Contemporary Issues on Intellectual Property Law

Legal Research Group on INTELLECTUAL PROPERTY LAW In cooperation between: ELSA VDU & ELSA Thessaloniki

CONTEMPORARY ISSUES On INTELLECTUAL PROPERTY LAW

Contemporary Issues on Intellectual Property Law

CONTEMPORARY ISSUES On INTELLECTUAL PROPERTY LAW

In cooperation between ELSA VDU & ELSA Thessaloniki

Kaunas, 2014 Page 1

Contemporary Issues on Intellectual Property Law

Team Coordinators

Eglė Balionytė

Antonia Markoviti

Academic Supervisors

Karolis Vinciūnas

Professor Dr. Lambros Kotsiris

Marketing

Monika Baltrūnaitė

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Contemporary Issues on Intellectual Property Law

Foreword …When the same idea arises somewhere between Baltic and Mediterranean seas ...

One day five law students from Austria, Hungary, Poland and West Germany founded the European Law Students’ Association (ELSA) in 1981. But since then, all the co-operations between ELSA groups were mostly between neighboring countries. And then Lithuania and Greece released their collaboration to the network. How did actually the idea arise to organize a bilateral Legal Research Group between ELSA Thessaloniki and ELSA VDU, which is located in Kaunas city, autre monde? A strong friendship of two leaders made this happen. A strongest link between the two countries was created and managed to bring this successful result.

The fact that Intellectual property law tends to be the new trend among the career preferences of law students inspired us to organize a Legal Research Group on Intellectual Property Law. It seemed to be a really critical issue given that the violations keep increasing due to the fast evolution of media, which obviously means that the creators should necessarily be protected. Downloading music and movies, using others’ photos without permission, photocopying book are common daily habits of the modern society.

How do the states in Europe face them? Is a common legislation applicable? What previous cases could teach us? What are the differences of legal practice between Greece and Lithuania? These are a few examples of frequent questions with a number of answers presented and analyzed by the participants of the International Legal Research Group at this book.

The importance of the project is visible throughout its type of accomplishment: a Legal Research Group – one of the most basic projects among the plethora of Academic Page 3

Contemporary Issues on Intellectual Property Law

Activities. 15 researchers (students and young lawyers) worked on specialized topics of this field of law. However, their contribution did not finish with the research. They were given the chance to present their work at an International Conference at Kaunas in front of academics, lawyers, experts and students from 9 countries. A huge success between the ELSA fields of Academic Activities and Seminars & Conferences; a valuable link between theory and practice.

ELSA is the largest law students’ association in the world. Its power is definitely not only a matter of number. It is the quality of its programs and actions. In order to keep active this organization a number of goals should be set. Internationality is one of them and it was admittedly achieved within this project. We hope that by introducing an innovative form of the project to the network, we have contributed in ELSA’s Strategic Goals by offering valuable academic material to the network, by creating the best relationship between two distant countries and mainly by offering to our participants the chance to exercise their skills and love our field of studies even more throughout this practical and productive way.

The Academic Coordinators of the Bilateral LRG Antonia Markoviti & Eglė Balionytė

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Contemporary Issues on Intellectual Property Law

The book, this volume, is a protected creation of young Greek law students, dedicated to their Lithuanian colleagues, a result of scientific dialogue, of human communication and desire to know not only the “Law of the others” but the other, the Others.

They have used “copyright and technology” as the central idea of their contributions as a paradigm to promote their legal thinking. Plato used the term “paradigm” with respect to his ideas and forms thus indicating their role in the world. In contemporary philosophy the center of analysis and criticism is often a paradigm case presented as exemplifying the issues which are at stake.

From one side Copyright Law protecting authors or the works they create, works as intellectual compositions of impression and expression, entities in content and form, organic unities of forces, since form organizes the content linking its elements into a uniform enity, non-additive compositions different from their components. It is Plato’s and Aristotle’s theory concerning the independency of the intellectual creation as related to its material basis (“Beyond the Natural”), concerning creative procedure as effort (“Gorgias”), concerning a complete theory on art (“Poetry”) in mimics (‘Politia’) deep contemplations which for centuries maintain their undeniable significance.

From the other side New Technology. Information is Knowledge. Knowledge is a common good. It belongs or must belong to all men. This thought urges to reflect on the social function of copyright and generally on intellectual property rights and becomes a necessity for several reasons. An expansion of new technological products or subproducts and their dissemination (the logic of Internet, of Peer-to-Peer), has equally brought expansion of intellectual property rights. Whenever a new intangible value emerges recourse is made to intellectual property, pushing to a multiplication of consequences not having been thought before. Questions such as: Does copyright confer considerable power on economic players tempting even to use it abusively? Who are really the real beneficiaries to Page 5

Contemporary Issues on Intellectual Property Law

be protected? How long? Which are the moral foundations of copyright? Have they changed? Works of authors are simply products brought to the market as things for an exchange? Is copyright law a “selfish law”? Is the author a social actor? Do we need a turn instead of protection towards to open models? Without doubt it is not idealistic to see the social function of Copyright as a good of Mankind, a tool for human development and happiness according to universal values, including immaterial benefits, social cohesion, education, health, solidarity, building and crossing bridges for all humans to know, to understand the others.

Beyond the several sides of the meeting of Copyright and Technology. We see in the works of the young students who have contributed in this volume, they remind us that reality is not economy, crisis, conflicts, systems but reality is the life shown to us by the young people with their clean thinking, exploring, scrutinizing and classifying power they have. To “live” is not so important as to “exist.”

Their happy and proud professor congratulates them.

Lambros E. Kotsiris Emeritus Professor of Aristotle University of Thessaloniki and Corresponding Member of the Academy of Athens

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Contemporary Issues on Intellectual Property Law

In recent years Intellectual Property (IP) became very important in many different fields in social, economic and legal dimensions. In a knowledge-based market society understanding of IP is essential in order to make reasonable choices for stakeholders both in the governmental and in the private sectors.

By participating in the project “Contemporary Issues on Intellectual Property Law� students from both Vytautas Magnus and Thessaloniki Universities did an outstanding job in analyzing the most important issues in recent IP law development (e.g.

P2P sharing, moral rights, photography and released person, photocopy reproduction in libraries, CC licenses, etc.) and then presenting findings in the conference to their colleagues and distinguished professionals of various sectors associated with the IP. By participating in such projects students not only develop skills of scientific research but also engage in common activities with their counterparts from other universities thus allowing to discuss issues in the perspective of different countries and their legislative and cultural context. On the other hand their findings in different fields of IP law are very interesting and allows a reader to better apprehend recent developments in this sector.

I am very happy to be a part of this project and hope that it will become an inspiring example for other such incentives.

With all the best wishes Karolis VinciĹŤnas

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Special Thanks We would like to express our gratitude for Vytautas Magnus University. The most important tool for success is the belief that you can succeed. Thank you for being our sponsors and helping to access instill belief in the youth we serve. Your contribution have sent a clear message, youth are important, valued and cared for members of community.

They truly are our future and your gifts are an investment in that future. We are grateful for the interest from the university to develop every kind of projects. It provides us the opportunity to let youth know they are valued. With your help we were able to provide a possibility to develop students' skills in legal writing, to analyze the problems etc. Thank you for making this project happen.

We would like also to thank Mrs Anthoula Papadopoulou, Assistant Professor of Economic & Commercial Law, and Mrs Anna Despotidou, Lecturer of Economic & Commercial Law at the Aristotle University of Thessaloniki for their valuable assistance and guidance from the beginning of the project.

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Contemporary Issues on Intellectual Property Law

Table of Contents 1. Kristina Vezbergaitė „Peer - to peer content sharing online – legal implications of the process”…………………………………………………………………………………….13 2. Donatas Dužinas “Moral rights are rights provided to creators under copyright law in order to protect both their reputation and the integrity of their work”… ………..…………………..28 3. Rimantė Greblikaitė “Photocopies reproduction in libraries”…………...…………………….44 4. Povilas Kamantauskas “Creative Commons licenses: voluntary resignation by the creator”...…56 5. Gintarė Kumpikaitė “Character Merchandising”…………….. ………………………………69 6. Deividas Kiršys “Photographer and released person – legislation and jurisprudence”…….. ….79 7. Hector Tsamis “Photocopy reproduction in libraries”…………….. …………………………97 8. Despoina N. Poutakidou “Photographer and released person”…………….. ………………..112 9. Dimitra Karydi “Webhosting providers' liability and digital copyright piracy: The harmonization of Greek legislation with the EU Directives”.. ………………………………………...….127 10. Eugenia Liontou “Peer to peer file sharing. Legal implications of the process”……………...139 11. Konstantina Tsilipria “Free Software Philosophy”……………….. …………………………149 12. Despina Kornilaki “Moral rights on the World Wide Web”……………….. ………………..157 13. Eleftheria Chanialaki “Regulation of the remunerations of the Collective Management Organizations based on the weighting of each other’s interests and economic positions”…171 14. Georgia Theologidou “Creative commons license”………….. ……………………………….185 15. Anna Michalou “The legal protection of architectural work by intellectual property law”.. …195

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Contemporary Issues on Intellectual Property Law

National Reports

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Contemporary Issues on Intellectual Property Law

ELSA VDU

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National Researchers Kristina Vezbergaitė Donatas Dužinas Rimantė Greblikatė Povilas Kamantauskas Gintarė Kumpikaitė Deividas Kiršys

Academic Supervisors Karolis Vinciūnas

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Contemporary Issues on Intellectual Property Law

Kristina Vezbergaitė

Peer - to peer content sharing online – legal implications of the process Case of Lithuania

VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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I.

