Copyright
Beyond the
moral and cultural relations that are established between the author and the
publisher, the publication of the author's work also involves the formality of
concluding a publishing contract, which sets out a series of financial and
editorial details relating to the transfer of copyright.
The main
elements to be negotiated are:
- the duration
of the contract. It cannot be concluded indefinitely, just as it cannot be
concluded for all the works the author will write from that moment on. The
optimal duration is 5 years. It is possible to negotiate between 3 and 7 years
without any major problems. Beyond that, either the author or the publisher may
have difficulties.
- territory
and language for which the rights are assigned. The correct specification is
"in Romanian, without limiting the territory in which the work will be
distributed", to allow sales in other countries where there are
Romanian-speaking readers.
- the date of
publication of the first edition. The contract is often concluded when the work
exists but is not in final form. The author still has work to do, possibly to
accept and make changes requested by the publisher. A deadline of at least 6
months from the delivery of the manuscript in final form is usually set. A
publisher does not publish a single book, it has to wait in line, it has to be
editorially and technically prepared, it has to be promoted.
- The
assignment of economic rights implies a remuneration for the author, if
requested, usually in the form of a percentage of the value of the print run
sold.
LAW No 8 of 14
March 1996 on copyright and related rights
PUBLISHED IN:
OFFICIAL MONITOR No. 60 of 26 March 1996
ARTICLE 1
(1) Copyright
in a literary, artistic or scientific work, as well as in any other such works
of intellectual creation, shall be recognized and guaranteed under the terms of
this Law. This right shall be linked to the person of the author and shall
include moral and economic attributes.
(2) A work of
intellectual creation shall be recognised and protected, independently of its
being made known to the public, by the mere fact of its creation, even if
unfinished.
ART. 5
(1) A joint
work is a work created by several co-authors in collaboration.
(2) The
copyright of the joint work shall belong to its co-authors, one of whom may be
the principal author, under the terms of this Law.
(3) In the
absence of an agreement to the contrary, the co-authors may exploit the work
only by mutual agreement. Refusal of consent by any of the co-authors must be
duly justified.
(4) Where the
contribution of each co-author is separate, it may be exploited separately,
provided that the exploitation of the joint work or the rights of the other
co-authors are not prejudiced.
(5) In the
case of use of the work created in collaboration, remuneration shall be due to
the co-authors in the proportions they have agreed. In the absence of an
agreement, the remuneration shall be divided in proportion to the authors'
shares of the contribution or equally if these cannot be determined.
ART. 6
(1) A
collective work is a work in which the personal contributions of the co-authors
form a whole, it not being possible, given the nature of the work, to attribute
a separate right to any one of the co-authors in the whole of the work created.
(2) In the
absence of an agreement to the contrary, copyright in the collective work shall
belong to the natural or legal person who took the initiative, under whose
responsibility and under whose name it was created.
ARTICLE 7
Original works
of intellectual creation in the literary, artistic or scientific field shall
constitute the subject-matter of copyright irrespective of the mode of
creation, the concrete mode or form of expression and irrespective of their
value and purpose:
(a) literary
and journalistic writings, lectures, sermons, sermons, speeches and any other
written or oral works, as well as computer programs;
(b) scientific
works, whether written or oral, such as: communications, studies, university
courses, textbooks, scientific projects and documentation;
c) musical
compositions with or without text;
(f)
photographic works and any other works expressed by a process analogous to
photography;
(l) plastic
works, maps and drawings in the field of topography, geography and science in
general.
ARTICLE 8
Without
prejudice to the rights of the authors of the original work, derivative works
which have been created from one or more pre-existing works shall also be
subject to copyright, namely:
(a)
translations, adaptations, annotations, documentary works, musical arrangements
and any other transformations of a literary, artistic or scientific work which
constitute an intellectual work of creation;
b) collections
of literary, artistic or scientific works, such as: encyclopaedias and
anthologies, collections or compilations of material or data, whether or not
protected, including databases, which, by their choice or arrangement of
material, constitute intellectual creations.
ART. 9
The following
are not eligible for legal copyright protection:
(a) ideas,
theories, concepts, discoveries and inventions, contained in a work, however
taken, written, explained or expressed;
(b) official
texts of a political, legislative, administrative or judicial nature and
official translations thereof;
(c) official
symbols of the State, public authorities and organisations, such as the coat of
arms, the seal, the flag, the emblem, the coat of arms, the badge, the badge
and the medal;
d) means of
payment;
e) news and
press information;
f) simple
facts and data.
ARTICLE 10
The author of
a work shall have the following moral rights:
(a) the right
to decide whether, in what manner and when the work shall be made known to the
public;
(b) the right
to claim recognition of authorship of the work;
c) the right
to decide under what name the work shall be made known to the public;
d) the right
to claim respect for the integrity of the work and to object to any alteration
of, or interference with, the work which would be prejudicial to his honour or
reputation;
(e) the right
to withdraw the work, compensating, where appropriate, the owners of the
exploitation rights who have been harmed by the exercise of the withdrawal.
