Intellectual Property safeguards the products of human intellect and comprises a set of legal rights that provide exclusive protection to the outcome of intellectual pursuits in fields such as industrial, scientific, literary, and artistic creations. Intellectual Property rights aim to reward innovators and creators by granting them exclusive rights to exploit their inventions or works and derive financial gain from them. They also protect the moral interests of authors in their works. Except copyright, the protection of innovations by some of the intellectual property rights is often considered, such as patents and trademarks.
The purpose of copyright is to encourage the advancement of science, culture, and the arts. To
achieve this, creators are granted exclusive rights as a means of rewarding their efforts, while
ensuring a balance between their interests and those of the public.
It is just and reasonable for creators to receive compensation for their creative contributions. Additionally, recognizing copyright is a deliberate policy of governments to stimulate creativity, facilitate the dissemination and utilization of its outcomes, and promote equitable trade, which is vital for economic, cultural, and social progress.
What is a work of authorship?
A work of authorship is an author's original intellectual creation, expressed in a certain form. An author's work is not original if it is the result of imitation of already existing works, without a specific and individual "touch" of the author that distinguishes it from other works. Serbian Law on copyright and related rights prescribes that the following shall be deemed works of authorship in particular: Written works (e.g. books, brochures, articles, translations, computer programs in any form of their expression, including their preparatory design material and other); Spoken works (lectures, speeches, orations, etc.); Dramatic, dramaticmusical, choreographic and pantomime works, as well as works originating from folklore; Works of music, with or without words; Films (cinema and television); Fine artworks (paintings, drawings, sketches, graphics, sculptures, etc.); Works of architecture, applied art and industrial design; Cartographic works (geographic and topographic maps); Drawings, sketches, dummies, and photographs; The direction of a theatre play.
Serbian Law on copyright and related rights also prescribes that the following shall not be deemed as work of authorship: general ideas, procedures, and methods of operations or mathematical concepts as such, as well as concepts, principles, and instructions included in a work of authorship; Laws, decrees and other regulations; Official materials of state bodies and bodies performing public functions; Official translations of regulations and official materials of state bodies and bodies performing public functions; Submissions and other documents presented in the administrative or court proceedings.
What is copyright?
The concept of copyright safeguards original works, which are the manifestation of thoughts and ideas. However, it is important to note that thoughts and ideas, on their own, are not eligible for protection under the Law on copyright and related rights of Serbia. The idea itself does not enjoy copyright protection, only by materializing the work in a certain form does the author acquire full copyright protection, and the holder of copyright pecuniary rights enjoys appropriate legal protection against unauthorized use of the work. This is because protecting ideas would unfairly limit freedom of expression, as well as access to information and resources. The free flow and use of ideas should not be restricted, as such limitations would hinder cultural and societal progress.
For example, if I come up with the idea of writing a novel about life during World War Two, anyone is free to use that idea and create their own novel based on it. However, if I express my novel in a specific form, such as writing it on paper or recording it in audio, I am granted copyright protection for that expression. This means that nobody is allowed to copy my novel in the form in which it has been expressed, such as the words on the page. If someone else takes the same idea and expresses it in their own way, they can receive copyright protection for their expression, as long as they do not reproduce my specific expression.
Because copyright only protects expressions and not ideas, many similar works can be protected by copyright law. This can occur when two authors independently express the same idea, without copying from each other's work, provided that they have exercised some degree of creativity in their expression. For example, two photographers taking pictures of the same historical site may receive separate copyright protection for their respective photographs, even though they were based on the same idea.
Photo by Nick Fewings
Who is the author?
An author is a natural person who has created a work of authorship. According to the Serbian Law on copyright, any author shall enjoy moral and pecuniary rights concerning his/her work of authorship from the moment of its creation. Author's moral rights consist of the exclusive right to be recognized as the author of his work; the exclusive right to his/her name, pseudonym, or mark being put on each copy of his work or be quoted at each public communication of that work; the exclusive right to disclose his/her work and set how it is to be disclosed; the exclusive right to protect the integrity of his/her work; the exclusive right to oppose the exploitation of his/her work in a manner that is posing or could pose a threat to his honor or reputation. Author's pecuniary rights shall be deemed as the right to commercial exploitation of his/her work, as well as of a work resulting from the modification of his/her work, for example, the right to reproduce; the right to place in circulation copies of the work - for example, the right of an author who wrote a book is to allow or prohibit that book to be reproduced by printing, as well as to be put on sale in bookstores; the right to perform - for example, the author of a musical work has the right to prohibit or allow the performance of that work in front of an audience; the right to broadcast - let's say to allow or prohibit the film to be broadcasted on television; etc.
