Bulgaria implemented the Copyright Directive of 2019

The long-awaited amendments to the Bulgarian Copyright Act are a fact as of 01.12.2023

Today, the Law amending the Bulgarian Copyright and Neighbouring Rights Act was promulgated in the State Gazette. This happened after last Thursday the National Assembly adopted at second reading the long-awaited amendments implementing Directives 2019/789 and 2019/790 into Bulgarian legislation.

The first of these directives concerns the exercise of copyright and neighbouring rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes. The transposition of this directive was a major point of contention between collective rights management organizations (CMOs) and broadcasters.

The second directive – on copyright in the Digital Single Market (CDSM), which we’ve covered many times on Digital Republic’s blog – is responsible for the bulk of today’s amendments. Directive 2019/790 revises Directive 2001/29/EC and implements the first major horizontal copyright reform in the EU since 2001. One of the main stated objectives of this reform of the EU copyright framework was to ensure broad access to creative content across the EU, as well as a balance with other public policy objectives in education, research and innovation. The process of adopting the directive was long and complicated, and some of the mechanisms provided for in it were extremely controversial, precisely because of the many interests affected by this legislation.

The path followed by the Bulgarian legislator was as long and complicated. Here we are, after more than two years since the transposition deadline and an infringement proceeding by the European Commission to match, sharing some first impressions about the yays and nays of the Bulgarian CDSM implementation from a public interest and digital rights perspective:

Permitted Use

Regarding the so-called copyright exceptions and limitations, the amended law can be commended for some quite progressive solutions and a holistic approach.

✅ All exceptions in the law are mandatory

An important achievement of the new amendment is the introduction of paragraph 2 in Art 23 of the CNRA, according to which:

“Any arrangement which impedes or restricts the right of free use is null and void unless otherwise provided by law.”

Although until now the CNRA did not explicitly define the nature of the norms allowing for free use, the Bulgarian doctrine traditionally perceived norms that by design protect the public interest, such as exceptions to copyright, as imperative. With the introduction of the exceptions as per Articles 3, 5 and 6 of Directive in new Articles 26g, 26h and 26i of the CNRA, an express prohibition of contractual override for these new exceptions was provided for (new Art 26l of the CNRA). This however called into question the effect of all pre-existing exceptions and created uncertainty regarding future judicial implementation. The Parliament’s technologically neutral solution to this issue should be welcomed.

✅ The regimes for exceptions to copyright and to neighbouring rights are now synchronized 

Until the current amendment, the regime of permitted uses under Bulgarian law was inexplicably fragmented regarding the application of exceptions to copyright and to neighbouring rights. Unlike most EU countries, where exceptions to related rights are regulated by a general referencing provision for a mutatis mutandis application of copyright exceptions, the CNRA provided for specific references for each of the neighbouring rights to certain, seemingly entirely arbitrary, copyright exceptions. For example, the quotation exception applied to the rights of film producers and broadcasting organizations, but not to the rights of performing artists and producers of phonograms. Also, the preexisting exception for reproduction for the purpose of preservation by public libraries, museums and archives did not apply to either one object of related rights.

The current amendment synchronizes this regime by providing references for the application by analogy of all copyright exceptions in the law to each of the related rights in Articles 84, 90, 90c and 93, as well as to the new related right of press publishers under the Art 90h et seq. of the CNRA.

Furthermore, some new exceptions were introduced and some old ones were broadened in Art 24 of the CNRA:

✅ Introduction of a technology-neutral parody exception

A new item 2a in paragraph 1 introduces a full-fledged and technology-neutral exception for “use for the purposes of caricature or parody and for the purposes of imitating the character or style of another work” to the full extent of Art 5.3.k. of Directive 2001/29/EC.

The translation of the term “pastiche” as an imitation of the character or style of another work can be seen as a bit of a shortcoming, especially given the fact that on 14 September 2023 the German Federal Court of Justice referred a preliminary ruling request to the CJEU precisely to clarify the concept of pastiche and the expectation is that we will have an autonomous concept of EU law in the very foreseeable future.

✅ Introduction of a technology-neutral exception for accidental inclusion

Further, recognising the risk of over-blocking of user content online as a result of the new platform liability regime, the Bulgarian legislator introduces yet another previously untransposed exception as per Directive 2001/29/EC – that of “incidental inclusion” – in its full scope. The new item 2b allows for the “incidental inclusion of a work in other material”.

✅ Broadening of “informatory” exceptions

In connection to the introduction of the new press publishers’ right (Art 15 of the Directive and new Art 90d et seq. of the CNRA), the scope of the so-called “informatory exceptions” under Art 24(5) and (6) has also been extended. The re-use of journalistic materials remains limited in terms of beneficiaries to mass media, but the types of usage have been broadened for the purpose of technological neutrality. The “reporting of current events” exception under item 6 has been extended to the full scope of use under Art 5.3.c of Directive 2001/29/EC.

✅ Broadening of the scope of works used in preexisting exceptions 

The requirements of Art 24, items 3, 7, 8 and 9 have also been amended to be technology neutral. 