Introduction

Basic information This legal research is conducted by implementing the Project “Intellectual property Law” at the Aristotle University of Thessaloniki, Greece, and Vytautas Magnus University, Kaunas, Lithuania.

The Project’s aim is to investigate and compare legal regulation of Intellectual Property law issues in Lithuania and Greece and find the main differences in countries’ legislation.

Summary Recently Lithuania has had the high rate of IP piracy, the growth of internet piracy. Under The sixth annual BSA-IDC personal computer (PC) software piracy around the world study report 1in Lithuanian internet piracy rate was one of the biggest in the world (54 percent) and so Lithuania was “included” in the highest piracy regions such as Central and Eastern Europe, with a regional average of 65 percent. This makes sense.

Terms Intellectual property (IP) – as it is defined in WIPO handbook2 - means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. The Convention Establishing the World Intellectual Property Organization (WIPO) 3 , concluded in Stockholm on July 14, 1967 (Article 2(viii)) provides that “intellectual property shall include rights relating to: - literary, artistic and scientific works, - performances of performing artists, phonograms and broadcasts, - inventions in all fields of human endeavor, - scientific discoveries, - industrial designs, - trademarks, service marks and commercial names and designations, - protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

File sharing - is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia (audio, images and video files), documents and cetera. File sharing may be implemented through a variety of ways. Common methods 1 The sixth annual BSA-IDC study of PC software piracy around the world, 2008.

2WIPO Intellectual Property Handbook: Policy, Law and Use. 2004.

3 The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations (UN) system of organizations.

The “Convention Establishing the World Intellectual Property Organization” was signed at Stockholm in 1967 a nd entered into force in 1970.

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Contemporary Issues on Intellectual Property Law of storage, transmission and dispersion include manual sharing centralized or decentralized servers on computer networks, WWW (World Wide Web) based hyperlinked file, and the use of Peer-to-peer networks.

Peer-to-peer file sharing (P2P) - is the distribution and sharing of digital files and documents, using the technology of Peer-to-peer networking. This method of file sharing allows users to access various files such as books, computer programs, music, movies, and games using a specialized Peer-to-peer software program that searches for other connected computers on a specific network and locates the desired content to personal computer. The users (peers) of such networks are end-user computer systems that are interconnected via the internet.

Torrent file - in the BitTorrent file distribution system, a torrent file is a computer file that contains only data about files and folders to be distributed, and usually also a list of the network locations of trackers, which are computers that help participants in the system find each other. A torrent file does not contain the content to be distributed, it only contains information about those files, such as their names, sizes, folder structure, and cryptographic hash values for verifying file integrity.

Tor network - is a free software for enabling online anonymity and censorship resistance.

Tor networks directs Internet traffic through a free, worldwide, volunteer network consisting of more than five thousand ways to conceal a user's location or usage from anyone conducting network surveillance or traffic analysis. Using Tor network makes it more difficult to trace Internet activity, including browsing to Web sites, online posts, instant messages, and other communication forms. It is intended to protect the personal privacy of users, as well as their freedom and ability to conduct confidential business by keeping their internet activities from being monitored.

Goals of research This legal research is important analyzing the main P2P file sharing legal aspects and identifying problems of enforcement remedies for P2P infringements. This research will contribute to the definition of the problems in P2P file sharing, will name possible administrative, civil and criminal remedies for these infringements and it will be important finding ways how to combat with them.

Key questions In this legal research one main question should be asked: how P2P file sharing infringes intellectual property rights and what are the measures, procedures and remedies applied to avoid or combat these infringements.

Some of the possible examples of infringements include the following: - file sharing, - distribution of pirated files (protected objects of intellectual property law), Page 15

Contemporary Issues on Intellectual Property Law - database rights and cet.

WIPO handbook4 gives five categories of works, performances or productions are the most exposed victims of piracy, namely: - sound recordings, - video recordings, - computer programs, - broadcasts, - books.

P2P file sharing is associated with all of them, as above mentioned IP works and are stored in digital files and are kept in personal computers. Lithuanian customs office in Belgrade stated, that5 in Lithuania: - as an average of 1000-2000 users download each newly produced product in one P2P network; - as a result, Lithuanian distributors of intellectual property might suffer up to 1,15 million Euro of damages a month; - approximately 30% of all intellectual property-related crimes are made on the Internet or with the help of it; - there are approximately 15 Torrent P2P networks, 60 larger DC++ public hubs and other P2P networks in Lithuania, containing around 150 000 users. ISP FTP servers contain around 200.000 users. Thus in total there are around 350.000 users, who distribute or download product copies illegally; - According to the polls, as an average, 1 user downloads 5 movies, 3-5 music albums and 3 games a month.

This statistic makes sense and forces to find adequate remedies to combat the piracy.

Research method This research is library-based and includes study of Lithuanian court cases. The main sources of the research are: - Law applied to the protection of IP. It includes national and international legislation, treaties, articles, books, case reports and other researches.

4 WIPO Intellectual Property Handbook: Policy, Law and Use. 2004.

5 Lithuanian customs report on IP cases, 2011.

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II.

LAW

The important laws, applied to file sharing, in Lithuania are in full compliance with the European Union (EU) regulation and international standards. After Lithuania’s accession to EU and adoption EU law related directives have not exerted any major impact on the case law of enforcement of intellectual property rights in Lithuania. Lithuania had effective civil remedies and measures already before adopting the directive and the directive has not brought in any substantial novelties (the only really new remedy is the publication of judicial decisions).

National law Civil Laws Under Lithuanian Civil Code a civil claim, related IP infringement, could be made asking to compensate the full damage. The main law related to IP rights is Lithuanian Copyright law, which defines the actions which of any copyright infringement, related rights and sui generis rights, protected by this Law and other laws. Lithuanian Industrial Property Laws is for acts which infringe industrial property rights as they are defined and protected under those laws In Lithuanian Copyright Law compensation is in the amount of up to 1.000 minimum living standards (~38.230 Euro).

Also Lithuanian Copyright Law has remedies as follows: -

recognition of rights;

-

injunctions;

-

prevention from carrying out infringing acts;

-

redress of the infringed moral rights;

-

exaction of unpaid remuneration;

-

right of information, measures for preserving evidence, publication of judicial decisions, etc.;

-

material damages;

-

royalties or fees.

Also important laws are: Lithuanian law on Information society services and Lithuanian Law on Electronic Communications. The beginning was in 2003, when the requirements for websites of state institutions were approved. In 2004, the first steps were taken towards controlling nondisclosable and restricted information on the Internet, in addition, in 2004, the amendments to the Law on Income Tax of Individuals encouraging the citizens to acquire computers with Internet access were adopted. There were a number of changes in the area of strategic planning during these years.

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Contemporary Issues on Intellectual Property Law Upon accession to the EU in 2004, Lithuania was provided with the opportunity to take advantage of financial support allocated by the EU Structural Funds. The development of the information society became one of the fields of financial support provided by the EU Structural Funds. During the 20042006 period, 159 million litas (~ 46 million Euro) from the European Regional Development Fund was allocated to the information society development projects. During the both periods of 2004-2006 and 2007-2013, the major share of the support from the EU Structural Funds earmarked for this area and administered by the Information Society Development Committee is provided in the following two directions: the development of e-infrastructure, and the development of e-services and e-content.

This made a boom among Internet user in Lithuania.

Lithuanian Code of Administrative Offences Lithuanian Code of Administrative Offences, Art. No 214(10): for illegal public performance, reproduction, communication to the public, any other use in any way and with any means of literature, scientific or art works (including computer programs and databases), or of the subject of related rights or any part thereof for non-commercial purposes as well as distribution, carriage or storage of them for commercial purposes.

Criminal code Lithuanian Criminal Code, Articles No 191-195 protect appropriation of authorship, illegal reproduction of copyrightable work/the subject of related rights or part thereof, and distribution, carriage or storage of illegal copies. Sanctions under this code are as follows: community works or fine, or deprivation of liberty, or arrest, or imprisonment up to 2 years plus confiscation.

