Serbia

6.2.3.1. Publishing Contract

Article 73

(1)

A publishing contract shall be a contract under which an author or any other copyright holder licences or cedes to a publisher the right to reproduce a work of authorship by printing and market thus reproduced copies, and where the publisher undertakes to reproduce that work and market, as well as to remunerate, if agreed upon, the author or any other copyright holder.

(2)

If the work of authorship referred to in Paragraph 1 of this Article has not been disclosed, the publisher shall be permitted under the publishing contract, to disclose such work.

(3)

The author or any other copyright holder may licence or cede to the publisher, under a publishing contract, the right to have the work translated, as well as the authority to reproduce and market the translated work.

Article 74 A publishing contract, the subject-matter of which is the publication of articles, drawings and other authors’ contributions in newspapers and periodicals, need not be concluded in writing.

Article 75

(1)

The licensing of rights by the publishing contract shall be exclusive, unless otherwise agreed upon.

(2)

The provision of Paragraph 1 of this Article shall not apply to the publishing of articles, drawings and other authors’ contributions in newspapers and periodicals.

Article 76

(1)

Besides the particulars referred to in Article 71 of this Law, a publishing contract shall also include the following: 1) Term within which the author or other copyright holder shall hand over to the publisher a proper manuscript or other original of the work, so as to make it possible for the publisher to reproduce the work. That term shall be a year from the date of contract, unless otherwise agreed upon; 2) Term within which the publisher shall start marketing copies of the work. Such term shall be a year from receipt of a proper manuscript or other original of the work, unless otherwise agreed upon; 3) Number of editions the publisher is authorized to publish. The publisher shall have the right to publish only one edition of the work, unless otherwise agreed upon; 4) Number of copies of one edition. If the number of copies has not been stipulated, it shall be 500, unless business practices and other circumstances evidently call for it to be different; 5) Term within which the publisher has to start marketing copies of the next edition upon depletion of the previous one, if so has been stipulated. Such term

shall be a year from the date on which the author had made a request to that effect, unless otherwise agreed upon. 6) Appearance and design of copies of the work.

(2)

In the event of a breach of the contractual obligation referred to in Paragraph 1, Items 1, 2 and 5, of this Article, the other contracting party shall have the right to void the contract and to be indemnified because of the failure to execute the contract.

Article 77 The duties of the publisher shall the following: 1) To take care of the sale of copies of the work and to notify the author or any other copyright holder periodically, at his/her request; 2) To make it possible for the author or any other copyright holder, at his/her request, to proof reads in an appropriate phase of reproduction; 3) To make it possible for the author to make appropriate changes in the preparation of each subsequent edition, on condition that this does not alter the work’s character and that in view of the publishing contract as a whole, it does not make up a disproportionately immense obligation for the publisher.

Article 78 A manuscript or any other original of a work of authorship that has been handed over to the publisher shall not become the latter’s property, with the exception of articles, drawings and other contributions in newspapers and periodicals or unless otherwise provided by contract.

Article 79 If the sole existing copy of a work of authorship perishes because of force majeure after it was handed over to the publisher for the purpose of being published, the author or any other copyright holder shall have the right to a fair compensation, which would have been due to him/her had the work been published.

Article 80

(1)

A publisher who has acquired the right to publish a work in the form of a book shall have priority in the acquisition of the right to reproduce the work and market the copies thereof in the form of an electronic recording, within three years from the date of the publishing contract.

(2)

The priority referred to in Paragraph 1 of this Article shall expire if the publisher does not accept in writing the offer made by the author or any other copyright holder within 30 days as of the date of the offer.

Article 81 If the publisher intends to sell the unsold copies of a work as scrap paper, before such sale, it shall offer the author or any other copyright holder, if accessible, to buy-up such copies at the price payable for scrap paper.

9. FOREIGN PERSONS TO WHICH THE LAW APPLIES-Article 108

(1)

The author’s work of the foreign citizens shall be protected the Serbia and Montenegro provided that: 1) the author is a person who whose copyright is recognized on the basis of an international agreement ratified by Serbia and Montenegro, or 2) there is reciprocity between Serbia and Montenegro and the author’s country.

(2)

Person invoking the reciprocity referred to in paragraph 1, item 2 of this Article shall bare the burden of proof of its existence.

Article 109 Droit de suite referred to in Article 34 of this Law shall recognized to a foreign citizen exclusively on the basis of reciprocity.

Article 110 Author’s moral rights of any foreign citizen shall be recognized regardless of whether the requirements referred to in Article 106, paragraph 1, of this Law have been met.

III. RELATED RIGHTS

1. PERFORMERS’ RIGHTS

1.1. Establishment of the Right

Article 111 A performer shall enjoy moral rights and pecuniary rights in accordance with this Law for his/her performance of a work of authorship.

1.2. Performance

Article 112

(1)

For the purposes of this Law, the performance shall be understood to mean an intellectual commodity that originates from personal engagement of a performer during audio, visual, or audio-visual communication of the author’s work.

(2)

The work being performed need not be a protected work of authorship.

1.3 Performer

Article 113

(1)

For the purpose of this Law, a performer shall be understood to mean an individual who engages personally in the performance of works (a musician, actor, dancer, performer of pantomimes, singer, conductor).

(2)

Persons making only a technical contribution to the performance of works are not performers.

(3)

Provisions of this Law regulating relations of co-authors shall apply mutatis mutandis to relationships of two or more performers participating in the performance of one work.

1.4. Scope of the Right

1.4.1. Performer’s Moral Rights Article 114

(1)

A performer shall have the following exclusive rights: 1) To be recognized as such; 2) To have his/her name indicated on each copy of the recording, in the programme or in any other suitable way each time his/her performance is

exploited, unless where that is technically impossible or impracticable due to the actual form of the public communication of the work; 3) To oppose the alterations to his/her performance or any exploitation of the performance in an altered form, should that jeopardize his/her creative or professional reputation; 4) To oppose marketing of a recording of his/her performance, if such recording has technical deficiencies that jeopardize the integrity of the performance, and thereby the performer’s reputation; 5) To oppose the exploitation of his/her performance in a way that jeopardizes or could jeopardize his/her honour or reputation.