Copyright and licensing
Copyright can be transferred by inheritance, as well as by Contract. Contract on the transfer of the copyright can be used to transfer Author's pecuniary rights, but not moral rights. The author may license to another person some or all of the pecuniary rights on his/her work, and the licensing of pecuniary rights may be either exclusive or nonexclusive. In the case of exclusive licensing of pecuniary rights, the Contract on the transfer of the copyright regulates that only the licensee shall be authorized to exploit the work of authorship (in the way stipulated by the contract), as well as to license such rights to somebody else, with the author's special permission. On the contrary, if the licensing of the pecuniary rights is non-exclusive, the licensee is authorized neither to prohibit somebody else from exercising the copyright nor to license his/her right to somebody else, and the licensor can license such rights to somebody else. Contract on the transfer of the copyright is important having in mind that if the contract does not regulate whether exclusive or nonexclusive licensing is implicated, concerned licensing of pecuniary rights shall be deemed to be non-exclusive, which means fewer rights for the licensee. Contract on the transfer of the copyright may limit the licensing of pecuniary rights in the way that the licensee shall be authorized to perform one or several specified operations towards exploiting the work of authorship (for example the right to place in circulation copies of the work, but not the right to additionally reproduce) , authorized to exploit the work of authorship within a specified territory, which is smaller than the one in which the right of authorship exists (for example, only in Serbia), or authorized to exploit the work of authorship within a specified period (for example, in a period of 5 years).
Contract on the transfer of the copyright
Copyright may be licensed or ceded in whole by the Contract on the transfer of the copyright. It is usually concluded in writing. An orally concluded Author's Agreement can produce a legal effect, but only as a Contract for the supply of services. Some of the contract's elements that shall be included are rights that are the subjectmatter of licensing or cession, as well as the amount of remuneration if any, and the method and terms for its payment. It is interesting to point out that if the profit made by exploiting a work of authorship is evidently disproportionate to the contractual remuneration, the author has the right to request the contract to be modified to eliminate such disproportion. When it comes to copyright on the book, a Publishing Contract is interesting, under which an author or any other copyright holder licenses or cedes to a publisher the right to reproduce a work of authorship by printing and marketing thus reproduced copies, and where the publisher undertakes to reproduce that work and market, as well as to remunerate the author, if agreed upon. Copyright infringement often occurs when it comes to the copyright on the book, therefore Publishing Contract is crucial in order not to face a lawsuit. Also, a lawsuit often occurs when there is an infringement of copyright by modification of a work of authorship, for example when a book has been modified for a film. Under a contract of modification of a work of authorship, the author gives some other person the permission to modify the work to present or perform it on the stage, make a film, or for other purposes, so this is the contract that should be concluded in the case of modification of a work of authorship.
Another contract, especially used for software legal protection, is a Contract of Commissioning a Work of Authorship. Under a Contract of Commissioning a Work of Authorship, the author undertakes to produce a work of authorship and to hand it over to the commissioning party.
If the software was produced based on a contract on commissioning a work of authorship, the commissioning party shall acquire all rights to the exploitation of that software, unless otherwise provided by the contract. The party commissioning a work of authorship shall have the right to direct and control the production of that work, though without substantially restricting the author's freedom of scientific expression by doing so. Software protected by copyright can only be used under the license granted by the holder of the pecuniary rights in the software, regardless of whether it is an old or the latest version of the software. If there is a new version of the software, it does not mean that the outdated version of the software is available for free use.
Copyright infringement can be prevented by the conclusion of some of these Contracts on the transfer of the copyright. Copyright attorney in Serbia can help in drafting any Contract on the transfer of the copyright, in order to have all necessary elements prescribed by Serbian Law on copyright and related rights.
Photo by Jon Tyson
Work of authorship created as an employee
The question often arises as to who holds exclusive pecuniary copyrights if a work of authorship has been created by an employee. If an author has created a work as an employee in the performance of his/her duties, the employer shall be authorized to disclose such work and to hold exclusive pecuniary rights on its exploitation within the scope of the employer's registered business for five years from completion of that work. Upon the expiration of five years, the author acquires exclusive pecuniary rights on the work. The special remuneration prescribed by the Copyright law of Serbia depends on the proceeds of the work's exploitation and belongs to the author during those five years. The employer is obliged to quote the author's name when using work created by an employee. In the case of software protection under copyright law, the Copyright law of Serbia regulates it a bit differently. If the work of authorship is software, the permanent holder of all exclusive pecuniary rights on software is the employer, and the author is entitled to special remuneration. By the employment contract, the employee and employer can surely agree to different regulations of copyright protection.
