| Braniè, 1/99 XLII UIA CONGRESS AUTHORS’ MORAL RIGHTS Žarko Andjeliæ, LLM, Attorney-at-Law The new Yugoslav Copyright and Neighbouring Rights Act came into effect on 23 May 1998 and superseded the 1978 Copyright Act as amended in 1986 and 1990. The new act has brought copyrights in line with the generally adopted solutions in this area, in accordance with WIPO (World Intellectual Property Organisation) recommendations, World Trade Organisation - GATT regulations and EC directives. Compared to the old act, the new one is more comprehensive, particularly in view of the fact that it has introduced for the first time in Yugoslavia provisions affording protection to four neighbouring rights, i.e., the rights of the producers of phonograms, videograms, broadcasts and data banks, in addition to regulating the question of collective copyrights and neighbouring rights. In contrast to the previous act, which gave a rather generalised definition of authors’ moral rights in Article 28 and subsequent articles and did not deal in a systematic way with the contents of authors’ moral rights, the new Copyright and Neighbouring Rights Act regulates this matter very clearly and systematically. Authors’ Moral Rights According to the new Act, authors’ moral rights are as follows:
The Right of recognition of authorship is regulated, as one of the minimal convention rights, by Article 14. of the Act. The Right to be named practically derives from the Right of recognition of authorship.Although by definition and in essence, the right of publication is a moral authors’ right, it is certainly also of a proprietary nature for the author. If a work remains unpublished by the will of its author, there will, of course be proprietary components of this right. It can be concluded from the wording of Article 16 of the new Copyright and Neighbouring Rights Act that the legislators opted for the broader notion of publication, since they allowed the author not only to decide whether to publish his work or not, but also to determine the manner in which his work is to be made accessible to the public. Of course, this has to do with the first publication of a work of authorship, which is one of the authors’ exclusive rights. In contrast to the way in which this authors’ right was regulated by the 1978 Copyright Act, the new Act provides that in addition to the right to publish a work as one of the authors’ exclusive rights, until the moment of its first publication, only the author may release any information about his work or describe it.Incidentally, the superseded Copyright Act accorded an exclusively proprietary character to the right of publication. Not only was this right not covered by Article 28 in which the authors’ moral rights were listed, but it was regulated by Article 31, which was governing the exploitation of a work of authorship. The right to the protection of integrity of the work includes the right of the author to oppose the making of changes to his work by any other person, as well as the authority to make changes himself or authorise the making of changes to it by other persons. By giving the author the exclusive right to protect the integrity of his work and stating only a few of the possible ways of violating the integrity of a work, the legislators have regulated this very important authors’ right in an extensive way, by allowing courts on the basis of this Act to determine other possible forms of violation of integrity.The right to oppose improper exploitation of the work - whereas the copyright laws of some other countries, as well as the earlier Yugoslav Copyright Act of 1978 and some law theorists, regarded an author’s right to honour and reputation as a single right to respect for the integrity of the work and person of the author, Article 18 of the new Act defines respect for the person and the right to oppose as a separate moral right of the author.Assignment of Authors’ Moral Rights Assignment by inheritance. The assignment of copyrights is governed by special regulations relating to the law of inheritance. The Copyright and Neighbouring Rights Act regulates the range of assignment of authors’ moral rights. Article 52 of that Act provides that heirs to exercise all rights other than those which would be a positive prerogative of authors’ moral rights or the publication of an unpublished work if its author had forbidden its publication and changes to the work of authorship itself. Such a solution includes the duty of the heir to prove in the event of a dispute, that the author/testator had actually forbidden the publication of his unpublished work.Following the death of an author, some rights relating to moral rights may be exercised, also by associations of authors, and some other institutions. In Article 100 of the Act, the legislators have extended the number of persons who may protect this moral right of an author, by establishing that besides the above mentioned persons, anyone has the right to protect the authorship and integrity of a work. Assignment by contract is not permissible in view of the fact that the disposal of these rights is precluded inter vivos by Article 54 of the Act.Period of validity of an author’s moral rights . The new Yugoslav Copyright and Neighbouring Rights Act has set the period of validity of an author’s proprietary rights at 50 years, which is different from the time-limit set in one of the EC directives. The reasons for this departure are of an economic nature.As for the period of validity of an author’s moral rights, of the three possible solutions, i.e., for the duration of the author’s life (e.g., in Austria), for the duration of validity of the proprietary rights (e.g., in Germany, Great Britain, etc.) or unlimited duration (e.g., the Czech Republic, France, Italy, etc.), the Yugoslav legislators accepted this last solution, so that Article 96 of the Copyright and Neighbouring Rights Act states that the author’s moral rights shall run even after the expiration of the proprietary ones. Judicial protection of an author’s moral rights . This is regulated by Article 172 of the new Act, which deals with the protection of authors’ proprietary and moral rights under civil law. In case of authors’ moral rights, the Act affords to the author or performer the right to file a claim for damages for consequential loss resulting from a violation of his moral rights. In view of the wording of Article 172 (2), the right to judicial protection is afforded only to the author or performer. As for the right of heirs to damages for any consequential loss, the general provisions on damages of the Law of Contract and Torts are applicable. Incidentally, a consequential loss resulting from violation of an author’s moral rights may arise from violation of any of the rights referred in Articles 14, 15, 16, 17 and 18 of the Act.Protection under criminal law . Violations of the moral rights of authors and performers, which constitute a criminal act and the sanctions, to which their perpetrators are liable are listed in Article 182 of the Copyright and Neighbouring Rights Act.Droit des suite The 1978 Copyright Law, whereby our legislators brought the Yugoslav regulations in line with Article 14, paragraph 3, of the Bern Convention, introduced this institution of the copyright law for the first time in Yugoslavia. However, unlike the new Copyright and Neighbouring Rights Act, the earlier one did not determine a time limit within which an author was entitled to be notified of the new proprietor of his original work or his percentage share in the sale price of his work. Articles 31 and 32 of the Copyrights and Neighbouring Rights Act provide that an author of a work of fine art, or of a literary, scientific or musical work, where an original manuscript is involved, is entitled to be notified of the new proprietor within 30 days, as well as to claim 3% of the sale price of the work. This right of authors is regulated by the above mentioned Act in its chapter entitled "Rights of authors in relation to the proprietors of a copy of a work of authorship", i.e., in a special chapter, separate from the authors’ moral and proprietary rights. This should be taken as evidence of the attitude that the droit de suite includes elements both of the authors’ moral and proprietary rights. Such a dualism of the legal nature of this institution is primarily seen in the first place in the fact that the author may not waive this right or dispose of it inter vivos, whereas on the other hand, it may be the subject matter of inheritance. Although this authors’ right was determined, as mentioned earlier, by the pervious 1978 Copyright Law, no author or his heir has managed to exercise this right in Yugoslavia to date, because of the vagueness of the provisions of law. There remains now the hope that the solution given in the new Copyright and Neighbouring Rights Act is suited to the level of social and economic development, as well as to the specific environment in which the works of art are bought and sold. As for the duration of validity of the right of the droit de suite, the legislators made no special provisions concerning this matter. Since the proprietary component is predominant in this right, it may be concluded that the time limits set for authors’ proprietary rights apply also to the droit de suite.As for the protection of the droit the suite under civil law, the author, and other holder(s) of copyrights, may obtain such protection by filing a civil suit pursuant to Article 172 (2) of the Act. Protection under criminal law is regulated by Article 188, paragraph 3 of the Act. |