EU law When Lithuania gained its independence in 1990 it became a contracting party to almost all IP international treaties. Lithuania is a member of World Trade Organization (WTO) since 2001 and a member of the EU since 2004.

Lithuanian IP rights protection already had effective civil remedies and measures before adopting the

EU directives and related laws. One substantial novelty was a new remedy 6 for

Lithuania - the publication of judicial decisions.

As stated in the reports to EU commission7 and other legal researches, EU directives on IP rights are properly implemented (full or in part).

6 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. Official Journal L 195 02/06/2004.

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Contemporary Issues on Intellectual Property Law The main Directive, related to P2P file sharing is the Directive on e-commerce 2000/31/EC of 8 June 2000. This directive approximates certain national provisions on information society services relating to the EU internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between EU member states.

The other Directives, which regulate IP rights in e-commerce, P2P file sharing and databases are: - Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

- Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).

-

Directive EC Unfair Commercial Practices Directive and the Enforcement.

International law As Lithuania is a member of World Trade Organization, so all agreements, conventions and other legal acts are applicable. The first and the main sources are Berne Convention for the Protection of Literary and Artistic Works and Paris Convention for the Protection of Industrial Property, adopted

by Lithuania in 1994. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by WTO. The agreement sets down minimum standards for many forms of IP regulation as applied to nationals of other WTO Members.

The TRIPS agreement introduced IP law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date.

Institutions In Lithuania IP issues are administered and monitored by at least five ministries (Culture, Education, Economy, Interior and Justice), non-ministerial body (Information Society Development Committee at the Government of the Republic of Lithuania), the State Patent Bureau, and a large number of non-governmental institutions, such as LATGA-A and AGATA are worth mentioning.

LATGA-A is a non-governmental and non-profit organization which collectively manages the rights of copyright holders, collects and distributes royalties and remuneration for exploitation of works. LATGA-A’s aims at coordinating the activities of association members, ensuring that the works of Lithuanian and foreign authors are exploited as widely as possible and preventing copyright 7 Ramōnas Birstonas, Leonas Virginijus Papirtis. Enforcement of Intellectual Property Rights in Lithuania: situation after the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights.

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Contemporary Issues on Intellectual Property Law infringements. Lithuanian Neighbouring Rights Association (AGATA) is collecting society acting on behalf of performers and phonogram producers. Established in 1999, AGATA is the only organization in Lithuania taking care of performers’ and producers’ neighbouring rights and granting licenses for the users of music records.

The Association of Antipiracy Activities of Lithuania represents the interests of Lithuanian music and film producers and distributors regarding the intellectual property protection issues in international copyright and neighbouring rights protection organizations, state institutions.

Despite many functions performed, above mentioned organizations lack legitimacy and the actual implementation of their actions. The absence of IP policies system and the evident lack of coordination of these institutions result a gap in IP rights protection.

Enforcement In Lithuanian law system, any file sharing infringement is the right enforceable in a court, to prevent the manufacture, sale and use of a patented invention (file, software and cet.). Application is made to the court to stop the unauthorized manufacture, sale or use of the invention, so that the court may grant the appropriate order and stop the infringement. Despite many laws and institutions, in practice, however, the process is more difficult than it sounds. As Worldwide experience, Lithuanian practice and European Observatory on Counterfeiting and Piracy report on IP infringements shows 8 that the evolution of international standards for the enforcement of copyright and related rights has been dramatic in recent years, and this evolution has been driven principally by two factors:

1.

the advance of technological means for the creation and use (both authorized and

unauthorized) of protected material, including, most recently, the advent of digital technology, which makes it possible to transmit and make perfect copies of any information existing in digital form, including works and productions protected by copyright and related rights.

2.

the increasing economic importance of goods and services protected by IP rights

and trade in products embodying protected IP rights is now a booming, worldwide business.

As noticed in Mindaugas Kiskis recommendations

9

even such institution Intellectual

Property Protection Division of the Criminal Police Bureau lacks officers, equipment, as well as systemic issues related to poor financing of the police force. No results could be reached with 10 officers in all Lithuania.

So, Lithuanian administrative resources do not satisfy the real demand of supervision. The existing institutions do not work effectively.

8 Damages in intellectual property righs. European Observatory on Counterfeiting and

Piracy, 22 October 2009.

9 Mindaugas Kiskis, Recommendations for improving Lithuanian intellectual property law, policy and enforcement.

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P2P market’s

Contemporary Issues on Intellectual Property Law Based on the established practices in the other EU countries, it is appropriate to expand the current Intellectual Property Protection Division of the Criminal Police Bureau, providing adequate equipment and knowledge.

As practice shows there is a need of an intermediary governmental institution which could solve IP related disputes. The report10 recommends long term consideration the specialized precourt institution, which may serve as a mandatory or voluntary institution for IP disputes shall be considered. Such institution would facilitate the uniformity and consistency of the IP case law.

III. CASE STUDIES Civil cases Civil damages awards are one of the primary – and often most important – remedies for infringements of intellectual property rights. Damages serve both as compensation to the right holder for the economic detriment that results from an infringement, and as a specific and general deterrent to would-be infringers.

The purposes of civil remedies are to provide compensation for the prejudice caused by infringements, to dispose appropriately of the infringing copies (typically through destruction or other disposal outside the normal channels of commerce), to dispose appropriately of implements used for infringing activities and to grant injunctions to prohibit further infringements.

Microsoft vs Linkomanija The website Linkomanija.net is a typical P2P type of website, where illegal copyrighted content may be downloaded using the torrent links posted on this website, however, no illegal content itself is stored in the website.

In 2009 11 a dispute between Microsoft Corporation and Lithuanian torrent website Linkomanija.net

started when plaintiff, Microsoft, applied the court requesting to order the

defendant, the owner of Linkomanija.net, UAB “N5 Grupe”, to cease providing intermediary services to the registered users of the website and to cease using Microsoft trademark.

The claim was made due to possibility to download Microsoft Office 2007, Microsoft Office 2003 Pro and other Microsoft software products by using torrent files from Linkomanija.net.

Microsoft evaluated that if all the software products would have been acquired lawfully the profit 10 Ibid.

11 Civil Division of the Supreme Court of Lithuania of 13 May 2010 in the case No 2- 652/2010.

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Contemporary Issues on Intellectual Property Law would be reaching LTL 107 million (more than EUR 3 million), but, considering, that the losses hardly could be covered by defendant, decided to defend its rights asking less. However, maximum damages under Law on Copyright and Related Rights of Republic of Lithuania are limited to 1000 minimum standards of living, which at the time of the case constituted LTL 130.000 (approx. EUR 37.600).

In 2012 Vilnius County Court decided fully to satisfy Microsoft’s claim. The decision was based on the factors that: a) unlawful actions arose out of the fact that the defendant supporting and maintaining the website knowingly that is used by the users to infringe copyright and enabling illegal reproduction by making copyrighted material indirectly public; b) the website is controlled by the defendant and if such website would be absent the users would be unable to access and exchange the information illegally; c) the defendant’s fault was intentional because the defendant knowingly allowed for damages to occur and the defendant failed to provide the required degree of diligence, care and precaution, which are deemed necessary to operate the website legitimately. Furthermore, court stated that peer-to-peer service providers must control the information and content of such information transmitted by the users.

However, the damages of Microsoft were not compensated and defendant avoided the responsibility by selling its website to another company abroad.

Significance of this trial: - Although the claimant had weak argumentation and the case resulted so, this case, being one of the vast importance precedent related to torrent websites and civil liability in Lithuania, supplements current legislation greatly and can be seen as a positive step forward in the field of piracy via the internet.

Administrative cases As there are no specific provisions concerning the definition of Internet piracy or P2P file sharing in Lithuanian Code of Administrative Offences. So the identification ad litigation is very difficult.

Supreme administrative court of Lithuania of 15 April 2011 in the case No N62-902/2011 In 2009 a person in Kaunas made an offence of Lithuanian Code of Administrative Offences by using of uTorent he downloaded a software “ Microsoft Windows 7” and made it available on the internet to others for non-commercial purposes. In this case all the documents and evidence were collected and certified by the Lithuanian Anti-Piracy Association.

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Contemporary Issues on Intellectual Property Law The main issue in this case was - the legitimacy of non - governmental institutions. This is further confirmed by some Lithuanian court decisions, where it was stated that non-public authority 12

: Has been observing potentially committed violation and collected the data covertly, without the knowledge of

this fact of persons committing the violation.

Such covert surveillance and collection of information satisfies the criteria characteristic to operational activities; however, it should be noted that laws impose specific requirements on operational activities (legitimacy, ensuring human and civil rights and freedoms, etc.). Furthermore, such activities are delegated to special subjects.

Significance of this trial: -

The court stated: “For these reasons, it must be concluded that data in the case were collected by unauthorized person and the court has no basis to make reference to them”.