Special regime for digital uses:

The solutions adopted for the implementation of the new CDSM exceptions are in some respects quite appropriate, but in others may be subject to criticism.

❌ The new exceptions are dealt with outside the general regime of Article 24

The exceptions introduced by Directive 2019/790 have been introduced in a separate Section 11a called “Special provisions for certain digital uses of works and other subject-matter”. Although it follows the approach of the Directive, this solution is most definitely not an example of good legislative technique, as it artificially separates hypotheses of digital use from the technology-neutral exceptions in Art 24. 

In particular, the provisions of the new Articles 26h and 26i on the use for educational and preservation purposes create a regime parallel to and partially overlapping with the one under pre-existing exceptions in Art 24, items 3 and 9. The two regimes are reconciled by a very uninspired collision norm, stating that the new exceptions are not prejudiced by the old ones and vice versa. As a whole, instead of synchronisation, the new regime may lead to fragmentation and potential enforcement problems. 

✅ Exceptions for automated text and data analysis

The text and data mining exceptions under Articles 3 and 4 of the Directive are transposed into new Articles 26f and 26g in the CNRA. The wording follows the Directive’s prescriptions almost verbatim.

The new Art 26g, para 2, however, imposes an obligation on rightsholders, where a user has requested access to the object of protection, to provide the necessary access within 72 hours as of the request.

The ability of right holders to opt-out of the general text and data mining exception is addressed in Art 26f, para 4 as follows:

“Rightsholders may prohibit the use of works, other protected subject matter or parts thereof under the conditions of paragraphs 1 and 2 before they are made available. In the case of objects to which electronic access has been granted, the prohibition shall have effect only if it is established by technical means recognisable by the software carrying out the automated analysis.”

Between the first and second readings in Parliament, at the initiative of music industry representatives, the Ministry of Culture withdrew the word “immediately” from the originally proposed text, which stated that “the prohibition shall have effect only if it is established by technical means immediately recognisable by the software carrying out the automated analysis”.

❌ The new illustration for teaching exception

We find the legislator’s approach to introducing the new educational exception to be one of the most unfortunate decisions in transposing the Directive. The new Art 26h misinterprets the possibilities that the CDSMD provides for the use of protected works for teaching purposes, making the situation of educational institutions worse instead of better than the inherited status quo. This is particularly true of para 7 of Art 26h, which introduces a derogation from the exception: 

“The provisions of this article shall not apply to musical notation, musical scores, or works and other protected subject matter intended primarily for use in teaching, provided that the user can obtain the necessary permission after making reasonable effort.”

It should be borne in mind that the introduction of such a derogation is not required by the Directive – it is optional. Also, the existing Bulgarian legislation has never provided for such a limitation of the rights of institutions involved in education. Such an ad hoc solution is capable of hampering their functioning and imposing additional unplanned tasks and costs on the line ministry. Finally, paragraph 7 does not provide a mechanism for ensuring the visibility and accessibility of licences by the State, as required by sub-paragraph 2 of Art 5(2) of the Directive.

Use of Out of Commerce Works

The Out of Commerce Works (OOCW) regime aims to support the EU’s efforts to digitise Europe’s cultural heritage on a massive scale. The new mechanism, which will allow libraries, galleries, museums and archives to more easily digitise and display cultural heritage that is not commercially available, is set out in new Articles 71i et seq. Unfortunately, the current implementation leaves most of the details of the OOCW regime for future fine-tuning, compromising the timely achievement of the stated goal of facilitating the activities of cultural heritage institutions (CHIs) in promoting their collections.

❌ Regime of “sufficiently representative” collecting societies

A particularly problematic detail in the national implementation of the mechanism is the text of paragraph 3 of the new Art 71i. According to it, certain collective rights management organisations (CMOs) registered in the Public Register on CMOs with the Ministry of Culture are deemed to be representative. Such a presumption, under which CMOs “shall be deemed representative” for the purposes of the use of OOCW by CHIs, is not consistent with the actual representativeness required by the Directive. If a CMO is not genuinely representative for the collection of the CHI for which extended licensing is sought, the CHI risks, once it has contracted with the CMO, receiving mass opt-outs from individual rightsholders who are not members of the CMO. The lack of real representativeness of the CMO and the conditioning of the mechanism on formal registration has the potential to render the whole mechanism meaningless.

Protection of the public domain

Art 14 of the Directive requires Member States to provide that, where the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of the work is not subject to copyright or related rights protection. This rule was introduced because a number of EU countries provided until recently for special rights in reproductions of paintings and non-original photographs, which prevented the mass digitisation and display of public domain cultural heritage. 

❌ Amendments to Articles 3 and 4 of the CNRA

There is no such right over non-original visual works in Bulgarian copyright law. However, the legislator decided to play it safe and added, in Art 3, para 2. i.b and Art 4 of the law, an explicit clarification that reproductions of works of visual art for which copyright has expired were not subject to copyright protection. 

