Copyright Questionnaire 2017

8   What may not be protected by copyright?

Normative  and individual acts of government authorities; acts of courts;  ideas  and concepts; folklore works; news, facts, information and data are not protected by copyright.

9 Do the doctrines of ‘fair use’ or ‘fair dealing’ exist?

Under Bulgarian law, the doctrine of ‘free use’ applies, which means use  without  the copyright  holder’s permission (but  not necessarily without payment of compensation). By express reference in the law, it also applies to neighbouring rights.

10 What are the standards used in determining whether a particular use is fair?

The general principle is that the ‘free use’ is only permitted in a limited number of situations expressly  listed in the law and under  the conditions that (i) it does not impede  the normal use of the work and (ii) it does not prejudice the copyright holder’s legitimate interests.

Generally, there  are two types of ‘free use’: without payment of compensation (not applicable for computer programs); and with payment of fair compensation (not applicable for computer programs and architectural works). Any ‘free use’, however,  has to be made without removal, damaging, destroying or disruption of the technical measures (as defined  in the  CNRA) for protection without  the copyright holder’s consent.

In certain situations of ‘free use’ expressly listed in the law, users who want to benefit from the ‘free use’, but are prevented by technical measures of protection, may request from the holder of the copyright the relevant access to an extent justified by the purpose. However, that does  not  apply to situations where works or other protected objects have been made available  on a contractual basis to an unlimited number of persons in a way allowing access from a place and at a time individually chosen by each of them.

11 Are architectural works protected by copyright? How?

Yes, they are. However,  their protection somewhat steers away from the fundamental principle established in  article  5(2) of  the Berne Convention and taken  over in Bulgarian copyright law that the enjoy- ment  and the exercise of the copyright shall not be subject to any for- mality. In 2011, some very controversial amendments were introduced in respect of architectural works that have attracted a lot of criticism.

According to the legal definition of ‘works of architecture’ those are ‘projects of buildings and facilities, spatial plans and schemes, approved under  the effective legislation, buildings  and other facilities and  their elements, permanent objects representing the synthesis of architecture with other  arts, as well as the layouts of interiors of permanent nature registered by a [collective management] organisation under Article 40.’ It is apparent that the legal definition itself provides for certain formalities of approval and registration in the absence of which no copyright should arise.

The situation is also confusing  and controversial with regard to ‘architectural projects’. Following the amendments in 2011, ‘architec- tural projects’ have been stated as a separate category of works outside architectural works (see question 6). In addition to that, they need to be approved, which also appears as a formality to the arising of copyright.