Let us start with the basics – what is a copyright work?

Articles 2–6 of the Law on Copyright and Related Rights explain what is considered a copyright work – it is defined as the author’s original intellectual creation, expressed in a certain form, regardless of its artistic, scientific, or other value, purpose, size, content, and manner of expression, as well as the permissibility of public communication of its content.

Article 2 lists the works that are particularly considered copyright works; this is the so-called “rubber clause,” which has been confirmed by case law. Namely, in the judgment of the Appellate Court in Belgrade Gž4 105/2020 it was stated that, although Article 2 enumerates characteristic copyright works, this does not exclude the possibility that a copyright work may also be something else that meets the stated criteria.

In accordance with Articles 3 and 4, unfinished works, parts of a copyright work, titles, and adaptations are also considered copyright works if they meet the conditions from the definition of a copyright work (Article 2 paragraph 1). In the same way, collections (encyclopedias, anthologies, music collections, collections of photographs, graphic portfolios, etc.) and databases are considered copyright works if they meet the stated conditions.

Thus, a copyright work is an original intellectual creation expressed in a certain form. From this we derive that originality is an essential element of the definition, which is confirmed by case law. In the judgment of the Appellate Court in Belgrade Gž4 10/2023 it is emphasized that originality represents the essential characteristic of a copyright work, so it is necessary that the author, even to the smallest extent, imprints his specific, individual, and intellectual mark. The Supreme Court of Cassation in judgment Rev 3897/2021 stated that originality and the existence of a form in which the work is expressed are two basic elements of a copyright work – for an intellectual creation to become a copyright work, it must be materialized in a certain form.

What is not a copyright work? 

As stated in Article 6 – copyright protection does not apply to general ideas, methods of work, or mathematical concepts as such, as well as principles and instructions contained in a copyright work. Copyright works do not include laws, by-laws, and other regulations; official materials of state bodies and bodies performing public functions; official translations of regulations and official materials of state bodies and bodies performing public functions; as well as submissions and other acts in administrative or judicial proceedings.

When is a copyright work published?

A copyright work is considered published when it has, in any way and anywhere in the world, been communicated to the public for the first time by the author or by a person authorized by the author.

Furthermore, a copyright work is considered published if it has been made available to a larger number of persons who are not connected by family or other personal ties. A copyright work is considered issued when copies of the work have been placed on the market by the author or by a person authorized by him, taking into account the type and nature of the work.

If a person later publishes a work and does not indicate the author and the original work that contains the same original embodied copyright idea, whereby the work is made available to a larger number of persons who are not connected by family or other personal ties, this constitutes plagiarism – as stated in the judgment of the Appellate Court in Belgrade Gž4 92/2017.

Not everyone can be a co-author, as co-authorship is also defined by law. Thus, for example, the Appellate Court in Belgrade in judgment Gž4 163/2016 concluded that a person who pressed the shutter command on a camera as technical assistance is not a co-author of the photograph, since he carried out what the author had previously organized and creatively conceived.

From the moment of the creation of a copyright work, the author enjoys moral and economic rights. As stated in the decision of the Commercial Appellate Court Pž 7145/2011 – the author enjoys moral and economic rights in respect of his copyright work from the moment of its creation, and not by protection in proceedings before the competent authority.

Thus, as an author you have certain moral and economic rights.

What are your moral rights? 

Articles 14–18 of the Law explain the author’s moral rights.

The first right, indicated in Article 14, is called the right of paternity, which states that the author has the exclusive right to be recognized as the author of his work. This provision does not say much about the right of paternity, so interpretation is drawn from the judgment of the Appellate Court in Belgrade Gž4 129/2019. Namely, the right to the indication of the name represents a derivative of the far more significant right – the author’s right of paternity, which authorizes the intellectual creator of the work to oppose all actions of other persons by which his work is spiritually appropriated or altered.

Simply put – if you publish someone else’s work, the author’s name must be indicated. If someone publishes your work and you are not indicated as the author, your moral right has been violated. That there is no exception to this rule was also stated by the Supreme Court of Cassation in judgment Rev 1824/2016 – the publication of another person’s photograph must be accompanied by the indication of the author, since there is no basis for exemption; otherwise, non-material damage will arise due to the violation of the right to recognition of authorship.

Article 15 regulates the right to the indication of the name – the author has the exclusive right that his name, pseudonym, or mark be indicated on every copy of the work, or mentioned during every public communication of the work, except if, considering the specific form of public communication of the work, this is technically impossible or impractical.

What if it is not possible to determine who the author is? This question is answered by the judgment of the Appellate Court in Belgrade Gž4 86/2023 – since it is not unknown that a photograph is the work of some natural person and that public communication without the indication of the author could violate someone’s moral copyright, if it is not possible to determine who the author is, one should refrain from public communication of the photographic work. Otherwise, there is a violation of the right to the indication of the name and liability for damages due to that violation. Furthermore, in the judgment of the Appellate Court in Belgrade Gž4 26/2018 it was stated that the absence of data on who the author of the photograph is requires refraining from its use.