(2)

If a group of performers gives a performance, the right referred to in Paragraph 1, Item 2, of this Article shall be enjoyed both by the group as a whole and the soloists.

Article 115 If several performers participate in the performance of one work, the exercise of moral rights by any of them shall not be detrimental to the interests of others.

1.4.2. Performer’s Pecuniary Rights Article 116

(1)

A performer shall have the exclusive right to prohibit or permit any person to: 1) Record his/her unrecorded performance and reproduce such copies of the performance in any form or manner in the meaning of Article 20, Paragraph 1 of this Law; 2) Market the recordings of his/her performance; 3) Rent the recordings of his/her performance; 4) Broadcast or communicate to the public his unrecorded performance, except in the case when it is the case of already broadcasted performance: 5) Making the performance available to the public interactively by wire or wirelessly, in the sense of article 30 of this Law.

(2)

The performer shall not have the exclusive right on broadcasting of his/her performance that is recorded and published on a sound carrier or of a performance that was recorded on a sound and picture carrier with the performer’s permission.

(3)

Should a performer licence to a producer of phonograms and/or videograms his/her right referred to in Paragraph 1, Item 3, of this Article, he/she retains the right to an equitable remuneration for the rental of the recording of the performance.

(4)

If the contract between the performer and a film producer does not specify otherwise, it shall be deemed that under such contract the performer has licensed the producer the right to rent copies of the performance.

Article 117

(1)

A performer shall have the right to be remunerated for the following: 1) Broadcasting and re-broadcasting of his/her performance from a published recording on a sound carrier; 2) Public communication of his/her performance, which is broadcast from a recording published on a sound carrier; 3) Public communication of his/her performance from a recording published on a sound carrier.

(2)

The right to remuneration referred to in Paragraph 1 of this Article the performers can realize only through the organization for collective management of copyright and related rights. The manner of payment of the remuneration from Paragraph 1 of this article has been determined by Article 127 of this Law.

1.5. Transfer of the Right

Article 118

(1)

A performer may licence or cede his/her pecuniary rights referred to in Article 114 of this Law to another person under the contract on performance.

(2)

The person to whom the right referred to in Paragraph 1 of this Article has been licensed may not licence that right to a third party without the performer’s consent, unless otherwise provided by the contract on performance.

Article 119

(1)

If more than five performers, other the conductor and soloists, participate in the performance of a work, it shall be deemed that the performance is given by an ensemble (a choir, orchestra, drama ensemble, ballet ensemble, opera ensemble).

(2)

In the exercise of the rights in accordance with this Law, an ensemble shall be represented by a person duly authorized by the majority of members of such ensemble.

(3)

If besides the ensemble, also the director, soloists and players of chief roles, who are not members of that ensemble, participate in the performance of a work, the exercise of the rights in accordance with Law shall be also subject to the consent of these persons, unless otherwise agreed upon between them and the ensemble.

Article 120

(1)

The contract on performance shall include the following: names of contracting parties, type and the manner of exploiting the performance, name of author and name of the work of authorship performed and the amount, mode and terms of payment of the remuneration, if agreed upon.

(2)

Besides the particulars referred to in paragraph 1 of this Article, the contract on performance with respect to the broadcasting of a performance shall also include the number of broadcasts and the period in which the broadcasting shall take place, and a performance contract with respect to the recording and reproduction of copies of the recording of a performance, shall also include the number of copies that may be made.

(3)

Contract on performance shall be made in writing.

Article 121 The person to whom the right referred to in Article 114 of this Law has been licensed shall forward to the performer complete data on the exploitation of the performance.

1.6. Rights of the Performer Arising From Employment

Article 122 Provisions of this Law regulating the relations between authors and their employers shall apply mutatis mutandis to the rights of the performers who created their performance on the basis of the employment contract.

2. THE RIGHT OF THE PHONOGRAM PRODUCER

2.1. Establishment of the Right

Article 123 The phonogram producer, with respect to its phonogram, shall have the pecuniary rights in accordance with this Law.

2.2. Phonogram

Article 124

(1)

Phonogram is the recording of a sound and/or a sequence of sounds on a sound carrier.

(2)

The recording of a sound is the fixation of sounds on the carrier from which they can be listened to, copied or communicated by means of a device.

(3)

Right on the existing phonogram is by no ways limited by the incorporation of that phonogram into a videogram.

2.3. Producer of Phonogram

Article 125 The producer of a phonogram shall be understood to mean any natural or legal person, that has organized and paid for the production of the phonogram and that bears the responsibility for the first recording of a sound or a sequence of sounds.

2.4. Scope of the Right

Article 126 A producer of a phonogram shall have the exclusive right to prohibit or permit any person to: 1) Reproduce the phonogram in any form or manner in the meaning of Article 20, Paragraph 1 of this Law and market the copies of the phonogram thus reproduced; 2) Rent the copies of the phonogram; 3) Make the phonogram available to the public in an interactive manner by wire or wireless means, within the meaning of Article 30 of this Law.

Article 127

(1)

The producer of a published phonogram shall have the right to be remunerated for the following: 1) Broadcasting and re-broadcasting of the phonogram; 2) Public communication of the phonogram; 3) Public communication of the phonogram being broadcast.

(2)

The right for remuneration from Paragraph 1 of this Article the producer of phonograms can realize only through the organization for collective management of copyright and related rights.

(3)

The remuneration from paragraph 1 of this Article and the remuneration for performers from paragraph 117 of this Law are collected from the user in the form of the single remuneration. The collection of the single equitable remuneration is performed by one organization, determined by a contract concluded between the organization of performers and organization of the producers of phonograms.

(4)

In the contract from Paragraph 3 of this Article, the organizations have the obligation to determine the amount of expenses for the collection of the single equitable remuneration and the frequency of transfer of that single equitable remuneration to the other organization. The Contract is published at the expense of the organizations in the “Official Gazette of the Republic of Serbia”.

