Банкеръ Weekly



In the end of last month the consecutive draft amendments to the Copyright and Related Rights Act were moved to the National Assembly. Apart from everything else they prove that the copyright of Bulgarian authors is not 100% guaranteed without the advice, recommendations and instructions of the European Union (EU). In this specific case the law should include two new directives of the EU which according to the Council of Ministers will conclusively and fully bring Bulgaria's legislation in this sphere in compliance with that of the EU. The first Directive (2001/84/ЕО), dated September 27, 2001 concerns the right to resale the work of art in favour of the author. The second one (2004/48/ЕО), dated April 29, 2004, is connected with the execution of rights on intellectual property. The EU members should include the first directive in their legislation by January 1, 2006, and the second one - by April 29, 2006. Bulgaria will have to do the same as soon as possible. Europe demands from its 25 members to introduce regulations, guaranteeing that artists, sculptors, photographers and authors of some kinds of applied works of art, such as Gobelin tapestries, ceramics, etc. will be getting a certain percentage of the price of their works when they are resold by traders who have purchased the art directly from them. In fact a similar text is contained in article 20 of the currently effective law in our country. It stipulates that the author is entitled to a remuneration amounting to 5% of the selling price of his original works of art (if no higher percentage has been agreed) when it is resold and for each following sale. This provision probably has flaws and imperfections, but it gives complete freedom to the artists and the trader to agree on the profit.However, things are changing now, and in some cases that might be very dramatic. The future regulations are far more detailed than the present ones as they introduce imperatively the amount of percentage to be paid in favour of the author, depending on the selling price. The only thing which the State can regulate at its discretion is a minimum selling price under which no percentage will be set aside. Under a directive on the Old Continent that threshold could not exceed the equivalent of EUR3,000.As it is obviously inapplicable in Bulgaria, our draft bill stipulates that the threshold would be the equivalent of EUR300. The Council of Ministers is adamant that this size is in compliance with the practice in this country, and has been conclusively set after consultations with the respective art unions. The percentage to be paid to the author will be calculated in quite a complicated way, and the total amount for a single work of art may not exceed the BG lev equivalent of EUR12,500. The artists, sculptors, photographers, and the owners of copyright as a whole, will be able within three years after the resale of their work of art to demand from any professional trader who has participated in it, to give them whatsoever information if it is necessary to get their rightful percentage of the profit. What will be the consequences in case of violation of the copyright? It's only natural that the person with injured interests would seek retribution through the court and demand compensation for all damages. Under the effective law, he could demand to be requited by getting the proceeds, received as a result of the violation. If sufficiently accurate data are not available, he may even ask to get from BGN100 to BGN50,000 and the exact amount of the compensation shall be set by the court. The new amendments to the legislative act regulate the sanctions in such cases in much more detail. When setting the amount of the retribution the court will be already taking into consideration all the circumstances, connected with the violation, missed benefits and non-material damages. Missed benefits include also the proceeds, received by the infringer. The text itself, however, is not very precise: The court sets a just retribution which should be have a preventive and warning effect on the violator and on the other members of the society.The preventive and warning effect is expected from the higher retribution, stipulated in the draft, ranging from BGNB500 to BGN100,000. A similar effect is expected from a new measure - the court's ruling to be made public in two dailies and on the Bulgarian National Television between 19.00 hrs. and 21.000 hrs. at the expense of the infringer. The new stipulations will be applied only for resales, effected after the law is enforced. The amended legislative act will become effective about a month after its publication in the Official Gazette.

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