ALAI-Congress2012 – KYOTO
Questionnaire
CROATIAN REPORT
Prepared by:
Romana Matanovac Vučković, Ivana Kunda, Iva Kuštrak, Marko Jurić, Tihomir
Katulić
Session 1－Developments of New Platforms
1)

How would you define “The Cloud” in your country?

As it is generally known, a unique definition of the “Cloud” does not exist, and Croatia
is no exception. In general, not much has been written in Croatia, in terms ofscholarly works on this subject, 1 but it is widely discussed in papers 2 andpublications; 3 conferences and workshops relating not only (or not solely) to theprotection of copyright.4 Several web or Internet portals offer different definitions of
the “Cloud”.
The “Cloud” computing or simply the “Cloud” can be defined as Internet-based
computing that facilitates sharing of resources, software and information.5
It is said that what “Cloud” offers to the users is infrastructure as a service. Therefore,
it is not necessary to invest in software and its up-to-date versions when the entire
company’s IT sector (usually SME’s) can be administered and maintained by “Cloud”
service provider.6
Laboratory for Systems and Signals of the Faculty of Electrical Engineering andComputing of the University of Zagreb defines the “Cloud” as a concept of diffusing
software environment which uses the Internet as a platform and enables forapplications and documents sent from anywhere in the world to be stored and1

http://cit.zesoi.fer.hr/browsePaper.php?issue=36&seq=2&paper=1391 (28/6/2012)2

http://pogledkrozprozor.wordpress.com/2009/08/29/%E2%80%9Ecloudcomputing%E2%80%9C-ili-programska-rjesenja-u-oblacima/ (28/6/2012)3

It was subject of joint publication of the Croatian National Computer Emergency Response
Team(CERT)
andLaboratory
for
SystemsandSignals(LS&S),
http://www.cert.hr/sites/default/files/NCERT-PUBDOC-2010-03-293.pdf (28/6/2012)4

http://www.hccu.hr/index.php?option=com_content&view=article&id=90&Itemid=112(28/6/2012)5

http://www.pctrikovi.com/tutorijali-i-savjeti/cloud-computing.html (27/6/2012)6

http://www.logis.hr/?page_id=82 (28/6/2012)1

safeguarded on pre-planned servers. Five key characteristics of the “Cloud” are alsomentioned: service on demand, broad network access, pooling of resources, rapid
elasticity and measured service.7

2)

Is exploitation of works, performances, sound recordings and so on generally
considered to relate to the Cloud?

Firstly, we should distinguish between private and public access to works protectedby copyright that are offered through the “Cloud”. As regards private access tocontent in the “Cloud” there should generally be no harm to the right holders,
whereas where public access is offered possible copyright infringements are more
relevant. In defining those two terms, we use legal definitions in the Croatian
Copyright and Related Right Acts (CRRA, Article 3, subsection 3): “Public is a larger
number of persons who are outside of the scope of usual circle of family, friends andother personal relationships.” Article 3, subsection 4 of the Act: “Public exploitation ofworks protected by copyright is every exploitation of such works made available tothe public or exploitation of such works in the space that is accessible to the public,
as well as making the access to such works possible in place and at the time that ischosen by the public.”3)

Are there already commercial platforms established specifically designated for
the Cloud or to some extent related to Cloud uses? Can you foresee such new
platforms to be established in the near future?

Current situation in Croatia is that increased number of services is being offered inrelation to the “Cloud”. One of the first Croatian companies to offer its services in the“Cloud” environment was its biggest mobile and IT provider. These services areclassified into different service packages, such as, tCloud Computer; Cloud Server;
Cloud Human Resources; Cloud Finance and Accounting; Cloud Car Surveillance;
and they are aimed solely at business users to facilitate their working environmentand help their businesses and employees to circumvent everyday difficulties imposedby the needs of modern society.8 Another IT provider also offers variety of services inthe “Cloud”, for example, cloudMarket – first online market of business applications in
Croatia. 9 Moreover, the University Computing Center of the University of Zagreb
called “SRCE” (Sveučilišni računski centar) offers to its customers, who are public
higher education institutions and public scientific institutes, Virtual Private Server.10

7

http://sigurnost.lss.hr/Dokumenti/cloud-computing.html (28/6/2012)8

http://www.t-com.hr/poslovni/ict/tcloud/index.asp (27/6/2012)9http://www.en.metronet.hr/it-usluge/ (27/6/2012)10

http://www.srce.unizg.hr/proizvodi-i-usluge/racunalni-resursi/cloud-virtual-private-servervps/ (27/6/2012)2

Following trends in more developed countries it can be concluded that this market in
Croatia will continue to rise, with more domestic companies offering their services inthe “Cloud” as well as foreign and multinational companies.