(5)

If the organization of the producers of phonograms and the organization of the interpreters do not conclude the contract from paragraph 3 of this article in the period of six months from the date of the enforcement of this Law, the Government shall, at the proposal of the Ministry competent for science and technological development determine the organization which will perform the collection of the single equitable remuneration.

(6)The organization of the producers of phonograms and the organization of the performers have the obligation to determine the tariff jointly in a manner prescribed by Article 177 of this Law.

(7)

The single equitable remuneration collected in a manner prescribed by this Article is distributed to organizations within the terms of the agreement concluded between the organization of the producers of phonograms and the organization of the performers. If the contract between the organizations does not stipulate otherwise, the organization which collects the single equitable remuneration has the obligation, after the deduction of the amount of expenses made on account of the collection of a single equitable remuneration, which can not be more than 10% of its value, to transfer one half of the collected remuneration to the other organization, without delay, and at least on a quarterly basis.

(8)

If the contract between organizations does not stipulate otherwise, the organization which collects the single equitable remuneration can not perform the distribution of the collected single equitable remuneration amongst its members before it transfers the contracted part of the legally determined part of the single equitable remuneration to the other organization.

(9)

If the contract between the organizations does not stipulate otherwise, the organization which collects the single equitable remuneration has the obligation to hand over to the other organization the copies of all the data concerning the utilization of phonograms and performances recorded on them obtained from the users that broadcast and publicly communicate the phonograms and performances recorded on them , at the latest in the period of 30 days from the date when the part of the collected remuneration has been handed over.

3. THE RIGHT OF THE VIDEOGRAM PRODUCER

3.1. Establishment of the Right

Article 128 A producer of a videogram, the film producer (producer of videogram), shall have the pecuniary rights in accordance with this Law.

3.2. Videogram

Article 129 Videogram is a recording of a film work as well as a definite sequence of motion pictures with or without the accompanying sound on the carrier of picture, or the carrier of picture and sound.

3.3. Film Producer (Producer of a Videogram)

Article 130 Film producer (producer of videograms) is natural or legal person that on one`s own behalf gives initiative, gathers financial means, organizes, manages and takes responsibility for the first recording of a film or motion pictures accompanied by a sound or without a sound (videogram).

3.4. Contents of the Right

Article 129 Film producer (producer of videogram) shall have the exclusive right to prohibit or permit any person to: 1) Reproduce his videogram in any form and in any manner in the meaning of Article 20, Paragraph 1 of this Law or market the copies thus reproduced; 2) Communicate his videogram to the public from a picture carrier or picture and sound carrier (picture show); 3) Rent copies of his videogram; 4) Make the videogram available to the public in an interactive manner by wire or wireless means, within the meaning of Article 30 of this Law.

Article 132 The producer of a videogram shall have the right to oppose the exploitation of his videogram in altered form, if such exploitation can jeopardize his justified economic interests.

4. THE RIGHT OF THE BROADCAST PRODUCER

4.1. Establishment of the Right

Article 133 The producer of a broadcast shall have pecuniary rights in accordance with this Law.

4.2. Broadcast

Article 134 A broadcast shall be understood to mean an electrical, electromagnetic or some other signal converted into audio, visual or audio-visual content that is broadcast for the purpose of being communicated to the public.

4.3. Producer of Broadcast

Article 135 The producer of a broadcast shall be understood to mean any natural or legal person, which has organized and paid for the production of the broadcast.

4.4. The Contents of the Right

Article 136 The producer of a broadcast shall have the exclusive right to prohibit or permit any other person to: 1) Re-broadcast his broadcast; 2) Record his broadcast on a sound or picture or a sound and picture carrier; 3) Reproduce the recording in any shape and in any way in the sense of Article 20, Paragraph 1 of this Law and market the copies of the recording thus reproduced; 4) Rent copies of the broadcast recording; 5) Publicly communicate the broadcast at places accessible to the public against the payment of an entrance fee; 6) Make the broadcast available to the public in an interactive manner by wire or wireless means, within the meaning of Article 30 of this Law.

5. THE RIGHT OF A DATABASE PRODUCER

5.1. Establishment of the Right

Article 137 The producer of a database shall have pecuniary rights in accordance with this Law.

5.2. Database

Article 138

(1)

For the purposes of this Law the database shall mean a collection of independent data, works or other materials arranged in a systematic or methodical way, individually accessible by electronic or other means.

(2)

A computer program used for its development or operation shall not be deemed to a database.

5.3. Producer of Database

Article 139 The producer of a database shall be understood to mean any natural or legal person that has created a database, by qualitative and/or quantitative substantial investment in obtaining, verification or presentation of its contents

5.4. Contents of the Right

Article 140

(1)

The producer of a database shall have the exclusive right to prohibit or permit any person to: 1) Occasionally or permanently reproduce a database as a whole or its essential parts by any means, for any purpose and in any form; 2) Market or rent copies of the database or its substantial parts; 3) Connect to a computer network and any other form of public communication of the database as a whole or its essential parts.

(2)

The right referred to in Paragraph 1, Item 1, of this Article shall also apply to nonessential parts of the database if they are subject to repeated or systematic use which contravenes with a normal exploitation of such database or which unreasonably injures legitimate interests of a database producer.

(3)

The right referred to in Paragraph 1 of this Article shall exist irrespective of the eligibility of the concrete database or its contents for copyright or any other protection.

6. The right of the publisher

6.1. THE RIGHT OF THE FIRST PUBLISHER OF A FREE WORK

Article 141 Any person who, after the expiry of protection of the author’s pecuniary rights, for the first time lawfully publishes or communicates to the public a previously unpublished work, shall have the rights equivalent to pecuniary rights of the author.

6.2 The right of the publisher of printed editions to special remuneration Article 142

(1) The publishers of printed editions have the right to a special remuneration prescribed in the Article 39, Paragraphs 1and 5 of this Law under the same conditions which are valid for the authors.

(2)The publishers of printed editions and the authors of works issued in the printed form can realize their rights from Article 39, Paragraphs 1 and 5 of this Law and this Article only through the organization for collective management of copyright and related rights.

