According to the Serbian Copyright and Related Rights Act (the “Act”), the work of authorship is defined as the author’s original intellectual creation expressed in a certain form, regardless of its artistic, scientific or some other value, its purpose, size, contents and the way of its manifestation, and regardless of permissibility of public communication of its contents. Therefore, a large specter of works can be deemed as works of authorship, including, for instance, written works (books, articles, computer programs etc.), spoken works (lectures, speeches etc.), dramatic, choreographic and pantomime works, works of music, films, fine art works (paintings, drawings, sculptures etc.) and such, as long as they are original and created by a natural person – a human. Companies or other legal entities could never be considered to be authors – they can be only holders of specific components of a copyright, if the author, or his legal successors, decide to transfer such a right to them.
Copyright is an automatic right – this means that a work of authorship enjoys legal protection from the very moment of its creation – there is no need for it to be communicated to anyone in order to be considered as a work of authorship. As mentioned, a work of authorship doesn’t need to have any artistic value whatsoever – one can make a doodle on a piece of napkin and this will, automatically, be deemed a work of authorship with all the pertaining rights. The author is granted an exclusive right to use the work he created, so other parties are automatically prohibited from using the work without prior permission.
It is important to note that copyright consists of two components – a moral, non-transferable one, and a pecuniary component, which entails the right to exploit the work of authorship economically, and which can be transferred by the author to virtually any legal or natural entity.
The moral component of a copyright always remains author’s and entails the right to be named and therefore recognized as the author, the right to disclose the work of authorship, the right to protect work’s integrity and to oppose its unbecoming exploitation.
On the other side, the pecuniary component of copyright is basically the right to commercial exploitation of the work, which includes the right to reproduce the work, to place its copies in circulation or to rent them, to present the work, to broadcast it, etc. The pecuniary component can be, as mentioned above, transferred (licensed) by the author to another party, with or without compensation.
This leads us to the conclusion that the copyright is a monopoly right, exclusively belonging to the author. This makes sense – without the author, the work of authorship in question would not exist, therefore, he or she is in full control over it, and rightfully enjoys legal protection if somebody breaches this right. Of course, the authors can restrict their own copyright by granting various licenses to third persons – but this is the authors’ prerogative.
There are, however, many limitations of copyright as stipulated by the Act to which the authors need to adhere, whether they like it or not.
Firstly, the duration of copyright’s pecuniary component is limited to 70 years after author’s death. Yet, copyright’s moral component is not time-limited. After the expiry of this term, the work of authorship is in the public domain, and can be economically exploited freely – without the consent of author’s legal successors.
Besides the general time-limit, there are other limitations of one’s copyright as prescribed by the Act. And in this time of digital communication technologies in which the opportunities to breach one’s copyright are countless, legal limitations of copyright are valuable to many. Also, these limitations, when applied in practice, can be difficult to decipher, given that some of them feature legal standards which need to be interpreted in each particular case, bearing in mind all relevant circumstances. For instance, in situations of limiting one’s copyright, the Act prescribes that such limitations can never be contrary to normal exploitation of the work nor may they unreasonably offend the legitimate interests of the author. These are legal standards par-excellence and must be evaluated in each particular case.
So, which are the cases of limitations of one’s copyright prescribed by the Act? Or, to be more precise, in which cases one may use a work crated by an author without seeking permission or paying compensation to the author in question?
The Act prescribes many limitations, and some of those are as follows:
- Any person may, without seeking author’s approval or paying compensation: make copies and publicly communicate a work of authorship in proceedings before the court and other state authorities and for the reasons of ensuring public safety.
- Registered media may, without seeking author’s approval or paying compensation, for the purpose of public informing on current events via press, radio, television and other media, to the extent corresponding to the purpose of informing: make copies of the public works which appear as a part of the current event being communicated to the public; reproduce short copies or summaries from newspapers and other similar articles in press reviews; reproduce political, religious and other speeches held at public gatherings, in state bodies, religious institutions or at state or religious ceremonies; and, freely use daily information and news which have the nature of news report.
- Students, lecturers (professors) and participants in classroom lectures may, without seeking author’s approval or paying compensation: publicly perform or present published works in classroom lectures; publicly perform and present published works at school events, provided that the interpreters do not receive compensation for their performance and that tickets are not being charged; publicly communicate broadcasted school programs through technical devises within the educational institution.
- Public libraries, educational institutions, museums and archives may, without seeking author’s approval or paying compensation: reproduce works exclusively for their archival and non-commercial purposes, if the work is reproduced out of their own copy and if, by such reproduction, these entities don’t have the intention for achieving economic benefits.
- Buyer of software (computer program), license user or an expert working under customer’s order, may, without seeking author’s approval or paying compensation, with the purpose of his own usage of such software: store a program in computer memory and run the program; eliminate errors in the program, as well as make any other necessary changes in it, in accordance with its purpose; make a one back-up copy of the program on a lasting tangible carrier; decompile the program exclusively for the purpose of obtaining the data necessary for making that program inter-operational with some other independently developed program or some hardware, on condition that such data were not accessible in some other way and that de-compilation is limited only to those parts of the program which are necessary to achieve interoperability.
- Any person may, without seeking author’s approval or paying compensation, reproduce and publicly communicate short excerpts of a work (quoting) if the work is published, if it is clearly referenced that it is, indeed, a quote, and to state the name of the author, the name of the work, date of publishing, if these data are known.
- Any person may, without seeking author’s approval or paying compensation, process and transform the work for the purpose of making a parody or caricature, if this doesn’t create a confusion in relation to the source of the work, or for personal purposes, not meant to be for the public.
- Authorized user of a published database or its reproduced copy may, without seeking author’s approval or paying compensation, freely reproduce or process this database if this is necessary to access its contents and use such contents.
Many of these limitations seem reasonable enough, but leave much room for interpretation in practice, especially if we think of countless ways to breach one’s copyright via digital communication technologies. If and when it comes to that in a particular situation, the court would be the one to have the final say whether a copyright is breached, or if the usage of an author’s work can be deemed as one of the legally stipulated limitations of a copyright, therefore, the breach is non-existent.
Unfortunately, the Act itself is unclear in many regards. However, Serbia will need to amend its IP laws in the near future in order to harmonize it with relevant EU laws on its EU accession path, which may lead to defining these limitation in a, hopefully, more straightforward way.