The digital era brought us new ways of distribution of media content, one of them being the performance of services of online media platforms. Since this is a relatively new kind of business activity, it is necessary to analyze the way it fits within the provisions of Serbian legal system. The major question in this respect pertains to potential copyright and related rights infringement.
Generally speaking, media piracy falls within one of two categories – physical or digital. Physical media piracy represents a traditional form of copyright infringement, and includes illegal duplication and distribution of copyrighted content by, for example, burning it onto mediums such as CDs and DVDs.
However, the issue of copyright infringement has gained renewed importance recently with the advent of new digital video recording and distribution technologies brought by the digital era, and with the widespread phenomenon of Internet piracy. This new kind of piracy – digital piracy – consists of illegal duplication and distribution of copyrighted content via network streams. With this in mind, the creative industries have frequently expressed concerns that they cannot compete with freely available copies of their content.
Even though it might look complicated at the first sight, Internet piracy functions in a simple manner. The provider of electronic media services installs an online platform upon which it sets a variety of links directing users to an array of websites on which they can watch numerous TV shows, TV channels, etc. By doing this, they provide online services for broadcasting and distributing all sorts of authorship or related rights works. However, in order to get access to these links, users need to be subscribed; i.e., usually, they first need to pay an amount of money to these providers in exchange for access to the links on the platform. As a result, providers can earn significant amounts of money. What the users do not know, however, is that they have been deceived, by paying subscriptions to false providers who do not have licenses to provide the said platform.
Indeed, these online media platform providers do not consider it necessary to obtain any kind of license to provide these online services. Instead, they justify (or excuse) their actions on the ground that they are conducting Internet marketing activities, for which they do not need to acquire any permission whatsoever from the owner of the copyrighted work. The problem with this statement is that even if we suppose that these providers are right and that their activities in fact are Internet marketing activities, there are no provisions under Serbian law entitling them to broadcast and distribute another’s authorial work without permission. Instead, the applicable provisions under Serbian law are those in the Criminal Code, which establishes (in Article 199) the criminal act of Unauthorized Exploitation of Copyrighted Work or other Works Protected by Similar Rights, and provides that “whoever without permission publishes, records, copies or otherwise presents in public, in part or entirety, a copyrighted work, performance, phonogram, videogram, broadcast, computer program or database, shall be punished with a fine or imprisonment up to three years.” Paragraph 3 of Article 199 states that “if the stated act is committed with intent to acquire material gain for oneself or another, the offender shall be punished with imprisonment from three months to five years.”
This provision of the Criminal Code makes the broad set of non-authorized actions, including the potential acts of providers via Internet platforms, a crime. Therefore, it goes without saying that if a provider exploits another’s copyrighted work (with or without aim of acquiring material gain) without authorization, the conduct can only constitute a criminal act, and as such, cannot be treated as performing Internet marketing or any other allegedly lawful business activity. In addition, these actions could introduce the question of compensation of damages, which arises from infringement of copyright and related rights. Still, a crucial question remains how the Serbian courts would approach this issue and assess it in day to day practice.
By Nemanja Ilic, Partner, and Bojana Bilankov, Associate, MIM Law Firm
This Article was originally published in Issue 4.8 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.