TerraLex Cross-Border Guide to Cross-Border Copyright Guide

The main source of copyright legislation in the Republic of Serbia is the Copyright and Related Rights Act of 2009 (the Copyright Act), which was amended in 2016 due to a decision made by the Constitutional Court of Serbia.

Under the Copyright Act, several by-laws have been enacted regulating the exercise of copyrights and “related rights”, and royalties payable for the use of copyrights and related rights. Alongside the Copyright Act, criminal acts regarding infringements of copyrights and related rights are set forth in the Criminal Code of Serbia. Furthermore, some of the copyrights and related rights have to be exercised through local collecting societies, under the by-laws of such organisations.

Moreover, Serbia entered into several bilateral and international conventions governing copyrights and related rights, including the Berne Convention of 9 September 1886 for the protection of literary and artistic works, the Universal Geneva Convention of 6 September 1952 on author’s rights, the International (Rome) Convention for the Protection of Interpreters, Producers of Phonograms and Broadcasting Organisations of 18 May 1964, the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms (the Geneva Convention) of 29 October 1971, WIPO Copyright Treaty (WCT) of 20 December 1996 and WIPO Performances and Phonograms Treaty of 20 December 1996.

Under the Copyright Act, copyrighted work includes: Literary works

Literary works are written works such as, but not limited to, books, brochures, articles, translations, and computer programs in any form of their expression, including preparatory design material for their development, etc.

Spoken works

Spoken works are works produced verbally such as lectures, speeches, debates, etc.

Dramatic works, dramatic and musical works, choreography and pantomimic works, as well as works originating from folklore

Even if the scope of the aforementioned works is not defined under the Copyright Act, as per common understanding, “dramatic work” includes a work designated for performance in theatres, whereas “dramatic and musical work” embodies a joint dramatic work and musical work.

Designing sequences of movements of physical bodies is protected as a choreography work; while a pantomimic work is an art technique of conveying emotions, actions, thoughts, stories, feelings, etc through movement and gestures.

Finally, works originating from folklore and cultural heritage could encompass a wide range of work of different kinds, having in common intangible cultural heritage of a culture, subculture, minority group etc.

Musical works

Musical works are works consisting of music, without any words or actions that are to be performed with the music.

Music is defined as a combination of sounds for listening to and it is not the same as mere noise.

Cinematographic works

Cinematographic works encompass cinematographic works as well as TV works, such as TV talk shows, stage shows, news, etc.

Painting and drawing art works

Under the Copyright Act, painting and drawing art works represent a separate kind of copyrighted art works, such as painting, drawing, sketches, graphics, sculptures, etc.

Work of architecture, applied art and industrial design

Works of architecture, applied arts and industrial design are not defined in detail under the Copyright Act; thus, could be interpreted as the common understanding is of such works.

Cartographic works

Geographical and topographic maps are recognised as copyrighted works and therefore are protected by the Copyright Act.

Plans, outlines, models and photographs

These are, again, non-defined kinds of works, and could be understood under the common meaning of such works.

Direction of a theatre play

Instructions given for the performing of the script of a theatre play with reference to stage actions, movements of performers, or production requirements represent a copyrighted work.

In addition to the copyrighted works, the Copyright Act grants, more-or-less, similar rights as copyrighted works to performers, sound recordings (phonograms), films (videograms), broadcasts and databases, under the collective name “related rights”.

In order for a work to be eligible for copyright protection, the work has to be an original and intellectual creation, made by a natural person, regardless of its artistic, scientific or any other value, as well as its purposes, size, subjects, content, manner of creation or lawfulness for public manifestation. Furthermore, the work has to be created in a specific manner, which would separate the work from general ideas or concepts that do not relate to the scope of the Copyright Act.

Unfinished copyrighted works, adaptations of copyrighted works and collections of works enjoy copyright protection under certain conditions.

In short, in order for a work to enjoy copyright protection, a work has to fulfil the following four elements:

• originality: the work has to have an individual quality and differentiate itself from other works
• intellectual content: the work has to have been created through the use of ideas and emotions and to be a product of cognitive process
• personal creation: a creation made by machines or animals cannot be considered a copyrighted work. Only creations made by natural persons have such privilege
• perceptible formation: the creation has to be expressed in some perceptible form.

