The High Court in Belgrade and the Appellate Court in the same city have issued a few decisions in 2013 rejecting arguments by the defendants that their use of photographs, without the authorization of the copyright owners, was lawful because the photos were used within the context of reporting about current events. While the outcome in each case was identical, the judgments differ in the interpretation of the law. A reader is left unsure as to what the Serbian copyright law actually says about the current events exception to copyright infringement.
The Copyright Act states, in the relevant part of Article 43:
(1) In the scope of informing the public with the means of the press, radio, television, and other media, it shall be permissible, without the author’s permission and without paying remuneration: … 1) to make copies of published works which appear as an integral part of a current event about which the public is being informed; …
(2) Paragraph 1 of this Article shall apply accordingly to all forms of public communication of the works.
The law seems to be straightforward: for reproduction of a copyrighted work, or its communication to the public, to be permissible, the work itself needs to be an integral part of a current event. This is how the Appellate Court in Belgrade interpreted Article 43 in its judgment of 21 August 2013, in the case Marija Cvetković v. Novosti AD (Case no. Gž-1524/13). According to the Court, for a photo to be lawfully used by another, the current event about which the public is being informed should be a photo exhibition, a ceremony in which awards for photographic works are granted, or similar. In the particular case, the photo was a portrait of a well-known violin player surrounded by children. The article published on the defendant’s website neither related to a photo exhibition or ceremony, nor dealt with the photo as the subject matter. Therefore, the unauthorized use of the photo could not be justified under the “current events” exception.
However, one may not be confident that this restrictive approach to the current events exception is the only approach a Serbian court might take.
Only three months before the Appellate Court issued the Cvetković judgment, the same court – but presided by another judge (and, presumably, with a different composition) – interpreted the relevant provision in the Copyright Act (Article 43) differently. In the judgment rendered on 16 May 2013, Slavoljub Radojević v. Novosti AD (case no. Gž-1524/13), the Appellate Court confirmed the finding of the High Court in Belgrade that the photo – the panoramic view of the city of Kragujevac – did not constitute an integral part of the current event about which the public was being informed. The current event was a violent crime committed in Kragujevac. The court muddles the water by explaining why the photo was not an integral part of the current event: “because the photo at issue neither shows the site of the event, nor is in any other way related to the case at issue, apart from showing the city of Kragujevac, in which the case at issue occurred”.
The phrase “because the photo at issue does not show the site of the event” invites an interpretation a contrario whereby, had the photo shown the actual house in which the crime occurred, or – especially! – had the photo captured the criminal event itself, the defendant using the photo could successfully invoke the current event exception to copyright infringement. The problem with the defendant’s act in the particular case, the court seems to be saying, was that the link between the photo published by the defendant and the crime reported about was exceptionally tenuous – only the city (Kragujevac) was common to the photo and the event. A link somewhat closer than that, the judgment implies, would suffice for a successful defense.
The lower court acting in the matter – the High Court in Belgrade – had stated something similar to the Appellate Court. The High Court ruled on 19 December 2012 (case no. P4-37/12) that the current event defense failed because the photo had been taken in January 2011. The court’s explanation ended there, but what the court intended to say was surely that the infringing photo was published much later (in August 2011), and that the fact negated the required proximity between the work and the event.
Although the brief phrases used by the Appellate Court and the High Court in the Radojević case make it difficult to conclude with confidence what the courts actually mean, it seems justified to read the two judgments as saying that the current event exception applies when the theme of the photo and the theme of the article are identical or sufficiently related.
That is a legitimate position to take, by a hypothetical lawmaker, but it seems to contradict the actual wording of the Serbian Copyright Act (Article 43). That provision pertains to the copyrighted work itself – as opposed to the work’s theme – and says that the work needs to appear as an integral part of the event reported about.
The explanatory notes, submitted by the government in 2009 along with the draft Copyright Act which the parliament eventually turned into a law, contain only one sentence about Article 43 (“This case of a suspension of copyright exists in order to ensure unimpeded and efficient informing of the public about current events”). In all likelihood, however, the provision – inherited from the two previous laws (from 2005 and 1998) – had been introduced in order to transpose Article 10bis(2) of the Berne Convention into the national law. Under Article 10bis(2), member countries shall “determine the conditions under which, for the purpose of reporting current events by means of photography […], literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public” (emphasis added).
The WIPO Guide to the Convention explains that “examples of works seen in the course of an event are a statue unveiled or pictures shown at the opening of an exhibition” (while “music performed during a ceremony would be an example of a work heard”). The Appellate Court’s interpretation in the case Marija Cvetković v. Novosti AD follows this line of reasoning, and the examples given by the Court (a photo exhibition and a ceremony in which awards for photographic works are granted) resemble that from the WIPO Guide (pictures shown at the opening of an exhibition).
So, if a newspaper or website editor in Serbia wants to play safe, she would do well to ask for the author’s permission and pay remuneration if, for example, she intended to publish a photo of two masked men leaving a bank they had just robbed.
This approach is more restrictive than the approach hinted at in the two judgments in the case Slavoljub Radojević v. Novosti AD. It is also more restrictive than what the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society allows. (The Directive, of course, in any event does not apply in Serbia, a non-member country.)
Article 5.3 of the Directive allows Member States to provide for exception to infringement of exclusive economic rights in the case of use of a work by the media “in connection with the reporting of current events, to the extent justified by the informatory purpose”. It is perfectly fathomable, then, that a national law might permit the use of a copyrighted work for the purpose of reporting on a current event, provided that the work is sufficiently related to the event. This, in fact, is what the French IP Code, as amended in 2006, says, positing at that the link between the use (reproduction, communication to the public), on the one hand, and the event reported about, on the other, must be “direct” (Article L. 122-5, 9º). (The same provision then exempts photographs from the exception, as does the UK Copyright, Designs and Patent Act, in Sec. 30(1)(A)).
The Appellate Court and the High Court in Belgrade say in the Radojević case with respect to the photographs something along the lines of what the amended French Article L. 122-5, 9º says with respect to other works of visual arts. The two Serbian courts, possibly, signal the path the Serbian copyright law will take in the future, but their pronouncements on the current events exception under the law now in force are of questionable validity.