(3) The remuneration collected on the basis of the Article 39, Paragraphs 1 and 5 of this Law and this Article is devided between the author and the publisher in equal halves (50% : 50%)

7. COMMON PROVISIONS APPLICABLE TO RELATED RIGHTS

7.1. Relationship between the Copyright and Related Rights

Article 143

(1)Related rights shall in no way affect protection of the rights of authors with regard to their works.

(2) The provisions concerning publishing, communication to the public and releasing of copyright protected work from article 7 of this Law are accordingly applied to related rights.

7.2. Limitations on Related Rights and Exhaustion of Rights

Article 144 The provisions of this Law regulating limitations and exhaustion of copyright shall apply accordingly to related rights.

7.3. Transfer of Related Rights

Article 145 Related rights shall be transferable, with the exception of the performers’ personal rights.

7.4. Right to Special Remuneration

Article 146 The producer of phonograms, performers and the producer of videograms have the right to a special remuneration, which has been prescribed in the article 39 of this Law, under the same conditions applicable to the authors.

7.5. Duration of Rights

Article 147

(1)

Pecuniary rights of the performer shall last for 50 years from the date of the performance. If a performance was recorded and lawfully published or communicated to the public within this period, the term of protection shall expire 50 years from the date of the first publication or communication to the public, whichever date is earlier. A performer’s moral rights shall last even after the expiration of his/her pecuniary rights.

(2)

The rights of the phonogram producer or a videogram producer shall last for 50 years after the production of the phonogram or videogram. If the phonogram or videogram has been lawfully published or communicated to the public within this period, the term of protection shall expire 50 years from the date of the first publication or communication to the public, whichever date is earlier.

(3)

The rights of the broadcast producer shall last for 50 years from the date of the protected broadcast’s first broadcasting.

(4)

The rights of the database producer shall last for 15 years from the date of the database’s creation. If a database was made available to the public in whatever

manner before expiry of that term, the term of protection shall expire 15 years from the date when database was first made available to the public.

(5)

If substantial changes occur in the selection or arrangement of the contents of a database, the term referred to in Paragraph 4 of this Article shall be extended for another 15 years. Any additions, deletions or improvements of a database as a whole or the part thereof, resulting in a new version of such database, shall be deemed to be substantial changes in the selection or arrangement of the contents of a database.

(6)

The rights of the first publisher of a free work shall last for 25 years from the date of the first publication or first communication to the public in any other manner.

(7)

The right of the publisher of printed editions to a special remuneration lasts for 50 years from the legal publication of the work.

(8)

The deadlines for the need of establishing the date of the termination of the pecuniary rights of the holders of related rights are calculated from January 1^st of the year which immediately follows the year in which the event relevant for the beginning of the calculation of deadlines occurred.

7.6. Persons to which the Law Applies

Article 148

(1)

Any performer, phonogram producer, videogram producer, broadcast producer, database producer and a publisher of a printed edition and the editor of a free work which is a foreign person shall have the rights prescribed by this Law in accordance with the international agreements ratified by the Republic of Serbia or in accordance with the reciprocity principle between the Republic of Serbia and the country he/she belongs to.

(2)

Exceptionally to the provision of Paragraph 1 of this Article, a database producer being a legal person without corporate domicile in the Republic of Serbia shall be granted the rights under this Law only if its business operations are linked directly and on an ongoing basis with the economy of Serbia and Montenegro.

(3)

Where the existence of reciprocity is doubtful, the explanation shall be given by the Ministry for Foreign Affairs of the Republic of Serbia. Article 149 Any performer who is a foreign citizen shall be accorded the moral rights, regardless of whether the requirements referred to in Article 148 have been met.

IV. EXERCISE OF COPYRIGHT AND RELATED RIGHTS

Article 150 Any holder of copyright or related right shall be authorized to exercise his/her right either individually or collectively, except in the cases when the collective exercise of copyright and related rights is mandatory (Article 29, Paragraph 2, Article 39, 40, 117, 127, 142 and 146).

1. INDIVIDUAL EXERCISE

Article 151

(1)

Copyright and related rights can be exercised individually either directly or through a duly authorized representative.

(2)

Both natural or legal persons may act as representatives in the exercise of copyrights and related rights.

2. COLLECTIVE EXERCISE

2.1. Organization for Collective Exercise of Copyright and Related Rights

Article 152

(1)

Copyright and related rights can be collectively exercised through organizations for the collective exercise of such rights (hereinafter: the organization).

(2)

The organization shall not be established for the purpose of earning profit.

(3)

The organization shall specialize in the exercise of certain kinds of rights in connection with certain subject-matters of protection, in conformity with its statute.

Article 153

(1)

Through the organization, the holders of copyright or related rights collectively exercise exclusive pecuniary rights stemming from copyright and/or related rights, as well as the right to claim the remuneration for their works and/or the subject matters of related rights.

(2)

In the case of exercising exclusive pecuniary rights, the holders of copyright and/or related rights shall, by the contract, licence their rights exclusively to the organization, instructing it to conclude contracts on the non-exclusive licensing of such rights, in its own name and for their behalf, with the users of works of authorship and subject-matter of related rights (hereinafter: the users).

(3)

In the case of exercise of the right to remuneration, the holders of copyright and/or related rights shall instruct the organization to collect that remuneration from the users, in its own name and for their behalf.

(4)

The organization has the right to perform control over the exploitation of the subject matters of protection on its repertoire

(5)

The organization shall have the right to protect the rights entrusted to it by the holders of copyrights and/or related rights to be collectively exercised, before courts and other authorities.

(6)

Upon the request of the organization, any authority responsible for maintaining the records of data that are relevant for determining the amount of remuneration, shall make such data available to the organization.

2.2. Foundation of the Organization

Article 154 The organization may be founded by authors and/or holders of copyright or related rights and/or their associations (hereinafter: the founders).

Article 155

(1)

Memorandum of association shall be the founding document of the organization.

(2)

The founding decision shall be the founding document of an organization founded by one association.