4)
How would you evaluate the Cloud’s importance to copyright for the next few
years to come?
Since the “Cloud” is relatively new concept in the digital area, we can safely assume
that it will have a strong impact to copyright. Recent judicial practice (though not in
Croatia, where to our best knowledge no such practice exists) has set some of theissues in front.11 However, this question should also be discussed with ISP liability
and developments in this field could determine the future of the “Cloud” and copyright.
Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues
raised by “Cloud” Business?
1) Is there any case law to be found in your country and/or examples of (good)practices concerning:
1.1) the right of making available to the public with reference to “Cloud” storage,
retrieval and dissemination?
1.2) cloud providers that may be relevant to determine liability for the making
available of unauthorized content in the cloud environment?
The right of making available to the public is defined in Article 30 of the CRRA as the
exclusive right to communicate a copyright work to the public by wire or wirelessmeans, in such a way that members of the public may access it from a place and at atime individually chosen by them. According to that definition Cloud storage with apublic access should be treated as the making available to the public. However, toour best knowledge, there is no case law on the right of making available to the
public with reference to “Cloud” storage, retrieval and dissemination. It seems that
the Cloud service providers usually do accept that Cloud Business is based on rightof making available to the public, and there are no cases known so far where thecopyright holders claim that the right of making available to the public was infringed
by the cloud services in Croatia.

2) Is there case law on the technological protection measures and Electronic rights
management information in the “Cloud” environment?
According to Article 175/4 of the CRRA technological measures mean any
technology, computer program, device, product or component thereof that in thenormal course of its operation is designed to prevent or restrict acts which are not11

http://iplj.net/blog/wp-content/uploads/2011/03/C04_Melzer_20110315_FINAL.pdf(28/6/2012)3

authorized by the right holder. The technological measures are considered effective
where the use of copyright works or subject matters of related rights is restricted by
the right holders through the application of an access control or a protection process,such as encryption, scrambling or other alteration of the work or other subject matteror a copy control mechanism, which achieves the protection objective.
According to Article 176/2 of the CRRA, the right-management information means
any information provided by the right holders identifying a copyright work or a subject
matter of related rights, the right holder, the terms and conditions for use, and theirrelevant numbers and codes, where they are indicated on a copy of a copyright workor subject matter of related rights or when they appear in connection with theircommunication to the public.
A far as known, the cloud service providers usually do follow the provisions of the
CRRA and there are no cases known so far where the copyright holders claim thatthe technological protection measures or electronic rights management information
were infringed in the cloud environment in Croatia.

3) How can we re-examine or re-evaluate the role of the WIPO Treaties withreference to “cloud” developments?

Since the WIPO Treaties do not contain detailed provisions related to the digital
agenda, including the right of making available, and copyright in general is very often
infringed on the wide scale, it would be desirable to reconsider the concept of moredetailed regulations referring to the copyright in the Internet generally. Within this, theprovisions relating to the "Cloud" developments could also be included.

Session 4– New Business Models for effective Protection of Copyright and Related rights
in the “Cloud”: Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies areclassified as “Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and“Infrastructure as a Service” (IaaS). Under the heading of “New Business Models for
effective Protection of Copyright and Related rights in the ‘Cloud’”, the main focus ison PaaS, whereas both IaaS and SaaS are of minor importance, since they generally
do not involve the use of copyrighted works of literature and the arts (issues of
copyright in software are not discussed at this congress).

Note: This subsection focuses on successful business models of authors andrightholders who market their copyrighted subject matter in the cloud either
themselves or via a service provider (such as, e.g. Apple’s “iTunes in the Cloud“),
presumably by employing digital rights management (DRM) and perhaps also
technical protection measures (TPM).
1)

