Introduction
Whether your business is already based on the Internet or you have just entered the Internet space, one of the ways to do this is to create and maintain your own website. You are probably aware that in order to meet the legal requirements, you need to inform the users of the website what personal data you process, for what purpose and for how long, what is the legal basis for the processing of such personal data, as well as what are the rules for using the website. Therefore, it is necessary to have written and published on the website Terms of Use, Privacy Policy, and Cookies Policy, which documents are a prerequisite for the successful development of any business. That is why these documents must be fully compliant with the legal requirements laid down in the relevant legislation, your business, and the specifics of your site, as the commercial activity of each company has its own specific features. Therefore, the documents shall be drafted these documents carefully, so it is advisable to seek the assistance of a specialist with experience in this field, as the preparation of these documents requires specific knowledge and practical experience in the field, the combination of which allows preparing documents that are fully compliant with the current legislation, the relevant activities and the specifics of the website.
Why you shall have an individually drafted Privacy Policy and Terms of Use?
First of all, the individually prepared documents for doing business on the Internet by a specialist in the field will be fully compliant with the specifics of your activity, as well as with the specifics of your website. Comprehensive and well-written documents set the tone. They describe exactly the conditions under which you provide your services or sell your products, as well as differentiate your company from the competition in order to win and retain more users.
In the second place, the individually drafted and comprehensive documents for doing business on the Internet are subject to copyright within the meaning of Article 3, paragraph 1, item 1 of the Law on Copyright and Related Rights. Therefore, it is not advisable to copy such documents from another website, as this constitutes a violation of the copyrights protected by the Law on Copyright and Related Rights. Also, the copying of such documents is a violation of Article 35 of the Law on Copyright and Related Rights, which states that “the work is used only with the prior consent of the author.” The illegal copying of such documents from one website and their publication on another website also violates the author’s right to remuneration for each type of use enshrined in Art. 19 of the Law on Copyright and Related Rights. Furthermore, the non-proprietary rights of the author to request that his name be indicated at each use of the work have been violated (Art. 15, para. 1, item 4 of the Law on Copyright and Related Rights). Finally, the use of another’s object of copyright without the necessary legal consent of the author is a crime against intellectual property under Article 172a of the Criminal Code and is punishable by imprisonment for up to five years and a fine of up to five thousand leva.
What could be the consequences for the infringer if he copies documents for doing business on the Internet from another website?
The preparation of the documents listed above in this publication for doing business on the Internet requires specific knowledge and practical experience in the field, the combination of which allows preparing documents that are fully compliant with the applicable law, the relevant activity, and the specifics of the respective website. Due to the many peculiarities that should be taken into account when drafting the documents, it is recommended that the latter be prepared specifically for the website by a specialist with experience in this field, and not to copy already prepared documents from other websites without the author’s permission and without payment of remuneration. Therefore, according to the provision of Article 95 of the Law on Copyright and Related Rights, the illegal use of the copied documents is a sufficient condition for the author’s right to compensation for all damages, which are a direct and immediate consequence of the violation. In order for there to be a tort, it is necessary to have an unlawful act, guilt, and damages. The use of other people’s documents (terms and conditions, privacy policy, cookie policy) without the author’s permission and without payment of remuneration is an illegal act. According to Article 45 of the Law on Obligations and Contracts, in all cases of tort, guilt is presumed until proven otherwise. This means that there is a violation regardless of whether the infringer knew whose documents they were and whether the documents used by him are subject to copyright and their use violates the law. Once the violation has occurred, there are also damages (property and non-property).
In addition, the use of a foreign object of copyright without the necessary legal consent of the copyright holder is a crime against intellectual property under Article 172a of the Criminal Code and is punishable by imprisonment for up to five years and a fine of up to five thousand leva. Therefore, the author of the copied documents has the right to protect his rights and interests in the manner prescribed by law by taking all legal and factual actions in accordance with applicable law to terminate the violation such as:
– the author shall have the right to file a signal for a committed crime to the Prosecutor’s Office of the Republic of Bulgaria, as well as to the General Directorate “National Police” of the Ministry of Interior;
– the author shall have the right to initiate proceedings before the competent court by filing a claim for compensation for the damages suffered by the violation (Article 95 of the Law on Copyright and Related Rights);
– the author shall have the right to file a signal to the Director of the General Directorate for Combating Organized Crime (DGCOC);
– the author shall have the right to file a signal to the Copyright and Related Rights Directorate at the Ministry of Culture;
– the author shall have the right to notify the hosting company that hosts the website of the site where the copied documents have been uploaded of the copyright infringement with a request to remove the copied documents.
Finally, if the copied Privacy Policy and Terms of Use do not accurately describe your actual practices or the copied documents are incomplete, it is likely that you will be sanctioned for violating the provisions of the Personal Data Protection Act, the Consumer Protection Act, or the Electronic Commerce Act.
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Legal Disclaimer: This material prepared by Krasimira Kadieva aims to provide information about the consequences of copying the Terms and Conditions and Privacy Policy from another website. It does not constitute a legal opinion and cannot be interpreted as individual consultation on any concrete facts or circumstances. The advice of an intellectual property specialist should be obtained for specific questions and situations. For more information on the above-mentioned issues and individual consultations, please contact Krasimira Kadieva at 00359 882 308 670 or make an inquiry using the contact form of this website. Krasimira Kadieva is a Bulgarian and European trademark and design attorney.