Article 156

(1)

The Organization can not perform any other activity except the activities provided for in the article 153 of this Law.

(2)

With the exception of the stipulations of Paragraph 1 of this Article, the organization may

1) perform activities realizing the artistic, expert or social interests of the holders of rights, and 2) performs specific administrative and technical services in the name and on the account of another organization, on the basis of a written contract.

(3)

For the sake of more rational and efficient collection and distribution of the compensation for the use of copyright and related rights by means of a unified data base, the organizations for the collective management of copyright and related rights can form a joint Service.

(4)

The special agreement shall determine the scope of its activities, competences, amount of the remuneration for its work and the systemization of the working posts of the personnel employed in the Service.

Article 157

(1)

The founders of the organization shall obtain from the competent body the organization’s operating license for performing the activities of that organization

(2)

Only one organization can obtain an operating license for collective management of copyright or related rights for the same kind of rights on the same kind of work or subject matter of related rights.

(3)

The application by the founders for the operating license shall be accompanied with the organization’s founding document, statute, excerpt from the Register of Legal persons if the founders are legal persons, proof of the business seat of the organization, data on the number of authors or holders of right that empowered the organization to realize the rights regarding their works or subject matter of related rights, list of works or subject matter of related rights which will constitute the repertoire of the organization, proof on the fulfillment of the staff, technical and organizational conditions for the efficient collective management of rights entrusted to them and proof of payment of the prescribed administrative fee which is the income of the budget of the Republic of Serbia.

Article 158 The operating licence shall be issued to an organization that filed a request in compliance with the Article 157, paragraph 3 of this Law, if it fulfills the following conditions: 1) It has a business seat in the Republic of Serbia; 2) Its founders represent the majority of holders of copyrights and/or related rights in the activity of that organization that are residents or citizens of the Republic of Serbia; 3) In terms of staff, finances, equipment and organization, it is capable to efficiently exercise the rights of domestic and foreign holders of copyrights and/or related rights in the Republic of Serbia, and/or the rights of domestic holders of copyrights and/or related rights abroad in the fields to which its business relates. 4) foundation act and statute of the organization in compliance with the stipulations of this Law

Article 159

(1) It shall be taken that the organization realizes the conditions from Article 158, Paragraph 1, Item 3 of this Law if it has the following:

1) business premises equipped with the usual communication and information equipment;

2) employee with the diploma of the Faculty of Law and at least two years of expert experience and the knowledge of one of the world languages; 3) employee who meets the prescribed demands for book keeping and has at least two years of working experience on the tasks of organizing and performing book keeping.

(2) Expert education and knowledge of languages is proved by the appropriate documents, and the working experience by documentation from which it is obvious how the experience has been gained.

Article 160

(1)

The competent authority shall render a decision granting the operating licence or a decision rejecting the application, within 30 days from the filing date of the application for the operating licence (2)If the request filed for the grant of the permission has been formally incorrect in the meaning of Article 157 and 159 of this Law or if the forwarded foundation actor the statute contain regulations which are contrary to the stipulations of this law, the competent body shall invite the person filing the request to correct the request filed according to the mentioned objections, in the term of 15 days from the receipt of the objections

(3)

If in the tem provided, the person filing the request does not correct his request in compliance with the objections of the competent body, the competent body shall reject the request.

(4)

Based on the decision granting the operating license, the organization shall acquire the right to engage in the collective management of copyright and/or related rights for the period of five years as of the date of rendering the decision.

(5)

The organization shall have the right to apply for the renewal of its operating licence for an unlimited number of times in the way and following the procedure prescribed by this law for the obtaining of the license.

Article 161

(1)

The organization shall acquire the status of a legal person once it is entered in the register of associations in compliance with the Law that regulates the legal position of associations.

(2)

The application the founders of the organization for entry in the register referred to in paragraph 1 of this Article shall be accompanied with the decision of the competent authority granting its operating licence.

(3)

Any organization that does not renew its operating licence before the expiration of the term referred to in Article 160, paragraph 4, of this Law, or the one whose operating license is revoked pursuant to Article 162 of this Law, after the performed procedure of liquidation or bankruptcy in compliance with the law regulating the procedure of liquidation or bankruptcy shall be deleted from the register referred to in paragraph 1 of this Article or the register from Article 163 of this Law.

Article 162

(1)

The competent authority shall revoke the organization’s operating license where it establishes that: 1) The operating license was issued on the basis of false data; 2) The organization has stopped fulfilling some of the prescribed conditions for issuing a license from Article 158 of this Law; 3) The organization has seriously and repeatedly violated the provisions of this Law;

4) The organization has not fulfilled its obligation in compliance with Article 187 of this Law.

(2)

Before the revocation of the operating license, from the reasons stated in Paragraph 1, items 2, 3 and 4 of this Article, the competent body shall state in writing the mistakes in the work of the organization, direct measures for the correction of mistakes and determine the deadline for their removal.

(3)

The decision on revoking the operating license referred to in Paragraph 1 of this Article shall be final and an administrative dispute can be initiated against it.

(4)

The competent authority shall notify the authority competent for maintaining the register in which the organization is registered, of the decision referred to in Paragraph 1 of this Article.

(5)

The decision on granting, renewing and revoking of an operating licence shall be published in the Official Gazette of the Republic of Serbia.

Article 163

(1)

The organization shall be entered in the register of organizations for the collective exercise of copyrights and related rights maintained by the competent authority.

(2)

The following shall be entered in the register of organizations for the collective exercise of copyright and related rights referred to in Paragraph 1 of this Article: name and corporate domicile of the organization, business activity of the organization, date of entry, date of renewal of entry and the date deletion of the organization from the register, contracts on co-operation with foreign organizations and the data on membership in international organizations.

(3)

The organization shall notify the competent authority of any change of data entered in the register of organizations for the collective exercise of copyrights and related rights, within fifteen days from the occurrence of such change.

(4)

The changes referred to in Paragraph 3 of this Article shall be entered in the register of organizations for the collective exercise of copyrights and related rights.

