The new amendments to the Copyright and Related Rights Act entered into force
08 December 2023
After several years of staying in the registry offices of several consecutive National Assemblies, after promulgation in the State Gazette, on 01.12.2023, the long-awaited amendments to the Copyright and Related Rights Act (the “Act”) finally entered into force. They transpose into Bulgarian law, among other amendments, the requirements of Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (“Directive 2019/789”) and Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (‘Directive 2019/790’).
In this article I will try to summarize in a systematic manner the most important groups of changes that enter into force after the promulgation of the amendments:
I. Changes in relation to the transposition of Directive 2019/789
- The rules of the Directive that facilitate the cross-border provision of ancillary online services of radio or television broadcasting organizations – are transposed. According to the definition in the Act, an ancillary service is “an online service which consists in offering online access to the public by the broadcasting or transmitting broadcasting organisation to television or radio programmes or parts thereof, at the same time as they are broadcast or transmitted by the broadcasting or transmitting organization (simulcasting) or for a certain period of time after it, as well as the provision of content ancillary to that broadcast” (such as additional materials not included in the television programme). The related rights of broadcasting organisations laid down in the Act are being extended with the right to allow, for a fee, access to their ancillary online services. Accordingly, the Act also regulates the author’s right to additional remuneration if his works are shared by radio and television organizations within the framework of ancillary services;
- Numerous changes have been made to the Law concerning the retransmission of programmes broadcast for the first time in another Member State – introducing technical neutrality of all means (online, satellites, digital, etc.), equating them with the older technology of cable retransmission;
- The Act lays down the rules on the direct injection of television and radio programmes. According to the definition in the Act, direct injection is a “technology by means of which the broadcasting or transmitting broadcasting organization delivers its programme-carrying signals to another organization distributing signals in such a way that the programme-carrying signals are not accessible to the public at the time of delivery“. Although it sounds complicated and incomprehensible, this technology is actually the most common technology that the TV and radio business in Bulgaria use – where the owners of TV and radio channels provide access to them to telecom operators, and they, in turn, depending on the contract with the respective consumer, give the consumer access to the corresponding number of programmes. The main topic of discussion regarding this technology, which is answered by the Directive and the Act that transposes it, is at which moment the works, part of these television and radio programmes are considered to be communicated to the public and which entity is responsible in the event of infringement of the authors’ rights. The solution to this issue by the Directive is that both the broadcasting organisation and the distributor (e.g. telecoms) are responsible, and their liability is not joint and several – rather each entity bears responsibility for obtaining authorisation from the copyright holders for their activities (respectively – is liable in the event of lack of authorisation). Mechanisms have also been put in place to avoid double payment by the broadcasting organisation and the to the copyright holders for a single transmission broadcasted via direct injection.