Criminal cases Civil and administrative remedies sometimes are not always sufficient deterrents. Where infringement becomes a business or high scale illegal production, stopping one business with the assistance of courts and law enforcement authorities may only mean that that kind of plant could be re-opened somewhere else, bypassing Lithuania or even EU. Infringements committed willfully and for profit-making purposes should be punished by criminal sanctions, and the level of the sanctions must make it clear that such infringements of copyright are serious offenses.

Criminal Division of the Supreme Court of Lithuania of 16 April 2013 in the case No 2K–173/201 In a period of 2002 – 2007 without software copyright a company’s director kept the unidentified illegally reproduced copies of software, with the total value of retail prices of legal copies exceeded 100 minimum living standards, namely: “Microsoft Windows XP Professional“, ”Microsoft Office 2003 Professional“, “CorelDraw Graphics Suite X12” “Adobe Creative Suite (Indesing CS)“.

A person was convicted under Lithuanian Criminal Code Article No 192 for keeping illegally reproduced copies of software.

The director argued Court’s decision motivating that company has bought software once, has paid for the copyright and can make some copies for its own purposes and no criminal case has to be started. Cassation complaint also states that the Criminal Code Article No 192, paragraph 1 describes the act done only by direct intent and the person should realize that he has got illegal copies of 12 Baltic Journal of Law & Politics 5:2 (2012): 1-26.

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Contemporary Issues on Intellectual Property Law software, which has been used in the undertaking and wanted to continue to hold them and use them for commercial gain.

Supreme Court, considering the company installed and used in programs with the company's view of the nature, recognized that such illegally-held computer programs use was associated with the commercial activities and the pursuit of profitable development of the business to make a profit. So, unauthorized computer software is considered to be for commercial purposes .

Significance of this trial: - The division between administrative and criminal liability is based on direct intent to make a crime and knowing that software is used for commercial purposes. Amount of illegal copies (objective criteria) should be more than 100 minimum living standards (~3822 Euro).

Conclusions and suggestions Conclusions To summarize the findings in this legal research, the conclusions and suggestions could be made as following.

1. Lithuania has the high rate of IP piracy, the growth of internet piracy and P2P is still increasing and it is the most undeveloped area.

2. P2P file sharing is quite new and a specific IP rights institute in general, which requires special regulation not in Lithuania only, but worldwide.

3. Despite Lithuanian IP policy, law and enforcement and full compliance with the EU regulation and international standards, the lack of regulation and liability is identified for internet specific IP infringements on the internet, especially P2P file sharing.

4. The Lithuanian P2P market is too small and there are no preconditions for active litigation. Lithuanian administrative resources do not satisfy the real demand of

P2P market’s

supervision. The existing institutions do not work effectively. This means that practical enforcement of intellectual rights has not high efficiency in the country.

5. Problems of practical implementation of legal measures includes: difficulty to prove damages, evidence collection, lack of expertise and equipment, internet anonymity.

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Suggestions 1. Improvement of Lithuanian Code of Administrative Offences and Criminal Code, including all issues related to IP infringement via internet.

2. Based on the established practices in the other EU countries, it is appropriate to expand the current Intellectual Property Protection Division of the Criminal Police Bureau, providing adequate equipment and knowledge.

3. As practice shows there is a need of an intermediary governmental institution which could solve IP related disputes. Such institution would facilitate the uniformity and consistency of the IP case law.

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Bibliography 1.

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the

enforcement of intellectual property rights. Official Journal L 195 02/06/2004.

2.

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal

protection of databases. Official Journal L 077, 27/03/1996.

3.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal

aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). Official Journal L 178/1, 17/7/2000.

4.

Directive EC Unfair Commercial Practices Directive and the Enforcement. Official Journal L 149,

11/06/2005.

5.

Republic of Lithuania Civil code . Official Gazette, 2000, No. VIII-1864.

6.

Republic of Lithuania Criminal code. Official Gazette, 2000, No. VIII-1968.

7.

Republic of Lithuania Code of Administrative Offences. Official Gazette, 1985 No. 1-1.

8.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994), WIPO Pub. No. 223, 1997.

9.

WIPO Intellectual Property Handbook: Policy, Law and Use. WIPO Pub. No. 489 (E) 2004.

10. Berne Convention for the Protection of Literary and Artistic Works. 09/09/1886.

11. Paris Convention for the Protection of Industrial Property. 20/03/1883.

12. Republic of Lithuania Law on Copyright and Related Rights and Annex to the Law. Official Gazette. 2006, No. 116-4400.

13. Republic of Lithuania Patent Law and Supplementing the Annex to the Law. Official Gazette. 2006, No. 72-2668.

14. Republic of Lithuania Law on Trademarks and Supplementing the Annex to the Law. Official Gazette.

2006, No. 72-2670.

15. Republic of Lithuania Law on Information society services. Official Gazette. 2006, No. 65-2380.

16. Republic of Lithuania Law on Electronic Communications. Official Gazette. 2004, No. 69-2382.

17. Mindaugas Kiškis, Rimantas Petrauskas. Intelektinės nuosavybės elektroninėje erdvėje pažeidimų ypatumai. Jurisprudencija, Nr. 5(83), 2006.

18. Mindaugas Kiškis, Recommendations for improving Lithuanian intellectual property law, policy and enforcement. Internet Research and Innovation Institute, http://www.irii.lt 19. Vytautas Žilinskas, Petras Kasperavičius, Mindaugas Kiškis. Intelektinė nuosavybė ir jos teisinė 20. apsauga. Klaipėda: KU, 2007.

21. Damages in intellectual property righs. European Observatory on Counterfeiting and Piracy, 22 October 2009, http://ec.europa.eu/internal_market/iprenforcement/docs/damages_en.pdf 22. Hogan Lovells Final Report on Parasitic Copying for the European Commission, September 2011, http://ec.europa.eu/internal_market/iprenforcement/docs/parasitic/201201-study_en.pdf 23. Ramūnas Birstonas, Leonas Virginijus Papirtis. Enforcement of Intellectual Property Rights in

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Contemporary Issues on Intellectual Property Law 24. Lithuania: situation after the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights. Mykolas Romeris University, Faculty of Law. Jurisprudence 2011, 18(1), p.113-126.

25. Ruling of Supreme Administrative ourt of Lithuania of 15 April 2011 in the case No. N62-902/2011.

26. Ruling of the Civil Division of the Supreme Court of Lithuania of 13 May 2010 in the case No. 2652/2010.

27. Ruling of Criminal Division of the Supreme Court of Lithuania of 16 April 2013 in the case No. 2K– 173/201 28. The sixth annual BSA-IDC study of personal computer (PC) software piracy around the world, 2008. http://globalstudy.bsa.org/2008/studies/globalpiracy2008.pdf 29. Lithuanian customs report on IP cases, 2011

http://www.zis.gov.rs/upload/documents/pdf_sr/pdf_seminari/Simpozijum_Sprovodjenje_prava/ Enforcement%20report_Lithuania%20[Compatibility%20Mode].pdf

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Contemporary Issues on Intellectual Property Law

Donatas Du탑inas

Moral rights are rights provided to creators under copyright law in order to protect both their reputation and the integrity of their work Case of Lithuania VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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Contemporary Issues on Intellectual Property Law

I.

INTRODUCTION

Basic information This legal research is conducted by implementing the Project “Intellectual property Law” at the Aristotle University of Thessaloniki, Greece, and Vytautas Magnus University, Lithuania. The aim of the project is to investigate and compare legal regulation of Intellectual Property law issues in Lithuania and Greece and find the main differences in countries legislation.

Summary In Lithuania copyright implementation, administration and enforcement is defined by the Copyright and Related Rights Act (hereafter – Copyright Act). It’s the most important act which regulates copyright in Lithuania. Copyright is divided into economic / property rights and moral rights.

Economic / property rights are the rights to income from the use of work. Moral rights are: the right of authorship, the right of the author’s name, the right of the inviolability of the work. “Author’s moral rights, in very general term can be defined as the right to protect the author’s personality, which he expresses by the work, it is a personal and spiritual author’s and his work connection.”13 Copyright starts to exist as the author’s work (creation) from the moment the creation is made. Author’s moral rights cannot be transferred to another person but the economic / property rights can be transferred or sold. According to the Copyright and Related Rights Act Article 14, the author of the work, regardless of property rights, even in cases where property rights are transferred to another person, will have the following moral rights: - The authorship right; - The right of the author’s name; - The right of inviolability of the work.

In this legal research I am going to discuss author’s moral rights, the way they are protected in Lithuania, which law in Lithuania regulates those rights, and with what author’s moral rights protection problems they have to deal with.

Terms The right of authorship - the right to claim authorship of the work, by indicating the author’s name in a prominent way on all the copies of a published work, and in connection with any other public use of the work (Copyright Act Article 14, paragraph 1, point 1).

