inproceedings by Matija Damjan
The internal market and the digital economy, XXVIII FIDE Congress, 2018
The national report for Slovenia presents the implementation of EU legislation in national legisl... more The national report for Slovenia presents the implementation of EU legislation in national legislation and discusses the case law and other legal developments in Slovenian law concerning the following topics: 1. Internal Market and electronic commerce : Internet and e-commerce 2. Digital media 3. Digital infrastructures 4. Data in the digital economy
X. posvet Pravo in ekonomija: Digitalno gospodarstvo, 2018
The content available on the Internet may violate various legal norms and cause damage. An averag... more The content available on the Internet may violate various legal norms and cause damage. An average Internet user communicates with the public on various online platforms of other platform operators, such as social networks and online forums. The article presents an overview of the general rules on Internet intermediary liability for user-generated content, which are based on the distinction between mere conduit, caching and hosting. The article provides an analysis of the case law of the EU Court of Justice concerning the concept of a technically neutral service provider and the permissibility of court-ordered automated filtering of illegal user generated content in a particular case. Finally, the article studies the tendency to establish automated tools for checking of user-generated content, as reflected in recent policy documents of the European Commission. The author is critical of this trend, which deviates from the Manila principles of intermediary liability.
articles by Matija Damjan
Journal of European Consumer and Market Law, 2022
Online shopping across the EU is one of the most tangible benefits of the single market for the a... more Online shopping across the EU is one of the most tangible benefits of the single market for the average consumer. Since most EU consumer protection rules are contained in Directives, one needs to determine which Member State's transposition of these rules is to be applied to cross-border B2C transactions. Rome I and Rome II Regulations lay down criteria for determining the applicable law in civil and commercial relations. But no conflict-of-laws rules exist in connection with consumer protection rules laid down as mandatory rules of public law and enforced by national administrative authorities. The paper argues that cross-border B2C cases of e-commerce within the EU should be governed by the law of the Member State whose consumers the trader is targeting through online commercial activities, regardless of whether the national consumer protection provisions qualify as rules of private or of public law. The competence rules should ensure that national administrative authorities always exercise their powers and impose sanctions under their own Member State's consumer protection law. The Consumer Protection Cooperation Regulation establishes the framework for cooperation between the national authorities competent for the enforcement of consumer rules. Their mutual assistance is essential due to the fragmented system of Member States' consumer rules and mechanisms for their enforcement. Yet, to facilitate the compliance with and the enforcement of consumer rules in pan-European e-commerce, a more unified solution would be welcome.
Zbornik znanstvenih razprav, 2015
The starting point of modern copyright law is that rights in a newly created original work belong... more The starting point of modern copyright law is that rights in a newly created original work belong to its author, i.e. the natural person who created the work. The seemingly simple question of who created the copyrighted work can prove to be more complex if several people have collaborated in the formation of the final version of the work, each with a different type of contribution. Such a situation is typical for musical works, where the composer of the main melody, the lyricist, the music arranger, various musicians and singers may be involved in the final production version of a musical piece. The distribution of rights among these persons depends on the determination whose contribution constitutes (co)authorship of the new musical work and who is deemed to have only adapted or performed a previously existing work.
First, we must define what constitutes a new original copyrighted work of music. The work must reach a certain threshold of creativity and individuality, which means that it must express the author’s original idea that goes beyond purely routine application of established musical methods and techniques. The result of the creation must show individual features that set it apart from unprotected everyday sets of sounds on one hand and from other original musical works on the other. The individuality of the work reflects in the structure of the melody, in the construction of tone sequences and rhythms, in instrumentation and orchestration of music. It is primarily assessed in the light of the overall impression made by the musical work. A particular artistic or aesthetic value of the work in question is not required for copyright protection nor is the amount of author’s effort or assets invested in the creation. A subjective novelty of the work is sufficient in the sense of the author's independent creation without conscious imitation of existing work.
