SLOVENIA Law and Practice Contributed by: Nataša Pipan Nahtigal, Veronika Novak and Katarina Čepon, Šelih & partnerji
Possible Infringement Remedies For an infringement, both civil and criminal remedies are available. Copyright infringement may constitute a minor offence or even a criminal offence. The infringer may also be required to pay damages corresponding either to the actual loss suffered or to an amount equal to the agreed or customary royalty or fee for use of that kind. In cases of intentional or gross negligence infringement, it is even possible to claim a royalty or fee increased by up to 200%, even if no damages occurred. The court may also award monetary com- pensation for mental anguish caused by the infringe- ment of moral rights. The court may further issue interim measures to secure non-monetary claims and an order for the preservation of evidence. The claims that may be asserted by the rights-holder before the court are: • that the infringement and future infringements be prohibited; • that the infringing goods be recalled from commer- cial channels, with due regard to the interests of bona fide third parties; • that the situation resulting from the infringement be remedied; • that the infringing goods be permanently removed from commercial channels; • that the infringing goods be destroyed; • that the means of infringement, which are exclu- sively or predominantly intended for or used in the infringement and are owned by the infringer, be destroyed; • that the infringing goods be given to the rights- holder against payment of the costs of production; and • that the judgment be published. 3.8 Infringement Tests and Substantiality The law does not set a clear rule on how much of a copyrighted work can be copied, but in practice, even copying a small part may be problematic if that part is considered substantial. In assessing such copying, courts may examine whether the use merely serves the purpose of reference, illustration or comparison. In such cases, it may qualify it as quotation (animus citandi) and fall within the quotation exception. How- ever, where substantial parts of the copyrighted work
are reproduced, the use will no longer be considered mere quotation. The assessment therefore focuses on whether the original work predominates or whether it is used only as an ancillary element. 3.9 Collective Management and Licensing Collective Management A collective management organisation is a legal entity that has obtained authorisation from the competent authority and, on the basis of an authorisation from the rights-holders or the law, is authorised to collec- tively manage copyright or related rights on behalf and for the account of more than one rights-holder and for their common benefit, where this is its sole and main activity, and it is owned or controlled by its members and/or is non-profit. ZKUASP specifies in which cases collective manage- ment is mandatory, namely: • communication to the public of non-dramatic musi- cal and literary works; • resale of original works of art; • reproduction of works for private or other personal use and photocopying; • cable or other broadcasting retransmission of works; • right to additional annual remuneration; • communication to the public of audiovisual works and videograms; • right to remuneration for teaching using electronic means; and • author’s right to an appropriate share of revenue of a publisher of a media publication. Determining Tariff Rates The tariffs are determined by a collective agreement between the collective management organisation and a representative association of users, or, if this is not possible, by a decision of the Copyright Board (whose members are appointed by the Minister of the Economy). The tariff must reflect the economic value of the rights covered by the collective agreement, the nature and scope of the use of copyrighted works, and the economic value of the service provided by the collective management organisation.
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