LLM Program in European and International Business Law

Copyright Law
Answers on Questions regarding Bosnian Copyright law
Prof. Dr. Michel alter !tudent " Pamela #u$man
%anuar &'().

Introduction
Before I start to answer questions regarding Bosnia and Herzegovina (in the text Bosnia) copyright
law it is important to explain some important facts regaring bosnian legal system.
Bosnia is a federation with two entities !he "ederation of Bosnia and Herzegovina and !he
#epublic of $rps%a& and !he Br'%o district which is a neutral& selfgoverning unit. It is important to
distinguish #epublic of $rps%a with #epublic of $erbia because they are two different communities.
#epublic of $rps%a is part of Bosnia. It is not a independent& recognized state in the international
community li%e #epublic of $erbia is.
!he federal system in Bosnia is the same li%e in any other federal state. (urisdiction is divided
between state organs and the organs of two entities and Br'%o district.
In the competence of state organs are ) foreign affairs* foreign trade policy* customs policy*
monetary policy* finance of institutions and international obligations of Bosnia* immigration&
refugee and asylum policy and regulation* international and interentity criminal law enforcement&
including relations with Interpol* +stablishment and operation of common and international
communications facilities* regulation of interentity transportation and ,ir traffic control.
-
+verything outside the competence of state organs is in the hands of the entity and district organs.
,lthough this division sounds complicated and it may seem to non legal public that there is
enormous number of different laws in the country the situation is actually simple) even though
district and entity organs ma%e legal acts in the practice they are actually replicating eachothers
laws and other legal acts so there is no difference between these acts in their essence.
"or example& the .riminal law is /01 the same in the entities and district. !he only difference is
regarding the penalties so the convict may be slightly lower or harshly punished for the same delict.
Bosnia has several laws regarding copyright and related rights. !he most important laws are )
-. 2aw on the collective management of copyright and related rights in Bosnia& which entered into
force on ,ugust -3th 43-3& and
4. .opyright and related rights law& which entered into force also on ,ugust -3th 43-3.
It is interesting to mention that Bosnia also adopted some other acts regarding the copyright )
-. 5ecision on constituting the copyright and related rights council& which entered into force on
,ugust /th 43-3&
4. #egulation on the deposit of copyright and related rights wor%s and their registration& which
entered into force on ,pril -/th 43--& and
6. #egulation on the conditions for granting licenses to legal entities for the collective management
of copyright and related rights& which entered into force on (une -6th 43--.
Bosnia is also the contracting party of the .onvention establishing the 7orld intelectual property
organisation (so called 7I89 convention) and the convention entered into force for Bosnia on
:arch -th -//4. Bosnia is also contracting party of the 7I89 .opyright !reaty which entered into
force for Bosnia on ;ovember 40th 433/.
4


- <.onstitution of Bosnia and Herzegovina= accessed on 5ecember 4>
th
43-6
http)??www.wipo.int?wipolex?en?text.@spAfileBidC44/D0D
4 ,ll documents that have been mentioned can be found at 7I89 webpage.
Answers to the *uestions
Question (. +n what conditions are wor$s of literature and art protected,
6
!he .opyright and related rights law gives protection to all wor%s of authorship& including wor%s of
literature and art& unless the wor% is listed in article E. which deals with exception from this rule&
namely where article gives explicitly the list of unprotected creations& e.g. ideas& concepts&
translation of texts& etc. !he law does not give any special conditions which have to exist to give
protection. !he author has copyright protection by the very fact of origin of the wor%.
However although there is no special conditions for protection of wor%s of art and literature the law
still requires some conditions so the wor%s from literature or art domain can be protected.
;amely& the definition claims wor% of authorship is a wor% of human which has a spiritual content&
certain shape and it is original. !o clarify& wor% of authorship must be original intelectual creation.
9riginality is an essential characteristic of the wor%& and the reason why the law recognizes
copyright protection for the offense.
"urthermore& the wor% has a protection if it was created by human and has a certain shape which is
original. :oreover& the scope of copyright protection does not cover unsealed elements of wor%s of
authorship& namely this refers to the elements that are to be considered as general cultural goods
that everybody should feel to serve. !his means that fol% literature creations (oral creations) and
fol% artistic creations are not the sub@ect of copyright protection.
Question &. Does your home country-s Copyright Act pro.ide for formalities
and / if this should 0e the case / which formalities ha.e to 0e fulfilled,
Bosnian .opyright and related rights law does not require any formalities. !he author en@oys
copyright protection on the basis of the creation of the wor% and there is not any formalities or
requirements in terms of its content& quality or purpose that must exist for the protection.