Copyright protects original expressions of ideas, not the ideas themselves. Therefore, a copyrighted work must first be expressed in any way that makes it accessible and detectable by persons other than the author. A new original melody is thus protected once the conductor records it, e.g. in the form of a musical notation on paper or in an electronic sound file, or at least performs it, e.g. by singing, whistling or playing on an instrument. A permanent record of the work is not a condition for copyright protection; a single performance suffices. Therefore, improvised musical works the performance (and simultaneous creation) of which was not recorded are protected.
If the author has used a previously existing copyrighted work of another author as a template and created on this basis a new work reaching the required threshold of creativity, this is considered a derivative work, which is also subject to copyright. A derivative work is a creative transformation, modification or adaptation of a previously created work in a way that the individuality of the underlying work remains perceptible in the new copyrighted work. However, the law also stipulates that the rights of the author of the underlying work must not be affected. Therefore, both the author of the underlying work and the author of the derivative work share copyright in the derivative work.
Copyright accrues to the author directly on the basis of the law, with the moment of the creation of a work. Legal theory therefore concludes that the author’s creation is a legally relevant real action rather than a legal transaction, since legal consequences derive from it regardless of the parties’ will. The composer of an original main melody of a musical work is always considered an author, since such melody normally reaches the threshold of creativity and individuality, which is a prerequisite for copyright protection. The composer can create himself all the other elements of the musical work, such as underlying chord progressions, harmonies, rhythm and lyrics, or collaborate in this regard with other authors, such as music arrangers and lyricists.
Co-authorship arises when the musical work created in collaboration of two or more persons forms an indivisible whole. The prerequisite is that each of the co-authors has consciously contributed to the joint creative process with the purpose of creating a joint work. The extent of the contributions may vary, but all must fulfil the criteria of individual intellectual creations. All the co-authors share a joint copyright in the whole of the work and in all of its parts.
The situation is different when several authors create independent works and then combine them with a view to their joint use. The combined works differ from works of co-authorship in that they have not been created specifically for joint use and that they are suitable for separate use. A typical example of combined works is the combination of music and text (lyrics): the text can be utilised independently as a work of literature and the music can be performed independently as an instrumental work. A combined work is created only if all the authors involved consciously combine their respective creative contributions and not if the combining is carried out by a third party.
An arranger is not an independent creator of music, as he never starts his work from scratch, but creates an arrangement for a pre-existing musical basis; that is, he recreates or builds upon existing music by setting down its ensemble, harmony and genre. In terms of authorship of the musical work, two basic positions must be distinguished:
a) an arranger can create a new arrangement for a pre-existing completed musical work;
b) an arranger can participate in the creation of a new original musical work itself by equipping the basic melody with harmonic and rhythmic foundation and preparing the work for performance in a particular instrumental and vocal ensemble.
The first position corresponds to the definition of a music arrangement in the professional literature. An arranger in this sense organises a pre-existing musical work and adjusts it for the performance by a certain ensemble. This does not create a new musical work, but only a new way of performing an existing work. Arranging usually goes beyond mere orchestration, i.e. the adaptation of existing music for a certain group of musical instruments, but involves more creativity, such as a change of harmonies, modifications of the rhythms, a change of genre or a combination with other musical works. Such an arrangement normally passes the threshold of creativity and individuality; therefore, the arranger should be considered the author of a derivative work.
The second situation is characteristic of the practices in Slovenian popular music, where the composer and the arranger collaborate already in the phase of creation of a new original musical work. Namely, the main author (who often lacks proper musical education) usually composes only the main melody as the basis for a new piece of music, while the arranger (as a musical professional) designs the final musical expression of the piece, which is suitable for public performance. Since the composer’s and arranger’s contributions to such musical work are neither capable of nor intended for separate exploitation, both persons must be considered co-authors of the new original musical work and share copyright in the entire work. Any later adaptations of such work require the permission by both co-authors.
Musical compositions with words are overwhelmingly co-written by a composer and a lyricist, yet these authors are not considered co-authors under Slovenian law, but authors of combined works. This means that separate terms of protection should apply for music and lyrics. Directive 2011/77/EU harmonises the term of protection in respect of musical compositions with words if the lyrics and music were created with the purpose to be used together. For such works, a single term of protection applies, which is calculated from the death of the last person to survive: either the lyricist or the music composer. This rule was transposed into Slovenian law; however, the concept of co-authorship of music with text was not modified, so the composer and the lyricist retain separate rights on their combined works, but now with the same term of protection. Due to the delay in transposing the Directive into Slovenian law, the transitional provisions of the law that bring back to life the rights expired under the previous regime can have a partially retroactive effect. Due to the constitutional requirements, these provisions should be properly construed in such a way that they only affect future uses of protected musical works.
