Revision as of 09:48, 4 September 2006

Legislation and Materials

Law on Copyright and Neighbouring Rights. Published in State Gazette, N 56/1993; amended N 63/1994; N 10/1998; N 28/2000; N 77/2002; N 28/2005; N 43/2005; N 74/2005) In Bulgarian (html)

In English (pdf) Law on Copyright and Neighbouring Rights. Published in State Gazette No 56/1993; amended No 63/1994, No l0/1998, No 28/2000, No 77/2002. UNESCO Collection of National Copyright Laws

General Remarks on Implementation

EUCD implemented into Bulgarian law on 22 May 2002.

Core Issues

Anti-Circumvention Provisions

Section 2, Paragraph 14 of the CRRA provides a definition of TPM that basically mimics the EUCD language. TPM means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other protected subject matter, which are not authorized by the rightholder, if these measures allow the rightholder to control the use of such works through access code, scrambling or other transformation of the work or a copy control mechanism. By not requiring specifically that the measures be “effective” but rather simply providing an illustration of such controls, the Bulgarian legislation actually avoids all debate on the meaning of “effective” measures. Under Article 25a of the CRRA, the exceptions to copyright and related rights protection may not be exercised in a way that entails elimination, damage, destruction or disturbance of TPM without the consent of the rightholder. In other words, CRRA prevents the user not only from circumventing TPM for infringing activities but also for the purposes of legitimate use.

Article 97 (7) sanctions also the person who manufactures, imports, distributes, sells, lends, offers for sale, advertises for sale or lending or owns with a commercial purpose devices or components or provides services which:

1. are offered or advertised as means for circumventing TPM; or
2. have only a limited commercially significant purpose or use other than to circumvent, or
3. are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of TPM.

If a work is protected by TPM, persons with rights under some of the exceptions under Article 24 or 25 may not eliminate, damage, destroy or disturb the TPM and shall approach the rightholder and request that they be provided with access to the work to the extent necessary for achieving the legitimate purpose. Only persons exercising rights under Article 24 (1) points 3, 9, 10, 12 and 13 (numbering corresponds to numbering in the list above) and Article 25 (1) p. 1 have the right to enforce the exceptions in such way. Since the law does not provide further details on a procedure to do that, it seems that if the rightholder fails to ensure the requested access upon request, the user would be able to defend his/her rights in court under the general rules governing civil suits. Unlike other nations’ laws in the area, CRRA does not specifically provide for the use of mediation in this case. Nevertheless, in 2003 Bulgaria adopted its Mediation Act and the major business associations in the country host mediation centres. Any dispute may be referred to mediation, if the parties so wish.

Peer Collaboration

(Contribution from Zara Petkova)

In Bulgaria, similarly to Portugal, Article 25 (1) p.2 of the Copyright and Related Rights Act authorises natural persons to reproduce works for personal, non-commercial use without consent of the rightholder as long as fair compensation is provided to the rightholder. According to Article 26 (2) the compensation is levied on the digital carriers (5% of production price) and reproduction equipment (2% of production price) when manufactured or imported. Twenty percent of the collected amounts are directed towards the National Culture Fund and the remaining funds are transferred to collective management organizations, which distribute them among the rightholders.

Again similarly to Portugal, the uploading onto the Internet of copyrighted material, including in the form of filesharing, is not covered by the exception; it is considered distribution. Unauthorised distribution of copyrighted material is criminalized under the Bulgarian Penal Code. Under Article 172a, the recording, reproduction, distribution, broadcasting or transfer by technical means or any other use of a protected work without authorization by the rightholder as required by law shall be punishable by up to three years of imprisonment and a fine of BGN 1000 to 3000” (EUR 500 to 1500). In minor cases, the penal liability may be replaced with an administrative one. In addition, the rightholder may seek damages in a civil suit.

