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Report on Publishing Legislation in Bosnia-Herzegovina by Dragan Markovic
In 1995, the Dayton Peace Agreement and its international conventions defined the constitutional setting of the country, which was a unique state legislative arrangement. According to the agreement Bosnia-Herzegovina consists of two entities: The Federation of Bosnia-Herzegovina and the Republika Srpska [Republic of Srpska]. The highest authority—the structure of rule and its capacity at a national level—is of minimal competence. It covers the areas of international arrangements, international co-operation and civil issues. All other issues, crucial, state competencies are placed at the level of cantons. Consequently, canton authorities are empowered to formulate legal regulations on the book industry. On the other hand, the legal structures of the two entities are completely different, and are basically designed to serve over emphasised national interests. This approach to state competency set at the entity level has brought about a lack of uniform economic and cultural policy in the country. The other determining characteristic of the publishing industry is the transitional period the country faced immediately after the four-year war had ended. Although the cantons are delegated to design economic and cultural policy, it is highly questionable as to whether a sound concept of policy exists in the cantons. In spite of substantial economic help from the international community directed at the policy makers, many prominent economists and businessman in Bosnia-Herzegovina believe that rather than introducing a valid economic policy, Bosnia-Herzegovina is facing a situation where "the primitive accumulation of capital" exists with all its negative connotations, a stage that the developed countries in the region and Europe underwent during the Nineteenth Century. The ruling structures in charge of transition have inherited many retrogressive habits from the past and those habits influence their actions. For example, books and publishing are still considered "a part of the cultural super-structure", "an action with a mission", and as such they are a "potentially threatening area". By and large, authorities in both entities regard the book industry as an unimportant segment of industry. Moreover, it is not considered an industry at all. The phrase the "publishing industry" is neither formally nor essentially in use in Bosnia-Herzegovina. The situation in the Federation of Bosnia-Herzegovina is even more diffuse because according to its Constitution, both culture and education are within the competence of ten cantons. Unfortunately, canton authorities are eager to expand their field of competence to the book industry. The following text is a short description of the legal framework of regulations in the book industry in Bosnia-Herzegovina. Freedom to publish is guaranteed by the Bosnia-Herzegovina Dayton Agreement. However, until recently there was a provision within the penal law that treated slander and insult as criminal acts with a possible prison sentence on conviction. This generated self-censorship for a number of authors and publishers, especially in the media. Under the provision of the High Representative for Bosnia-Herzegovina (OHR), these acts are no longer treated as criminal and thus fall within the domain of civil material liability. As such, in cases of proven insult or slander, we can only talk about compensation for material damage. In the Federation of Bosnia-Herzegovina old laws enacted in 1986 are still effective. These are the Law on Publishing, and the Law on Textbooks and Other Teaching Materials for Primary and Secondary Education. There is no special law on publishing in the Republic of Srpska and the only effective law concerns textbooks. The above mentioned laws in the Federation of Bosnia-Herzegovina were created during "the socialist" period. They contain provisions on the "protection of the whole of society's interests". In spite of these archaic settlements, we can say that the laws have not been fully exercised, and that there have been no cases of book banning. Textbook status is similar in both entities. Principally, the state authorities have a complete monopoly over textbook selection for primary and secondary schools, over textbook production (in the Federation this is carried out exclusively by the Federal Ministry of Education, Science, Culture and Sport; in Republic of Srpska it is done by a state-owned company), and over the regulation of textbook prices. This situation has caused a strong reaction from the publishers and booksellers in the Federation. The Business Association of Bosnia-Herzegovina Publishers and Booksellers has initiated a change in the law, a draft of which is being prepared for the Law on Publishing of Primary and Secondary Textbooks. University textbook publishing is completely liberal and state authorities have no influence over it whatsoever. It is, quite naturally, influenced by university and faculty authorities within the remit of curriculum design in the various scientific disciplines. There are no conditions or limits concerning the establishment of a publishing house or bookshop. The publishing and bookselling industry in its economic and