European State Aid Law Quarterly, 2016
In July 2016, the CJEU issued a preliminary ruling on the interpretation of the effects of the Eu... more In July 2016, the CJEU issued a preliminary ruling on the interpretation of the effects of the European Commission's Banking Communication, and on the interpretation and the validity of its framework of burden-sharing being a prerequisite for granting State aid to banks. The questions were referred to Luxembourg in December 2014 by the Slovenian Constitutional Court reviewing the constitutionality of various provisions of the Slovenian Banking Act of 2006 as was amended in November 2013 following the issuance of the Banking Communication in August 2013 and the Bank of Slovenia's finding in September 2013 that five Slovenian banks were showing capital shortfalls. The result of the enactment of the Communication and the Banking Act amendment, but also of negotiations between the Republic of Slovenia and the European Commission assessing the planned State aid to the banks, was that the Bank of Slovenia ordered in December 2013 a total write-off of equity capital, as well as hybrid capital and subordinated debt, and that the Commission consequently gave green light to State aid aimed at preventing the collapse of the Slovenian banking system. The preliminary ruling will assist the Constitutional Court in understanding the effects of the Communication and the substance of some of its relevant provisions on burden-sharing, as well as in being certain that the burden-sharing framework of the Communication is in line with the rules and principles of EU that were assessed in the ruling. It is now up to the Constitutional Court to assess the constitutionality of the Banking Act.
Keywords: Bail-In; Banking Communication; Financial Crisis; Burden-Sharing; Hybrid Capital; Subordinated Debt; Legitimate Expectations; Right to Property.
Ragion pratica, 2018
The promise of using blockchain technology in legal transactions is that it will enable smart con... more The promise of using blockchain technology in legal transactions is that it will enable smart contracts to self-execute without intermediaries and arbitrators. However, blockchain cannot access data outside of its network, so a smart contract can self-execute on its own only within the blockchain. If the contract requires a delivery of goods or a performance of services in the real world, an external agent must verify the facts and add the information to the blockchain. Blockchain can ensure that the data entered has not been subsequently modified, but it cannot guarantee that it is true. The article analyses the role of blockchain oracles - i.e. third-party services entrusted by the parties with verifying real-world data that can trigger smart contract execution. The need for legal impartiality of such agents is discussed.
books by Matija Damjan
Pravo v informacijski družbi, 2014
Bojan Bugarič univerzitetni diplomirani pravnik, doktor pravnih znanosti, izredni profesor na Pra... more Bojan Bugarič univerzitetni diplomirani pravnik, doktor pravnih znanosti, izredni profesor na Pravni fakulteti Univerze v Ljubljani Matija Damjan univerzitetni diplomirani pravnik, doktor pravnih znanosti, raziskovalec na Inštitutu za primerjalno pravo pri Pravni fakulteti Univerze v Ljubljani Špelca Mežnar univerzitetna diplomirana pravnica, doktorica pravnih znanosti, docentka na Mednarodni fakulteti za družbene in poslovne študije v Celju, odvetnica pri Odvetniški družbi Čeferin, o. p., d. o. o.
Papers by Matija Damjan
Law, Identity and Values, 2022
The protection of communication privacy covers not only the content of the conversation, but also... more The protection of communication privacy covers not only the content of the conversation, but also other information related to the communication (metadata). The most prominent type of metadata in online communication is IP address, which defines the location of a computer or other connected device in the network. As a purely technical information, an IP address does not refer directly to any individual and is not in itself personal information. Yet, it can also be used to identify individuals online, track their location and online activity. An IP address is never strictly private, since any internet user’s IP address is visible to other participants in regular online interactions, which differentiates it from typical private information. The paper examines the conditions, developed in case law of the European Court of Human Rights and Court of Justice of the European Union as well as the Slovenian courts, under which an IP address can be considered personal data and when it is prot...