13Vytautas Mizaras, Copyright, Volume 1, (Vilnius: Justitia, 2008), p. 285, trans. Donatas Dužinas.

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Contemporary Issues on Intellectual Property Law The right to the author’s name - the right to claim or prevent the mention of the author’s name in connection with any use of the work, or the right to claim that the work can be disclosed to the public under a pseudonym (Copyright Act Article 14, paragraph 1, point 2).

The right to the inviolability of work - the right to object to any distortion or other modification of the work or the title thereof, as well as to any derogatory action in relation thereto which would be prejudicial to the author’s honour or reputation (Copyright Act Article 14, paragraph 1, point 3).

Goals of research This legal research is important while making an analysis of author’s moral rights, legal aspects and enforcement remedies for author’s moral rights infringements. This research will contribute to find the problems in protection of author’s moral rights, will name possible administrative, civil and criminal remedies of copyright infringements.

Key questions In this legal research one of the most important questions is what author’s moral rights protection problems authors have to deal with and what the measures, procedures and remedies must be applied to avoid author’s moral rights infringements.

There are some examples of questions that I am going to discuss in this legal research: -

Can the State defend author’s moral rights?

-

Why should author’s moral rights be protected?

-

Can property rights holder initiate the claim of another person’s

(author’s) moral rights violation removal if such claim relates with property rights violation removal?

-

Can author’s moral rights be transferred to another person?

Research method This research is library-based and includes the study of Lithuanian case law. The main sources of the research are: - Law applied to the protection of Copyright. It includes national and international legislation, treaties, articles, books, case reports and other researches.

- Case law. It includes the judicial proceedings in intellectual property cases and decisions of national courts of Lithuania.

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II. LAW National law In Lithuania copyright implementation, administration and enforcement defines by the Copyright and Related Rights Act. It’s the most important act which regulates copyright in Lithuania.

The important laws, applied to author’s moral rights protection, in Lithuania are in full compliance with the European Union (EU) regulation and international standards. After Lithuania’ s accession in 2004 to EU , Lithuania adopted EU law related directives, but those directives did not have any substantial impact on the case law of enforcement of intellectual property rights in Lithuania. The main reason is that the Lithuanian right holders had effective civil remedies and measures before adopting the directive and the directive has not brought any substantial novelties (the only really new remedy is the publication of judicial decisions).14

Civil Laws The relevant provisions relating to the material and moral damages to copyright infringement, are contained in the lex specialis – Copyright Act, however deciding on damage compensation are applicable provisions of the Civil Code concerning civil liability.

Lithuanian Code of Administrative Offences Lithuanian Code of Administrative Offences, Article 21410: for illegal public performance, reproduction, communication to the public, any other use in any way and with any means of literature, scientific or art works, or of the subject of related rights or any part thereof for noncommercial purposes as well as distribution, carriage or storage of them for commercial purposes.

For this illegal activity sanctions are: a fine of one thousand to two thousand litas with work or object of related rights illegal copies confiscation. The same actions committed by a person who has already been convicted for this activity - a fine of two thousand to three thousand litas, with a work or phonogram illegal copies and plant or equipment confiscation.

Criminal code Lithuanian Criminal Code, Chapter XXIX protects Intellectual property: appropriation of authorship, illegal reproduction of copyrightable work / the subject of related rights or part thereof, and distribution, carriage or storage of illegal copies.

Authorship right is established in Copyright Act Article 14, paragraph 1 point 1. “This is the main author’s right. < ... > If a person has gained illegally another person’s authorship it can be 14 Ramūnas Birstonas, Leonas Virginijus Papirtis, Enforcement of Intellectual Property Rights in Lithuania: situation after the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights, 2011.

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Contemporary Issues on Intellectual Property Law denied, but only according to the rules established in the law.”15 An author of the work is usually a person whose name appears on the work, unless is proved otherwise. Person who indicates himself as an author of not his work, illegally misappropriates the authorship and violates the real author’s rights.

Article 6 of Copyright Act and Article 191 of the Criminal Code protects one of the author’s moral rights – the right of authorship. Appropriation of authorship called plagiarism. Plagiarism – using other ideas and words without clearly acknowledging the source of information.

As mentioned, authorship right is the main author’s right and it is also the most secured, because only authorship right of author’s moral rights is protected by Criminal Code (Article 191).

Sanctions for appropriation of authorship under Criminal Code Article 191 are as follows: public works, fine, or deprivation of liberty, or arrest, or imprisonment up to 3 years.

EU law Lithuania has been a member of the EU since 2004, so the important laws, applied to author’s moral rights protection, in Lithuania are in full compliance with the European Union (EU) regulation and international standards.

Lithuanian IP rights protection already had effective civil remedies and measures before adopting the EU directives. After the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights, novelty for Lithuania was a new remedy - the publication of judicial decisions.16 The main Directive, related to copyright protection is the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. This Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society.

The other Directives, which are important in regulating order of copyrights protection: - Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

- Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

15 Alfonsas Vileta, Republic of Lithuania Copyright and Related Rights Law comment, (Vilnius: Lithuanian Writers Union Publishing House, 2000), comment of Article 14, p. 57, trans. Donatas Dužinas.

16 Ramūnas Birstonas, Leonas Virginijus Papirtis, Enforcement of Intellectual Property Rights in Lithuania: situation after the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights, 2011.

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Contemporary Issues on Intellectual Property Law - Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art.

- Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights.

- Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version).

- Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights.

International law Lithuania has been a member of World Trade Organization (WTO) since 2001, so all agreements, conventions and other legal acts are applicable. Lithuania is a member of international treaties / agreements relating to copyright: - Berne Convention for the Protection of Literary and Artistic Works and Paris Convention for the Protection of Industrial Property adopted by Lithuania in 1994.

- 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations adopted by Lithuania in 1999.

- 1971 Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms adopted by Lithuania in 2000.

- Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) adopted by Lithuania in 2001. The agreement sets down minimum standards for many forms of IP regulation as applied to nationals of other WTO Members.

- 1996 World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty) World Intellectual Property Organization Performances and Phonograms Treaty (WPPT) adopted by Lithuania in 2002. These treaties provide wider copyright and some copyright related rights protection, compared to Berne, the Rome Conventions and the TRIPS Agreement.17

17 Vytautas Mizaras, Copyright, Volume 1, (Vilnius: Justitia, 2008), p. 134.

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III. CAN AUTHOR’S MORAL RIGHTS BE TRANSFERRED TO ANOTHER PERSON? According to the Lithuanian Copyright Act author’s moral rights cannot be transferred to another person (Copyright Act Article 52 paragraph 2, Article 14 paragraph 2.). The author’s moral rights are independent of the author’s property rights, the author’s moral rights remain to the author, even if property rights are transferred to other person (Copyright Act Art. 38 paragraph 4). It should be noted that the author’s economic rights can be inherited by the law or by testament, but the author’s moral rights cannot be inherited. The author’s moral rights are inseparably linked to author, because it is related with his name, honor and reputation.

IV. CAN THE STATE DEFEND AUTHOR’S MORAL RIGHTS? After the death of the author, author’s work (creation) must be used further by any violation of author’s moral rights.

When author’s or artist’s moral rights are violated only the author or the artist can defend them, or on their behalf the representatives can protect author’s moral rights. This is because author’s moral rights cannot be transferred to other persons (Copyright Act Article 14 paragraph 2, Article 52 paragraph 2) also cannot be inherited, because the author’s moral rights are inseparably linked to author.

However, the situation may arise where the State may defend the author’s moral rights.

Copyright Act Article 71, paragraph 2, point 7, provided that the Government authorities in cases established by law, protects author’s and performer’s moral rights.

According to the Copyright Act article 49, paragraph 2 the author has the right to the same procedure as appointed the executor, designate a person to whom he entrusts the protection of personal moral rights. If the author has not given such instructions, the author’s moral rights are protected by his heirs. If there aren’t any heirs, as well as the author’s property right term of validity is expired, the author’s moral rights are protected by the Government authorized institution.

In light of this regulation Government authorized institution will be able to protect the author’s moral rights only if after the author’s death there aren’t any heirs, as well as the author’s property right term of validity is expired.

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Contemporary Issues on Intellectual Property Law The above mentioned regulation in which the Government authorities may defend the author’s moral rights do not include other possible situations, when the author’s moral rights are not protected, though there are heirs or the author’s property right term of validity are not expired. If the author’s or artist’s moral rights are violated, and person who should protect the author’s moral rights or the heirs do not defend them, in such cases a competent Government authority should have the right to apply a claim to the court for the author’s or the artist’s moral rights violation removal.18 Lithuanian Code of Civil Procedure Article 49, paragraph 1 provides that the cases provided by law prosecutor, state and local government authorities and other persons may take an action to protect the public interest. However, the relevant authorities will only have a right to bring a claim if this

is 19

explicitly stated in the law. But today, the Government authorized institution does not have this right, because this right is not provided in Copyright Act or in other laws in Lithuania.