II. Changes related to the transposition of Directive 2019/790
- The Act transposes the rules of the Directive regarding the automated text and data mining. A legal presumption is introduced that such automated data mining is in principle permitted without the consent of therightholder and without the payment of additional remuneration, unless the copyright holder has explicitly prohibited it and only if they have introduced the prohibition by technical means, recognisable by the software performing automated data mining. In the event that the data mining is for the purposes of scientific research by the scientific institutions explicitly listed in the Act (museums, libraries, universities, scientific and research institutes, etc.), it is allowed even in the presence of an explicit prohibition by the rightholder;
- Rules are introduced that explicitly allow the use of copyrighted works for digital and cross-border teaching activities (online education) by institutions in the pre-school and school education system and universities;
- A new kind of related right is introduced – the right of publishers of press publications (publishers of periodicals, news, news agencies, etc.). The Act recognises that the publisher of press publications has the exclusive right to grant information society service providers in return for remuneration: (i) the online reproduction of its publications or parts thereof; (ii) offering electronic access to its publications or parts thereof. These related rights shall have a duration of 2 years from the first of January of the year following the year in which the press publication was first published. However, publishers’ related rights do not extend to permitting the following acts which constitute fair use: (i) use of press publications by an individual for personal or non-commercial purposes; (ii) reproduction of the facts included in press publications; (iii) use of individual words or very short extracts from a press publication; (iv) hyperlinking, as well as with regard to periodicals for scientific or academic purposes and blogs and other private sites;
- The rules of the Directive on use of out-of-commerce works are transposed – it can be presumed that the work constitutes an out-of-commerce work if it is not available to the public through customary channels of commerce public in the same language or form, after a reasonable effort has been made to determine whether it is available to the (additional criteria may be laid down by the Minister for Culture). A group of rules has been established, which grant libraries, museums and archives the right to provide, through non-commercial websites, electronic access to out-of-commerce works from their permanent archives and collections;
- For the first time, Bulgarian legislation regulates the rights and obligations of online content–sharing service providers. The Act provides that they are in principle responsible for obtaining permission from the rightholders for content shared on their platform. Platforms may be exempt from liability for content shared without permission if they: (i) have made best efforts to obtain authorisation; (ii) have made every effort not to upload to the platform works of which they have been expressly informed by rightholders; and (iii) without delay remove/disable access to unauthorized content that has been notified and prevent it from being re-uploaded to the platform. If the service provider has more than 5 000 000 monthly visitors, it has the additional obligation to prove that it has made every possible effort to prevent further uploading for which the rightholders have provided relevant and necessary information;
- In connection with the rules of the Directive, the provision of the Act on the cancellation of a contract for the assignment of rights in case of non-commenced performance has been amended. By retaining the current 2-year period of non-use of a work for which the right of exclusive use has been granted, the Act expands the rights of the author, and along with the termination of the contract, the rightholder has the right to transform the right of exclusive use into a non-exclusive one. However, the range of works exempted from the above rules has been expanded. In addition to the works of architecture which were already exempted, newly exempted works include computer programs, works created in the course of employment or works made-for-hire, as well as cases where the rights are not exercised through the fault of the author and cases where, due to their nature, the rights cannot be granted to a new user. In order to facilitate the exercising of the above rights of authors, an obligation has been introduced in the Act for authorized users to report annually to the author on the use of the rights granted.
III. Other important changes in the Act
- New hypotheses have been added to the Act for the fair use of works subject to copyright (the so-called fair use) – for the purposes of cartoons and parody, as well as for the purpose of emulating the style of another work, as well as the incidental inclusion of a work in other material;
- Art. 37, para. 2 of the Act is repealed, according to which the contract for the use of a work can be concluded for a maximum period of 10 years. As laid down in the considerations of the already adopted bill, this norm was not adequate to the economic conditions and greatly hampered the users when agreeing on the use of copyrighted works with rightholders;
- With regard to works developed in the course of employment, as well as with regard to the contracts for the use of already developed works, an important addition is made in the Act that the author is entitled to an appropriate and proportionate remuneration. Provisions have been adopted outlining a mechanism for assessing whether the remuneration meets the above criteria (the past version of the Act was limited to stating that the just remuneration is determined by the court). Disputes can be resolved by mediation, as well as before the courts. The written mechanism, however, does not apply to the authors of computer programs (who are also entitled to fair and proportionate remuneration, but calculated according to not fully clarified criteria);
- The Act lays down a more detailed procedure for the registration of the names of artistic groups by the Minister of Culture, the duration of protection of their rights, as well as specifics concerning the judicial appeal of the acts of the Minister of Culture. The Act provides that a more detailed procedure on the registration of the names of artistic groups shall be laid down in the secondary legislation to the Act, adopted by the Council of Ministers;
- Pursuant to a newly adopted provision in the Act, authors of works of scientific literature, financed in whole or in part by public funds, are being allowed to publish their works in educational or scientific repositories for non-commercial purposes naming their publisher. The publisher and the author cannot agree otherwise.
Author: Philip Kiossev