Bosnia and Hercegovina: Need for Alternative Models

04 May 2006

Bosnia and Herzegovina was notorious, during the last decade, as a country in which the most ruthless copyrights violations took place. You could see, for example, the latest Holiwood production on local television stations even before they were available at American cinemas. According to the information presented by DANI magazine (December 10, 1999), only 10 percent of the total sale of recorded music was legal, while the remaining sales were made on the black market.

Over the past few years, the B&H authorities did initiate series of measures to suppress unauthorized use of copyrighted works by television stations, as well as production and distribution of pirated films and music. These measures include, above all, seizure and increasingly high fines and, to the lesser extent, criminal charges. However, judging on the European Commission Report on B&H Progress of November 2005, these measures are far from enough. The overall implementation of the Law remains weak, which makes this country a distribution point for pirated goods for the rest of Europe.

Until 2002, copyrights and associated rights were regulated by the Law on Copyright Protection, identical to the Law valid in former SFRY. This Law, although outdated compared to the latest international legislation, did provide certain level of protection. However, because of a number of circumstances, it was valid only on paper. In April 2002, a new national Law on Copyrights and Associated Rights was adopted, which was, in principle, compliant to the reigning international standards. In that sense, just like the majority of similar laws in the region, the Law is compatible with the Creative Commons solutions: the author has the exclusive right to approve the use of his/her works, which means that he/she may issues a licence in line with CC.

The Law also provides for collective protection of copyrights, through organizations of authors and other offices, which as elsewhere, includes allocation of authorizations and collection of royalties. Unlike Croatia, where the Law provides for a single organization per individual group of copyright holders, the B&H Law doesnt explicitly prescribe to this type of monopolistic situation. A careful reader would not miss the point, however, that the organizations that care for protection of copyrights have already received such a monopolistic legal status.

Namely, the Law states that such organizations, in order to implement their rights, need authorization (Letter of Attorney) from the authors (Article 87, paragraph 2). However, the very next paragraph lists a number of exceptions to this provision, i.e. a list of rights that need no special authorization to be implemented (public performance and broadcasting of non-theatrical musical and literary works). So, the organization that works in the area of music copyrights protection is legally authorizes the approve/ban a concert of any musician, regardless of whether the author whose works are being performed authorized the organization or not. In reality, it means that it is impossible to establish an alternative organization that would perform the same activities.

There is one such organization in Bosnia and Herzegovina, established in 1997. This is the Agency for Representation and Protection of Copyrights Sine Qua Non d.o.o. Sine Qua Non is authorized to perform these activities by the B&H Institute of Standards, Measures and Intellectual Property, the authorization from the professional associations of the authors (musicians, writers, painters, film makers, etc.). In addition, SQN is member of CISAC-a (International Confederation of Societies of Authors and Composers). All of the previos clearly positions Sine Qua Non as the monopolistic organization that the Law silently prescribes.

As a result, B&H today has, more or less, fully established institutional framework for efficient restrictive copyright protection. The only problem, it seems, is to get that system to function properly. We should ask, nonetheless, will this solve the existential problems of the authors and entertainment industry in general and, even if it would, what will the consequences be for the remainder of society.

The rise in copyright violations, piracy and the resulting problems for the authors do result, on one hand, from insufficient implementation of the Law and the generally non-functional system. On the other hand, it is related to the emergence and expansion of information and communication technology. This process, regardless of the increasing efficiency of implementation of the Law, will continue to endanger all people whose work is not based on production and sale of recording media that may be digitalized. It is difficult to expect for anybody to expect, at this time, that the sales of music CDs, tapes or records to return at the levels at which they were before the appearance of computers and internet.

The digital technology, however, together with the problems it created for the entertainment industry, has its own development potential, through the possibilities for equall access to knowledge and culture, especially for countries of limited economic standards. If the current system becomes more efficient and manages to catch and sanction all unauthorized use of copyrighted works, it could easily reduce the benefits for the whole society in order to save those endangered by the technology. Therefore, instead of thinking only in lines of how to better implement the existing framework, alternative models should be considered.

At this time, there are only a few initiatives that contemplate copyrighs through an alternative approach. The most important of them is the Linux Users Association which works on development, promotion, localization of GNU/Linux operating system and applications. There is also an active Wikipedia community in Bosnia and Herzegovina, and lately, the CC license can be seen on several B&H bloggs. In the field of music, since 2003, the Oscilator net label is active, which has signed several Sarajevo based DJs and electronic music authors. The Oscilator website offers their music for freee downloading and use, in accordance with the Attribution-NonCommercial-NoDeriv CC lincense.

It is difficult to estimate whether this may prove to be the critical mass that may provide greater public visibility to alternative free creation. Yet, the very fact that there are individuals, groups and organizations in B&H that are prepared to offer their works as public good, in spite of the situation, points out at the need to create the space for new models.