In your country, what types of cloud services are offered and/or madeavailable by authors and rightholders offering their copyrighted content?
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To begin with, it should be noted that in the Republic of Croatia the market of cloudbased services offering copyrighted works is generally underdeveloped. Presumably,
this is the result of several factors, most importantly the relatively small size of themarket and general state of development of e-commerce. In addition, wideavailability of illegal content on the Internet (especially via torrent services) leads to ahigh percentage of unlawful use of copyrighted works, thereby significantly limiting
the possibilities of developing successful business models based on marketing ofdigital copyrighted works. This is especially true in the case of musical andaudiovisual works.
In this context, most promising cloud services offering copyrighted content on the
Croatian market are, at the moment, digital bookstores. Currently there are twoservices operating since 2011 and run by national telecom operators, which seek togain market share by offering works of both the domestic and foreign authors.
Regarding musical and audiovisual works, although there are a few services, theirbusiness model cannot be described as cloud-based. For example, two sites thatoffer musical works offer their content as .mp3 files with no specific DRM or TPM,
with limited time for download after payment.
2)

What kinds of works are being offered in this way (e.g., musical works, literaryworks, photographic works, audiovisual works, performances etc.)?

Literary works (VIP and Planet 9 e-books stores); musical works (fonoteka.tportal.hr
and cedeterija.hr).
3)What rights do rightholders usually transfer to the providers of cloud services?

No accurate information is available on the rights that rightholders usually transfer
regarding Cloud services. However, it is certain that the reproduction right and theright of making available to the public should be transferred to the Cloud service
provider. That is so because a large repertoire of works available in the local digitalmarketplace are in fact works published by providers themselves.
4)

What uses of copyrighted material are the users of such cloud services
permitted?

In the case of e-book services, users are allowed to reproduce the protected work on
up to 6 devices, all of which have to be connected to a single Adobe ID account forthe purposes of DRM. Regarding the digital music stores, no terms of use are
publicly available. At least some of the services seem to be in a beta stage ofdevelopment.
55)Can you give any figures regarding both royalty rates and total revenue
authors and rightholders receive when their works are being offered in thecloud?

No accurate or verifiable figures have been disclosed to the public.

6)

What kind of TPM and DRM is used by these services?

E-book stores offer their content in EPUB and PDF formats, protected by Adobe
Digital Editions DRM technology. Regarding the digital music stores, it seems that
there are no DRM measures currently employed.

7)

Under the legislation of your country, to what extent are TPM protectedagainst their unauthorized circumvention?

Legal protection of TPM is regulated in Article 175 of the CRRA, which reads:(1) The circumvention of effective technological measures designed to protect
the rights provided by this Act shall represent the infringement of such rights,
unless otherwise specially provided by this Act.
(2) The circumvention of technological measures shall also mean, under thisAct, manufacture, import, distribution, sale, rental, advertisement for sale orrental, or possession for commercial purposes of technology, computer
programs, devices, products or components, or the provision of services
which:- are promoted, advertised or marketed for the purpose of circumvention oftechnological measures,- have only a limited commercially significant purpose or use other than tocircumvent technological measures,- are primarily designed, produced, adapted or performed for the purpose of
enabling or facilitating the circumvention of effective technological measures.
(3) A request may be filed against a person who knew or had reasonablegrounds to know that she or he was circumventing or enabling thecircumvention of technological measures. It shall be considered that theperson who acts in the manner described in paragraph 2 of this Article hasreasonable grounds to know that she or he is circumventing or enabling thecircumvention of technological measures.

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(4) For the purposes of this Act, technological measures shall mean any
technology, computer program, device, product or component thereof that in
the normal course of its operation is designed to prevent or restrict acts, which
are not authorized by the right holder under this Act. The technologicalmeasures shall be considered effective where the use of copyright works or
subject matters of related rights is restricted by the right holders under this Act
through the application of an access control or a protection process, such as
encryption, scrambling or other alteration of the work or other subject matter ora copy control mechanism, which achieves the protection objective.
(5) The provisions of this Article shall not apply to computer programs.
Also, it is worth mentioning that Article 176 of the CRRA provides for a legal
protection of rights-management information. This Article reads as follows:(1) Copyright and related rights under this Act, shall be also infringed by aperson who knowingly, without authority, removes or alters any electronic
right-management information, produces, distributes, imports for the purposeof putting them on the market, broadcasts, communicates to the public ormakes available to the public a copyright work and subject matter of related
rights from which the electronic right-management information has been
removed or altered without the authorization of a right holder, and who knowsor has reasonable grounds to know that she or he causes, enables, facilities orconceals the infringements of the rights under this Act.
(2) Right-management information, under this Act, shall mean, any information
provided by the right holders identifying a copyright work or a subject matter ofrelated rights, the right holder, the terms and conditions for use, and theirrelevant numbers and codes, where they are indicated on a copy of a
copyright work or subject matter of related rights under this Act or when they
appear in connection with their communication to the public.