Bulgaria does have a noteworthy example of implementation in applying the law to filesharing. In May 2006, in an unprecedented operation, the Bulgarian police detained four users of the popular Bulgarian torrent tracker arena.bg for uploading a total of 22 terabytes of material. Authorities instituted investigations against the detained users of arena.bg under Article 172a of the Penal Code. Against a backdrop of public indignation, Bulgaria’s Chief Prosecutor criticized the operation. He suggested that control of filesharing is not amongst the country’s priorities in fighting IP crimes. Other prosecutors and law enforcement officials publicly commented that the trials against the torrent users are not likely to succeed since it would be extremely difficult to prove the case beyond reasonable doubt. When commenting on the operation in the national media, police representatives emphasized that the reason they went after these users was the particularly large volume of traffic they had generated (as demonstrated by their share rating in the torrent tracker) thus suggesting that less extensive filesharing might be ignored. As a result, arena.bg deleted the share ratings of all its users from the website.

In reaction to the operation, the torrent trackers disclosed that almost half of the traffic in pirated material has been done through computers in Ministries and governmental agencies; the National Social Security Institute led with 873 terabytes of traffic, followed by the Ministry of Interior with 544 terabytes and the Ministry of Finance with 411 terabytes. High state officials pledged to work towards heightened control over the use of state computers.

Universal Access

NOTE: English translation available up to amendment No 77/2002 only

Chapter Five FREE USE OF WORKS

Permissible Free Uses

Art. 23. Free use of works shall be permissible only in the cases specified in this Law, provided that it does not conflict with the normal exploitation of the work and does not prejudice the legitimate interests of the copyright holder.

Permissible Free Use without Payment of Compensation

Art. 24. The following shall be permissible without the consent of the copyright holder and without payment of compensation:

1. Temporary reproduction of works provided the act is transient and incidental, has no independent significance and is an integral and essential part of a technological process, and whose sole purpose is to enable:

a) Transmission in a network by an intermediary, or b) Other lawful use of the work.

2. Use of quotations from other persons' already disclosed works when criticizing or reviewing, provided the source and the name of the author are cited unless this turns out to be impossible. The quotation should be compatible with the usual practice and its extent should not exceed the one justified by the purpose.

3. Use of parts of published works or of a limited number of works in other works to the extent justified by the purposes of analysis, comments or scientific research. Such use shall be permissible only for scientific and educational purposes, provided the source and the name of the author are cited unless this turns out to be impossible.

4. Use as current information in the press and other mass media of speeches, reports, sermons and the like and parts thereof, delivered at public meetings, as well as of pleas before the court provided the source and the name of the author are cited unless this turns out to be impossible.

5. Use by the mass media of already disclosed articles on current economic, political or religious issues in case such use has not been explicitly forbidden, provided the source and the name of the author are cited unless this turns out to be impossible;

6. Reproduction by a photographic, cinematographic or another analogous process, as well as by way of sound or video recording, of works related to current events, for the purposes of the mass media, to a limited extent justified by the purposes of information, provided the source and the name of the author are cited unless this turns out to be impossible.

7. Use of works permanently exhibited on streets, squares and other public places, excluding mechanical contact copying, as well as their broadcasting by wireless means or transmission by cable or other technical means, if done for the purposes of information or another non-commercial purpose.

8. Public presentation and public performance of published works in schools and other educational establishments, provided that there are no pecuniary revenues and no compensation is paid to the participants in the preparation and carrying out of the public presentation or performance.

9. Reproduction in necessary quantities of already published works by public libraries, schools or other educational establishments, museums and archives with educational or conservation purposes, provided this use will not serve commercial purposes.

10. Reproduction of already disclosed works in Braille or another analogous method, if not done for gainful purposes.

11. Permitting access of natural persons to works in collections belonging to organizations referred to in item 9, provided this is done for scientific purposes and is not of commercial nature.

12. Ephemeral recording of a work by radio and television organizations to which the author has granted the right to use the work made by means of their own facilities and for their own broadcasts and within the framework of the authorization granted. Recordings that have exceptional documentary character may be preserved in official archives.

13. Use of works for the purposes of national security, in court or administrative procedures or in the parliamentary practice.