In the aim of preserving evidences author can deposit originas or copies of their copyright wor%s or
ob@ects of related rights. !he documents are deposited in the Institute for Intelectual 8roperty of
Bosnia and Herzegovina. 7hen the deposit is made these documents are registered and entered in
the record boo% of the wor%s which is led by the Institute. !he wor%s of authorship are protected
even if they are not deposited and registrated in the Institute for Intelectual 8roperty of Bosnia and
Herzegovina but it is always better to apply for the record in the Institute because the author is
completely certain his wor%s have copyright protection.
5eposit is not a legal obligation of author nor it is a requirement for obtaining copyright protection.
It is only a possibility for the author. !his means author has no obligation to ta%e any action before
the administrative or @udicial powers to become the holder of the copyright.
It is also one of the main differences that exist between the copyright on the one hand and industrial
property rights& on the other hand. 7hen it comes to the industrial property rights it is necessary
that a person who wants to patent& trademar%& etc& special logging initiate an administrative
procedure for the grant of protection.
It does not matter what type& manner or form of expression wor% has& it is still protected (unless the
law explicitly states otherwise) if it is original intelecutal creation. +ven unfinished wor% has
copyright protection. !he copyright belongs to the author on the basis of the creation of the wor%
and is not conditional upon the fulfillment of any formalities or requirements in terms of its content&
quality or purpose.
6 "or this question I was not able to find online any court case regarding this matter.
Question 1. or$s of 2oint authorship3 how are they circumscri0ed 4defined5 in
your home country-s Copyright Act,
!he .opyright and related rights law deals with the question of @oint authorship in articles -4. and
-6. !hese articles define the coauthors and author of connected wor%s.
In the article -4. is given definition what should be considered as coauthorship. ;amely& If the
wor% was created in collaboration of two or more persons and constitutes an indivisible whole& all
the coauthors shall have an indivisible copyright in it. , coauthorFs share shall be determined in
proportion to the real contribution made by each coauthor to the creation of a wor%& unless their
relationships are regulated otherwise by a contract. !he decision on the use of a wor% shall be made
@ointly by all coauthors. , coauthor may not withhold his consent contrary to the principles of
conscientiousness and good faith. If a @oint wor% consists of the parts which may be used separately
and if the author of each such part may be identified& the author of each part shall be considered the
original owner of the economic right in the part created by him. .oauthorsF right is uniquely right
to the protection of the unique ob@ect of protection& but with a plurality of native bearers.
,rticle -6. defines authors of compound (connected) wor%s. If two or more authors @oin their wor%s
for the purpose of @oint exploitation& each of them shall have the copyright in his own wor%. !he
relations between the authors of compound wor%s shall be regulated by a contract. Gnless
otherwise is agreed upon the provision of paragraph 6 of ,rticle -4 of this 2aw& which deals with
the decision on the use of a wor% which was made @ointly by all coauthors& shall apply mutatis
mutandis to the authors of compound wor%s.
Question ). hat is a regular term of protection and how is it to 0e calculated,
.hapter H. of the .opyright law has provisions on temporal limitation of copyright. !he general
provision which is set in article 00. says ) <!he copyright shall run for the life of its author and for
>3 years after his death& unless otherwise provided by this 2aw=. If copyright is @ointly owned by
coauthors& copyright shall be calculated from the death of the last surviving coauthor. .opyright
on collective wor%s shall run for >3 years from the day of the lawful disclosure thereof.
!he copyright on an anonymous or pseudonymous wor% shall run for >3 years from the day of the
lawful disclosure of the wor%. 7here the pseudonym leaves no doubt as to the identity of the author
or where the author reveals his identity term referred to in ,rticle 00 of this 2aw& namely that
copyright shall run for >3 years& shall apply.
!he 2aw also states that in case of serial wor%s copyright shall be calculated from the day of the
lawful disclosure of a wor%& and such wor% is disclosed in series (installments& volumes& editions&
episodes or the li%e)& the term of the protection shall be calculated for each of such parts separately.
7hen it comes to related right has different solutions on temporal limitation.
;amely& rights of performers shall run for 03 years computed from the day of performance. If the
fixation of a performance is lawfully published or lawfully communicated to the public within that
period of time& the rights of performers shall run for 03 years computed from the day of first
publication or first communication& whichever is earlier.
!he term shall start to run on (anuary - of the year following the year in which the event from
which the beginning of term is calculated occurred.
!he rights of the producers of phonograms shall run for 03 years from the day of first fixation.
If a phonogram is lawfully published within that period& the rights shall run for 03 years from the
day of first publication. If a phonogram is not lawfully published within that period& but it is
lawfully communicated to the public& the rights shall run for 03 years from the day of such first
communication to the public. !he time starts to run as of (anuary - of the year following the year
in which the event from which the beginning of time limit is calculated occurred.
