Collective Protection of Copyright in Bosnia & Herzegovina
By Željko Vlačić, SAJIC
By signing the Stabilisation and Association Agreement with the European Union on 16 June 2008, and with all efforts of Bosnia & Herzegovina to fulfil criteria for membership, an obligation has been created to establish an effective legal and regulatory framework for protection of all copyright and related rights holders.
Following the adoption of the Copyright and Related Rights Act, then the Act on Collective Exercise of Copyright and Related Rights (2010) and the Rulebook on Professional Criteria for Performing Collective Exercise of Copyright and Related Rights (2002), the legal and regulatory framework was created for the Institute for Intellectual Property of Bosnia & Herzegovina, as a competent institution, on the basis of which the same is entitled to grant permission for all activities related to collective exercise of copyright and other rights.
Collective exercise of copyright and related rights shall be any exercise of copyright and related rights for copyright works composed by a considerable number of authors, through legal entities specialised only for that activity. In this regard, the legislator stipulated that only one such collective organisation could exist for the purpose of obtaining copyright and related rights pertaining to the same kind of rights and the same type of work. In this way, the law establishes that only one organisation could act in terms of collective copyright exercise for the same type of copyright, which indicates that the Collective Organisation has a legally guaranteed monopoly position. The Collective Organisation exercises a monopoly on two markets: the market for the use of copyright and the market for collective exercise of copyright and related rights.
It is indisputable that the authors of the work have the most significant position in the protection system since they represent the ones who provide the most considerable intellectual contribution to the creation of everything that can be considered a copyright. However, there are numerous problems related to the individual management of copyright and related rights, especially in the field of property and legal powers that relate to frequent and very different ways of use of copyright. That is why the legislator's intention in Bosnia & Herzegovina was to make an effective protection system through the collective exercise of these rights.
Users of copyright (e.g. in music) do not demonstrate a suffciently developed awareness of the obligation to pay compensation to the authors for the use of their works, so in this area of law there is a constant need for education, i.e. informing the public and ordinary citizens. Actually, in Bosnia & Herzegovina, that awareness is extremely low.
Collective exercise of copyright and related rights is not necessarily preceded by the procedure for concluding a contract between the author, i.e. the holder of the right, and the Collective Organisation who will exercise the property and legal powers arising out of copyright and related rights or the authorisation of the author for such activity of the Collective Organisation, but it is legally assumed that there is an authorisation (contract) that presents a basis for the actions of the Collective Organisation against third parties.
Obligation to conclude contracts as well as to pay a compensation to authors is a legal obligation for all users. However, the obligation to pay the compensation also exists even when the contract is not concluded and the author may claim compensation for any damage before the competent court.
In addition to occasional informing of citizens and influence on their awareness, there is a need for continuous improvement of actions taken by judges, who deal in this area of law, since disputes concerning the protection of copyright are specific comparing to common court proceedings. In recent years, the quality of court decisions has been increased, but the ideal of comprehensive protection and security in this area have been unachieved.
In the areas of intellectual property and the copyright itself, there are certain legitimate deviations from the principles and general rules of civil law, and the same is justified by the need to effectively protect the interests of authors, regardless of the collision of the regulations.
Disputes related to non-payment of compensation to authors cannot be treated as ordinary litigation procedures for damages, therefore the rules of evidence, the management of the proceedings, as well as the presentation of evidence, require a different approach, i.e. require the acting judges to adapt to the same.
Proper regulation of intellectual property rights is not enough to achieve the goal of absolute protection of rights. It is necessary to create effective legal and other mechanisms for the practical realization of the goal. Some of the necessary solutions for the collective exercise of copyright and related rights are specific and deviate from the principles of civil law in Bosnia & Herzegovina, but the judicial system must protect authors and their works primarily due to its importance for the economy and culture of the country.
Therefore, it is necessary to modernise the legal system, especially due to the development of modern technologies and forms of use of copyright, since the digital technology and the Internet enabled illegal use of copyright and related rights.
The legislative framework in Bosnia & Herzegovina is good, but it is necessary that the practice and application of the same is approached in a manner that will ultimately also affect the awareness of all citizens in order to change the habits of arbitrary use of others' copyright works.
Published: November 2018 l Photo: Nejron Photo - stock.adobe.com