8)

Is unauthorized circumvention of TPM a practical problem for those offering
their content in the cloud?

At present, it appears that local content providers have not been faced with problemsof circumvention of TPM and DRM. However, this conclusion is strongly connectedwith and limited by the above mentioned context regarding the actual use of cloudbased services for marketing digital content. It is reasonable to expect that the issuesof TPM and DRM circumvention will become more prominent as local cloud-based
services gain more of the market share.
On the other hand, one cannot underestimate the fact that local enterprises already(indirectly) face negative consequences of the unauthorized circumvention of TPM
7

and DRM on a global level, since it is significantly harder for them to develop
sustainable business models in the context characterized by wide availability of
unlawful content.

5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors andrightholders, who build upon someone else’s copyrighted material and who –successfully or not – try not to be subject to copyright liability. Examples are services
that make use of the private copying exception (such as, e.g., personalized internet
video-recorders) or which strive to benefit from an exception to legal liability as an
Internet Service Provider (such as, e.g., under the EU e-Commerce Directive). In
addition, strategies of authors who market their copyrighted works outside of
copyright (such as, e.g., under an open content or Creative Commons (CC) licence)
can also be regarded as “copyright-avoiding” business models (although technically,
they are based on copyright).
5.1 – Private copying in the Cloud1)

In your country, are there services – and if so, what kind of services are there that offer its users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s“Picasa”), platforms with general public access (such as, e.g., FlickR) andmixed-forms (such as, e.g. Facebook) but also so-called internet-video
recorders and possible other forms of private storage services.

Cloud-based storage services provided by Croatian companies for the local market
are orientated primarily to business customers (B2B). Most of the Croatian telecoms
offer several services that help business clients store data in the cloud.
On the other hand, most of the popular storage and sharing platforms such as Picasa,
Flickr, Dropbox, Box.net, Google Drive, etc., as well as social network platforms suchas Facebook or Google Plus are both available and widely used in Croatia. However,DRM systems in place limit access to territorially unlicensed content.
2)

In legal terms, to what extent do the operators of such services benefit from its
user’s private copying exception? Are there any other exceptions undercopyright law?
(note that general exceptions of legal liability are discussed under 5.2).

To our best knowledge, there is currently no case-law regarding the issues of legal
responsibility of storage services and other Internet intermediary service providers forthe possible breaches of copyright law. Furthermore, the nature of the services
offered makes it very unlikely that the statutory exceptions have any impact on thebusiness model of the service provider.

8

5.2 – Copyright-avoiding models on the basis of – presumed – exceptions tocopyright liability or limited interpretations of the “making available” right1)

To what extent do the operators of cloud services benefit from a narrowinterpretation of the making available (or communication to the public, or
public performance) right?

Generally speaking, the information society service providers in Croatia usually do
not benefit from a narrow interpretation of the making available or the communication
to the public or public performance right. They tend to respect, with more or lessenthusiasm, the interpretation of those definitions as wide as the powerful rightowners (such as music publishers and the publishers of printed editions) and thecollective management societies tend to understand them. According to our best
knowledge, so far there are no cases concerning those issues. So is to expect thesame also in relation to the cloud services in Croatia. However, it is conceivable thatwith developing of the Cloud business also certain models and services could
develop that would take advantage of the statutory exemptions and limitations andbase their business models around it.

2)

According to the law in your country, what is the legal status (primary or
secondary liability - contributory infringement or vicarious liability; aiding andabetting, other liability such as an inducer, “Störer”) of the provider of cloudservices with regard to copyright infringing content uploaded by its users?

The Croatian legal system has adopted the framework laid down in Directive
2000/31/EC (EU e-Commerce Directive) which has been fully implemented in theElectronic Commerce Act (ECA). The provider of the information society services,
according to Article 16 of the ECA, cannot be held liable for the content of electronictransmission provided that he functions as “a mere conduit” (Article 12 of the Ecommerce Directive). Articles 17-21 of the ECA lay down the criteria for exemption
from secondary liability, which also correspond to the framework laid down in the eCommerce Directive. The same provisions should also apply to the provider of cloudservices. Generally speaking, the information society service providers in Croatia
usually do not benefit from a narrow interpretation of the making available or thecommunication to the public or public performance right. They tend to respect, withmore or less enthusiasm, the interpretation of those definitions as wide as thepowerful right owners (such as music publishers and the publishers of the printed
editions) and the collective management societies tend to understand them.
According to our best knowledge, so far there are no cases concerning those issues.
So is to expect the same also in relation to the cloud services in Croatia. However, it
is conceivable that with developing of the Cloud business also certain models andservices could develop that would take advantage of the statutory exemptions andlimitations and base their business models around it.
3)

In your country, do cloud service providers benefit from an exception to liability (suchas, e.g., under the EU e-Commerce Directive), and if so, to what extent (e.g., total
exemption from liability or exemption only from duty to pay damages)?
9Please cite to and briefly describe statutory provisions and relevant case law.