ARTICLE 13
The use or
exploitation of a work shall give rise to distinct and exclusive rights of the
author to authorise:
(a)
reproduction of the work in whole or in part;
(b)
dissemination of the work;
c) the
importation for commercialization in Romania of copies of the work, made with
the consent of the author;
d) the scenic
representation, recitation or any other means of public performance or direct
presentation of the work;
ART. 14
(2)
Broadcasting, for the purposes of this Law, means the distribution to the
public of the original or copies of a work, by sale, rental, loan or any other
means of transmission for consideration or free of charge.
ARTICLE 16
The author of
a work shall have the exclusive economic right to authorise the translation,
publication in collections, adaptation and any other transformation of his work
into a derivative work.
ARTICLE 25
(1) The
economic rights referred to in Articles 13, 16, 17, 18 and 21 shall last for
the life of the author, and shall pass by inheritance after his death, in
accordance with civil law, for a period of 70 years, whatever the date on which
the work was lawfully made known to the public. If there are no heirs, these
rights shall be exercised by the collective management body mandated during the
author's lifetime or, in the absence of a mandate, by the collective management
body with the largest number of members in the relevant field of creation.
(2) A person
who, after the expiry of copyright protection, lawfully brings a previously
unpublished work to the public's attention for the first time shall enjoy
protection equivalent to that of the author's economic rights.
The term of
protection of these rights shall be 25 years from the time when the work was
first lawfully made available to the public.
ARTICLE 27
(1) The term
of the economic rights in works of joint authorship shall be 70 years from the
death of the last co-author.
ARTICLE 32
The periods
laid down in this Chapter shall be calculated from 1 January of the year
following the death of the author or the bringing to public notice of the work,
as the case may be.
ARTICLE 33
(1) The
following uses of a work previously made known to the public shall be permitted
without the consent of the author and without payment of any remuneration,
provided that they are in accordance with good usage, do not conflict with the
normal exploitation of the work and do not prejudice the author or the holders
of the exploitation rights:
(b) the use of
short quotations from a work for purposes of analysis, comment or criticism or
by way of example, provided that their use justifies the extent of the
quotation;
(2) In the
cases referred to in (b), (c), (e), (f) and (h), the source and the name of the
author, if it appears on the work used, and in the case of works of fine art or
architecture, the place where the original is located, shall be mentioned.
ART. 35
The
transformation of a work, without the consent of the author and without payment
of remuneration, is permitted in the following cases:
(a) if it is a
private transformation which is not intended and not made available to the
public;
b) if the
result of the transformation is a parody or caricature, provided that the
result does not create confusion as to the original work and its author;
c) if the
transformation is required for the purpose of the use permitted by the author.
ARTICLE 39
(1) The author
or copyright holder may assign by contract to other persons only his economic
rights.
(2) The
assignment of the author's economic rights may be limited to certain rights,
for a certain territory and for a certain duration.
(3) The
economic rights of the author or copyright holder may be transferred by
exclusive or non-exclusive assignment.
(4) In the
case of an exclusive assignment, the copyright owner himself may no longer use
the work in the manner, for the term and for the territory agreed with the
assignee, nor may he transfer that right to another person. The exclusive
nature of the assignment must be expressly provided for in the contract.
(5) In the
case of a non-exclusive assignment, the copyright owner may use the work
himself and may transfer the non-exclusive right to other persons.
ART. 41
(1) The
contract for the assignment of the economic rights must stipulate the economic
rights transferred, the methods of exploitation, the duration and extent of the
assignment and the remuneration of the copyright holder. The absence of any of
these provisions shall entitle the interested party to request the cancellation
of the contract.
(2) The
assignment of the economic rights relating to all the future works of the
author, whether nominated or not, shall be absolutely null and void.
ART. 43
1. The
remuneration due under a contract for the assignment of economic rights shall
be determined by agreement between the parties. The amount of the remuneration
shall be calculated either in proportion to the income from the exploitation of
the work or as a fixed sum or in any other way.
2. Where remuneration has not been fixed
by contract, the author may apply to the competent courts, in accordance with
the law, for remuneration to be fixed. This shall be done having regard to the
amounts usually paid for the same category of works, the purpose and duration
of exploitation and other circumstances of the case.
(3) In the
event of an obvious disproportion between the remuneration of the author of the
work and the benefits of the person who has obtained the assignment of the
economic rights, the author may request the competent courts to revise the
contract or to increase the remuneration as appropriate.
ART. 44
(1) In the
absence of a contractual clause to the contrary, for works created under an
individual employment contract, the economic rights shall belong to the author
of the work created. If such a clause exists, it shall include the term for
which the author's economic rights have been assigned. In the absence of such a
term, the term is three years from the date of delivery of the work.
(2) On the
expiry of the period referred to in paragraph 3, the term referred to in
paragraph 3 shall be (1) the economic rights shall revert to the author.
