Delchev & Partners » Intellectual Property Law

Copyright in works created by assignment under Bulgarian Law

office — Mon, 07 Dec 2015 21:19:24 +0000

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.

Typographic Typefaces and Copyright Law

admin — Thu, 09 Apr 2015 13:23:41 +0000

Background

In typography a “typeface” is considered to be a set of glyphs representing individual letters, symbols, marks or punctuations. During the 19th century wood was used as a material for developing the so-called wood types. The 20th century allowed for the mechanization of typesetting. The first machine for typefaces was created by Ottmar Mergenthaler. Later on during the 1970s the machine typesetting was replaced by phototypesetting equipment which evolved in the current digital typesetting.

The design of a typeface may require a large period of time. Examination and processing of different styles, say for example the basic- roman, italic, bold roman, and bold italic, is a major investment of time and effort. Like other artistic forms type is created by professionals in the field. Since the works of other writers, sculptors, singers, etc may be protected as intellectual property, it is logical to ask ourselves whether the typographic typeface may enjoy the same copyright protection.

Copyrighted works in Bulgaria

Copyright (or authorship right) is a legal term used to describe the rights that creators have over their works. Works protected by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, technical drawings, etc. In order for something to be recognized as an object of copyright protection, it should be the result of the author’s creative activity. In terms of typefaces this leads us to the question whether they may be considered as an object of copyright law and in particular – are they the result of creative activity. Of course, the creation of a typeface involves both intellectual and physical efforts as inevitably does almost every human activity. The question, however, is whether the activity of the creation of typefaces is creative enough in order for typefaces to be considered copyright protected works. During the past years experts in the field have made arguments in both directions.

Typefaces and Bulgarian copyright law

The main argument in favor of the thesis that typefaces should be granted copyright protection is that a typeface’s design is dictated by more than merely functional considerations and is influenced by aesthetic decisions. Copyright of typeface can be seen in two different ways. First, copyright over the design itself and second copyright over the font in which the design is implemented. Nowadays typefaces exist primarily as computer fonts. Typeface designers claim that the efforts invested in making a different typeface should be taken as a creative work tantamount to art – changing letters size, form, layouts, adding ornaments or extra features and making other aesthetic changes. The defenders of this position hold that typefaces cover all of the requirements of copyright. First, the originality comes with its author and that author’s unique personality. A typeface may originate with a certain designer. In addition, there is the assumption that typefaces might be considered as a work of art, because its use is not merely to communicate but also to express and distinct. The brightest example in this direction is the usage of different typefaces in the advertising industry. Advertisers carefully choose the appropriate typeface in order to evoke emotions and feelings in consumers. Some legal systems consider typefaces to be copyrightable. English law, for instance, determines typefaces as a part of the copyright law but grants them only 25 years of protection. Irish copyright law also protects typefaces with a term of up to 15 years from their publication.

Countries such as Germany and France offer special protection to typefaces but do not treat them as objects of copyright protection. Those are the only two countries which ratified the 1973 Vienna Agreement on Protection of Type Faces and their International Deposit.

Contrary to what have been examined, there is also very strong and wide opposition regarding copyright protection over typefaces. The basis for that is that no one may claim ownership over the alphabet. This leads us to the functionality of the typefaces – typefaces simply convey information which in any case makes them functional. A typeface is considered to be a set of letters, numbers, or other symbolic characters, which forms are related by repeating design elements consistently applied in a notational system and are intended to be embodied in articles whose intrinsic utilitarian function is for use in composing text or other cognizable combinations of characters. Accordingly, one may conclude that there is not much room for art when it comes to typefaces. Typographers do not indeed create but rather use already invented basic materials. In addition to that nowadays known letters have existed for centuries (for instance the letter “A” is the same both in the Latin and Cyrillic alphabet). In this line of thought the aesthetic approach is often not enough to produce a new object of copyright law. Moreover, typefaces are very similar to one another and distinguishing between them may be almost impossible. But probably, the most significant concern is that if there were a copyright protection over typefaces there would be a person conferred with copyright. This might lead to a situation when letters are protected and using those letters for communication might turn out to be infringement of copyright law. And then we go back to the issue regarding ownership over letters. Currently many legal systems do not grant copyright protection of typefaces. Countries such as the USA, Switzerland, and Japan consider the typefaces to be only means of communication and hence copyright protection is expressly excluded by law.

Typefaces in the digital era

When we are discussing the relation between copyright law and typefaces we should pay a special attention to how different typefaces are created nowadays. In the past typesetting involved the use of metal angle, composing stick, gauge line, etc. Today a new typeface can be easily created for several hours using a computer program. Indeed designers often use computer programs in order to generate the font file. This leads to the assumption that in such cases it may be doubtful if they may be seen as authors who create works of art. While “typeface” is the set of letters or other symbols, “font” is the result of industrial process of implementing typefaces in the printing process. In the digital age those two often cannot be distinguished because technology can create both of them at the same time. This is precisely why in many legal systems typefaces are protected as industrial designs only, ie as industrial property instead of copyrighted works. One can create thousands of different typefaces which have almost invisible differences or visible only if the letters a magnified thousand times. Claiming copyright in such situations would be irrational and unjustified.

However, it is widely accepted that computer software may be an object of copyright law. Thus, a generated source code which is used to create different styles of typefaces may be copyrightable as a computer program.

Current status of typefaces in Bulgaria

The copyright legislation in Bulgaria has adopted a balanced approach with regard to typeface protection. Generally, typefaces are protected as industrial designs under the Bulgarian Industrial Design Act. (IDA).

On the other hand, the Bulgarian Copyright and Related Rights Act (CRRA) grants certain protection to the artistic design. This means that it conceivable to assume that in some cases Bulgarian copyright law might protect, for example, painted typefaces as works of graphic art. Painted typefaces, however, are substantially different from typographic typefaces, as is artistic design from industrial design.

The difference between the two types of protection is that under the IDA the design of a typeface may be protected as industrial property after its registration with the Bulgarian Patent Office for a period of 10 up to 15 years while copyright protection under the CRRA would last the life of the author plus 70 years and does not require any registration. Last but not least, the prerequisites to what may be recognized as copyrightable work, on the one hand, and industrial design, on the other hand, are also substantially different.

On a recent occasion “Delchev & Partners” has successfully represented a client in a dispute concerning the possible (non-)existence of copyright protection of typefaces. Disputable arguments in the proceedings included whether typefaces are in general copyrightable, the difference between painted and typographic typefaces, difference between copyright and industrial design protections, to what extent Bulgarian copyright law protects artistic typefaces and who can claim ownership over them. The court concluded that the typographic typefaces at hand might not be subject to copyright protection as they did not constitute artistic works for copyright purposes. Instead the court held that they might be subject to industrial design protection as industrial property. The court also pointed out as an aside that hand-painted typefaces might be copyrightable.