Government authority for author’s moral rights protection is the Ministry of Culture.

Ministry of Culture, the author’s moral rights protection carries on the basis of 2003 August 12 resolution of the Government of the Republic of Lithuania No. 1018 “due to the authors and performers moral rights protection approval” (hereinafter - the Resolution). The Resolution established authors and performers moral rights protection order (hereinafter – Procedure).

Resolution established that authors and performers moral rights protection remedies provided in paragraph 11 of this Procedure, the Ministry of Culture uses receiving oral or written information about the author’s or artist’s moral rights violation or information, which is evidence that the use of a work or performance of an audio or audiovisual record can violate author’s or performer’s moral rights (Procedure paragraph 5). This regulation shows that the Ministry of Culture, can take the moral rights protection only after obtaining information from third parties, in which there are evidence that the use of a work or performance of an audio or audiovisual record can violate moral rights of authors or artists. On its own initiative the Ministry of Culture cannot initiate protection (defend) of author’s moral rights.

Once it is established that there is sufficient data breach or planned breach of author’s or performer’s moral rights, The Ministry of Culture defending author’s or performers moral rights will apply requirement in writing to the person (violator), wherein expresses one or more of the following requirements: (i) terminate the unlawful acts which infringe copyright or performer’s moral rights; (ii) restoration of damaged author’s moral rights (makes the necessary corrections of the violation in the 18 Vytautas Mizaras, Copyright, Volume 2, (Vilnius: Justitia, 2009), p. 400.

19 Valentinas Mikelėnas, Alfonsas Vileta, Algirdas Taminskas, Republic of Lithuania Civil code comment, The first book, General provisions (Vilnius: Justitia, 2004), p. 175.

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Contemporary Issues on Intellectual Property Law press or in other public way); (iii) remove from circulation published works, performance records, or other items of promotional material, which violates the author or artist’s moral rights (Procedure paragraph 11). So first the Ministry of Culture applies requirement to violator for abolition of infringement, and if the violator within one month from the submissions made fails to comply with the receipt of a requirement, the Ministry of Culture initiate procedures in court (Procedure paragraph 12.).

For author’s moral rights better protection, Ministry of Culture must be able on its own initiative initiate protection of author’s moral rights.

V. ENFORCEMENT Remedies The main law related to copyrights rights protection is Lithuanian Copyright Act, which is for the acts which infringe any copyright, related rights and sui generis rights.

Owners of copyright, related rights and sui generis rights, with the aim of defending their rights, licensees of exclusive rights, with the aim of defending the rights assigned to them, as well as associations of collective administration of the rights, with the aim of defending the administered rights, shall be entitled to apply, in the manner prescribed by law, to court to demand (Article 77 of Copyright Act, paragraph 1): - recognition of rights; - injunction with the aim of prohibiting the continuation of unlawful acts; - prevention from carrying out acts because of which the rights may be actually infringed or damage may be actually caused; - redress of the infringed moral rights (injunction to make appropriate amendments, to announce the infringement in the press, or any other way); - exaction of unpaid remuneration for unlawful use of a work, objects of related rights or sui generis rights; - compensation for property damage, including the lost income and other expenses, and in the cases provided for in Article 84 – non-pecuniary damage, as well; - payment of compensation; - application of other measures for defense of the rights, provided by this and other laws.

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Contemporary Issues on Intellectual Property Law Copyright Act Article 87 provides: Administrative and criminal liability for violations of copyright, related rights and sui generis rights shall be defined respectively by the Code of Administrative Offences and the Criminal Code. One of the author’s moral rights – the authorship right, protected by Criminal Code Article 191, so for appropriation of authorship, criminal sanctions may be imposed.

One of the most important remedy to protect copyright is: publication and dissemination of the court decision, at the request of the right holder, including announcing the decision in full or in part in the mass media, or in any other way at the expenses of the infringer (Article 85 of Copyright Act).

Institutions responsible for specific policy related to enforcement of copyright law In Lithuania IPR / Copyright issues are administered and policed by: -

Ministries: Culture, Education, Interior, Economy and Justice;

- Non-ministerial bodies: Customs Department under the Ministry of Finance; Police Department under the Ministry of Interior; -

Prosecution Service of the Republic of Lithuania;

-

The State Patent Bureau,

-

Non-governmental institutions: LATGA-A, AGATA, LANVA.

Ministry of Culture is government authorized institution, which, in some situations (mentioned in this legal research), can defend author’s moral rights.

Courts dealing with copyright cases Lithuania don’t have specialized courts for copyright / intellectual property rights disputes.

Cases of infringement of moral rights of copyright are heard exclusively by Regional Courts of Lithuania (5 courts) at first instance (Article 27, paragraph 2 of Civil procedure code) Civil remedies in copyright cases, as well as criminal offences in copyright cases, fall under the jurisdiction of District Courts at first instance (currently 54 courts). The appeal of the case may go to Regional court or to Court of Appeal of Lithuania (depends in which court of first instance case started) and further to the Supreme Court of Lithuania.20 Lithuania deals with a problem - excessive workload in courts, for this reason it takes a long time for litigation in courts. Dr. Mindaugas Kiškis in the Recommendations for improving Lithuanian 20 UNESCO World Anti Piracy Observatory, Country profile based on information provided by the Ministry of Culture of the Republic of Lithuania, February 2009 http://www.unesco.org/culture/pdf/lithuania_cp_en [visited 2014 08 01].

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Contemporary Issues on Intellectual Property Law intellectual property law, policy and enforcement, recommends to establish the specialized pre-court institution, which may serve as a mandatory or voluntary institution for IP disputes 21. Such institution would reduce the workload of courts, decisions will be faster on disputes related to copyright / IP, it would help to form uniform case law related to copyright / IP.

VI. CASE STUDIES Civil cases The Civil Code and the Law on Copyright and Related Rights regulate the recovery for material damages and non-pecuniary damages for copyright infringements (Articles 83 and 84 of Copyright Act). Civil remedies – damages recovery, is one of most often and most important remedies for infringements of copyrights. The most important purposes of civil remedies in copyright cases are to provide compensation for the prejudice caused by infringements, to stop the illegal use of a work and to prohibit further infringements.

“In authors moral rights protection cases often there are difficulties in understanding who has locus standi – who has a right to make a claim, who has the right to defend authors right, as well as who has to respond.”22 One of the reasons for this – what rights of the author are protected, is it moral rights of the author or is it the author’s property rights.23

Privately owned company “Boslita and Ko” v. privately owned company “Itaina” In the case “Boslita and Ko“ v. “Itaina”24 , plaintiff “Boslita and Ko” in its own name made a claim for protection of another person’s (author’s) moral rights, such claim relates to the legal person (“Boslita and Ko”) property rights violation removal.

Plaintiff stated that the other company worker R.R. on the basis of the contract has developed a new design for the applicant’s product – new label for the white semi-sweet sparkling wine drink “Golden Muscat”. With this new label plaintiff marked sparkling wine drink “Golden Muscat” for the first time in the Lithuanian market in 2001 July. Defendant also produces a white sparkling

wine

drink

called

“Golden

Muscat”. For this sparkling wine drink labeling the defendant used a different label, but in 2003 May –

21 Mindaugas Kiskis, Recommendations for improving Lithuanian intellectual property law, policy and enforcement, 2007.

22 Vytautas Mizaras, Copyright, Volume 2, (Vilnius: Justitia, 2009), p. 398, trans. Donatas Dužinas.

23 Vytautas Mizaras, Copyright, Volume 2, (Vilnius: Justitia, 2009), p. 398.

24 Civil Division of the Appeal Court of Lithuania of 21 November 2005 in the case No 2A-372/2005.

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Contemporary Issues on Intellectual Property Law June, defendant changed the label and started their own production of sparkling wine drink labeling with label almost identical to plaintiff label.

One of the claim arguments was that defendant violates the author’s moral rights of R.R., and that’s having a negative impact on the applicant’s property interests.

First Instance Court upheld the Claim completely. The Court also stated that the applicant used label of sparkling wine drink “Golden Muscat”, which was created by a third party R.R.. R.R. expressed consent to the plaintiff to bring an action (a claim) for R.R. (author’s) moral rights protection. The defendant submitted a complaint against first instance court judgment.

On November 21 in 2005 Court of Appeal of Lithuania stated in its decision: Copyright Act paragraph 4 of Article 38 and Copyright Act Article 14, paragraph 2 provides that the author’s moral rights are not transferable to other persons. Author’s moral rights are not part of the author’s property rights, and they remain even if property rights are transferred to other persons. It shall be prohibited to transfer the right to make a claim, which is inseparably linked with the person (Civil Code Art 6.102 paragraph 3).