14. Use of works during religious ceremonies or during official ceremonies organized by the public authorities.

15. Use of a building, which is a work of architecture or a plan of such a building for the purposes of its reconstruction.

(2) The provisions under paragraph 1 shall not refer to computer programs. The provisions of Art. 70 and Art. 71 shall be applicable to computer programs.

Permissible Use Against Compensation

Art. 25 (1) The following shall be permissible without the consent of the copyright holder and against payment of compensation:

1. Reproduction on paper or similar medium by reprographic or another analogous process of works with the exception of sheet music, and for no commercial purposes.

2. Reproduction of works on any medium made by a natural person for his private use and for no commercial purposes.

(2) The provision under paragraph 1, item 2 shall not refer to computer programs and works of architecture. The provisions of Art. 70. and Art.71 shall be applicable to computer programs.

Visually impaired persons

In Bulgaria, Art. 24 (1) p. 10 of the Copyright and Related Rights Act (CRRA) allows the free reproduction of already publicized works through the Braille system or another analogous method unless this is done for profit. No compensation is due in this case. It is not clear what is meant by an analogous method and whether that would extend to methods that serve the access to the protected material by people with disabilities other than impaired vision. In any case the formulation of the Bulgarian provision seems to be narrower than the provision of Art. 5 (3)(b), which is not limited to a specific type of disability. Assuming however that the exception above, as framed by the Bulgarian law, is interpreted as extending only to persons with impaired vision and not to persons with other disabilities that could otherwise be able to take advantage of such an exception, such persons may well be able to seek protection with the Commission for Protection against Discrimination or the court in accordance with the Protection against Discrimination Act of 2004. In case the rights of many persons have been violated, this law allows also for class actions on behalf of organizations representing such persons.

If however, the work is protected by TPM, the persons with rights under Art. 24 (1) p. 10 may not eliminate, damage, destroy or disturb the TPM and shall approach the rightholder and request that they be provided with access to the work to the extent necessary for achieving the legitimate purpose. Since the law does not provide further details on a procedure to do that, it seems that if the rightsholder fails to ensure the requested access, the user would be able to defend his/her rights in court under the general rules governing civil suits.

Political and Cultural Participation

Sanctions

Bulgaria criminalizes the unauthorised distribution of protected material. However, the circumvention of technological measures is not criminalized and is sanctioned only by an administrative penalty under CRRA.

Unauthorised distribution of protected material is criminalized under the Bulgarian Penal Code. Under Article 172a, the recording, reproduction, distribution, broadcasting or transfer by technical means or any other use of a protected work without authorization by the rightholder as required by law shall be punishable by up to three years of imprisonment and a fine of BGN 1000 to 3000” (EUR 500 to 1500). In minor cases, the penal liability may be replaced with an administrative one as provided by CRRA. In addition, the rightholder may seek damages in a civil suit.

Article 97 (6) of the CRRA provides that a person who intentionally eliminates, damages, destructs or disturbs or in another way circumvents TPM used by the rightholders protected under this act in the knowledge, or with reasonable grounds to know that the measures have been designed for that particular purpose without being entitled to do so shall be penalized by a fine of BGN 300 to 3000 (EUR 150 to 1500) unless he/she is subject to penal liability. For a repeated violation the penalty shall be BGN 1000 to 5000 (EUR 500 to 2500). In either case the devices that have been used, regardless of whom they belong to, shall be seized and submitted to the Ministry of Interior to be destroyed. Interestingly, while under the EUCD the person circumventing the measures needs to be aware of the objective he or she is pursuing with these actions, the Bulgarian law, in addition to this kind of knowledge (as exemplified by the word “intentionally”), requires that the person is aware of the TPM’s purpose. Although it is not clear how the authorities would interpret the provision, it seems that the Bulgarian legislator has opted for a slightly higher standard of proof in this case. The same sanctions are imposed for manufacturing, importation, distribution, sale, lending, offering for sale, advertising for sale or lending or owning with a commercial purpose of devices or components or the provision of services, which circumvent TPM.