(3) The author
of a work created under an individual employment contract shall retain the
exclusive right of use of the work as part of the whole of his creation.
ART. 46
(1) The
contract for the commission of a future work shall include both the term of
delivery and the term of acceptance of the work by the users.
(2) The person
commissioning the work shall have the right to terminate the contract if the
work does not fulfil the conditions laid down. In the event of termination of
the contract, the sums received by the author shall remain his property. If
preparatory work has been carried out for the creation of a work which has been
the subject of a commission contract, the author shall be entitled to
reimbursement of the expenses incurred.
ART. 47
(1) The author
may request the termination of the contract for the assignment of the economic
right if the assignee does not exploit it or exploits it insufficiently and if
the justified interests of the author are thereby considerably affected.
(2) The author
may not request the termination of the assignment contract if the reasons for
non-exploitation or insufficient exploitation are due to his own fault, the act
of a third party, an act of God or force majeure.
(3)
Termination of the contract of assignment referred to in paragraph 1 shall be
deemed to have been effected in accordance with the provisions of this Article.
(1) may not be requested before the expiry of two years from the date of the
assignment of the economic right in a work. In the case of works assigned for
daily publications, this period shall be three months and in the case of
periodical publications, one year.
ART. 48
(1) By the
publishing contract, the copyright holder assigns to the publisher, in return
for remuneration, the right to reproduce and disseminate the work.
(2) An
agreement by which the copyright owner authorises a publisher, at his own
expense, to reproduce and, where appropriate, disseminate the work shall not
constitute a publishing contract.
ART. 49
The copyright
owner may also assign to the publisher the right to authorise the translation
and adaptation of the work.
ART. 51
(1) The
publishing contract must contain clauses on:
(a) the
duration of the assignment;
b) the
exclusive or non-exclusive nature and territorial extent of the assignment;
c) the maximum
and minimum number of copies;
d) the
remuneration of the author, established under the conditions of this Law;
(e) the number
of copies reserved to the author free of charge;
(f) the time
limit for the publication and distribution of copies of each edition or, as the
case may be, of each print run;
(g) the
deadline for delivery of the original work by the author;
h) the
procedure for checking the number of copies produced by the publisher.
(2) The
absence of any of the clauses referred to in points (a), (b) and (d) shall
entitle the party concerned to request the cancellation of the contract.
ART. 53
The publisher
shall be obliged to allow the author to make improvements or other alterations
to the work in the case of a new edition, provided that such improvements or
alterations do not substantially increase the publisher's costs and do not
change the character of the work, unless the contract provides otherwise.
ART. 54
The publisher
may assign the publishing contract only with the consent of the author.
ART. 55
The publisher
shall be obliged to return to the author the original of the work, originals of
works of art, illustrations and any other documents received for publication,
unless otherwise agreed.
ART. 56
(1) In the
absence of an agreement to the contrary, the publishing contract shall
terminate after the expiry of the agreed term or after the exhaustion of the
last agreed edition.
(2) An edition
or print run whose number of unsold copies is less than 5% of the total number
of copies, and in any case if it is less than 100 copies, shall be deemed to be
exhausted.
(3) If the
publisher does not publish the work within the agreed period, the author may,
under common law, claim termination of the contract and damages for
non-performance. In this case, the author shall retain the remuneration
received or, where appropriate, may demand payment of the full remuneration
provided for in the contract.
(4) If the
time limit for publication of the work is not provided for in the contract, the
publisher shall be obliged to publish it within a maximum of one year from the
date of its acceptance.
(5) If the
publisher intends to destroy the copies of the work remaining in stock after a
period of two years from the date of publication, and if no other period is
provided for in the contract, he shall first offer them to the author at the
price which he would have obtained by sale for destruction.
ARTICLE 123
(1) The owner
of copyright and related rights may exercise the rights recognized by this Law
personally or, at their request, through collective management bodies.
(2) Copyright
and related rights which, by their nature, correspond to a mode of exploitation
of works or performances which makes individual authorisation taxable, are
particularly susceptible to collective management. This category includes in
particular the rights provided for in Article 13(g), (h), (j), (k) and (l) and
Articles 17, 18, 102, 107 and 109 of this Law.
ARTICLE 124
Collective
management bodies for copyright and related rights, referred to in the Law as
collective management bodies, are, for the purposes of this Law, legal persons
established by free association, whose main object of activity is the
collection and distribution of the rights whose management is entrusted to them
by the rightholders.
Laws governing
the management of copyright:
- Law 8 of
1996 - Copyright Law
- HG 60 of
1997 - Copyright HG
- Law 186 of
2003 - Law on the Promotion of Culture
- Law 345 of
2002 - VAT Law
- Law 414 of
2002 - Corporate Income Tax Law
- Law 422 of
2001 - Law on Historical Monuments
- Law 64 of
1991 - Law on Patents and Inventions
- Law 86 of
1998 - Law on Geographical Indications
Berne
Convention