We find this amendment not very positive, insofar as it compromises the technological neutrality of legal prescriptions of the highest level of abstraction, such as the norms of Articles 2, 3 and 4 of the copyright law. This approach creates a certain risk, seeing as reproductions of visual works are expressly excluded from copyright protection, of leading the judiciary to false conclusions per argumentum a contrario that copies of other types of public domain works may somehow be protected.

Implementation of Article 15 of the Directive

The new neighbouring right on press publications is introduced in Art 90d et seq. of the CNRA. The text of the Directive has been transposed almost verbatim. 

❌ Definition of “very short extracts” 

Under the new Art 90e, the exclusive right of the press publisher does not apply to the use of single words or very short extracts from a press publication. A legal definition of “very short extracts from press publications” is set in a new para 24 of § 2 of the Additional Provisions of the Law. According to it, 

“a very short extract is the title of the publication, together with the first up to 100 consecutive characters of the text, which may be accompanied by a preview image in small format with a resolution of up to 128 by 128 pixels and part of a sound file or a video clip of up to three seconds.”

The legislator’s approach here is not particularly on point. Although fixing a quantitative criterion as the limit of the new neighbouring right is convenient for the information society service providers that are the addressees of the mechanism, such an approach is unusual – most Member States have not resorted to a quantitative limit – and has been criticised by researchers who consider such a solution to be incompatible with the single market objectives enshrined in the Directive and EU law on fundamental rights.

Implementation of Article 17 of the Directive

The new liability regime for “online content sharing service providers” is introduced in a new Art 22b of the CNRA. The text of the Directive is, again, implemented almost verbatim. 

❌ Safeguards for the legitimate uses of content 

There is a lack of more concrete measures to protect platform users from blocking and taking down lawfully used content, even though, according to the CJEU judgment in Case C-401/19, it is the responsibility of the Member States to take concrete legislative measures to strike an effective balance between competing rights and obligations in the application of this much controversial mechanism.

Despite the explicit instructions in the Commission’s Guidance on Article 17 of the Directive, the text of Art 22b of the CNRA does not restrict blocking to “manifestly infringing uploads”. 

There is also no specific procedure by which users can enforce their rights through the courts, as required by Art 17(9) in fine, which states that Member States shall ensure that users have access to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright and related rights. Pursuant to paragraph 15 of Art 22b of the Bulgarian law, 

“Notwithstanding the protection mechanisms under para 11 and the mediation procedure under para 14, where, in relation to disputes under this article, users invoke authorisation or permitted free use, either party may refer the dispute to the competent court.” 

However, it is not clear what the procedure is for users to enforce their rights in court.

In other good news …

The CNRA contains several further amendments that do not follow directly from the transposition of the CDSM Directive, but are in support of democratic access to knowledge and culture and the implementation of open licences.

✅ Introduction of a zero-embargo Secondary Publishing Right

In addition, the CNRA introduces a special regime to support access to scientific literature – the so-called Right to a Secondary Publication. It already exists in a number of European countries, having been introduced in Spain in 2011, Italy in 2013, Germany in 2013, Austria in 2015, France in 2016, the Netherlands in 2018 and Belgium in 2018. Similar mechanisms are in the process of being adopted in Poland and the United Kingdom. Outside the European Union, the right of secondary publication is expected to be introduced in Switzerland.

The aim of the mechanism is to address the problem of hindering access to the deliverables of publicly funded scientific research. Such a need arises as a result of the dysfunctional nature of the business model of scientific publishing. Typically, in the case of scientific publications, the author/scholar is publicly funded through payment under a standing contract with a university or research institute, or through earmarked project funding, including EU funding. In order to advance in their career, the scientist must publish the results of their research in reputable scientific journals with a high “impact factor”. The publishers of these journals do not pay any remuneration to the author for publishing the work, nor do they make any contributions from the income the publisher generates. On the contrary – often the scientists themselves have to pay a publication fee. Scientific journals also usually do not pay the reviewers who guarantee the high scientific value of articles for publication. 

According to the new paragraphs 2 to 4 of Art 60 of the CNRA,

“(2) The author of a work of scientific literature created on the occasion of a research, funded in whole or in part by public funding, shall retain the right to make that work or parts thereof available to the public in educational or scientific repositories for non-commercial purposes after its acceptance for publication by a publisher, and shall be obliged to mention the publisher when doing so.

 (3) Any arrangement which prevents or restricts what is provided for in para 2 shall be null and void.”

By its very nature, although not directly required by the CDSM Directive, the mechanism follows its logic. In particular, Title IV of the Directive introduces measures to achieve a well-functioning marketplace for copyright, while Articles 18 et seq. set in place various instruments for the protection of authors vis-a-vis primary users of their works – i.e. producers and publishers.

✅ Removal of the time limit on copyright licensing

In the previous version of the CNRA, the licensing of rights was limited to a maximum of 10 years by a mandatory provision in Art 37(2). According to this provision, “A contract for the use of a work may be concluded for a term of up to ten years. Where such a contract is concluded for a longer term, it shall be valid for ten years.”

With the current amendment, para 2 of Art 37 was repealed in its entirety. This is good news in terms of the application of standard and public licences, which have a great deal of application in areas such as software, open access, open data, etc.