Croatia: To Control and Collect or to Share?

28 April 2006

The Croatian Law on Copyright and Associated Rights was adopted in 2003, and is harmonized with the majority of international treaties in that area, as well as with EU directions and recommendations. This was confirmed through the screening of legislation in the area of intellectual property rights and copyrights, conducted under the auspices of negotiations on Croatian membership in the EU, in February of this year. The only objection on this Law refers primarily to the inefficient implementation.

The Law is clear that the author has exclusive right to do with his/her work whatever he/she wishes. That right refers especialy the right of copying, trade, public presentation and modification of the works. However, the Law was written with the general assumption that the main interest of an author is to maintain full control over the use of his/her works, with the aim to charge the royalties, and that he/she has no intention, whatsoever, to alow greater freedoms to the users. Therefore, the most important element to copyright realization remains the approval for every public use.

Further restrictions are presented by the very system of implementation based on such assumptions. Having in mind that the author can�t possibly be present in every place in which his/her work is used, and is not physically capable to approve of each individual use and collect the royalties, the institute of collective copyright protection is applied.

These are organizations, i.e. associations of authors that act on behalf of their membership in the area of protection of rights (approval, collection of royalties, etc.). The National Bureau for Intellectual Property can license only one single association to pursue those activities for a given group of rights holders (musicians, film artists) and it should be the one that has the greatest membership. Furthermore, it is assumed that such association holds the power of attorney to pursue activities in terms of protection of rights for all domestic and international authors in its field, with the exception of authors that have denied such power of attorney in writing.

At this moment, there are four such organizations: the Croatian Association of Composers - HDS, Croatian Association for Protection of Performers� Rights - HUZIP, Croatian Discography Association - HDU, and Association of Croatian Film Directors - DHFR. The most powerful and visible among them are HDS and its technical service that pursues the activities for realization of musicians� rights � ZAMP.

This has effectively created private monopolies in the area of copyright protection, guaranteed and protected by the state, authorized by the assumed power of attorney to represent the authors � for example musicians � to charge the users with a fee, or even prohibit any performance and public use of authors� works. Naturally, this creates additional difficulties to the authors that have decided to publish their works under one of the Creative Commons licenses, having in mind that, in order to allow greater freedoms for the users, they have to renounce that power of attorney in writing. Furthermore, having in mind that organizations for protection of copyrights are independent in the decisions on the hight of the fees for public use of authors� works and maintain their discretionary control over the total offer of works, even the authors that don�t offer their works as free contents can find that their position in the marketplace is endangered, either intentionally or by mistake.

This system, although not fully efficient (the data available from HDS ZAMP states that the rate of illegal use of music in Croatia hovers around 40%), creates a rather infavourable environment both for the users and for a greater number of authors, especially those that haven�t made a name for themselves and the less known authors.

In 2003 and 2004, the Multimedia Institute implemented a project for Croatian localization of the Creative Commons licenses. Four people worked on the translation and adaptation to the Croatian legal system, two of whom are professional lawyers. The Croatian version of CC was launched officially at the beginning of 2005, on Creative Commons web-sites, which opens the possibility for Croatian authors to have a legally valid form for those freedoms they wish to transfer to the users of their works.

The promotion of free contents in the Multimedia Institute started as early as 2001, with the EGOBOO.bits digital publishing project, that started publishing electronic music by several authors gathered in the net.culture club mama, under the GNU General Public License. The GNU license, although legally valid only for software rights, provided these authors a clear articulation of their preference for the system of values established by the free software movement. When CC localization was completed, EGOBOO.bits transfered to CC license Attribution-Share Alike, which is closest in terms of freedoms its guarantees to GNU GPL.

This approach used by EGOBOO.bits artists was a result of several circumstances. First of all, the free exchange of information and ideas is found in the foundations of development and distribution of music (especially electronic music), but also other forms of creation. Furthermore, the existence of increasingly faster internet connections and improved compression tools, it becomes unfeasible, even less justified, to try to control and prevent the copying and distribution of digital recordings. Finally, many artists, especially those that are not widely known, find it in their interest to reach as many people as possible with their work, and control and collection of fees for every consumption of their work can only put obstacles to this goal.

In the meantime, a number of artists that produce non-music contents, such as video, film and literature, joined EGOBOO.bits, but music remains the dominant content. At this moment, EGOBOO.bits gathers over 40 artists with more than 80 different releases that are freely available for download from the web-site, copy, distribute and process them, under the single condition that original or reworked item is made available to the public under the same terms and conditions.

Besides EGOBOO.bits, CC license in Croatia is used by several non-profit media projects: kulturpunkt.hr portal, megazin 04, free internet radio Stanica MIR, ekologija.hr portal , and mangura.net online magazine. Also, the contents on the web-sites of Zelena Istra and Monteparadiso hacklab Pula are published under Creative Commons. In addition, there is an active Wikipedia community in the country that produces contents on that greatest free online encyclopedia in the world in Croatian language (under the GNU Free Documentation License, which is close to the CC Attribuiton-Share Alike license).

From the start of April of this year, the biggest Croatian blog tool blog.hr that currently gathers over 90.000 bloggers, has introduced the possibility to release their contents under a CC license. Because of that big number of users, as well as the great popularity of blogs, this can be viewed as one of the most important penetrations of the idea of free creation in the general public in Croatia. In addition, it is the bloggosphere, as an area of two-way, bottom-up public communication, makes it clear that producers have good purpose, even interest, to make their contents as free. In that domain, namely, the position of the producers depends primarily on confidence and reputaion, and not on marketing investment, which makes the free distribution, rather than protection and control, the key market strategy.