Zbornik Znanstvenih Razprav, Dec 1, 2022
Music is an important expressive element in the film art. Slovenian legislation recogniszes a com... more Music is an important expressive element in the film art. Slovenian legislation recogniszes a composer who creates music specifically for the use in a film (film score) as a co-author of the audiovisual work. Other authors of music used in audiovisual works are treated solely as musical authors. However, the creative work of film music composers differs from the contributions of other audiovisual artists as film music is created separately from other contributions and can easily be exploited independently, outside the scope of the audiovisual work. The fact that film music composers are simultaneously musicians and filmmakers at the same time is reflected in the Slovenian system of collective management of copyrights, which depends on whether film music is used in the context of an audiovisual work or as an independent musical work. This distinction partially deviates from the prevailing practice in other comparable legal orders. The paper analyses the concept of authorship of an audiovisual work and contributions to it under Slovenian law. It presents how the Slovenian system of collective management of copyrights in film music was shaped by the decisions of the Intellectual Property Office of the Republic of Slovenia, the Copyright Council and judicial practice. Controversial issues of legal regulation are defined and different interpretations represented by different stakeholders are presented.
Studies of the Central European Professors’ Network
Pravo in ekonomija: Digitalno gospodarstvo, 2020
Author deals with the problem of exposure of Slovenia to the process of digitization and automati... more Author deals with the problem of exposure of Slovenia to the process of digitization and automation. He concludes that both processes represent an example of disruptive innovations that produce whole series of negative effects. Some studies deal with the problems of these negative effects and on their basis can be concluded that Slovenia could be one of more exposed countries of the European Union. Reasons for this prediction are structural-high exposure to automotive industry, above average ratio of lower-payed workplaces, high level of robotization and IKT literacy, lack of big cities and metropolitan areas and huge percentage of rural population. Additional impulse to faster digitization could also represent the latest Covid-19 pandemics. T. Keresteš: Nekatere pasti digitalizacije za Republiko Slovenijo 3. T. Keresteš: Nekatere pasti digitalizacije za Republiko Slovenijo 7. Razdiralne inovacije in tehnologije imajo pozitivne in negativne posledice. V tabeli 1 so predstavljene nekatere od njih na primeru digitalnih tehnologij: Tabela 1: Prednosti in slabosti razdiralnih inovacij POZITIVNE POSLEDICE NEGATIVNE POSLEDICE Povečanje inovativnosti. Motnje pri delovanju trgov. Višja stopnja donosnosti. Kibernetska varnostna tveganja. Razvoj novih trgov in produktov. Motnje v dobavnih kanalih podjetij. Nižje cene. Upad javnih prihodkov in pobranih davkov. Boljši produkti in storitve. Povečanje nezaposlenosti in prekarnih oblik dela. Vzpostavitev novih tržnih igralcev. Povečanje socialnih transferjev. Spremembe ustaljenih tržnih razmerij. Odvisnost od zunanjih akterjev (državnih in nedržavnih). Boljša izraba virov. Lažje izogibanje plačevanju davkov.
Collective commentary about the new Package Travel Directive, 2020, ISBN 978-989-99955-7-4, págs. 527-536, 2020
Pravo in ekonomija: Pravo, ekonomija in epidemija, 2022
TRIPS Agreement has been an important driver of the global standardisation of legal protection of... more TRIPS Agreement has been an important driver of the global standardisation of legal protection of pharmaceuticals with intellectual property rights. For the cases of emergency, where the public interest must prevail over private rights, the Agreement provides for the use of compulsory licensing granted on a country-by-country basis. The Covid-19 pandemic created the need to accelerate the production and distribution of patented vaccines, medicines, and medical equipment simultaneously all around the world. The WTO is therefore considering a proposal to temporarily exempt all member states from the obligation to respect intellectual property rights under the TRIPS Agreement in the wake of the global health crisis in order to remove legal barriers to fair access to vaccines and medicines worldwide. The paper presents measures for the protection of public health under the TRIPS Agreement, as well as their shortcomings, and analyses how the proposed waiver of intellectual property rights would operate in domestic law.