(5)

The data concerning the register of the organization for collective management of copyright and related rights are available to all the interested parties.

2.3. Bodies of the Organization

Article 164

(1)

The organization shall be governed by its founders and members in accordance with the organization’s statute.

(2)

The organization’s bodies shall be: General Assembly, Board of Directors, Managing Director and the Supervisory Board.

2.4. General Acts of the Organization

Article 165

(1)

The organization’s general acts shall be: the Statute, Schedule of fees, Distribution plan and other general acts dealing with certain matters concerning the business activity of the organization.

(2)

The Statute shall be the organization’s basic act and other general acts shall be compliant with it.

(3)

The individual acts adopted by the organization’s bodies and authorized officers of the organization shall be compliant with the organization’s general act.

Article 166

(1)

The Statute of the organization shall include provisions on the kind and subject matter of the rights collectively exercised through the organization.

(2)

The Statute of the organization shall be adopted by the organization’s General Assembly, by simple majority of votes of the members of the Assembly.

Article 167

(1)The distribution plan contains criteria on the basis of which the organization distributes to the holders of copyright and related rights the income collected from the users in the form of the remuneration for the use of the subject matter of protection.

(2)The principles of the distribution plan are the following: proportionality, appropriateness and justice, that depend on the: kind of the subject matter of protection, manner of use of the subject matter of protection, scope of use of the subject matter of protection and other goals established by the foundation act of the organization.

(3) The distribution plan is established by the assembly of the organization.

Article 168 In compliance with the statute and the decisions of its bodies, the organization takes part of the income collected from the users to cover the costs of its operations.

2.5 The concept of Tariff Article 169 Tariff is the general act of the organization that determines the amount and way of determining remuneration that the organization charges from users for specific kinds of use of copyright protected works and subject matter of related rights and pays special remuneration to the obligors.

2.5.1 Rules for the Determination of the Tariff

Article 170

(1)

Tariff must be appropriate to the kind and manner of use of the copyright protected work or the subject matter of related rights.

(2)

If the use of the subject matter of protection is indispensable for the performing of the activities of the user (in the case of broadcasting or concert use of the subject matter of protection, and similar) the tariff is determined, as a rule, in the percentual amount from the income that the user realizes by performing activity in the framework of which the subject matter of protection is being used. That amount must be proportional to the importance that the use of the subject matter of protection from the repertoire of the organization has for the income of the user.

(3)

If by using the subject matter of protection the user from Paragraph 2 of this Article does not realize an income, the tariff is determined in the percentual amount of the expenses necessary for the performing of that activity in the framework of which the subject matter of protection is being used, taking into account the importance of the use of the subject matter of protection for the activities of the user.

(4)

Along with the remuneration determined in a way prescribed by the Paragraphs 2and 3 of this Article, the tariff also determines the lowest amount of remuneration for the use of the subject matter of protection from the repertoire of the organization.

(5)

In the course of determing the tariff, the tariffs of the collective management organizations of the states which have the similar value of gross domestic product to the GDP of the Republic of Serbia are taken into consideration.

Article 171

(1)

If the use of the subject matter of protection is not necessary for the performing of activity of the user, but only useful or pleasant (such as in transport, hotelier and catering industry, merchant and manufacture shops, sopping malls, exhibition spaces and similar) and under condition that the determination of tariff in percentual amount would be impossible or unreasonably difficult, the tariff can be determined as a lump sum.

(2)

During the determination of the amount of the lump sum remuneration, the following

shall be taken into consideration: 1) kind and manner of use of the subject matter of protection; 2) geographical location of the seat of the user; 3) kind and size of the space where the subject matter of protection is being used; 4) duration and scope of use and prices of services offered by the user.

Article 172

(1)

If the use of the copyright protected works is performed together with the use of the subject matter of related rights, i.e. if there are more holders of rights involved in one use of work, the tariffs are determined proportionally.

(2)

For the calculation of proportion between the tariffs of remuneration for the copyright and related rights, the usual international practice is meritory.

2.5.2 Negotiations and Agreement on the Tariff

2.5.2.1 Negotiations on the Tariff

Article 173 The organization initiates negotiations about the tariff by the publication of the invitation to the associations of users and individual users in the “Official Gazette of the Republic of Serbia”, on its internet page and in one of the daily papers with high circulation.

2.5.2.2

Article 174

(1)

After the concluded negotiations between the organization and the representative association of users, the tariff is determined by agreement in writing. We take as representative the association of users which on the territory of the Republic of Serbia represents the majority of users from a certain profession, or the one which can be acknowledged as representative on the basis of other regulations. If there is no such association, the representation authority shall be determined based on the number of the users that the association represents, the activity of the association, the degree of competent organization within the association and the similar.

(2)

The tariff can be determined also by the agreement in writing between the organization and the individual user, if the nature of conducting business of that user is such that makes him the only person performing that kind of activity in the Republic of Serbia. The provisions of this Law referring to the representative association of users also apply to the individual user.

(3)

The companies of the public broadcasting service are the individual users with whom the organizations determine the tariff by written contract in the meaning of Paragraph 2 of this Article.

(4)

The tariff, determined in a way prescribed in Paragraphs 1 and 2 of this Article, is published by the organization in the “Official Gazette of the Republic of Serbia”, and the tariff is enforced on the eight day from the publication date.

(5)

Until the termination of the procedure for the determination of the tariff in a way prescribed by this Article, the remuneration is paid according to the existing tariff.

2.5.2.3 Mandatory Content of the Written Agreement

Article 175 The written agreement from article 174 must contain: 1) the amount of remuneration for the use of copyright protected work or the subject matter of related rights from the repertoire of the organization; 2) conditions for the use of copyright protected work or subject matter of related rights

from the repertoire of the organization; 3) deadline and way of payment of the remuneration; 4) conditions of use which influence the increase or decrease of the certain amount of

remuneration in the tariff.

2.5.2.4 Determination of the Draft Tariff by the Administrative Board of the Organization

Article 176

(1)

If in the term of two months from the publication of invitation from article 173 of this Law, agreement is not reached, the proposal of the tariff is determined by the administrative board of the organization. The draft tariff thus determined is communicated to the Commission for Copyright and Related Rights (henceforward: Commission) for opinion.

