SERBIA Law and Practice Contributed by: Stevan Pajović, Tamara Simić Pajović, Medo Zornić and Jelena Stoljiljković, T-S Legal
three-dimensional reproduction of works permanently displayed in public spaces, provided the author has not explicitly prohibited such use. Fundamentally, this framework of statutory licensing also encompasses the rights of performers and phonogram producers; they are guaranteed a right to mandatory remunera- tion for the broadcasting, rebroadcasting, and public communication of their performances and recordings, ensuring economic protection in instances where the requirement for their prior permission is legally waived. Courts generally assess these exceptions by applying the cumulative “Three-Step Test” established by the Berne Convention. Under this standard, courts ensure that the statutory use is restricted to specific cases, does not conflict with the normal commercial exploita- tion of the work, and does not unreasonably prejudice the author’s legitimate interests. 3.7 Copyright Enforcement and Remedies Copyright infringement in Serbia occurs when a protected work is used, reproduced, distributed, or communicated to the public without the author’s prior consent or legal authorisation. The legal system pro- vides a robust framework for enforcement, allowing right holders to seek protection through civil, crimi- nal, and administrative proceedings. Civil remedies are the most common and include the issuance of permanent injunctions to stop the infringing activity and the destruction of infringing copies or tools used for their creation. The courts may award damages for both material loss and non-material harm, such as damage to the author’s reputation or emotional distress. While Serbi- an law does not recognise “statutory damages” in the traditional common-law sense, it employs a valuation method based on the “usual licence fee.” Specifically, the awarded compensation for infringement cannot be lower than the royalty that would have been received for the legal use of the protected subject matter; how- ever, if the infringement was committed intentionally or through gross negligence, the court has the discre- tion to increase this amount significantly. There is no longer a statutory cap on this multiplication, allowing the court to scale the award to an extent that ensures full economic protection and acts as a deterrent, pro-
vided the claimant can justify such a higher valuation relative to the nature of the infringement. Criminal sanctions are also applicable for more serious or commercial-scale infringements, potentially leading to fines or imprisonment. Administrative enforcement is primarily handled through the Market Inspection and Customs authorities, who can temporarily seize suspected counterfeit goods. In the digital environ- ment, right holders can also seek blocking orders or notice-and-take-down procedures through internet service providers to address online piracy and unau- thorised content sharing. 3.8 Infringement Tests and Substantiality When assessing copyright infringement, Serbian courts focus on whether an “original spiritual crea- tion” or a substantial part of it has been taken without authorisation. The determination of what constitutes a “substantial part” is qualitative rather than purely quantitative, focusing on whether the core creative elements of the original work are present in the unau- thorised copy. This means that even a small excerpt can trigger an infringement claim if it contains the unique intellectual expression that defines the work. Non-literal copying, which involves taking the struc- ture, sequence, or organisation of a work, is also actionable under Serbian law. This is particularly rel- evant in the software industry, where the protection extends beyond the literal source code to the underly- ing technical documentation and preparatory materi- als. Courts analyse whether the alleged infringer has “borrowed” the creative choices made by the original programmer, such as specific architectural designs or database structures. The assessment usually involves expert testimony from court-appointed specialists who compare the two works to identify similarities in expression. It is important to distinguish between the unprotected “idea” or “function” and the protected “expression.” For software, elements that are dictated solely by technical necessity or standard industry practices are generally excluded from protection, ensuring that the law does not stifle legitimate competition or interop- erability.
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