According to Article 21 of the ECA, there is no general obligation for providers, whenproviding the information society services, to monitor the information which theytransmit or store, nor a general obligation to actively seek facts or circumstancesindicating illegal activity. Consequently, cloud service providers benefit from an
exception from liability as regulated in Article 16 of the ECA, which exempts theinformation services provider (and consequently the cloud service provider) fromliability. But, information society service providers are obliged to promptly inform thecompetent public authorities of alleged illegal activities undertaken or information
provided by recipients of their service. They are also obliged to communicate to thecompetent authorities, at their request, information enabling the identification ofrecipients of their service with whom they have storage agreements, in order toprevent criminal activities and infringements of rights. If they fail to meet their
obligations, they are regarded responsible for the infringement of copyright, and their
responsibility, depending on the circumstances of each particular case, may also be
the duty to pay damages, which includes the full indemnification in solidum with thedirect infringer.
However, according to our best knowledge, there is no relevant case law regarding
the cloud services in Croatia. The Croatian legal system has adopted the framework
laid down in Directive 2000/31/EC (EU e-Commerce Directive) which has been fully
implemented in the Electronic Commerce Act (ECA). The provider of the informationsociety services, according to Article 16 of the ECA, cannot be held liable for thecontent of electronic transmission provided that he functions as “a mere conduit”(Article 12 of the E-commerce Directive). Articles 17-21 of the ECA lay down thecriteria for exemption from secondary liability, which also correspond to theframework laid down in the e-Commerce Directive. The same provisions should also
apply to the provider of cloud services.

4)

Also according to the law in your country, what duty of care is owed by cloudservice providers to monitor and eventually remove copyright infringing
content?

As all other information society service providers, including the cloud service
providers, are not obliged to actively monitor the infringing content, but once they are
informed by the right holder on the infringing activities or obtained such knowledge orawareness in another way, they are obliged to remove the infringing information of
disable access to such information.

5)

What evidence must a rightholder present in order to have infringing content
removed?

There are no specific rules on evidence that the right holder has to present in order tohave infringing content removed. However, Article 177 of the CRRA stipulates that is
sufficient for the rightholder to provide any evidence showing reasonable ground tobelieve that the right has been infringed. On the other hand, the infringing party has
to prove that he has the right to use the work in particular manner.
106)

In your country, are there any contracts that have been concluded between
cloud service providers and rightholders concerning the use of copyrighted
material by the users of the cloud services?

To our best knowledge, no contracts have been concluded that involve cloudservice providers and rightholders and it is certain that collective management
societies have not concluded any contract with the cloud service providers.

7)

In your country, what copyright-avoiding cloud services are operating
successfully, and what services that sought to be avoiding copyright havebeen banned and eventually shut down?

According to our best knowledge, there are no such cloud services, neither there
have not been any procedures against an offending cloud service in the Croatianjudicial or administrative practice.

8)

In your country, are there any legislative changes under discussion as regards
the liability of service providers who provide for cloud services? In particular,
do you think that liability of service providers will be reduced or, rather,increased?

In Croatia, there are discussions on amendments to the Criminal Act which could
result in detailed provisions concerning the liability of information service providers.
We believe that their liability shall be increased.

9)

Do you see any progress regarding filtering technology?

So far we do not see any progress regarding filtering technology in Croatia. However,the perspective depends on the definition of filtering technology. Content filtering
technology is vulnerable to content formatting, format encryption and adoption offiltering standards. IP filtering is vulnerable to circumvention measures immanent tostandard Internet protocols. At this stage of the Internet’s technological development,
basic communication technologies preclude efficient filtering. CC licenses are seeing
use in educational and scientific venues, specifically as a way to enable access tothematic content. We are not aware of CC or other open content licenses being usedin commercial cloud context.