Significance of this trial: Plaintiff in a civil case, as a private legal person, have no legal rights to make a claim for another person’s (author’s) moral rights protection, despite the fact that such requirement is associated with this legal person’s property rights violation removal.

When the author’s moral rights are violated can be a situation, as in the case mentioned, that with author’s moral rights violation would be violated property rights of the property rights holder.

For example, in the German case law in such cases, the claims for the author’s moral rights protection can be made by property rights holders, if, first, the author approve this claim, and the second, property rights holder prove that the author’s moral rights violation have a negative impact on his property interests or property rights.25 However, in Lithuania this defense is not regulated by the law, even with the consent of the author is not permitted to make a claim for author’s moral rights protection. All the requirements, brought by the property rights holder in defense of another person’s (author’s) moral rights, will be rejected, even if the claim relates with property rights holder economic interests or property rights violation removal.

25 Friedrich Fromm, Wilhelm Nordemann, op. cit. 52, paragraph 97, Rdn. 14. See also the German Federal Supreme Court decision: BGH (8.

6. 1989, I ZR 135/87, (Emil Nolde) BGHZ 107, 384, 389, citation: Vytautas Mizaras, Copyright: civil remedies (Vilnius: Justitia, 2003), p. 49.

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Administrative cases There are no specific provisions concerning author’s moral rights violation in Lithuanian Code of Administrative Offences. Lithuanian Code of Administrative Offences Article 21410 is intended to protect property rights of the author. So in this type of cases litigation is on the author’s property rights violation removal.

Criminal cases Criminal Code of Lithuania, Article 191 (appropriation of authorship) protects one of author’s moral right – the authorship right. The subject of the crime shall not be considered ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries or mere data; legal acts, official documents texts of administrative, legal or regulative nature (decisions, rulings, regulations, norms, territorial planning and other official documents), as well as their official translations; official State symbols and insignia; officially registered drafts of legal acts; regular information reports on events; folklore works (copyright Act Article 5), because they are not copyright objects.26 Only the authorship right of author’s moral rights is protected by Criminal code. Criminal cases, initiated for Article 191 of Criminal code violation, are related with the authorship right protection. There are not many criminal cases for violation of the authorship right. Usually, in criminal cases, sanction for violation of authorship right is a fine (25-30 minimum living standards), which is approximately 4000 litas (Supreme court of Lithuania, criminal case No. 2K-253/2014, etc.).

I agree with Kristina Vezbergaitė idea, mentioned in Legal research 27 , that infringements committed willfully and for profit-making purposes should be punished by criminal sanctions, and the level of the sanctions must make it clear that such infringements of copyright are serious offenses.

26 Egidijus Bieliūnas, doc. dr. Gintaras Švedas, Armanas Abramavičius, Republic of Lithuania Criminal code comment, Special part (Article 99-212) (Vilnius: Registry center, 2009), Comment of Article 191, p. 398.

27 Kristina Vezbergaitė, Legal research, Peer- to peer content sharing online – legal implications of the process, Case of Lithuania, 2014.

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VII. CONCLUSIONS AND SUGGESTIONS To summarize the findings in this legal research, the conclusions and suggestions could be made as following.

Author’s moral rights protection in Lithuania are still developing and the case law are forming. But we can see a few problems, which was discussed in this legal research, with the author’s moral rights protection.

There may arise a situation where, with moral rights infringement will be violated authors property rights, and property rights holder will not be able to express requirements (on his behalf) for another person’s (author’s) moral rights protection, even if that person (author) gave a permission, and such claim relates with violation removal of property rights. The law of Lithuania does not provide such right. In this case, it leads to a situation when moral rights are not protected by the author, and at the same time are violated economic rights of property rights holder. Therefore, Copyright Act should be complemented by provision (article) that would allow the holder of the property rights defend the moral rights of another person, if such protection eliminates property rights violation.

The state have a right to protect the moral rights of an author, but this right are not completely effective. Because it does not provide for a situation where the author’s or artist’s moral rights are violated, and person who should protect author’s moral rights or the heirs do not defend them. The state authorized institution cannot take actions to protect the author’s moral rights, because such right is not provided by Law in Lithuania. “One of the features which describes author’s moral rights is their personal nature (in French. Caractere personnel). This feature is mainly determined by the fact that moral rights are inseparably linked to the person of the author <...>“. 28 If author’s moral rights are violated, and person who should protect author’s moral rights or the heirs do not protect them, state authorized institution cannot take actions to protect the author’s moral rights and in this situation it would infringe the author’s honor and dignity because there won’t be an opportunity for the government authorized institution to defend the author’s moral rights. Therefore, Copyright Act should be complemented with provision which would allow for the Government authorized institution to protect author’s moral rights, when the person who should protect author’s moral rights or the heirs do not protect them.

28 Vytautas Mizaras, Copyright, Volume 1, (Vilnius: Justitia, 2008), p. 285.

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BIBLIOGRAPHY 1.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. Official Journal L 167, 22/6/2001.

2.

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. Official Journal L 195 02/06/2004.

3.

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. Official Journal L 077, 27/03/1996.

4.

Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission. Official Journal L 248, 6/10/1993.

5.

Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art. Official Journal L 272, 13/10/2001.

6.

Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Official Journal L 265, 11/10/2011.

7.

Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version).

Official Journal L 376, 27/12/2006.

8.

Vytautas Mizaras, Copyright, Volume 1, (Vilnius: Justitia, 2008).

9.

Vytautas Mizaras, Copyright, Volume 2, (Vilnius: Justitia, 2009).

10. Jūratė Usonienė, Copyright transfer characteristics (Vilnius: Legal Information Centre, 2008).

11. Alfonsas Vileta, Republic of Lithuania Copyright and Related Rights Law comment (Vilnius: Lithuanian Writers Union Publishing House, 2000).

12. Valentinas Mikelėnas, Alfonsas Vileta, Algirdas Taminskas, Republic of Lithuania Civil code comment. The first book. General provisions (Vilnius: Justitia, 2004).

13. Vytautas Mizaras, Copyright: civil remedies (Vilnius: Justitia, 2003).

14. MDA Freeman, Lloyd's Introduction to Jurisprudence (London: Thomas Reuters (Legal) Limited, 2008).

15. Republic of Lithuania Civil code. Official Gazette, 2000, No. VIII-1864.

16. Republic of Lithuania Criminal code. Official Gazette, 2000, No. VIII-1968.

17. Republic of Lithuania Copyright and Related Rights Law., Official Gazette No. No VIII-1185, 1999, last amended by Law No VIII-1185 of May 15, 2014.

18. Egidijus Bieliūnas, doc. dr. Gintaras Švedas, Armanas Abramavičius, Republic of Lithuania Criminal code comment, Special part (Article 99-212) (Vilnius: Registry center, 2009).

19. Republic of Lithuania Code of Administrative Offences. Official Gazette, 1985 No. 1-1.

20. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994), WIPO Pub. No. 223, 1997.

21. Berne Convention for the Protection of Literary and Artistic Works. 09/09/1886.

22. Paris Convention for the Protection of Industrial Property. 20/03/1883.

23. Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

1961.

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Contemporary Issues on Intellectual Property Law 24. Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms. 1971.

25. World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty), World Intellectual Property Organization Performances and Phonograms Treaty (WPPT). 1996.

26. Vytautas Žilinskas, Petras Kasperavičius, Mindaugas Kiškis. Intellectual property and its legal protection (Klaipėda: KU, 2007).

27. Mindaugas Kiškis, Recommendations for improving Lithuanian intellectual property law, policy and enforcement. 2007.

28. Ramūnas Birštonas, Leonas Virginijus Papirtis. Enforcement of Intellectual Property Rights in Lithuania: situation after the implementation of Directive 2004/48/EC on the enforcement of intellectual property rights.

Mykolas Romeris University, Faculty of Law. Jurisprudence 2011, 18(1), p.113-126.

29. Ruling of the Civil Division of Appeal Court of Lithuania of 21 November 2005 in the case No. 2A-372/2005.

30. Ruling of Criminal Division of the Supreme Court of Lithuania of 13 May 2014 in the case No. 2K-253/2014.

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Contemporary Issues on Intellectual Property Law

Rimantė Greblikaitė

Photocopies reproduction in libraries

Case of Lithuania

VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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Contemporary Issues on Intellectual Property Law

I.

Introduction

Basic information The legal research is a part of the international project between two universities â&#x20AC;&#x201C; Vytautas Magnus university situated in Kaunas (Lithuania) and Aristotle university of Thessaloniki (Greece).

The Project is dedicated to make legal researches in the field of Intellectual Property law and make comparisons between two EU Member States statutory legislation and case law.

