Irrefutable determination of the person liable is one of the core issues of filing a claim against the violator and of building our procedural defense against claimed intellectual property and copyright breaches. Typically in these cases, the injured usually does not have enough data to meet the necessary burden of proof in full, in particular whether it is precisely the respondent that committed the violation.

Similarly, Bastei Lübbe GmbH & Co. KG in case C‑149/17, Bastei Lübbe GmbH & Co. KG v Michael Strotzer, a court expert established that the IP address which was used in the violation belonged to the respondent Mr. Strotzer. Regardless, Mr. Strotzer claims that he is innocent and third parties have access to the IP address in question. Since in this case it would be impossible to prove who the actual perpetrator was, the Court of Justice of the EU was seized with a preliminary ruling request regarding Mr. Strotzer’s liability, and issued a ruling to the effect that the national legal system must ensure to the copyright holder effective legal remedies for bringing the IP owner to justice in cases where the latter cannot point to the person who perpetrated the breach.

On the other hand, the same Court gave a somewhat contradictory opinion in case C‑484/14, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, where the Court stated that Mr. Mc Fadden who provides Wi-Fi, is not liable for the actions of third parties who used the wireless network in question to commit copyright violations. The Wi-Fi owner’s liability only goes as far as payment of court costs for the claim against the owner whose services were used in that infringement where such claims are made for the purposes of obtaining injunctive relief to prevent that service provider from allowing the infringement to continue.

The applicants rarely have complete knowledge concerning the breaches of their copyright. Regarding software misappropriation, the injured party often becomes aware of the breach through witnesses or through embedded identification of the IP address used in the violation in the program itself (similar to case C-149/17). In comparison, reliance on witness testimony is extremely common when proving infringements of works of painting and musical works – more often than not, the witness is a professional. The witness must be able to clearly identify the time, place and circumstances of how he came to know the software was being used, to enable your attorney and you to make the well-grounded assessment whether the violation can be proved in the court of law – for instance whether the supposed respondent was aware of the infringement, whether it happens habitually or incidentally, etc.

Nowadays the knowledge and point of view of the developer and the presiding judge are often at odds with one another – where the creator sees the fruits of his labour, the judge adopts the findings of the expert report to which he must apply a plethora of legal regimes (intellectual property, data protection, trade secrets protection, right to privacy, right to economic liberty, provision of information society services etc.). Therefore it is highly recommended that you seek an attorney’s professional opinion regarding the possible evidence and the weight the evidence carries in the courtroom in advance, to enable you to make an informed choice.

During the damages procedure pursuant to Art. 95 of the Bulgarian Law for Author’s Rights and Related Rights we must carefully determine how to prove:

1. The material fact of the breach – is there unregulated use of a computer program at all;

2. The perpetrator of the breach and their relationship to the respondent. Art. 95d of the LARRR establishes the rebuttable presumption that ‘legal persons and sole traders are civilly liable for breaches of rights under this law committed guiltily by persons who represent them, or by their employees or persons hired by them, respectively’;

3. The respondent’s liability..

EU legislation aims to ensure uniform and effective way to safeguard intellectual property rights across all Member states (see recital 20 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights). The provisions of this Directive as well as the lex specialis Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs are fully incorporated into the Bulgarian Law for Author’s Rights and Related Rights, but the scarce court practice in Bulgaria still does not fully answer the questions regarding proof in the damages claim pursuant to Art. 95 of LARRR concerning unregulated use of software. Fortunately, the harmonization of legislation in this area of law allows us to dip into to the court practice of other Member states.

Obretenovi Law Firm’s team is ready to protect your interests in the event that you or your company happen to be parties to software copyright infringement litigation!