the Court of Justice, which includes the right to request a reference for a preliminary ruling.

    5. Since Directive 2001/29/EC does not define the concept of “work” and does not refer to national law for its interpretation, in such cases, the Court of Justice shall take into consideration BC’s provisions. Despite the fact that EU is not a contracting party to the Berne Convention, it “must still comply with Articles 1-21 of the Convention, under Article 1, § 4 of the WIPO Copyright Treaty, to which it is party 36, which Treaty is part of the EU legal order and the application of which is an objective of Directive 2001/29/EC37.

      The scope of copyright protection covers the expressed, original results of creative activity 38. The fact that a piece of work is a result of human activity is not sufficient for this work’s eligibility for copyright protection. The investment of effort and skills by a person does not suffice 39. The invested effort and skills must also illustrate the author’s artistic abilities in a manner that is original and leaves the author’s “individual imprint”40 on this work.

      The work must be expressed in a material form. As an element of the protected subject-matter’s content, the “material form” criterion has also been subject to interpretation by the EU Court.

      In the Sieckmann case 41, the Court of Justice ruled on whether an olfactory sign could be a registered trademark 42. The Court judged that it could, “provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily

      accessible, intelligible, durable and objective”43– The material form is necessary for a work’s precise and objective distinction from other works. If this distinction cannot be based on objective criteria, and is instead based on subjective impressions (even if those are the impressions of an expert or a judge), the requirements for a material form of the work are not met and there are no grounds for the provision of copyright protection. The possibility of a sufficiently precise and objective distinction of the work, and consequently of the scope of its copyright protection, however, is mandatory for the sake of compliance with the legal security of the copyright holder and, most importantly, of third persons 44.

      1. Works excluded from protection

      The exhaustive list of unprotected works includes:

      1. normative and individual acts of government bodies and official translations thereof;

      2. ideas and concepts;

      3. works of folklore;

      4. news, facts, information and data

      These are the most typical cases enshrined in the Act to avoid any doubt. Here, the law strictly follows the Western European concept 45.