Collective commentary about the new Package Travel Directive, 2020, ISBN 978-989-99955-7-4, págs. 1157-1172, 2020
The information that we see on the internet is increasingly tailored by automated ranking and fil... more The information that we see on the internet is increasingly tailored by automated ranking and filtering algorithms used by online platforms, which significantly interfere with the exercise of fundamental rights online, particularly the freedom of expression and information. The EU"s regulation of the internet prohibits general monitoring obligations. The paper first analyses the CJEU"s case law which has long resisted attempts to require internet intermediaries to use automated software filters to remove infringing user uploads. This is followed by an analysis of article 17 of the Directive on Copyright in the Digital Single Market, which effectively requires online platforms to use automated filtering to ensure the unavailability of unauthorized copyrighted content. The Commission"s guidance and the AG"s opinion in the annulment action are discussed. The conclusion is that the regulation of the filtering algorithms themselves will be necessary to prevent private censorship and protect fundamental rights online.
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inproceedings by Matija Damjan
articles by Matija Damjan
First, we must define what constitutes a new original copyrighted work of music. The work must reach a certain threshold of creativity and individuality, which means that it must express the author’s original idea that goes beyond purely routine application of established musical methods and techniques. The result of the creation must show individual features that set it apart from unprotected everyday sets of sounds on one hand and from other original musical works on the other. The individuality of the work reflects in the structure of the melody, in the construction of tone sequences and rhythms, in instrumentation and orchestration of music. It is primarily assessed in the light of the overall impression made by the musical work. A particular artistic or aesthetic value of the work in question is not required for copyright protection nor is the amount of author’s effort or assets invested in the creation. A subjective novelty of the work is sufficient in the sense of the author's independent creation without conscious imitation of existing work.
Copyright protects original expressions of ideas, not the ideas themselves. Therefore, a copyrighted work must first be expressed in any way that makes it accessible and detectable by persons other than the author. A new original melody is thus protected once the conductor records it, e.g. in the form of a musical notation on paper or in an electronic sound file, or at least performs it, e.g. by singing, whistling or playing on an instrument. A permanent record of the work is not a condition for copyright protection; a single performance suffices. Therefore, improvised musical works the performance (and simultaneous creation) of which was not recorded are protected.
If the author has used a previously existing copyrighted work of another author as a template and created on this basis a new work reaching the required threshold of creativity, this is considered a derivative work, which is also subject to copyright. A derivative work is a creative transformation, modification or adaptation of a previously created work in a way that the individuality of the underlying work remains perceptible in the new copyrighted work. However, the law also stipulates that the rights of the author of the underlying work must not be affected. Therefore, both the author of the underlying work and the author of the derivative work share copyright in the derivative work.
Copyright accrues to the author directly on the basis of the law, with the moment of the creation of a work. Legal theory therefore concludes that the author’s creation is a legally relevant real action rather than a legal transaction, since legal consequences derive from it regardless of the parties’ will. The composer of an original main melody of a musical work is always considered an author, since such melody normally reaches the threshold of creativity and individuality, which is a prerequisite for copyright protection. The composer can create himself all the other elements of the musical work, such as underlying chord progressions, harmonies, rhythm and lyrics, or collaborate in this regard with other authors, such as music arrangers and lyricists.
Co-authorship arises when the musical work created in collaboration of two or more persons forms an indivisible whole. The prerequisite is that each of the co-authors has consciously contributed to the joint creative process with the purpose of creating a joint work. The extent of the contributions may vary, but all must fulfil the criteria of individual intellectual creations. All the co-authors share a joint copyright in the whole of the work and in all of its parts.
The situation is different when several authors create independent works and then combine them with a view to their joint use. The combined works differ from works of co-authorship in that they have not been created specifically for joint use and that they are suitable for separate use. A typical example of combined works is the combination of music and text (lyrics): the text can be utilised independently as a work of literature and the music can be performed independently as an instrumental work. A combined work is created only if all the authors involved consciously combine their respective creative contributions and not if the combining is carried out by a third party.
