(Contribution by Svetozara Petkova)
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
In Bulgaria, the EUCD was transposed into the national legislation by amendments to the Copyright and Related Rights Act (CRRA) introduced in August 2002. In the context of Bulgaria’s accession to the European Union, its intellectual property legislation has been examined by the annual Monitoring Reports of the European Commission. Specifically in the area of copyright, it has been found to meet EU requirements. However, the 2006 Comprehensive Monitoring Report notes that enforcement of IPR is not yet at a satisfactory level.
Exceptions and limitations
EUCD stipulates that Member States may provide for exceptions or limitations to the use of a protected work and enumerates permitted exceptions. Of these allowed exceptions and limitations, Bulgaria has incorporated in its legislation quite a few under Chapter Five of the CRRA, which regulates free use.
Article 24 of CRRA enumerates the cases in which the work can be used without an authorization by the rightholder and without the payment of compensation. These are listed below with short comments in Italic where the specific exception differs in some more or less meaningful way from the respective EUCD one:
- Temporary acts of reproduction, which are transient or incidental, have no independent economic significance, are an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network by an intermediary, or (b) another lawful use; (as under EUCD this first exception is actually mandatory for Member States, it is mentioned here solely for purposes of comprehensiveness; the Bulgarian provision is an almost literal translation of the EUCD one)
- Use of quotations for purposes such as criticism or review of third persons’ works which have already been made available to the public, provided that the source, and the author's name are indicated unless this turns out to be impossible; the citing shall be in accordance with ordinary practice and in a volume required by the specific purpose; (interestingly, while the EUCD requires that the cited work has already been lawfully made available to the public, the Bulgarian text omits this word which suggests that citing works, which have been made available to the public in violation of the law would be legal).
- Use of parts of published works or of a limited number of works in other works to an extent necessary for analysis, commentary or another type of scientific research; such use shall be admissible solely for teaching or scientific purposes, as long as the source and the author's name are indicated, unless this turns out to be impossible; (This teaching and scientific exception seems broader than the EUCD one. It allows the use not only for the purposes of illustration but for possibly broader teaching or scientific purposes. Whereas the EUCD is not specific as to whether whole works can be used for such purposes, the Bulgarian law specifically allows it.)
- Use as current information in the press or in other mass media of speeches, reports, preaching and others or of parts of such communications made in public gatherings, as well as of court pleadings as long as the source and the author's name are indicated unless this turns out to be impossible; (The exception regarding speeches in the EUCD is somewhat broader than that of the Bulgarian law in that while requiring informatory purpose, it does not limit the types of entities that might use the speeches. The EUCD also specifically includes public lectures in the types of material that may be used under this exception. On the other hand, the EUCD allows the use of only extracts of public speeches whereas the Bulgarian law seems to allow the use of the whole material regardless whether such use exceeds the extent justified by the informatory purpose. Also, Bulgarian law specifically includes court pleadings in the exception.)
- Reproduction by the mass media of already published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source and the author's name are indicated unless this turns out to be impossible;
- Reproduction in a photographic, cinematographic or another analogous way, as well as audio or video recording of works related to a current event to be used in the mass media to the extent justified by the informatory purpose and as long as the source and the author's name are indicated unless this turns out to be impossible;
- Use of works permanently located in streets, squares and other public places without mechanic contact copying, as well as their broadcasting as long as this serves an informatory or another non-commercial purpose; (in Bulgaria, the scope of this exception seems to be narrower than that of the respective provision of Article 5.3 (h) of EUCD).
- Public presentation and public performance of published works in schools or other educational establishments as long as no payments are received and no remuneration is paid to the participants in the preparation or the realization of the presentation or the performance; (EUCD does not explicitly provide for such an exception.)
- Reproduction of already published works made by publicly accessible libraries, educational establishments or museums, or by archives for the purposes of education or preservation and not commercial purposes; (the respective exception in the EUCD does not require that reproduction is made specifically for the purposes of education or preservation; the only requirement is that the act of reproduction is not for direct or indirect economic or commercial advantage. In this sense, the EUCD exception is broader than the Bulgarian one.)
- Reproduction of works that have already been made available to the public through the Braille system or another analogous method as long as this does not serve a commercial purpose; (The Bulgarian exception in this respect is narrower than the EUCD one. It benefits specifically only people with impaired vision. It is not clear whether the expression “another analogous method” would cover methods designed to benefit people with other types of disabilities. However, an interpretation that excludes benefits to people with other disabilities may be contrary to the Bulgarian Protection against Discrimination Act. Additionally, while the EUCD exception covers broadly “uses” of the work, the Bulgarian law extends only to reproduction.)
- Making available, for scientific purposes, to natural persons of works in the collections of publicly accessible libraries, educational establishments, museums or archives as long as this use does not have a commercial nature;
- Ephemeral recordings of works made by radio and television organisations by means of their own facilities and for their own broadcasts as long as the author has authorized them to use the work and within the scope of this authorization; recordings having important documentary value may be preserved in official archives;
- Use of works for the purposes of public security, in administrative, parliamentary or judicial proceedings; (While EUCD permits the use of works to ensure the proper performance or reporting of the above proceedings, the formulation of the Bulgarian provision allows free use only for the purposes of performing the proceedings.)
- Use of works during religious or official celebrations organised by a public authority;
- Use of an artistic work in the form of a building or a plan of a building for the purposes of reconstructing the building.
The second group of exceptions, regulated in Article 25 of CRRA, encompasses the right to use the work without an authorization by the rightholder but against a fair compensation. These are:
- Reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music;
- Reproductions of works on any medium made by a natural person for private use and for ends that are not commercial.
The compensation is not paid directly but, according to Article 26 (2) of CRRA, 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.
Not all exceptions provided for by the EUCD have been introduced into Bulgarian legislation. The allowed exceptions that are not present in CRRA are: 1) Article 5.2 (e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation; 2) Article 5.3 (i) on incidental inclusion of a work or other subject-matter in other material (although resembling the teaching and scientific exception, this one is not limited as to the purpose of the inclusion); 3) Article 5.3. (j) on use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use; 4) Article 5.3. (k) on use for the purpose of caricature, parody or pastiche; 5) Article 5.3. (l) on use in connection with the demonstration or repair of equipment.
The omission of the exception regarding use for the purpose of caricature, parody or pastiche is a particularly negative example of Bulgaria's implementation of the EUCD, as this adversely affects artistic appropriation and the freedom of speech.
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:
- are offered or advertised as means for circumventing TPM; or
- have only a limited commercially significant purpose or use other than to circumvent, or
- 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.
One positive feature of Bulgarian legislation is that it does not criminalize the circumvention of TPM.
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. However, this reproduction for personal purposes relates only to content that is owned by the user; such allowed reproduction should not be confused with the reproduction occurring in the process of downloading through peer collaboration. Such downloads would be illegal reproduction and thus would be criminalized.
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.
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 is narrower than the provision of Art. 5 (3)(b) of EUCD, 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
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 five years of imprisonment and a fine of up to BGN 5000” (EUR 2500). In 2006 the Bulgarian legislator increased the penalties for thie crime. 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.