Amendments to the Copyright and Related Rights Act: Revitalizing the balance and introducing new practices

Introduction

The intellectual property landscape in Bulgaria underwent significant changes in 2023 with the enactment of substantial amendments to the Copyright and Related Rights Act/CRRA, which was officially published in the State Gazette on December 1, 2023. This legal transformation was primarily driven by the necessity to transpose the requirements of two European Union directives into Bulgarian law, namely Directive (EU) 2019/789 and Directive (EU) 2019/790.

Transposition of EU Directive (EU) 2019/789 and Directive (EU) 2019/790

Directive (EU) 2019/789 establishes rules on copyright and related rights applicable to certain broadcasts and transmissions by broadcasting organisations, while Directive (EU) 2019/790 pertains to copyright and related rights in the digital single market. The transposition of these two Directives has resulted in the adaptation of the existing Bulgarian copyright legislation to the new methods of exploitation resulting from technological advances, thus harmonising it with the legislation of other EU Member States. Both Directives pay serious attention to the digital and cross-border use of protected content, which is of particular importance to creators in today's digital world.

The Directives have been the subject of long-standing discussions and deliberations by the European institutions, with the participation of all stakeholders and interested parties, in order to strike a necessary and healthy balance in the public relations they regulate. It was therefore crucial that the Bulgarian draft law remained as close as possible to the original text of the Directives, in order not to change their meaning and to avoid innovations that would lead to an imbalance of the legal framework and thus of the entire ecosystem of rights. The latter was also important in view of the need for transparency in enforcement and the absence of conflicting practices between different EU Member States.

The recent amendments to the law have introduced a number of changes that are expected to significantly improve the functioning of the copyright system, regulate previously uncovered situations, and provide new opportunities for rightholders.

Revitalizing the Balance

One of the main achievements of the 2023 amendments is the revitalization of the balance between rights holders and users. For the first time, a clear legal framework has been established for broadcasting, transmission, including by direct injection and retransmission, of television programmes, as well as for the rights to simulcasting, webcasting, etc.

The 10-year limitation on the duration of contracts for use, which, as a remnant of an archaic context, was not in line with the current democratic legal order and was a major obstacle to contractual freedom and investment in creative content, has been deleted.

The limitation created an imbalance between the rights of different categories of rightholders, effectively "killing" the 50- or 70-year statutory term of protection for producers' rights until their 10th year, unlike authors' and performers' rights, which continued to "live" throughout their life cycle. This restriction had a negative impact on investment in creative content, prevented a large number of works and recordings from reaching contemporary audiences and, last but not least, was a serious obstacle to the export of Bulgarian talents and creative output.

According to the research carried out by the Institute of Intellectual Property at the University of National and World Economy/UNWE, no European country has such a limitation (including Serbia and the Republic of North Macedonia), and in this sense the deletion of the text of Article 37(2) of the CRRA has brought the Bulgarian copyright legislation in line with the provisions of the democratic legal order of Europe and the world.

In summary, it can be said that the new amendments have addressed some of the weaknesses and omissions in the existing legal framework that have been identified over the years, ensuring a consistent approach across various old and new legislative texts.

Introducing New Practices

The amendments introduced new practices aimed at stimulating the functioning of the internal market and the related innovation, creativity, investment, and creation of new content, including in the digital environment. The aim is to adapt and complement the existing legal framework in the European Union in the field of copyright and related rights, while at the same time creating an entirely new legal framework that reflects modern technological developments and their role in the creation, production, distribution and exploitation of works and other protected subject matter.

The law updates the legal framework for the free use of works and other subject matter in the digital and cross-border environment. It also takes steps to facilitate certain licensing practices in relation to the distribution of out-of-commerce works and other protected subject matter, and the online availability of audiovisual works on on-demand media service platforms.

It introduces rules on rights in press publications and on the use of works and other protected subject-matter by online service providers that store and provide electronic access to content uploaded by users. It also includes provisions on transparency in contracts with authors and performers, fair remuneration and a mechanism for the revocation of rights assigned by authors and performers on an exclusive basis.

The law also emphasises the role of mediation in resolving copyright disputes and facilitating licensing negotiations, while ensuring that parties can still seek resolution before a competent court. This comprehensive approach is designed to balance the interests of all parties and ensure a fair and efficient copyright market in the digital age.

Implementation and Impact

The drafting and implementation of the amendments was a three-year process involving intensive work in various working groups, experts meetings and discussions, consultations, and parliamentary committee sessions. The team of NBDM Law Office, namely attorney-at-law Desislava Mateva and attorney-at-law Nelly Bosakova, actively participated in the whole legislative process and played an essential role in tailoring some integral parts of the bill in order to ensure a strict transposition of the provisions of the Directives, while taking into account national traditions, practices and accumulated problematic areas, which needed to be specifically considered and refined.

Conclusion

The 2023 amendments to the Bulgarian Copyright and Related Rights Act represent a significant milestone in the country's intellectual property landscape. By revitalising the balance between rightholders and users, and introducing new practices to reflect technological advances, the Bulgarian legislature has taken an important step to adapt to the digital age. The long-term effects of these changes are likely to continue to unfold over the coming years, shaping the future of copyright in Bulgaria.

We believe that the long-awaited balance in the ecosystem of rights will be beneficial for the development of the entire creative sector in Bulgaria.