An arranger is not an independent creator of music, as he never starts his work from scratch, but creates an arrangement for a pre-existing musical basis; that is, he recreates or builds upon existing music by setting down its ensemble, harmony and genre. In terms of authorship of the musical work, two basic positions must be distinguished:
a) an arranger can create a new arrangement for a pre-existing completed musical work;
b) an arranger can participate in the creation of a new original musical work itself by equipping the basic melody with harmonic and rhythmic foundation and preparing the work for performance in a particular instrumental and vocal ensemble.
The first position corresponds to the definition of a music arrangement in the professional literature. An arranger in this sense organises a pre-existing musical work and adjusts it for the performance by a certain ensemble. This does not create a new musical work, but only a new way of performing an existing work. Arranging usually goes beyond mere orchestration, i.e. the adaptation of existing music for a certain group of musical instruments, but involves more creativity, such as a change of harmonies, modifications of the rhythms, a change of genre or a combination with other musical works. Such an arrangement normally passes the threshold of creativity and individuality; therefore, the arranger should be considered the author of a derivative work.
The second situation is characteristic of the practices in Slovenian popular music, where the composer and the arranger collaborate already in the phase of creation of a new original musical work. Namely, the main author (who often lacks proper musical education) usually composes only the main melody as the basis for a new piece of music, while the arranger (as a musical professional) designs the final musical expression of the piece, which is suitable for public performance. Since the composer’s and arranger’s contributions to such musical work are neither capable of nor intended for separate exploitation, both persons must be considered co-authors of the new original musical work and share copyright in the entire work. Any later adaptations of such work require the permission by both co-authors.
Musical compositions with words are overwhelmingly co-written by a composer and a lyricist, yet these authors are not considered co-authors under Slovenian law, but authors of combined works. This means that separate terms of protection should apply for music and lyrics. Directive 2011/77/EU harmonises the term of protection in respect of musical compositions with words if the lyrics and music were created with the purpose to be used together. For such works, a single term of protection applies, which is calculated from the death of the last person to survive: either the lyricist or the music composer. This rule was transposed into Slovenian law; however, the concept of co-authorship of music with text was not modified, so the composer and the lyricist retain separate rights on their combined works, but now with the same term of protection. Due to the delay in transposing the Directive into Slovenian law, the transitional provisions of the law that bring back to life the rights expired under the previous regime can have a partially retroactive effect. Due to the constitutional requirements, these provisions should be properly construed in such a way that they only affect future uses of protected musical works.
Keywords: Bail-In; Banking Communication; Financial Crisis; Burden-Sharing; Hybrid Capital; Subordinated Debt; Legitimate Expectations; Right to Property.
books by Matija Damjan
Papers by Matija Damjan
First, we must define what constitutes a new original copyrighted work of music. The work must reach a certain threshold of creativity and individuality, which means that it must express the author’s original idea that goes beyond purely routine application of established musical methods and techniques. The result of the creation must show individual features that set it apart from unprotected everyday sets of sounds on one hand and from other original musical works on the other. The individuality of the work reflects in the structure of the melody, in the construction of tone sequences and rhythms, in instrumentation and orchestration of music. It is primarily assessed in the light of the overall impression made by the musical work. A particular artistic or aesthetic value of the work in question is not required for copyright protection nor is the amount of author’s effort or assets invested in the creation. A subjective novelty of the work is sufficient in the sense of the author's independent creation without conscious imitation of existing work.
Copyright protects original expressions of ideas, not the ideas themselves. Therefore, a copyrighted work must first be expressed in any way that makes it accessible and detectable by persons other than the author. A new original melody is thus protected once the conductor records it, e.g. in the form of a musical notation on paper or in an electronic sound file, or at least performs it, e.g. by singing, whistling or playing on an instrument. A permanent record of the work is not a condition for copyright protection; a single performance suffices. Therefore, improvised musical works the performance (and simultaneous creation) of which was not recorded are protected.
If the author has used a previously existing copyrighted work of another author as a template and created on this basis a new work reaching the required threshold of creativity, this is considered a derivative work, which is also subject to copyright. A derivative work is a creative transformation, modification or adaptation of a previously created work in a way that the individuality of the underlying work remains perceptible in the new copyrighted work. However, the law also stipulates that the rights of the author of the underlying work must not be affected. Therefore, both the author of the underlying work and the author of the derivative work share copyright in the derivative work.