Protection of works on the Internet and Artificial intelligence (AI)
It is important to highlight that the use of works on the internet does not change copyright. Copyright-protected works do not lose this status when they appear on the internet. For example, many websites contain photographs. These photographs are protected as long as they meet the requirements referred to in Serbian Law on copyright.
At the Digital Summit in Tallinn, it was pointed out that in the coming decade, as many as 50% of work tasks will be subjected to automation by the use of Artificial Intelligence (AI). AI has already undertaken some creative roles, such as writing novels, painting, generating speeches, and writing poems. This raises many questions such as whether are computers the medium for creation or they are creators. Does the work of AI involve creativity? Who should benefit from moral and pecuniary rights on the work created by AI?
There is a legal presumption that the author suffers pecuniary and non-pecuniary damage in every case when his rights are violated, regardless of whether he also suffered from mental anguish due to the violation of moral copyrights or not. Violation of the author's moral rights represents non- material damage, and violation of the author's property rights represents material damage. In the event of a copyright infringement, or a serious threat that the right will be violated, any holder of the copyright may file a suit and request, particularly the following: determination of the copyright infringement or a serious threat that the right will be violated; prohibition of actions that violate the right or actions that pose a serious threat that the right will be violated; compensation for pecuniary and non-pecuniary damage, etc. For example, if the name of the photographer was not mentioned during the publication (public announcement) of the photo, the Court of Appeal in Belgrade considers that the photographer had to suffer pain considering that he is a professional photographer and bearing in mind the importance of the published photo in the case in question.
When it comes to the copyright on a photograph, it is important to point out that when a
photograph is downloaded from the Internet without indicating the name of the author, this does
not absolve the defendant of the responsibility to indicate the name or pseudonym of the author,
because he should find out who the author of that photograph is, in order to indicate his name.
The Law on copyright and related rights of Serbia protects any, even ordinary photographic work,
including amateur works.
In copyright litigation, proving that a particular work is an original intellectual creation is often an issue. In that case, for success in the dispute, it is important to know that the burden of proof is on the plaintiff, he is the one who should prove the aforementioned. Given that the court does not have special expertise to assess the existence of a work of authorship, the plaintiff must propose an expert opinion.
Photo by Markus Winkler
How long does copyright last?
Pecuniary rights last for the life of an author and 70 years after his/her death, while the moral rights of an author last even after the expiration of his/her pecuniary rights.
How to protect copyright in Serbia?
The Law on copyright and related rights in Serbia prescribes that copyright protection of an author arises as soon as the work of authorship is created, which means that the copyright protection is automatic. For the author to enjoy moral and pecuniary rights concerning his/her work of authorship, no registration of the work is required. However, to ensure the evidence in a potential court dispute or for current tax benefits application, the authors often opt for the option provided by the Intellectual Property Office of Serbia, which is to deposit a copy of the work of authorship with the Intellectual Property Office. The Intellectual Property Office is quite efficient and the whole procedure lasts a maximum of 30 days from the date of submission of the deposit request. The Office issues a certificate at the end of the procedure, that has the force of a public document and lists the title of the work, form, and type of deposit, as well as information about the author and the rights holder.
How much does copyright protection cost in Serbia?
It is not possible to give a universal answer to the question of the price of copyright protection in Serbia, bearing in mind the variety of contracts that can be concluded, depending on the type of copyright that is protected, while the amount of the Intellectual Property Office's fee for the previously mentioned entering the work into the registry and depositing a copy of the work of authorship is RSD 4,105.00 (if the applicant is an individual), i.e. RSD 8,210.00 (in case the applicant is a legal entity).
Copyright Lawyer in Serbia
The protection of copyright is significant because it enables authors to control the use of their works, as well as to ensure that their efforts are recognized and rewarded. This fosters creativity and innovation, as authors have the motivation to create new works. When authors have control over their works, they can ensure that their creative works are treated with respect and used in a manner that aligns with their intentions. Unfortunately, copyright infringement is not uncommon, so if you want to consider how best to protect your work of authorship, or the cost for protecting copyright, do not hesitate to contact our Law office by email at [email protected], through the contact form on our website, or via LinkedIn.