RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/106
16 July 1998
(98-2828)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Questions posed by the European Communities and their Member States
By means of a communication from the Perman ent Delegation of the European Commission,
dated 13 July 1998, the Secretariat has received the following follow-up questions posed by the
European Communities and their Member States to Bulgaria and Poland.
For the sake of convenience, the original questions and replies are also reproduced below.
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FOLLOW-UP QUESTIONS POSED TO BULGARIA
Original question1
3. Article 18, paragraph 3 of the Law on Copyright and Related Rights provides for protection of the work
only "when done in such a way, as to enable an unlimited  number of people to perceive the work".  Please explain
how this complies with Article 9 of the TRIPS Agreement in conjunction with Articles 11, 11 bis and 12 of the
Berne Convention?
Original reply
The provisions of Article 18.3 of the Law on Copyright and Neighbouring Rights are to be considered
in relation with Article 18.1 of the same law, according to which any author possesses the exclusive right to use
his creation and to permit the use thereof by other persons.  In order to allow the existence of such a useregarding the forms enlisted in Article 18, paragraph 2, subparagraphs 3-8 of the Law, it is necessary that the
relevant actions are done in a way as to enable unlimited numbers of people to perceive the work.  The public
presentation, performance, display of the work are to be carried out in a broadly accessible manner.  In the casesit is notso (watching video films, listening to musical works, reading a translation in a circle of friends or thefamily), use under Article 18 of the Law is not present.
The above-mentioned provisions of the Law on Copyright and Neighbouring Rights are neither in
collision with Article 9 of the TRIPS Agreement, nor with the provisions of the Berne Convention for theProtection of Literary and Artistic Works.  The above stated in the text of the question Articles 11, 11 bis, 12
contain a similar requirement for public accessibility.  For example in Article 11, paragraph (1), sub-paragraph(ii) – for "communication to the public of the performance";  in Article 11 ter, paragraph (1), sub-paragraph (i) –
for "public recitation of works";  in Article 11 ter, paragraph 1, sub-paragraph (ii) – for "any communication to
the public of the recitation".
                                                     
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Page 2
Follow-up question
How are the rights of authors, creators , performers, producers of phonograms and
broadcasting organizations protected in cases of distribution, presentation broadcasting, transmission
and public exhibition to a limited number of people (e.g. showing of a video in hotel rooms)?
Original question2
8. Articles 31, 82, 89 and 92 of the Law on Copyright and Related Rights state that the term of protection
only begins to run from 1 January of the year following the death of the author, publication etc.  How are authors,
performers, producers of phonograms and broadcasting organizations protected before the term of protectionbegins to run?
Original reply
Article 27.1 of the Law on Copyright and Neighbouring Rights stipulates that copyright shall be
protected for the life of the author and fifty years after his death.
The initial moment of the protection period (first of January of the year following the respective event)
envisaged in the Law is in compliance with Article 7.5 of the Berne Convention and is motivated by the desireto expand to the highest degree the period of protection of the works, as well as by the aim to facilitate thecalculation of the above-mentioned terms.
During the period between the death of the author, pu blication etc. until the first of January of the
following year, the protection of the work is subject to the general procedure and does not possess anythingspecific.
Follow-up question
Reference is made to the "general procedure"  for the protection of works during the period
between the death of the author or publication and th e beginning of the following year.  What is meant
by the 'general procedure'?
FOLLOW-UP QUESTION POSED TO POLAND
Original question3
5. Article 31 of the Act provides that "it shall be permitted to perform for the public the literary works,
musical works, textual and musical works having been published if it is not connected with any material benefits".
This concerns, among others, " …events accessible to the public …".  Please clarify how this provision is
interpreted, in particular against the background of Article 13 of the TRIPS Agreement which states that limitationsor exceptions to the exclusive right shall be confined to certain special cases "which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder".
Original reply
Provisions contained in Article 31 of the Act introduce an exception to exclusive rights of the author of a
work, namely they limit the exclusive right to a public performance of a work. However, the form of use of the
work permissible by the legislation should be construed (similarly to other limitations of exclusive economic rightsof the author) taking into account the general rule containe d in Article 35 of the Act. According to that rule “the
                                                     
2 IP/C/W/100.
3 IP/C/W/95.IP/C/W/106
Page 3
permitted use must not infringe the normal use of the work or violate the rightful interests of the author”. The
content of Article 31 when combined with Article 35 fully complies with the regulation contained in Article 13 ofthe TRIPS Agreement.
Follow-up question
Please provide some examples/cases to illustrate the reply.
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