Is the situation different if someone has taken a copyright work from someone else who is not the author? No. In the judgment of the Appellate Court in Belgrade Gž4 86/2023 it is stated that by deciding to take a photograph from other media, without identifying the author and without seeking the author’s consent for it to be published in the same form as on the portals from which it was taken, the defendant accepted the risk of possible violation of the integrity of someone’s copyright work.

Moral copyright rights cannot be transferred by contract, while economic rights can. This is a topic we have written about in one of the previous texts. As for this topic, it was established by the judgment of the Supreme Court of Cassation Rev 498/2020 that failure to indicate the author on a taken work is grounds for compensation for non-material damage.

The next moral right of the author is the right of publication; the author has the exclusive right to publish his work and to determine the manner in which it will be published. Until the moment of publication, only the author has the exclusive right to publicly give information about the content of the work or to describe his work.

Article 17 defines the right to protection of the integrity of the work – the author has the exclusive right to protect the integrity of his copyright work, in such a way as to oppose alterations of his work by unauthorized persons; to oppose public communication of his work in altered or incomplete form (taking into account the specific technical form of communication of the work and good business practice); and to give permission for adaptation of his work.

For example, in the judgment of the Appellate Court in Belgrade Gž4 86/2023 it was concluded that (in the case of displaying an incomplete photograph taken from other media) the circumstance that the defendant did not remove parts and did not know that he was displaying a shortened photograph does not affect the existence of a violation of the integrity of someone’s work, but is a circumstance that could affect the decision on compensation for damages. Furthermore, in the judgment of the Supreme Court of Cassation Rev 1551/2019 it was established that unauthorized publication of a photograph in altered and incomplete form violated the economic and moral rights of the author of the photograph. In the broadest sense, integrity implies protection of the identity of the work during every public communication of the work (judgment of the Appellate Court in Belgrade Gž4 129/2019).

Finally, the author has the right to oppose unworthy exploitation of the work (in a manner that endangers or may endanger his honor or reputation).

What are your economic rights?

Articles 19–40 of the Law regulate the author’s economic rights. What does this actually mean? Thus, the author has the right to economic exploitation of his work as well as of a work created by adaptation of his work. This right can be transferred by contract. The author has the right to remuneration for every exploitation of the copyright work.

In the decision of the Appellate Court in Belgrade Gž4 30/2019 it was stated that violation of economic copyright occurs if the copyright work is exploited without the author’s consent, since for exploitation of the copyright work by another person the author is entitled to remuneration (except in cases where the law provides otherwise) or in cases where the copyright work is used contrary to agreement or contract.

The author is entitled to the right of reproduction and therefore to allow or prohibit another person from recording and reproducing his work in whole or in part, by any means, in any form, in any permanent or temporary, direct or indirect manner. It is important to know that the author of a computer program has the exclusive right to allow or prohibit reproduction of a computer program created as a result of adaptation, translation, arrangement, or modification of his computer program, without affecting the rights of the person who made such modifications.

Even photocopying a photocopy is considered reproduction of a copyright work, so if unauthorized, there is a violation of the author’s economic right (from the judgment of the Higher Court in Novi Sad Kž1 194/2016).

The author has the exclusive right to allow or prohibit another person from placing on the market the original or reproduced copies of his work, by sale or other transfer of ownership. Article 21 lists the actions considered placing copies of the work on the market. It also adds the limitation that the author’s right to place copies on the market does not apply to the owner of a copy of the work who legally acquired that copy in the Republic of Serbia from the author or from the author’s legal successor. The owner has the right to dispose of the copy of the work that he legally acquired.

Furthermore, the author has the right to rent copies of the work (with the limitation provided in Article 23), the right of performance, the right of presentation, the right of transmission of performance or presentation, the right of broadcasting, the right of rebroadcasting and cable rebroadcasting, the right of public communication (including interactive making of the work available to the public), the right of adaptation/arrangement/other modification of the work, the right of public communication of a work that is broadcast, and the right of public communication of a work from a sound or image carrier.

The author also has certain rights in relation to the owner of a copy of the copyright work, such as the right of access to the copy of the work (under conditions specified in Article 34), the right of resale royalty (in relation to the original of a work of fine art), the right to prohibit exhibition of the original copy of a work of fine art, and the author’s preemptive right to adaptation of a copy of a work of architecture.

The author has the right to special remuneration defined in Article 39, and the right to remuneration for lending, defined in Article 40.

Keep in mind that the Law in a special section also determines limitations of copyright, but we will discuss that in more detail in one of the following texts.

For complete protection of your copyright, it is important to react in a timely manner and with professional legal support. Practice has shown that it is much easier and faster to protect a work when advice is sought in time. If you have doubts or suspicion of copyright infringement, consult a lawyer and ensure the security of your work.

Note: This text expresses exclusively the personal opinion of the author and does not constitute legal advice.