The Copyright Act grants two types of rights to authors (some exceptions to this rule are described in section 3.1): (i) material and (ii) moral copyrights.

While the material copyrights are related to the commercial exploitation of work, moral copyrights represent rights connected to the personal relationship between an author and their works. Therefore, only material rights are transferable, whereas the moral rights are associated solely with an author as a natural person and they cannot be transferred, assigned, or waived.

Pursuant to the Copyright Act, the material copyrights are:

• the right of reproduction
• the right of distribution
• the right of renting
• the right of recitation, performance and presentation
• the right of transmission of recitation, performance and presentation
• the right of broadcasting
• the right of communication
• the right of making the work available to the public by video or audio recordings and by radio and TV transmission
• the right of making adaptation, translation, arrangement and other changes to the work, not affecting the core of the work.

Furthermore, some of the material copyrights are connected only to the author, such as:

• right of access to copies of works
• right of resale of painting and drawing art works
• right of expiation of painting and drawing art works, sculpture works and photographic works
• right of first refusal to changes to architecture works
• right of remuneration for rental and lending
• right of special remuneration for the import or sale of technical devices and empty carriers of sound, images and text where it is reasonable to assume these devices will likely be used for the duplication of such.

Yes, moral rights are protected by the law. The Copyright Act recognises the following moral rights belonging to an author: - the right of recognition of authorship

• the right to be identified as the author of a copyright work
• the right of publication (disclosing a work)
• the right to object to changes and adaptation to the work, as well communication of the work to the public in a changed or uncompleted form
• the right to object to derogatory treatment of the copyright work
• the right not to suffer false attribution to a copyright work
• the right to privacy in respect of certain films and photographs.

Moral rights are applicable to copyrights and performers’ rights, but not to other “related rights” (sound recordings, broadcasts, films and databases).

When it comes to copyrights, the law prescribes different duration of protection depending on the kind of copyrighted work. The material copyrights are protected and in force while the author is alive and expire 70 years from the moment of death of the author, whilst moral copyrights do not have any time limit.

The duration of the “related rights” varies according to the type of work, and is as follows:

Moral rights of an author and performer are not time limited.

In general, the first owner of the copyright is the author. According to the law, the author is defined as a natural person who created the work.

The exceptions to this rule are as follows:

• the employer is the first owner of copyrights on a copyrighted work made by its employees in the course of their employment. However, the rights of the employer are limited to the exploitation of the copyrighted work only within the scope of the employer’s business. Furthermore, the employer’s rights as the first owner of copyrights last for five years, after which all the rights are transferred to the employee as the author of the work, except in the case of computer programs as copyrighted works, where all copyrights belong to the employer without any time limit
• if the copyrighted work is made under the request of a third party pursuant to an agreement, the third party has the right to publish (disclose) the copyrighted work and the right of distribution of the received copy of the copyrighted work
• if the computer program is made under the request of a third party pursuant to an agreement, the third party has all the rights on such computer program.

Copyright in a work can be jointly owned by two or more persons. This may occur when a work is authored by more than one person or where there is an assignment of the whole or of part of a work.

Joint owners have their own individual rights with respect to the work that may be assigned independently of the other(s), but the consent of all joint authors is required for licensing or use of the copyright work.

Copyright is an unregistered right in Serbia; it arises automatically upon creation of the work. There is no registration system in Serbia comparable to that for similar rights, such as patents or trade marks.

A copyrighted work may be deposited with the Intellectual Property Office of the Republic of Serbia. Such deposit serves as a proof of creation of the work and authorship, in the case that any dispute related to copyrights arises.

The only condition required to validly transfer, assign or license copyright is the existence of a written agreement, signed by or on behalf of the copyright owner.

No. Moral rights cannot be transferred, assigned or licensed, nor waived under any circumstances.

Owners of copyright can take legal action if any of their rights (moral or material, exclusive or non-exclusive) have been infringed. The Copyright Act does not recognise primary, secondary or any other infringements as, for example, the common law does.

As stated above, the Copyright Act does not recognise primary, secondary or any other infringements.

There are a number of acts that can be carried out in relation to copyright works despite the fact that they might be protected by copyright. However, there are two types of permitted usage of copyright works: (i) without paying any royalties and (ii) with the duty to pay royalties to the copyright owner.

