In the contemporary digital reality, the creation and exploitation of
copyrighted works transcend geographical borders. Works are created,
distributed and accessed in an instant manner through various digital platforms
globally. As a result, the effective protection of copyright extends beyond
state borders and requires harmonization with international standards, ensuring
the protection of authors regardless of the place where the work was created or
their origin. In Kosovo, copyright arises automatically upon creation of the
work, without any additional formal requirements.[1]
Upon the creation of a work, the author is granted, inter alia,
exclusive rights of reproduction, distribution, public communication, making
available to the public, as well as other economic and moral rights.[2]
Law No. 08/L-205 on Copyright and Related Rights (“Copyright Law”) ensures that
such protection is also extended to foreign natural and legal persons,
categorizing them into three groups: (1) persons protected under international
agreements; (2) persons protected under the Copyright Law itself; and (3)
persons protected under factual reciprocity.[3]
Once a foreign author and their work fall within one of these categories, they
enjoy the same protection afforded to domestic authors.
1.
Protection of
Foreign Authors under International Agreements
Unlike other intellectual property rights, which are generally territorial
in nature, it has been internationally recognized that such treatment would be
inappropriate for copyright. This is because, since the 1800s, copyrighted
works began to be copied in other states, while protection would remain limited
only to the state where the right had originally been recognized.[4]
Thus, beyond domestic legal rules regulating copyright and related rights in
each state, an international system for the enforcement of these rights has
been established, governed by the following four conventions: (1) the Berne
Convention for the Protection of Literary and Artistic Works (“Berne
Convention”); (2) the Universal Copyright Convention (“UCC”); (3) the Rome
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations (“Rome Convention”); and (4) the WIPO Copyright
Treaty (“WIPO Treaty”).[5]
This international copyright framework essentially ensures that a foreign
author is treated as if they were a national of the state in whose territory
the infringement occurred and may seek the same protection in that state. This
is consistent with the principle of national treatment provided under the Berne
Convention, which stipulates that works originating in one of the Contracting
States (that is, works whose author is a national of such a state or works
first published in such a state) shall enjoy in each of the other Contracting
States the same protection that those states grant to their own nationals. In
this context, the Berne Convention and the UCC have established an
international copyright protection system whereby protection is guaranteed
provided that the following conditions are met: (1) the author is a national
of, domiciled in, or incorporated in a state party to the Berne Convention or
the UCC; or (2) the work was first published in a state party to the Berne
Convention or the UCC, or simultaneously published in such a state and in a
non-party state within 30 days of each other; and (3) the work falls within the
scope of one of these two conventions.[6]
The Republic of Kosovo is not a party to these conventions, but the Copyright
Law is fully aligned with the minimum standards established thereunder, as well
as with the relevant European Union directives. Consequently, Kosovo’s positive
copyright legislation is considered harmonized with the principles and rules
reflected in these conventions. Nevertheless, since these conventions do not
apply directly within the territory of Kosovo due to the lack of accession
thereto, foreign authors cannot directly invoke these international instruments
before the competent authorities in Kosovo.
Still, in addition to the above-mentioned conventions to which Kosovo is
not yet a signatory state, it should be emphasized that, pursuant to the
relevant provisions of the Copyright Law, foreign authors may also enjoy
protection on the basis of other international agreements, including bilateral
agreements that Kosovo may have concluded with other states. Of particular
importance is the signing of the Stabilisation and Association Agreement
between the EU and Kosovo, whereby Kosovo undertook to ensure appropriate and
effective protection and enforcement of intellectual, industrial, and
commercial property rights at a level similar to that of the EU. Furthermore,
Article 77 of Law No. 05/L-069 on Ratification of the Stabilisation and
Association Agreement provides that “Kosovo shall comply with the
multilateral conventions on intellectual, industrial and commercial property
rights referred to in Annex VII” which lists, inter alia, the Berne
Convention, the Rome Convention, and several WIPO conventions and treaties.[7]
Therefore, foreign authors from the European Union enjoy copyright protection
in the Republic of Kosovo in accordance with the obligations arising from the
Stabilisation and Association Agreement, including the possibility, through the
provisions of this agreement, to directly invoke the conventions and
international standards incorporated therein.
In addition to the Stabilisation and Association Agreement as an
international agreement within the meaning of Article 138 paragraph 1 of the
Copyright Law, Kosovo has also signed the Central European Free Trade Agreement
(“CEFTA”), which similarly may provide protection for foreign persons from
member states that are not EU nationals. Article 38 of CEFTA obliges the
parties to ensure adequate protection of intellectual property rights in
accordance with international standards, including effective means for the
enforcement of such rights as provided under international conventions and
treaties.[8]
This agreement likewise lists several conventions, including the
above-mentioned conventions, which must be implemented by the parties. Although
Kosovo has not yet become a party to these conventions, CEFTA clearly provides
that both Kosovo and all other signatory states to the agreement are obliged to
ensure the protection of copyright for foreign nationals from those states.