Copyright accrues to the author directly on the basis of the law, with the moment of the creation of a work. Legal theory therefore concludes that the author’s creation is a legally relevant real action rather than a legal transaction, since legal consequences derive from it regardless of the parties’ will. The composer of an original main melody of a musical work is always considered an author, since such melody normally reaches the threshold of creativity and individuality, which is a prerequisite for copyright protection. The composer can create himself all the other elements of the musical work, such as underlying chord progressions, harmonies, rhythm and lyrics, or collaborate in this regard with other authors, such as music arrangers and lyricists.
Co-authorship arises when the musical work created in collaboration of two or more persons forms an indivisible whole. The prerequisite is that each of the co-authors has consciously contributed to the joint creative process with the purpose of creating a joint work. The extent of the contributions may vary, but all must fulfil the criteria of individual intellectual creations. All the co-authors share a joint copyright in the whole of the work and in all of its parts.
The situation is different when several authors create independent works and then combine them with a view to their joint use. The combined works differ from works of co-authorship in that they have not been created specifically for joint use and that they are suitable for separate use. A typical example of combined works is the combination of music and text (lyrics): the text can be utilised independently as a work of literature and the music can be performed independently as an instrumental work. A combined work is created only if all the authors involved consciously combine their respective creative contributions and not if the combining is carried out by a third party.
An arranger is not an independent creator of music, as he never starts his work from scratch, but creates an arrangement for a pre-existing musical basis; that is, he recreates or builds upon existing music by setting down its ensemble, harmony and genre. In terms of authorship of the musical work, two basic positions must be distinguished:
a) an arranger can create a new arrangement for a pre-existing completed musical work;
b) an arranger can participate in the creation of a new original musical work itself by equipping the basic melody with harmonic and rhythmic foundation and preparing the work for performance in a particular instrumental and vocal ensemble.
The first position corresponds to the definition of a music arrangement in the professional literature. An arranger in this sense organises a pre-existing musical work and adjusts it for the performance by a certain ensemble. This does not create a new musical work, but only a new way of performing an existing work. Arranging usually goes beyond mere orchestration, i.e. the adaptation of existing music for a certain group of musical instruments, but involves more creativity, such as a change of harmonies, modifications of the rhythms, a change of genre or a combination with other musical works. Such an arrangement normally passes the threshold of creativity and individuality; therefore, the arranger should be considered the author of a derivative work.
The second situation is characteristic of the practices in Slovenian popular music, where the composer and the arranger collaborate already in the phase of creation of a new original musical work. Namely, the main author (who often lacks proper musical education) usually composes only the main melody as the basis for a new piece of music, while the arranger (as a musical professional) designs the final musical expression of the piece, which is suitable for public performance. Since the composer’s and arranger’s contributions to such musical work are neither capable of nor intended for separate exploitation, both persons must be considered co-authors of the new original musical work and share copyright in the entire work. Any later adaptations of such work require the permission by both co-authors.
Musical compositions with words are overwhelmingly co-written by a composer and a lyricist, yet these authors are not considered co-authors under Slovenian law, but authors of combined works. This means that separate terms of protection should apply for music and lyrics. Directive 2011/77/EU harmonises the term of protection in respect of musical compositions with words if the lyrics and music were created with the purpose to be used together. For such works, a single term of protection applies, which is calculated from the death of the last person to survive: either the lyricist or the music composer. This rule was transposed into Slovenian law; however, the concept of co-authorship of music with text was not modified, so the composer and the lyricist retain separate rights on their combined works, but now with the same term of protection. Due to the delay in transposing the Directive into Slovenian law, the transitional provisions of the law that bring back to life the rights expired under the previous regime can have a partially retroactive effect. Due to the constitutional requirements, these provisions should be properly construed in such a way that they only affect future uses of protected musical works.
Keywords: Bail-In; Banking Communication; Financial Crisis; Burden-Sharing; Hybrid Capital; Subordinated Debt; Legitimate Expectations; Right to Property.