Permitted uses of copyright work without paying any royalties include (amongst others):

Table

Permitted uses of copyrighted work with a duty of royalties payment (statutory licence), include (amongst others) reproduction, distribution, as well as other forms of public communication in public reporting of articles published in other media, provided that these articles relate to current economic, political or religious issues, and that the author has not explicitly prohibited the usage of copyrighted work in terms of public reporting.

Although this case is not covered by the Copyright Act, it is our opinion that if the copyrighted work is already uploaded to the internet and made available to the public (free access), linking does not infringe copyrights, under the condition that the linking is not intended for financial gains.

On the other hand, if a work is not available on the internet free of charge, such as in the case the work resides behind a paywall, if linking to that work circumnavigates the paywall, this would constitute an infringement of the rights holder’s rights.

An infringement of copyright is actionable by any of the copyright holders, including those holding copyrights based on transfer, assignment or licence. However, when copyright is transferred, assigned or licensed, the right to take action depends on the type of licence involved and the type of infringement.

The Copyright Act provides the following remedies for the rights holders: - interim relief (including freezing orders, interim injunctions, and pre-action)

• bringing an action, under which a plaintiff could claim:
  • determination by the court that the copyrights are infringed
  • court order on the termination of the infringement
  • destruction or alteration of items used for the infringement
  • destruction or alteration of tools and equipment for the production of items used for the infringement, if that is necessary for the copyright protection
  • compensation of both material and non-material damages, in the case of infringement of moral copyrights
  • publication of judgment at the expense of the defendant.

If the copyright is infringed intentionally or due to gross negligence, rather than material damage, the plaintiff can claim up to a threefold amount of the usual remuneration that would have been paid had the protected subject matter been lawfully used.

The Copyright Act does not provide any specific remedies for online copyright infringement.

Criminal acts regarding infringements of copyrights and related rights are set forth in the Criminal Code. The sanction for committing a criminal offence in relation to copyright is likely to be a fine and/or a prison sentence.

Each criminal act requires a level of intention, knowledge or belief on the part of the culprit.

The time limit to bring a claim for damage compensation due to a breach of copyright is three years from the moment when the rights holders became aware of the infringement and the infringer. In the case that the rights holder did not became aware of the infringement at a certain period of time, the limit is five years from the date the damage occurred.

Interim injunctions have to be brought immediately that the rights holder becomes aware of the infringement.

The general rule in Serbia is that the unsuccessful party pays the statutory attorneys’ fees and disbursements of the successful party and court costs.

All cases related to copyright infringement are under the jurisdiction of the High Court in Belgrade, as the first instance court, regardless of threshold and rules on territorial jurisdiction.

The Intellectual Property Office of the Republic of Serbia is the relevant authority for enforcing copyright (to some extent). There are no other agency bodies responsible for promoting copyright.

There are no other agency bodies that actively enforce copyright. The Serbian police will target criminal activity if it spots or receives information on criminal acts.

Under the Copyright Act, some of the copyrights and related rights have to be exercised through collecting societies. The key collecting societies in each sector are as follows:

In Serbia, copyright levies have to be paid for usage and copying of works protected by copyright law. The copyright levies have to be paid by manufacturers and importers of devices which can be used to store or copy text, picture, audio or video works, which means that the customer does not need to pay a levy for every single purchase or use of the relevant device/media.

Given that there have not been any significant amendments to the copyright legislation, nor any court decision that revamps the practical approach of the current copyright legislation, it is difficult to assess any development in copyright law that is worthy of attention.

Currently, no announcements have been made in relation to amendments to the copyright legislation. However, in order to be up to date with technological developments, especially when it comes to the use of copyrights through the internet, it is suggested that changes should be made that allow the waiving of moral rights. As described in section 3.5, moral rights currently cannot be waived, which can create a particular burden in terms of using and publishing copyright work (designs, computer programs, etc) on the web. For example, each website should have reference to its authors (including designers, developers, etc) as natural persons, in order to respect the moral copyrights of those authors. However, in the vast majority of cases, this is not acceptable to the owner of the website.

Although the Copyright Act allows an exception to this rule in cases when the identification of authors is impossible or non-applicable due to a specific manner of communicating a copyright, it should be defined in more detail, in order to avoid any negative consequences of different interpretations of the “impossibility” or the “non‑applicability”.

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