1. What does copyright protect?
Copyright protects any work of literature, art or science, which is a result of a person’s creative activity and is objectified in whatever way or in whatever form. Article 3 of the Bulgarian Copyrights and Neighboring Rights Act (the Copyrights Act, CA) outlines the objects, which are protected by copyrights, where they are given as examples. This means that if the work you have created is not among the listed, that does not automatically imply that you don’t have any copyright in relation to that work.
In order to be considered an author, you must:
1) be a physical entity
2) have created a work which is the result of your creative activity.
In certain cases legal entities are also recognized by the law as copyright holders, although they are not considered authors.
The CA does not explicitly define when something is to be considered a “work”, but the European legal doctrine agrees that the work must be possessed of originality. To establish that a creation is original, it is not necessary for it to have high aesthetic qualities. It would suffice for it to be like no other, i.e. that it is original in an objective sense. Defining when a creation is original and when it is not is probably one of the most disputed issues in intellectual property. Or as St. Augustine put it: “If no one asks me, I know what it is. If I wish to explain it to him who asks, I do not know.”
Author’s rights over a work emerge with the mere creation of the work. In contrast to, for example, the legal regime governing industrial property objects such as trademarks, patents, etc., in order for author’s rights to emerge no registration is needed. If you have created a work of literature, art or science that is a result of your creative activity, you are its author.
Computer programs are also protected by copyright.
Databases are a special case due to the fact that the protected rights are not protected by copyright, yet the legal regime for their protection is the one established by the CA.
Of key importance is that the work be objectified in some way or form. Ideas and concepts, as well as news, facts and data are not eligible for copyright protection.
What are the rights of an author under Copyright Law?
As the author of a work you have certain economic and moral rights.
Among the moral rights are the right to decide whether to reveal your work and when to do it; if you want to reveal it under your real name, under a pseudonym or anonymously; to request that all use of your work is accompanied by a clear message that you are the author; to request that your work remain unchanged in its entirety, etc.
The economic rights are listed in Art. 18 of the CA, but they can basically be summed up in 4 distinct rights:
1) the right to reproduce the work, i.e. to create a copy of it;
2) the right to distribute the work, i.e. to make possible the possession of physical copies of it;
3) the right to communicate the work to the public, i.e. to allow access to the work without the possession of copies;
4) the right to transform the work, i.e. to use it a basis for the creation of a new work. For example, you have written a novel and now someone wants to translate it or to make it into a movie.
You as the author have the exclusive right to authorize each and every one of these actions separately or as a whole. Any action that is done without you explicit consent is a violation of your author’s rights.
Tips for smart and easy copyright protection
When we talk about the copyright protection, it doesn't necessarily mean bringing a case before a court or complaining to a regulatory body. There are a number of measures, which authors can take in order to protect their rights without the need for State intervention. For example, authors of photographs can use watermarks.
Authors of written works should put their names on and the symbol for a copyright ©.
Even when these measures end up being insufficient to protect your copyright, it does not mean that you should automatically seek State intervention. We recommend that you first send a Cease and desist letter to the alleged infringer where you explain what the violation is and give a deadline after which you expect the situation will be rectified. This approach can save you quite a bit of time and headaches. Even if it does not lead to the results you expect, it will be of use for a future legal dispute.
Copyright protection via judicial and administrative litigation
You have several judicial and administrative options for copyright protection, generalized in 4 categories: civil protection, administrative protection, penal protection, and the so-called measures at the border.
1. Civil lawsuit.
A claim for an alleged copyright infringement can be brought before a civil court at the place where the infringement occurred or where the respondent has their address. You can claim for compensation for the alleged infringement, which includes all damages that are a direct and immediate consequence of the infringement. When quantifying the compensation the court takes into account all circumstances related to the breach, including the forgone financial opportunities and non-material damages, as well as the financial gain of the infringer as a result of the infringement.
You can also ask the court that the unlawfully made copies of the work be destroyed or that you be granted ownership over them. In the latter case their value is subtracted from the total compensation.
2. Administrative protection.
In order to ensure that the copyright rules are followed, the Ministry of Culture (MC) and the Ministry of Interior can make joint inspections. The MC acts by its own initiative or after receiving a claim. In the claim you have to identify yourself, to identify the alleged infringer and the place where the infringement took place, as well an information about the copyrighted objects affected by the infringement. If the authorities find that an infringement was committed, they impose a fine to the infringer, the objects are confiscated by the State and destroyed. This approach is recommended if you are not interested in long legal battles.
3. Penal protection.
The unlawful use of other person’s copyrighted work is a crime (Art. 172a of the Penal Code (PC)). Plagiarism is also a crime (Art. 173 PC), as well as the so-called imposed co-authorship (Art. 174 PC). An act as per Art. 172a PC is a crime only when it is not an insignificant case. In the course of the criminal proceedings you may also bring a civil claim for suffered damages.
4. Measures at the border.
Lastly, the law gives authors the possibility to ask for measures that will intercept an infringement at the border. For achieving this result, you have to send a request to the customs authorities asking for the goods violating your copyright to be detained. After the goods have been detained, you have 10 days to present evidence that proceedings have been initiated before a court with regard to the alleged violation. The court has to rule on whether the measure has to be changed, confirmed or reversed. If, however, the customs authorities deny your request to detain the goods, this is considered an administrative act, which can be disputed within a 14-day period.
Exhaustion of the right to distribution.
In certain cases the exclusive right to distribution which the law grants you as the author of a work can be exhausted. This does not mean that you cease to be the author, but you can no longer oppose any further circulation of the work within the market. The exhaustion occurs after the first lawful change of ownership over the object. Since this rule is established in the interest of the Single Market, it is equally valid throughout the whole EU. Consequently, you cannot prohibit this person from taking the copies to another EU country and selling them there, or loaning them out, or donating them, etc.
If you have any further questions regarding the copyright protection, do not hesitate to contact us – your online legal consultant!
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