5.3 – “Copyright-avoiding” business models operated by authors for the“Cloud”
1)

In your country, is there a noticeable use of “copyright-avoiding” businessmodels, such as Creative Commons (CC) or comparable open content
licenses by rightholders with respect to cloud-based exploitations of works?

11CC licenses are seeing use in educational and scientific venues, specifically as away to enable access to thematic content. We are not aware of CC or other open
content licenses being used in commercial cloud context.

2)

If so, in what areas (music, literature, audiovisual works, scientific works etc.)
are such licenses most often used?

Mostly scientific works and related technical literature.

3)

Are there any figures available as to how the authors of such works generate
income from such cloud-based exploitations, and how much?

There is no publicly available data regarding the generated income.
4)

Also in your country, what legal obstacles are authors faced with when making
use of open content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award
damages for unauthorized commercial use of works that have been madeavailable only for non-commercial use; collecting societies refusing torepresent authors who want to market some of their works under a CClicence; the exclusion of CC-authors from receiving remuneration under aprivate copying regime etc.

Examples might be the unenforceability of such licences; the refusal to award
damages for unauthorized commercial use of works that have been made available
only for non-commercial use; collecting societies are reluctant to represent authors
who want to market some of their works under a CC-licence; the exclusion of CCauthors from receiving remuneration under a private copying regime etc.
There is no national case law regarding enforceability of CC and other open content
licenses in Croatian courts. However, with regard to the common European
continental legal tradition, experience with recent Dutch, French and German casesthat have confirmed the applicability and enforceability of CC and other licenses may
apply.

Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment
1) Does your country have specific private international law rules for copyright inparticular and for intellectual property in general or are there general rules ofprivate international law that apply in these circumstances? In particular do yourcountry's rules of judicial competence (personal jurisdiction) make it possible tosue a foreign intermediary who makes it possible for infringements to occur or to
impact in the forum? Which law applies in such instances? Would the law
applicable to the primary infringement apply? Would the law of the intermediary's
residence or place of business apply?
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The basic domestic legal source of private international law in the Republic of Croatia
is the Resolution of Conflict of Law with the Laws of Other Countries in Certain
Relations Act (hereinafter: the PIL Act).12 This Act dates back to the early 1980s andwas only marginally modified when incorporated into the Croatian legal order in 1991.
This is the codification of both the conflicts and procedural rules relevant to matters
having an international element. It applies whenever both international treaties inforce in Croatia and special domestic laws do not contain a specific rule.13 However,it does not contain the private international law rules specific to the copyright issues
or intellectual property issues, apart from the provisions on the law applicable tocontracts on author’s right and contracts on technology transfer.14
In reply to the question on the grounds for establishing the jurisdiction of Croatiancourts in a lawsuit against a foreign intermediary who makes it possible forinfringements to occur or to impact in the forum, it has to be noted that there are no
specific jurisdiction rules for intellectual property matters. In the lawsuit regarding theissue of intermediary enabling an infringement occurring or impacting the territory of
Croatia, there is a possibility to rely on the general heads of jurisdiction and special
heads for torts.
Under the former heads, the Croatian courts shall have international jurisdiction if a
defendant is domiciled (natural persons) or has its seat (legal persons) in Croatia.
The Croatian courts shall also have jurisdiction if a defendant is domiciled neither in
Croatia nor in another country, but has residence in Croatia. If litigants are Croatiannationals and a defendant has residence in Croatia, the Croatian courts shall also
have international jurisdiction. The jurisdictional rule on joinder of parties provides
that if two or more defendants are sued on the same legal and factual grounds, andbetween whom this legal and factual connection existed even before the lawsuit was
initiated, the Croatian courts shall have supplemental jurisdiction to adjudicate thecase against all the defendants, provided one of those defendants has domicile orseat in Croatia.15 Although not reported to have been used in practice since the late1960s, it is necessary to mention here the provision of the PIL Act on the so-called
retorsion head of jurisdiction: Where the law of a foreign state provides a criterion forestablishing the jurisdiction of its courts in the proceedings against a Croatiannational, the same criterion, although not provided in Croatian law, may be used forestablishing the jurisdiction of the Croatian courts in the proceedings against thenational of that foreign state.16
In addition to the general heads of jurisdiction, all of which may be used in tort(including the infringement of intellectual property) cases, special head of jurisdiction
for torts provides that the Croatian court shall have the jurisdiction if the damage has
occurred on the territory of the Republic of Croatia.17 The Croatian scholars have notbeen unique in interpreting this provision. Some tend to believe that the phrase