!he rights of a film producer shall run for 03 years from the day of the first fixation of a videogram.
If the videogram is lawfully published or lawfully communicated to the public within that period&
the rights shall run for 03 years from the day of such first publication or the day of such first
communication& whichever is earlier.
!he rights of a broadcasting organization shall run for 03 years from the day of first
broadcast.
!he rights of the producer of a database shall run for -0 years from the completion of the creation
thereof. If the database is lawfully published within such term& the rights shall run for -0 years from
such first publication.
+ach qualitatively or quantitatively substantial modification of the contents of a database& including
the modification resulting from the accumulation of gradual updates& deletions or alterations& which
may be considered a qualitative or quantitative new substantial investment in such database& shall
effect the commencement of a new term of protection.
.omputer programs shall be protected as written wor%s if they represent their authorIs own
intellectual creation.
Question 6. Is a wor$-s e7ploitation on the internet reser.ed to the author,
7hen it comes to internet the 2aw only states that the right of ma%ing available to the public shall
be the exclusive right to communicate a wor% to the public by wire or wireless transmission in such
a way that a member of the public may access the wor% from a place and at a time chosen by him
(internet& videoondemand& musicondemand and the li%e).
Question 8. hich moral rights are pro.ided for in your home country-s
Copyright Act, May an author decide to stay anonymous,
!he moral rights of the author protect the author with respect to his intellectual and
personal ties to his wor%. !he author shall have the exclusive right to decide whether& when& in
which manner and in which form his wor% shall be disclosed.
!he author shall also have the exclusive right to be recognized and indicated as the creator of his
wor%. It is up to author to decide whether his wor% shall be disclosed under his name& pseudonym or
stay anonymous.
!he author shall have the exclusive right to oppose to any modification or use of the wor% if such
modification or use would be harmful to his honour or reputation.
Question 9. +n what conditions is the distri0ution right e7hausted,
!he right of distribution of an original or a copy thereof shall be exhausted for the territory of
Bosnia and Herzegovina with the first transfer of ownership of such original or a copy of the wor%
within Bosnia and Herzegovina by the author or a person having his consent.
Question :. Does your home country-s Copyright Act pro.ide for an e7ception in
fa.or of pri.ate copying and on what conditions, ;as the author a claim to an
e*uita0le remuneration 4fair compensation5,
If a wor% may be reproduced without authorIs consent& the author of the wor%s which& due to their
nature& may be expected to be reproduced by photocopying or recording them on sound& video or
text recording media for private or other internal use shall have the right to remuneration for such
use. !he remuneration shall be payable at the first sale or importation of new technical devices for
sound and visual recording and at the first sale or importation of new blan% sound& video or text
recording media. !he remuneration for photocopying shall be payable at the first sale or importation
of new photocopying devices and on made photocopies intended for sale.
"or the purposes of 2aw& the importation into Bosnia shall mean any release into circulation and
any bringing of goods into the territory of Bosnia& with the exception of small quantities intended
for private and noncommercial use& which are brought into as a part of personal luggage or sent in
small consignments. +qual to photocopying shall be considered all other reproduction techniques&
and equal to sound and visual recording devices shall be considered all other devices allowing for
the achievement of the same effect.
!he right to remuneration may not be sub@ect to waiver& disposal with during lifetime and execution&
Question <. Does your home country-s Copyright Act pro.ide for a =wor$s made
for hire clause,
If a wor% is created by an employee within the scope of his employment or following his
employerIs instructions& it shall be deemed that all the economic rights of the author are exclusively
transferred to the employee for the period of five years from the day of the completion of such
wor%& unless otherwise provided by a contract or another act. !he rights of the employer shall cease
after the expiry by reverting to the author& unless the employer requested& before the expiry of such
term& a new unlimited exclusive transfer thereof. In such a case& the author is entitled to equitable
remuneration for further exploitation of his wor%.
7ithout pre@udice the author retains the exclusive right to use the wor% created within the scope of
his employment within his collected wor%s. !he economic rights of the author and other rights of
the author in a database and in a collective wor% shall be deemed to have been exclusively and
unlimitedly transferred to the employer& unless otherwise provided by the contract.
Question ('. May copyright 0e transferred to a third party under the pro.isions
of your home country-s Copyright Act,
,rticle DJ deals with question of transferability of copyright.
!he law states copyright as a whole is not transferable. !he author may not transfer the moral rights
of the author to another person.
!he author may transfer to another person the individual economic entitlements (economic rights of
the author) and other rights of the author by a contract or another legal transaction& unless otherwise
provided by this 2aw.