Article 42 of the Bulgarian Copyright and Neighbouring Rights Acts (CNRA) regulates the creation of works by assignment in Bulgaria. It provides as follows:
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“(1) The copyright created under assignment vests in the author of the work unless else is agreed in the assignment contract.
(2) If else is not agreed the assignor is entitled to exploit the work without the author’s permission and for the purposes for which its creation was assigned.”
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A question that brings about most controversy in the legal practice and doctrine is what “unless else is agreed” means. That question has not been answered by the court yet and may cause some serious complications in practice.
One of the most commonplace approaches to construe “unless else is agreed” is that it is possible to agree that the ownership of copyright in a work created by assignment may originally vest in the assignor, ie the copyright arises directly for the assignor. This argument is based on the understanding that since in the absence of any contractual arrangements the law provides that the copyright ownership in Bulgaria vests in the author, per argumentum a contrario “unless else is agreed” should mean that it is possible to contractually agree that the copyright work may originally vest in the assignor. However, such an argument is quite controversial to the extent that it may not be valid at all.
First we should start by saying that the proper application of argument a contrario depends on the proper identification of the premise. A helpful example in that direction would be the following – what would be the opposite of “right” – “left”, “wrong”, “unfair” etc? The answer would depend on the proper context in which “right” is used.
In light of the above it is safe to say that the Article 42 of CNRA does not in any way provide in a positive way that in Bulgaria it is possible to be contractually agreed that the copyright holder in a work created by assignment may vest in the assignor, eg the law does not provide “unless it is agreed that the copyright will vest in the assignor”. It simply provides “if else is not agreed”.
The answer to the question on the ownership rights in Bulgarian law may involve a more detailed look at some of the basic principles in Bulgarian copyright law:
- for instance, Article 5 of CNRA provides that the “author” may only be a physical person/individual from whose creative efforts resulted the creation of the work. This understanding is based on the fact that the creation of a work requires intellectual and physicals efforts which are naturally intrinsic only to humans in contrast to legal entities which are merely abstract legal concepts. Any other person may only be a “copyright holder” in Bulgaria (but not an “author”) where the law expressly provides so. In other words, to whom the capacity of “author” belongs is determined by statutory law and may not be subject to contractual arrangements between the parties;
- the copyright work under Bulgarian law comprises moral and property rights. The only author’s property right is the right to exploit/permit the exploitation of the author’s work to third parties, ie the author is not entitled to dispose of (sell/exchange/donate/waive/give as a contribution in kind/transfer in any other way) its copyright. Furthermore, two of the moral rights are inseparable from the author (eg the right to acknowledgment of authorship and the right to indication of the author’s name);
- in Bulgaria only the author may be the copyright holder in its entirety, ie the full set of moral and property rights (subject to two peculiar exceptions concerning computer programs created under employment and periodicals).;
- any right of exploitation granted/acquired by contract may not be for a period longer than 10 years. Only those rights of exploitation conferred on copyright holders by virtue of the statutory law (and not by contract) are not limited by that 10-year term and subsist for the entire duration of the copyright even after the termination of the employment/assignment agreement. For instance, that should be the case with the assignor’s right under Article 42 (2) of CNRA to exploit the work without the author’s permission for the purposes it was created.
The above general principles and some other standings in Bulgarian copyright law are hard to reconcile with the idea that the it may be contractually arranged between the assignor and the author that the copyright in a work created by assignment may originally vest in the assignor, irrespective of whether the assignor is a physical person/individual or a legal entity.
There has not yet been court practice on the above matter. It still remains to be seen how the court would resolve on the question what “unless else is agreed” means.