(2)

Until the finalization of procedure concerning the determination of the tariff in a way prescribed by this Article, the remuneration is paid according to the existing tariff.

2.5.2.5 Determination of a Single Equitable tariff for the Exercise of Rights from Articles 117 and 127 of This Law

Article 177

(1)

The single equitable tariff for the exercise of rights from Articles 117 and 127 of this Law is determined by an agreement in writing between the organization of the producers of phonograms and the organization of the performers from one side, and the representative association of users from the other side.

(2)

The organization of the producers of phonograms and the organization of the interpreters initiate together the negotiations on the single equitable tariff and negotiate jointly with the representative association of users in the procedure and in a way determined by article 173 and 174 of this Law.

(3)

The single equitable tariff determined in a way prescribed by Paragraph 1 of this Article is published jointly in the “Official Gazette of the Republic of Serbia”.

(4)

The tariff is enforced on the eight day from the date of publication in the “Official Gazette of the republic of Serbia”.

(5)

If, in the term of 2 months from the publication date of the invitation from Article 173 of this law, agreement from paragraph 1 of this article is not reached, the proposal of a single equitable remuneration is determined by the administrative boards of the organizations on the basis of a written agreement.

(6)

The proposal of a single equitable tariff is forwarded to the Commission for an opinion.

(7)

If in the term of 90 days from the date of the publication of the invitation from article 173 of this Law, the organization of the producers of phonograms and the organization of the interpreters do not file to the Commission the request for the opinion on the proposal of the single equitable tariff, that tariff shall be determined by the Commission.

2.5.2.6 The Determination of a Single Equitable Tariff for the Payment of a Special Remuneration

Article 178.

(1)

The single equitable remuneration for the realization of right to a special remuneration from article 39 and 146 of this Law, which is paid from the first sale or import into the Republic of Serbia of devices to sound or visual recording and empty carriers of sound, picture and text, is determined by agreement in writing between the organizations which exercise the right of those holders of copyright and related rights that by the virtue of this law enjoy the right to a special remuneration on one side and on the other side the representative association of producers or importers of devices for sound and visual recording and importers of empty carriers of sound, picture and text.

(2)

The organizations from Paragraph 1 of this Article jointly initiate the negotiations on the single equitable tariff, jointly negotiate in the procedure and in a way determined by article 173 and 174 of this Law and jointly publish the single equitable remuneration from paragraph 1 of this article in the “Official Gazette of the Republic of Serbia”.

(3)

The single equitable remuneration determined in a way prescribed by Paragraphs 1 and 2 of this Article is enforced on the eight day from the publication date in the “Official Gazette of the Republic of Serbia”.

(4)

If in the term of two months from the date of the publication of the invitation from Article 174 of this Law, the agreement from Paragraph 1 of this Article has not been reached, the proposal of the single equitable tariff from Paragraph 1 of this Article is determined by the administrative boards of the organizations on the basis of a written agreement.

(5)

The proposal of a single equitable remuneration is communicated to the Commission for an opinion.

(6)

If in the term from 90 days from the publication of the invitation from the article 173 of this Law, the organizations from paragraph 1 of this article do not file to the Commission the request for the opinion on the proposal of a single equitable tariff, that tariff shall be determined by the Commission.

(7)

The collection of the single equitable remuneration from Paragraph 1 of this Article is performed by the organization for the collective management of musical rights with the previously reached agreement in writing with the organizations that participated in the negotiations on the single equitable tariff and the amount of the expenses of

collecting the special remuneration and the regime of distribution of the special remuneration among the organizations from this paragraph.

(8)

The organization for the collective management of musical rights has the obligation to devide the totally collected special remuneration, after the deduction of expenses of collection of the special remuneration determined as agreed, to the authors and direct to the organizations of the interpreters and the producers of phonograms or videograms in the following way: 40% to the authors, 30% to the interpreters and 30% to the producers and phonograms and the producers of videograms.

2.6. Application of Other Laws Mutatis Mutandis

Article 179 The provisions of the law regulating the legal status of associations shall apply accordingly to the organization, unless otherwise provided by this Law.

2.7. Duties of the Organization

Article 180

(1)

In the conduct of the organization’s business, it shall be assumed that organization is authorized to act on behalf of all holders of the copyright and/or related rights with respect to any rights and any kind of subject-matters of protection that are within the scope of its business activity.

(2)

Any holder of a copyright and/or related right that has not concluded the contract referred to in Article 153 of this Law with the organization, may notify the organization in writing of his/her intention to exercise the rights individually, except in the case when this Law prescribes the compulsory collective management of copyright and related rights (Article 29, Paragraph 2, Articles 39, 40. 117, 127, 142 and 146).

(3)

The organization shall notify the users of the names of the holders of copyright and/or related rights referred to in Paragraph 2 of this Article.

(4)

Whit respect to the distribution of remuneration, the organization shall treat the holders of copyright and/or related rights who have not notified the organization of their intention to exercise their rights individually equally to the holders of copyright and related rights who have concluded the contract referred to in Article 153 of this Law with the organization.

Article 181

(1) The organization has an obligation to inform regularly the users and interested parties through the mass media and by electronic publishing on its Internet page on the following:

1) categories of the holders of right it represents; 2) pecuniary rights that are realized; 3) categories of users of the subject matter of protection and other natural and legal

persons that are obligors to pay the remuneration; 4) contents of the general acts of the organization (statute, tariff, distribution plan, etc) 5) number and list of bilateral contracts concluded with the foreign organizations; 6) data on the authorized representatives of the organization; 7) working hours of the organization.

(2) The organization has the obligation to give information, to every user or other person having legal interest, about its repertoire and the conditions for the exercise of copyright and related rights.

Article 182 The organization has the obligation to make the following information available to the members of its organization, apart from the information from Article 181 of this Law, on its internet page:

1) list of the members of the assembly, administrative board and supervisory board;

2) annual repot on conducting business;

3) information on the sessions of the assembly (date, time, venue, agenda and decisions

of the assembly);

4) decisions of the administrative board and the supervisory board.