2. Protection of Foreign Authors under Domestic Law
In certain cases, foreign authors enjoy protection in the Republic of
Kosovo not on the basis of an international agreement, but directly under the
provisions of the Copyright Law itself. These situations particularly relate to
cases where protection is not conditioned upon the nationality of the author,
but rather upon the connection of the work with the territory through its
publication. Article 16 of the Copyright Law provides that copyright protection
is enjoyed, inter alia, by authors of works first published in the
Republic of Kosovo, regardless of their nationality or domicile.[9]
This provision reflects the fundamental principle that the decisive criterion
for protection is not the author’s nationality, but the connection of the work
with the territory through first publication. This is further reinforced by
Article 139 concerning foreign authors, which adds that protection is also
granted to foreign authors who have permanent residence in Kosovo, or whose
works were first published in Kosovo or within thirty days following publication
in another state.[10]
The latter reflects the concept of “simultaneous publication” ensuring
that authors do not lose protection due to simultaneous or near-simultaneous
publication in several jurisdictions.
Such protection also extends to co-authors of a work, provided that at
least one of them satisfies the conditions referred to above.[11]
Similarly, the subsequent provisions guarantee protection to categories of
related rights by extending protection to foreign performers, phonogram
producers, broadcasting organizations, as well as stateless persons and
refugees.[12] This
way, alongside international agreements, the applicable legislation in Kosovo
expressly lists the circumstances in which foreign authors enjoy copyright
protection, with equal treatment to nationals of the Republic of Kosovo.
3. Protection of Foreign Authors under Factual
Reciprocity
The third possibility for the protection of foreign authors relates to the
so-called principle of factual reciprocity. In this regard, Article 143 of the
Copyright Law merely provides that reciprocity must be proven by the person
invoking it.[13] In
the legal doctrine, reciprocity is defined as a relationship between two or
more states in which the actions of one party depend, in one legal manner or
another, on the actions of the other party, resulting in equal treatment.[14]
Factual reciprocity refers to such treatment granted by states to one another
in the absence of a specific law or treaty, solely through factual conduct.[15]
Accordingly, a foreign author from a state that has no international agreement
with Kosovo concerning copyright protection, and who does not meet the
conditions set out in Article 139 of the Copyright Law, may seek protection in
the Republic of Kosovo only if factual reciprocity exists, namely, if it can be
demonstrated that the state from which the author originates recognizes and
protects in practice the rights of authors holding citizenship of the Republic
of Kosovo. Within the meaning of Article 143 of the Copyright Law, the core
issue concerns the burden of proof.
In recent judicial practice in the Republic of Kosovo, the approach toward
the protection of foreign authors on the basis of factual reciprocity has been
rather restrictive. This is clearly illustrated in the ruling of the Commercial
Court (K. Dh.Sh.II.nr.1367/24) dated 19 July 2024, in which the court dismissed
as inadmissible the claim of a foreign entity seeking copyright protection on
the grounds that the existence of factual reciprocity within the meaning of
Article 143 of the Copyright Law had not been proven. In this case, the court
found that, in the absence of an international agreement between Kosovo and the
relevant state, and in the absence of proof of factual reciprocity, the
claimant could not enjoy legal protection in Kosovo.[16]
This means that the Commercial Court
interprets Article 143 in such a way that the burden of proof lies with the
foreign author, who must in every case prove the legal source of the right
claimed, whether through an international agreement, provisions of domestic
law, or the existence of factual reciprocity. In this sense, the “person
invoking factual reciprocity” is, in practice, the claimant, who bears the
obligation to demonstrate that their state recognizes and protects in practice
the rights of authors from the Republic of Kosovo.
It is important to emphasize that the Commercial Court treated the lack of
proof of reciprocity as an issue of judicial competence and admissibility of
the claim, declaring itself incompetent and dismissing the claim as
inadmissible. Such an approach is debatable, since factual reciprocity
essentially relates to the existence of a substantive right to protection for
foreign authors, rather than to the court’s competence to adjudicate the
matter. Consequently, a more balanced interpretation would be to treat the
absence of reciprocity as grounds for rejecting the claim on the merits, rather
than as a procedural obstacle to access to justice.
Nevertheless, the question arises as to whether factual reciprocity
carries the same significance in criminal proceedings as it does in civil
contentious proceedings. In this context, an alternative mechanism available to
foreign authors falling within this category may be the initiation of criminal
proceedings through the filing of a criminal complaint on the basis of Article
293 of the Criminal Code, which sanctions copyright infringement. In criminal
proceedings, the protection of such rights is linked to the public interest in
prosecuting and punishing perpetrators of criminal offenses committed within
the territory of Kosovo, regardless of the nationality of the injured party.
For this reason, criminal prosecution may proceed regardless of the author’s
nationality or the existence of factual reciprocity, given that proceedings may
also be initiated ex officio by the State Prosecutor. On the other hand, civil
contentious proceedings are dispositive in nature and are based on the private
interest of the claimant seeking individual protection of their rights. In this
regard, the requirement for the existence of factual reciprocity assumes
decisive importance, as it constitutes a condition for obtaining judicial
protection by foreign authors.
In conclusion, foreign authors in Kosovo enjoy copyright protection through a combination of international instruments, domestic legislation, and factual reciprocity. International agreements and harmonization with EU standards ensure protection for authors from participating states, while domestic legislation extends coverage to works published in Kosovo and to foreign co-authors. Factual reciprocity provides an additional mechanism, where, according to judicial practice, the burden of proof lies with the claimant. This combined system guarantees equal treatment for foreign and domestic authors, provided that the conditions under one of the above-mentioned categories are fulfilled.
This article was originally published in Albanian in Journal
Autori, Issue No. X, April 2026, pp. 17–19.