12

OG SFRY 43/1982 and 72/1982, OG RC 53/1991.
For the list of treaties the reference is made to I Kunda, Croatia, in T Kono (ed),Jurisdiction and Applicable Law in Matters of Intellectual Property/La competence et la loi
applicable rn matière de la proprieté intellectuelle (Hart Publishing, 2012) para. 7.
14
Art 20 of the PIL Act.
15
Art 46(1)-(4) of the PIL Act.
16
Art 48 of the PIL Act.
17
Art 53(1) of the PIL Act.
13
13

‘damage occurring in the Republic of Croatia’ has to be construed restrictively toencompass only those situations in which the place of the damage, i.e. theconsequences of tortious act (locus damni) is located in Croatia. Other scholars holdthat irrespective of this phrase the broader interpretation, in line with the doctrine ofubiquity according to which the damage occurs both, in the place where thetortfeasor acts (locus actus) and in the place where the consequence of suchwrongful action is felt (locus damni), would be more appropriate. However, this would
exclude the possibility of bringing a lawsuit in Croatia if only an indirect damage
occurs there, as has been confirmed several times over the past 15 years by theSupreme Court of the Republic of Croatia. 18 The judicial interpretation of thisprovision, i.e. of the scope of the locus delicti commissi, in the event of an
infringement of an intellectual property right has not been reported. Likewise, theCroatian scholars, because discussing this issue primarily within the European Union
context, did not take either position. Thus, the issue whether an act taking place inthe territory of one country may quality as an act of infringement of the right protectedin another country for the purpose of establishing jurisdiction, remains unanswered in
the Croatian law.
The international jurisdiction of Croatian courts in tort may additionally be based on
the tacit prorogation where a defendant enters a plea in merits without challenging
the jurisdiction.19 Yet, based on the wording of Article 53(1) of the PIL Act, it appears
that Croatian law does not allow parties to explicitly agree on international jurisdiction
in tort cases. It also has to be added that all the criteria for international jurisdiction
available in tort cases are available also to the plaintiffs in the proceedings against
insurers on the grounds of direct action for third-party liability, provided that direct
action is allowed under the applicable law, as well as for recourse against regress
debtors on the grounds of liability for damages.20
It is important to restate that there are no special conflict-of-laws provisions in the
Croatian law that would designate the law applicable to infringements of intellectual
property rights, either of the primary infringer or the secondary one. Hence, thegeneral conflict-of-laws provision for non-contractual obligations should be decisive.
It provides that the law applicable to non-contractual liability for damages, unlessotherwise provided by another legal instrument, is the law of the place where the act
was committed (lex loci actus) or the law of the place where the consequence has
occurred (lex loci damni), dependent on which of them is more favourable to theinjured party. The same law is also applicable to the non-contractual liability
occurring in relation to the quasi-contracts (condictio sine causa and negotiorum
gestio).21 There is a special conflict-of-laws provision on the illegality of the alleged18

