Rights over an audio-visual work

The notion of audio-visual work of art refers to, above all, feature and documentary films made for cinema or TV. The legal relations involved in that are governed by the Copyright and Related Rights Act (CRRA), exactly in the context of the processes involved in the creation of such films. However, the development of new technologies that enable the easy creation and distribution of such films raises the question to what extent the existing legislative framework is suitable for any and all possible audio-visual works.
The current CRRA proceeds from the assumption that copyright over an audio-visual work emerges for, and is exercised jointly by, the scriptwriter, the film director and the camera operator. If a producer is also involved as the party organizing the creative process, said producer acquires, through a contract with the scriptwriter, the film director and the camera operator, certain rights pertinent to the use of the audio-visual work.
In addition, a film may use other works of art – such as music (including lyrics), costumes, props and set designs – which necessitates entering in legal relations with the relevant copyright owners. Related rights in connection with the film also emerge for the performing artists involved: actors, musicians playing the music scores, etc.
The use of an audio-visual work, including its further processing – e.g. dubbing in another language – presupposes providing for the rights of all parties involved. Only in that way can the film be licensed to be shown in a movie theater, respectively broadcast on television or accessed at the convenience of the user (through streaming). Making arrangements with the rights holders involved calls for explicit agreements to be reached among them, and CRRA contains a set of rules that could assist in the negotiating process. Part of the CRRA rules, however, cannot be changed – e.g., article 65(1) provides that the director, scriptwriter and camera operator are entitled to separate compensation for every instance the work is used, irrespective of what provisions have been included in the contract with the producer. A similar right is provided for the benefit of the actors in key roles: under article 78(3) they are entitled to a portion of all monies received by the producer as revenue for the use of the work.
This is why the creation of an audio-visual work gives rise to a range of legal issues that need to be resolved prior to the actual filming – in order to make sure that the finished work will be fit for its intended use. If relations between the scriptwriter, the director and the camera operator are not properly dealt with in contractual form, the matter of how the work can be used for its intended purpose can only be resolved by a court of law, in accordance with CRRA article 8(2). In the absence of similar arrangements with the other rights holders, the use of the film will constitute an infringement of their rights, giving them recourse to the remedies provided under CRRA: claims seeking the establishment and elimination of the infringement, respectively compensation for damages, etc.
The complexity of those relations, though, is reflected in the provisions of CRRA, so the makers of a film for the cinema or TV are largely aware about the steps they need to make to protect their rights. The deficiencies inherent in CRRA, however, become apparent when we deal with other forms of audio-visual works created for use in content sharing platforms like YouTube, for instance.
The problem can be illustrated through various audio-visual works created for educational purposes. To begin with, in such a film it is not entirely clear whether a camera operator exists in the first place, if the camera (today more and more often a mobile phone) is placed on a stand. Can the owner of the camera then claim co-authorship of the finished work? Can the author of a presentation being shown claim credit also as a scriptwriter, or, respectively, can its presenters assert themselves as actors performing a role?
Still, relations among participants in making such educational audio-visual works are a lot simpler than those involved in making a film. The roles of director and camera operator can be skipped altogether, and the script can be the actual presentation. Irrespective of that, the rights over the finished work are governed by the above-mentioned provisions of CRRA. Therefore, it must be borne in mind that the person funding the development and filming of the work assumes the role of its producer and thus enjoys the rights as per CRRA article 90a: to authorize the making of copies of the recorded work, its public broadcasting or performance, its reproduction and dissemination, and the like.
Regardless of the above, the producer needs to identify what persons can fulfil the roles of scriptwriter, director and camera operator, and to enter into contractual relations with them with respect to their rights, in pursuance of articles CRRA 62-67, by agreeing on the amount of compensation they will be entitled to for the use of the produced work. Relations with the person presenting the material in question should be treated similarly: said person should be seen as an actor-performer and should therefore enjoy the rights as per CRRA article 78(3), namely, to receive remuneration from the entire gross revenue of the producer from the use of the work.
The example discussed above is just one possibility for deviation from the traditional pattern in making a film. The development of technology allows the easy use of bits from other works in combination with various dubbings and synchronization with works of music. In such cases, again, the rights of all rights holders should be duly provided for, but negotiations are made significantly easier by the collective rights organizations representing a sizable proportion of the respective categories of rights holders.
While Bulgarian law is yet to find a way to grapple with such problems, the advancement of artificial intelligence is already raising new ones. For the moment, the dominant understanding seems to be that copyright relates exclusively to human creativity. Thus, a work of art created by AI cannot enjoy protection in the sense as per the CRRA and should be available to be used for free by anyone. Thus, artificial intelligence could be used in creating a presentation, or in synthesizing the audio-visual component of its content, e.g. in generating an image and voice of the presenter. For the time being, the significance of those capabilities cannot be appreciated in full – but one should consider the significance of the amendments to CRRA, in force as of December 1st, 2023, allowing the free use of other people’s works for the purposes of their automated analysis – without seeking the rights holders’ consent or paying them compensation. In other words, once published, works by others can be used for the creation of subsequent content. Similar questions arise about the use, for example, of the external appearance or voice of a specific person. For the time being, no clear answers have been suggested, whether in Bulgaria or in the world at large.