legal status do not differ from any other business undertaking and is referred to along with all subjects of commercial law. The management of commercial law subjects in the Federation of Bosnia-Herzegovina is regulated by the Law on Business Enterprises, and in Republic of Srpska by the Law on Companies. It is somewhat different when it comes to "non-professional" publishers: religious associations, citizens associations, and public institutions. In order for them to carry out publishing it must be stated legally in their statute and inaugural documents. Such organisations can legally initiate their activities, including publishing, only after they have registered with the competent court. Publishing or bookselling enterprises are normally founded as business law subjects completely in their ownership. It is necessary for the publishers of the public information service to register with the Public Information Service Register at the competent entity, the Ministry of Information. Electronic media are due to be licensed with the competent body for telecommunication at the Bosnia-Herzegovina level. As for the bookshops, the local/city/county authorities in both entities administer permits to open, as they do for all retail trade companies. The city authorities have the right to assign a purpose to a particular business that is in their ownership. In spite of clear legal regulations, there are many obstructions in the procedure at the local level. The terms of business in publishing are in no respect different to those of companies in any other field. There are no restrictions in contracting nor there are any rules about authors' fee. The Association of Bosnia-Herzegovinan Writers has proposed rates of authors' fees for its members, a proposal that publishers ignore considering fees to be confidential within the trade. Publishers, distributors and booksellers in Bosnia-Herzegovina do not have concrete rules about book sale and marketing. Accordingly, they normally make individual agreements on the sale of the overall production of a particular title, and only rarely do they make general contracts on sale with the distributors. In principle, the rules on sale are dictated by the final sale person (bookshop or sales agent). Bosnia-Herzegovina has signed all the relevant international conventions on copyright. There is an effective Law on copyright both in the Federation of Bosnia-Herzegovina and Republic of Srpska that was taken over from ex-Yugoslavia. However, the draft of the new law is in the official review process since the present law does not correspond with the latest international conventions and neither does it anticipate copyright within electronic publishing. The new law would be effective nationally. We should mention here that there is a considerable amount of piracy in the publishing industry in Bosnia-Herzegovina. This is especially the case with unauthorised copying of expensive titles, e.g. academic books. Furthermore, copyright protection has not been fully managed, in part because there is no specialised copyright agency. Tax policy on publishing within both entities is regulated by the Tax Law. However, the implementation of the law differs from canton to canton. There is no value-added tax on, but this is compensated for through the tax on turnover. In the Federation of Bosnia-Herzegovina books are subject to taxation on turnover if their content is of a "scientific, cultural or informative" nature. The Federal Ministry of Education, Science, Culture and Sport issues clearance on exemptions from the tax on turnover on the basis of two enclosed reviews. The start rate of the tax on turnover is 20%. The titles exempted from the tax on turnover are also exempted from the tax on retail sale, which stands at 10%. There are no restrictions on the status of publishers, which means that any publisher, Bosnian or foreign, can submit a request for tax exemption. Textbooks for primary and secondary schools are exempted from both taxes. In Republic of Srpska all books other than textbooks for primary and secondary schools are taxed on turnover at 5%. Imported books are subject to an additional tax of 18%. Bosnia-Herzegovina is a signatory of the Florence Agreements and there is free movement of books into and out of the country with no customs tariffs; normal importation procedures and documentation apply. There is no institutional protection for local publishers and booksellers in either entity. The state provides neither acquisition funds for libraries nor does it purchase the necessary number of books from the publishers. Accordingly, the legal regulation of organised book acquisition is non existent. Authorities at all levels acquire significant number of books, but the selection criterion is solely that of political fitness. ISBN and ISSN agencies function efficiently and are situated at the National and University Library of Bosnia-Herzegovina. The Business Association of Bosnia-Herzegovinan Publishers and booksellers operates according to the Law on business associations. The majority of professional publishing houses and bookshops are members of the association, as well as some prominent "non-profit publishing houses". The Association is a full member of the International Publishers' Association (IPA) and IBBY. |