In the Supreme Court of the Republic of Croatia decision No. Rev 2390/94 of 3 September
1997, published in (1998) 4 Sudska praksa [Court Practice] 91, it was clearly stated that theterm ‘occurrence of damage’ means the bodily injury, death or damage to a thing. This wastransformed into the legal opinion accepted at the meeting of the Supreme Court Civil Law
Section (III/07) Su-IVg-46/2007-3 held on 26 February 2007. See also the Supreme Court of
the Republic of Croatia decisions Rev-758/1995-2 of 6 May 1998, accessible at:sudskapraksa.vsrh.hr/supra/, and Revt-51/03-2 of 27 February 2007, accessible at:sudskapraksa.vsrh.hr/supra/.
19
Art 50 of the PIL Act.
20
Art 53(2) of the PIL Act.
21
Art 28(2) of the PIL Act.
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tortuous act, which states that this illegality is governed by either the law of place
where the act was committed or the law of the place where the consequence has
occurred, and if the act was committed or the consequence has occurred in morethan one place – it is sufficient that the act is illegal under the law of any of thoseplaces.22
The cited provision on the law applicable to torts seems inappropriate for certain
special types of delicts, and this is specifically so in cases concerned with the
infringement of intellectual property rights, where as a consequence of the principleof territoriality of these rights, the acts committed in the territories outside the bordersof the country for which the protection is claimed, are not considered infringing acts.
It is therefore suggested that the provision of Article 28 of the PIL Act should beapplied in the adjusted manner to the infringements of intellectual property rights
taking account of the fact that such rights are territorial, meaning that they provide
their holder with the protection against third parties only for the acts taking place
within the country of protection. Such approach eventually reduces the locus delicti
commissi only to the single connecting factor which corresponds to the locus
protectionis and eliminates the plurality of potentially applicable laws to the law of thecountry of protection. Thus, the locus protectionis as a special connecting factor for
infringements of intellectual property rights may be understood as the embodiment of
the locus delicti commissi as a connecting factor for the torts in general. Otherwise
the principle of territoriality of intellectual property rights would not be respected.
The Croatian case law does not seem to be particularly appreciative of the problems
related to application of Article 28 of the PIL Act to the infringement of intellectual
property rights. The High Commercial Court pointed out that the provision of Article
28 of the PIL Act relates to the non-contractual obligations and that these provisions
are ‘also in accordance with Article 5 of the Berne Convention which provides, for themeans of redress for the protection of copyright, and the law of the country in which
the protection is claimed is to be applied’. Consequently, the Court concluded that
the Croatian law is applicable.23
It is difficult to give a straightforward reply under the Croatian law to the question
regarding whether the intermediary’s infringement would be subject to the same law
as the primary infringement or would be treated as a separate act of infringement
under the conflict of laws. In any case, there seems to be no grounds to apply the lawof the country where the intermediary's residence or place of business is located,
unless this is either the lex loci actus or the lex loci damni, ie pursuant to here
advocated interpretation, the lex loci protectionis.
In this context it is important to mention the provisions of Articles 3 and 4 of theElectronic Commerce Act.24 The former titled “Application of Law” provides that the
information services provider having its seat in the Republic of Croatia shall act andprovide services in compliance with the laws and other legal instruments of the
Republic of Croatia. Article 4 titled ‘Exception to the Application of Law’ provides that22

Art 28(3) of the PIL Act.
The High Commercial Court, Pž-277/08–3 of 9 December 2009, annulling the decision of
the Commercial Court in Rijeka, P-749/2002 of 12 October 2007 on the merits andremanding the case back to the Commercial Court for deciding anew.
24
OG RC 173/03, 67/08, 36/09 and 130/2011.
1523

the provisions of Article 3 shall not apply to the information services provider having
its seat in another EU Member State, even in cases where the service is targeted
towards the citizens of the Republic of Croatia. Furthermore it is stated that the latter
exception does not apply to subjects in the several mentioned areas, one of whichbeing ‘copyright and related rights, as well as industrial property rights’.25 In the midstof the heightened discussion about the legal nature of these provisions among theEuropean scholars, in 2006 the Croatian scholars took the view that both therespective provisions of the Croatian Electronic Commerce Act and the Electronic
Commerce Directive are conflict-of-laws rules.26 This does not seem to be contrary
to the Electronic Commerce Directive which, although in its Recital 23 it declares not
to provide for any conflict-of-laws rules rather the rules guaranteeing the freedom toprovide services in the internal market, does not seem to prevent its transposition insuch form.27

2) Does your national collective rights management organisation grant multiterritorial licences and are there cloud-specific licence models when it comes tocollective licensing? If so, does this include rules on cross-border contracts(including jurisdiction and choice of law aspects)?
Croatian collective management organisations (CMO) generally do not grant multiterritorial licences even in cases related to the on-line use. However, on a single
occasion, in the mid '90, the performers' CMO reported that they have granted alicence for the purpose of use of the performance by a Croatian singer in an
Australian film. This contract had no cloud-specific clauses whatsoever.

25

It is interesting to note that the most recent amendment to the Electronic Commerce Act
added the following provision of Article 1a: ‘This Act contains provisions in accordance with
the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on
certain legal aspects of information society services, in particular electronic commerce(‘Electronic Commerce Directive‘).’26
Hrvoje Sikirić, ‘Mjerodavno pravo za ugovore u elektroničkoj trgovini u hrvatskom i
europskom međunarodnom privatnom pravu’, 56 Zbornik Pravnog fakulteta u Zagrebu 2006,
739, 51.
27
Interpretation arguentum a contrario of the judgment of the Court of Justice of theEuropean Union in Cases C-509/09 and C-161/10, eDate Advertising GmbH v X and Olivier
Martinez and Robert Martinez v Société MGN Limited, where stated that the provision of
Article 3 of the Electronic Commerce Directive' must be interpreted as not requiringtransposition in the form of a specific conflict-of-laws rule’.
16