When Apple CEO Steve Jobs opened the iTunes Music Store in early 2003, it was considered a major victory. Until then, record companies had been extremely reluctant to provide legal download options for music and their only answer to music piracy had been repression.

"We have come a long way from the point when the music industry was still deeply impressed with the sales successes of compact discs. A lot has changed," Ina Kileva, executive director of Bulgarian anti-piracy outfit Bulgarian Association of Music Producers (BAMP), says.

Statistics from the International Federation of the Phonographic Industry (IFPI) show that a growing percentage of sales are realised online.

"Reality has made the industry see that the biggest market is the digital market. That is the market of the future and it is the easiest way to reach an almost unlimited number of end-users. There is no turning back," she says.

"What we would like to do, as an organisation, is to try to make Bulgaria a pilot country for music and internet industry partnerships," Kileva says.
Partnership is a key word in Kileva’s policies, but partnership is not always easy.

Missing responsibility
In Bulgaria, among those who have internet access, a relatively high percentage have broadband internet access and that internet access is often several times faster than in other European countries. High-speed broadband internet access means quick and easy access to creative content. "It is not a coincidence that Bulgaria is home to large torrent trackers like Arena and Zamunda," Kileva says.

"Formally, these trackers are hosted abroad, but in reality, they are inside Bulgaria," she says.
A more urgent question, according to Kileva, is that of the ongoing pre-trial investigations against these two trackers. "These investigations now drag on for two-and-half-years. This is a bad signal that the state and the judiciary give to society; a sign that says that online piracy is not punished," Kileva says.

Both cases are still in pre-trial investigation and the prosecution still has to formulate the indictments.
"These investigations are held up somewhere at the prosecutor’s office. This is a problem of the system that became worse with recent changes in the Law for Electronic Communication. Changes that were proposed under the influence of pre-election campaigns and populism," Kileva says.

In early 2009, with less than six months to go before general elections, the Bulgarian Government implemented the European Data Retention Directive in local law through changes in the Law for Electronic Communications. An implementation that was accompanied by a large-scale row over the exact interpretation of the term "serious crime."

The term serious crime is generally used for crimes that involve the use of violence, result in substantial financial gains or are conducted by a large number of people. Minimum sentences in different European countries differ, but in some countries are as low as one year in prison.

The Bulgarian equivalent legal definition is тежки престъпления, which literally means "heavy crimes" and is punishable with a minimum five-year sentence.
Under the Data Retention Directive, communication service providers would have to record and store communication data, access to which would have to be provided when a serious crime has been committed. Because the term тежки престъпления was used, the Bulgarian implementation of the Data Retention Directive could not be used to fight online piracy.

BAMP, along with other rights holders, argued for the translation of serious crime as сериозни престъпления, punishable by one year in prison and said to be more in line with laws in other EU member states, although no such definition exists in Bulgarian law.

"We had a chance to create a definition for serious crime and should not have used тежки престъпления", Kileva says. "What has happened in Bulgaria, is that with this norm we have given an alibi to internet providers to refuse to provide the communication data for crimes against intellectual property rights," she says.

"And so we blocked the investigation of this type of crime. Those who could be helpful in uncovering these crimes can now say that the law does not allow them to provide the communication data," Kileva says.

According to Kileva, the Law for Electronic Communication is not the only problematic law. "Entire texts, specifically from art 12 and 16, are missing from the Bulgarian implementation of the European E-commerce Directive. Both texts deal with responsibility of providers to co-operate with authorities in investigating crimes. And both these texts are missing in Bulgarian law," she says.

"So, on the one hand, we do not have laws that discipline internet providers and hold them responsible for what happens on their networks. On the other hand, we have a prosecution that seems reluctant to prosecute or to investigate online crime," Kileva says.

According to Kileva, through the use of ratio-systems where a user’s download privileges are directly related to their upload history, these large-scale suppliers of pirated material created a construction in which there were no innocent bystanders.

"We even have information that there are people who get paid to upload. It is their job to make pirated creative content available. This puts providers in the position of saying ‘we cannot be concerned with content, that is not our job.’ But their business model is based on this," Kileva says.
According to her, the business model of these pirate-sites extended to "enormous profits generated by advertising" about which she said police had sent information to the National Revenue Agency.

Referring to what was being advertised on Bulgarian torrent trackers, Kileva says: "for me it was extremely sad to see political parties use Arena and Zamunda to advertise. I saw, for example, the face of former prime minister Sergei Stanishev on Arena, a site against which two pre-trial investigations are underway. And, at the same time, his policy was supposed to protect intellectual property rights. That is to have double standards."

"The situation is the same for the Bulgarian film industry," Kileva says. "When the film Dzift, by director Yavor Gurdev, became a hit, it was immediately uploaded on Zamunda. They [the film’s producers] called me, very upset, because the small chance they had to earn from the success of the film, was lost. This is what happens with Bulgarian artists and what Bulgarian politicians need to realise," she says.
"As long as things are like this in Bulgaria, it will not get better," Kileva says.