RELATIVITY IN THE FREE USE OF COPYRIGHT OBJECTS UNDER THE THREE-STEP TEST

RELATIVITY IN THE FREE USE OF COPYRIGHT OBJECTS UNDER THE THREE-STEP TEST Associate professor Manol STANIN1 Abstract The free use of works by third parties is placed in normative dependence on three conditions which together form a legal basis for the free use of copyright objects without the consent of the author and payment of remuneration. This process is accompanied by the specifics of each case, given the relation author-object of artistic intellectual property, expressing his creative individuality and hence the needments that determine his legitimate interests in the work he created - the object of intellectual property. The admissibility of free use is also relevant to other dynamic quantities that characterize the matter subject to legal regulation. Maintaining a fair balance between the rights and interests of copyright holders and users of protected objects depends on compliance with the new electronic environment, as well as the proper and unhindered functioning of the internal market in the field of copyright and related rights. Legal relevance is given to another dynamic relation with elements of technological development and its consequences associated with the existence of new forms of use of copyright objects. The systemic conditionality of the above-mentioned factors predetermines the application of a systematic method of scientific research to find acceptable and effective solutions in the legal framework of the free use of works. These are circumstances that together form the preconditions for arguing relativity in the free use of works. Keywords: legitimate interest, normal use, author, fundamental rights, public interest, balance, restriction, work. JEL Classification: K38 1. Introduction The need to establish the free use of copyrighted works is obvious, although this way of use is set within certain legal limits. In the space delineated by them, third parties are allowed to freely use a work - subject to copyright without the consent of the author and payment of remuneration. The arguments for this are related to the interests of society and its constituent individuals, in connection with the exercise of priority rights from the category of fundamental. Achieving a fair balance between these two poles through legislation at the national and supranational levels shows the importance of issues related to the free use of works for society, its constituents and authors. In the search for a stable ratio between them, the existing legal framework uses concepts, the essence of which is a quantity influenced by many factors. This forms several difficulties in the process of free use of works, despite the explicit indication of the conditions for use without the consent of the author and payment of remuneration in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society2. The types of possible behaviour representing free use are in line with the achievement of pre-specified results - for educational or research purposes, in favour of government agencies such as libraries and archives, to cover current events, to cite, for use by people with disabilities, for public safety purposes and administrative or judicial purposes. This basis for lawmaking decisions aims at reconciling interests in the copyright process by the copyright holder 3, as well as "finding the right ratio" with "society's interests in access to cultural, scientific and other creative achievements"4. On the other hand, however, there is an option the consequence of which is to prevent the restriction of fundamental rights of other members of society by the exclusive right of the author to use his work and allow third parties similar behaviour. Manol Stanin - South-West University „Neofit Rilski”, Blagoevgrad, Bulgaria, . OJ L 167, 22.6.2001, p. 10–19 . 3 Maneva, Veselina, Conflict or synergy between human cultural rights and copyright in the media environment, in: Media in Bulgaria: 25 years later: national scientific and practical conference, 31.10.2014, New Bulgarian University, Sofia, 2015. The document is available online at: http://eprints.nbu.bg/3651/; last accessed on 12.06.2022. 4 Tsakova, Violetta. The effort and powerlessness of the law to regulate the free use of copyrighted works, 2012. The document is available online at: https://copyrights.bg/2012/, last accessed on 12.06.2022. 1 2 Perspectives of Law and Public Administration Volume 11, Issue 3, October 2022 423 2. Admissibility of free use of a work and restriction of rights Restriction of fundamental rights is a process, the legal regulation of which takes place in the presence of explicitly stated restrictive grounds, ways of restriction and achievable goals. The restriction is temporary, for the period of existence of the restrictive grounds or for the time necessary to achieve the legally established objectives 5. The free use of a work does not restrict the author to independently performing behaviour that represents the use of the work, there is no consequence of a change in the parameters of his behaviour concerning the object of artistic intellectual property. For him, all options originally used by law, both in terms of volume and in terms of self-assessment of when and whether to proceed to the exercise of his right, are legally admissible and respectively possible. Next, influence is available only to the exclusive nature of the right and provided that a third party or persons exercise the opportunity provided by law for free use by implementing behaviour originally granted to the author. In comparison, the right limited by a prohibition or obligation is also with a changed process of its exercise, including a changed or limited access to the respective good. 3. Relativity arising from the content of the legal framework In the content of the triad of conditions for admissibility of free use, it is noteworthy that two of them - "not to contradict the normal use of the work and not to prejudice the legitimate interests" - are concerning a specific subject-rights holder. The use of the singular emphasizes the specificity, the individuality of the relation between the author and the work created by him - an object of intellectual property and on this basis of the related normal use and legitimate interests. The full and comprehensive disclosure of the meaning of the conditions for the free use of copyright objects implies the application of different ways of interpretation, choice of interpretive result and taking into account the peculiarities of the factual and legal specifics of each of the statutory cases. This peculiarity adds another characteristic of the national legal norms, allowing free use of works, which are not only exclusive and imperative but also relative. This aggregate itself is not characteristic of the normative system of law, given its purpose. In the context of the (...truncated)