Article 183

(1)

The organization shall conclude a contract of non-exclusive licensing of the right of exploiting the subject-matter of protection from its repertoire with each interested user and/or association of users, under equal and appropriate terms.

(2)

The contract referred to in Paragraph 1 of this Article shall include the following in particular: kind of the subject-matter of protection, mode of exploiting the subject-matter of protection, amount of remuneration and manner of its payment to the organization and a period in which the contract is to be effective. Article 184 The organization shall distribute to the holders of copyright and/or related rights who have concluded with it the contract referred to in Article 153 of this Law and the holders of copyright and related rights referred to in Article 180, Paragraph 4, of this Law, the income from the remuneration collected from users, except for funds designated for the purposes referred to in Article 165 of this Law, in accordance with the Distribution Plan. Article 185

(1)

The distribution referred to in Article 184 of this Law shall be based on accurate Data concerning the use of the subject matter of protection.

(2)

If accurate data are not available and/or if the collection of accurate data would create an unacceptable organizational and financial burden for the organization, the distribution plan may be based on estimates stemming from relevant and verifiable facts.

Article 186

(1)

The organization shall provide for the collective exercise of copyrights and related rights of domestic holders abroad, as well as those of foreign holders in the Republic of Serbia, on the basis of contracts concluded with appropriate foreign organizations.

(2)

The organization has the duty to fulfill the obligation from Paragraph 1 of this Article in the period of five years from the date of acquisition of the first operating license.

2.8. Duties of the Users

Article 187

(1)

The users have an obligation, in compliance with Article 183 of this Law, to acquire from the organization the rights for the use of the subject-matter of the protection before the begin of the actual utilization of the subject matter of protection.

(2)

The users have the obligation to notify the organization of the title of the subject-matter of protection, frequency and extent of its exploitation, as well as of other

circumstances of relevance for the calculation of the remuneration payable in accordance with the tariff.

(3)

The data referred to in Paragraph 2 of this Article shall be forwarded to the organization within 15 days from the date of the beginning of exploitation of the subject matter of protection, in a way and in a form prescribed by the general acts of the organization.

(4)

The users who are authorized under this Law to exploit subject-matter of protection without permission of the right holders, and with the obligation of payment of the remuneration, shall forward the data referred to in Paragraph 2 of this Article monthly, in a way and in a form prescribed by the general acts of the organization.

(5)

The broadcasting organizations have an obligation to send once a month a list of broadcasted subject matters of protection to the organizations whose subject matters of protection have been used in a way and in a form determined by the general acts of the organization.

(6)

The users have the obligation to enable to the authorized persons from the organization, in the course of control of the use of the subject matters of protection, the insight into the documentation and the data relevant for the calculation of the remuneration which must be paid according to the tariff.

(7)

An owner, holder and lessee of the premises in which the subject-matter of the protection was used, as well as the organizer of the activity by which the subject matter was used, shall be jointly and severally liable for the user’s obligations.

(8)

In case of a dispute between the organization and the user regarding the amount of remuneration, the user shall pay to the organization the amount determined by the previously valid tariff, until the dispute is resolved by the final and enforceable decision .If the amount in question refers to the tariff number which did not exist in the previously valid tariff, the user has the obligation to pay to the organization the amount envisaged in the new tariff into the special fund which is not distributed to the holders of right until the legal dispute has been finally resolved.

2.9. Supervision over the Organization’s Activity

Article 188

(1)

The supervision over the operations of the organization shall be done by the competent authority that supervises whether the organization performs its tasks in compliance with the license granted and in compliance with the provisions of this Law.

(2)

For purposes of the supervision, the organization shall submit the following to the competent authority: 1) Annual business report and annual account and the report of the competent auditor; 2) agreements between the organization and the representative associations of users; 3)Amendments to the Statute, tariff and amendments thereto, remuneration distribution plan and amendments thereto, contracts with appropriate foreign organizations and court and administrative decisions where the organization was party.

(3)

The organization shall submit the documents and data referred to in Paragraph 2 of this Article within 15 days from their adoption, or the receipt of the repot, and/or the date of change.

Article 189

(1) The organization has an obligation to adopt or obtain the following for very previous business year, in the period of six months after its termination:

1) annual reports of the management bodies and the supervisory bodies concerning the amount of the collected remuneration, its distribution, the business of the collective management organization, the execution of the agreements concluded with the representative association of users and the execution of contracts concluded with the foreign organizations;

2) report of the empowered auditor;

3) proposal of the financial plan of the organization for the following year which includes the plan of its business expenses.

(2) The provisions of this Article do not influence the obligations which the organization has regarding other legislation concerning financial management, reports and auditing.

Article 190

(1)

The annual report on conducting business, the balance sheet and book keeping must be submitted to auditing.

(2)

The auditing of the management of the organization can be performed only by a competent auditor, in compliance with the Law on Accounting and Auditing.

(3)

The auditor report is accordingly subject to the regulations of the Law on Accounting and Auditing.

Article 191

(1)

The competent authority shall have the right to have its representatives present at the sessions of the organization’s bodies, as well as the right to inspect business records and other business documentation

(2)

The representative of the competent authority has the right to state its opinion on all the issues referring to the issues of collective management of copyright and related rights and the compliance with the legislation without the right to vote at all the sessions of the bodies of the organization.

(3)

The competent body may demand from the organization a written answer concerning all the issues referring to the activities and management of the organization.

(4)

If the competent authority establishes the irregularities in the organization’s activity, it shall indicate them, issue an order for the application of measures for the elimination of irregularities and set a term for their elimination.

V COMMISSION FOR COPYRIGHT AND RELATED RIGHTS

1. Commission for Copyright and Related Rights

Article 192

(1)

The Commission for Copyright and Related Rights is an expert body competent to give opinion in the field of management of copyright and related rights concerning the draft tariff proposed by the organizations.

(2)

The Commission is not a permanent body.