Summary Massive photocopying takes place in universities and other educational institutions. If photocopying in these institutions takes place without the consent of rights holders and rights holders do not get remuneration, it could infringe their legitimate interests. That is why the State in the national law should provide an effective compensation mechanism and maintain a balance between the rights of authors and the larger public interest - education, research and access to information.

Terms Intellectual property - it shall include rights relating to: literary, artistic and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. 29 Photocopy - a photographic copy of printed or written material produced by a process involving the action of light on a specially prepared surface. 30 Reproduction means direct or indirect, temporary or permanent making by any means and in any form, including an electronic form, of a copy (copies) of a work, an object of related rights or sui generis rights (in whole or in part).31 Library - a building or room containing collections of books, periodicals, and sometimes films and recorded music for use or borrowing by the public or the members of an institution.32

29 WIPO, Intellectual Property Handbook: Policy, Law and Use, Second edition, (Geneva, 2004).

30 The Oxford English Dictionary, http://www.oxforddictionaries.com/definition/english/photocopy, [accessed 30 April 2014].

31 Republic of Lithuania Law on Copyright and Related Rights, (12 October 2006, No X-855), article 2, part 1.

32 The Oxford English Dictionary, http://www.oxforddictionaries.com/definition/english/library, [accessed 30 April 2014].

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Contemporary Issues on Intellectual Property Law Lending means making available for use free of charge, for a certain period of time, in libraries or other establishments accessible to the public, of the original or copy of a work, an object of related rights or sui generis rights.33

Goals of research This legal research has three main goals – first of all, this research tries to analyze the main legal acts of Lithuania, European Union (hereinafter – EU) and international level. Secondly, this research tries to make generalization about case law in the field of the photocopies reproduction in libraries. Thirdly, this research makes the conclusion about the main points of the legal regulation in the field of the photocopies reproduction in libraries.

Key questions The main key questions are these: 

What protection is guaranteed to rights holders on Lithuania legal regulation on intellectual property law?



What protection is guaranteed to rights holders under international and EU legislation?



Are these protection instruments are working and provide an effective compensation mechanism, maintain a balance between the rights of authors and access to information?

The answers to these questions is based the analysis of legal documents in different level (national, EU and international).

Research method In this research these following methods were used: 1) comparative research; 2) analysis of academic literature, legal acts and case law. It includes analysis based on Lithuania legal regulation on intellectual property (hereinafter – IP) in the field of photocopies reproduction in libraries, and court decisions concerning this issue.

II.

LAW

The Intellectual property law in Lithuania is regulated by special legal act - Law on Copyright and Related Rights34 (hereinafter – Law on Copyright). This main legal document regulates: copyright

33 Republic of Lithuania Law on Copyright and Related Rights, (12 October 2006, No X-855) article 2, part 24.

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Contemporary Issues on Intellectual Property Law in literary, scientific and artistic works (copyright); the rights of performers, producers of phonograms, broadcasting organisations and producers of the first fixation of an audiovisual work (film) (related rights); the rights of makers of databases (sui generis rights); exercise, collective administration and enforcement of copyright and related rights, as well as the exercise and enforcement of sui generis rights.

It should be marked, that provisions of Law on Copyright are harmonised with the legal acts of the EU. As the Member of EU, Lithuania has to implement all directives in the field of the intellectual property law and gain results that must be achieved by the directives.

Legal legislation may include “free uses” (that means that no consent and no remuneration only in special circumstances) provision in the legal acts. General “fair use” provision could lead to a situation where remuneration becomes impossible. Photocopying takes place in universities and other educational premises. If photocopying in these institutions takes place without the consent of, and remuneration to, rights holders, it could infringe their legitimate interests. That is why the State in the national law should provide an effective compensation mechanism and maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information.

National law Civil Laws The Civil Code of Lithuania (hereinafter –Code) governs the applicable law of IP – “In the absence of the parties’ choice of applicable law, contracts related to intellectual property rights shall be governed by the law of the state where the party transferring the intellectual property rights or granting the use thereof has his domicile or the place of business”.35 Paragraph 1 of Article 1.53 of Code sets the applicable law to IP rights protection: “Intellectual property rights and their protection shall be governed by the law of the state where the protection of the intellectual property rights is sought”. That means that crimes against IP rights in the jurisdiction of Lithuania are assigned to Lithuania laws.

As previously mentioned the IP law in Lithuania is regulated by special law - Law on Copyright. If the Code and Law on Copyright regulates the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law which only governs general matters (lex generalis). In this case, lex specialis is Law on Copyright.

34 Republic of Lithuania Law on Copyright and Related Rights, (12 October 2006, No X-855) 35 Civil Code of The Republic of Lithuania (21 June 2011, No XI-1484), article 1.52.

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Contemporary Issues on Intellectual Property Law Paragraph 1 of Article 20 of Lithuanian Law on Copyright provides that “It shall be permitted for a natural person, without the authorisation of the author or any other owner of copyright, to reproduce, exclusively for his individual use, for non - commercial advantage, in a single copy a work published or communicated to the public in any other mode, where the reproduction is a single-action”.

Paragraph 2 sets the exclusivity of reprography reproduction: “When works are for the private use reproduced on paper by means of reprography (effected by the use of any kind of photographic technique or some other process having similar effects), the provisions of Article 20 1 of this Law shall apply”.

Paragraph 1 of Article 201 of Lithuanian Law on Copyright provides that “It shall be permitted for a natural person, without the authorisation of the author or any other owner of copyright, to reproduce for his individual use, for non – commercial advantage,

by means of

reprography (effected by the use of any kind of photographic technique or some other process having similar effects) a published article or other short work or short extract of a writing with or without illustrations”. It should be emphasized, that type of reproduction have to be for non - commercial purpose, the natural person can’t get any financial benefit from that action.

Paragraph 3 sets the subjects who shall get compensation: “The author of the work or his successor in title, together with the performers and the producers or their successors in title, shall have the right to receive fair compensation referred to in paragraph 1 of this Article for reproduction by means of reprography (hereinafter - compensation).

Paragraph 7 establishes right and duty of Government to establish detailed regulation of compensation procedure. As it is established in the Paragraph 7, the compensation mechanism was adopted by Lithuania Parliament. It was adopted as Governmental Resolution No. 905 of August 14, 2007 (first version was approved in 06/02/2002). Governmental Resolution is provided specific procedure of compensation to the author or any other owner of copyright, payment of royalties and fee, and distribution of compensation for copies reproduction.

Paragraph 2 Article 201 of Law on Copyright sets the exception of the reprography reproduction: “The provisions of reprography reproduction of works shall not be applied when reproducing the whole text of a book or a major part thereof; or sheets of music by means of reprography”.

Ambiguity is in this legal regulation , because there is no definition, what is “a short work” or “ a short extract of a writing” in the Code or in the Law on Copyright. Accurate number of pages

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Contemporary Issues on Intellectual Property Law should be specified in the definition of ‘’short work’’ and

‘’short extract of a writing’’ with the

purpose to remove the gap in the legal regulation on IP law and make this situation clearer.

Paragraph 1 Article 22 of Law on Copyright declares the right of the reproduction of a work for teaching and scientific research purposes: The use for the purpose of research or private study of the works kept in publicly accessible libraries, educational establishments, museums or archives, by communication or making them available to the public by dedicated terminals on the premises of the said institutions shall be permitted without the authorisation of the author of a work or any other owner of copyright in this work, and without the payment of a remuneration, but mentioning, when possible, the source and the name of the author.

It is important to know that the works availability of computer networks must be possible only in library and in special, for that purposes dedicated terminals (without the author's permission, library could not publish works content online on the Internet, for example, at library web page).

On the other hand, libraries providing reprographic reproduction should pay attention and ensure that the copier (employee who provides copying services) knows the legal basis relating the IP law. It is recommended to hang the information for students and the other users of libraries about legislation of photocopies reproduction specified in Law on Copyright and Related Rights Articles 2022. Moreover, the copier should ensure that whole document would not be available for copy purposes because the Law gives a right to make photocopy just of a short piece of document (not a whole book, for example) or other work. But the problem is that there is no effective mechanism who can ensure that the copier follow the provisions of Law on Copyright. It is a question, who is liable for violation of that – library itself as a legal person or the copier as a natural person. The situation could be made clearer by court interpretation, but no such a Lithuanian case law yet.

The protection of intellectual property rights is being implemented in Lithuania legal system through the application of civil, administrative and criminal liabilities.

Civil liability governs pecuniary and non-pecuniary damages. Pecuniary damages compensation in the amount of up to 1 000 minimum living standards (MLS), which is set by the court, taking into account the culpability of the infringer, his property status, causes of unlawful actions and other circumstances relevant to the case, as well as the criteria of good faith, reasonableness and justice. Non – pecuniary damages is set by the court in individual case, in compliance with the norms of the Civil Code, which regulate redress of non-pecuniary damage.

Criminal law Criminal liability is provided in Criminal Code, Article 192. For unlawful reproduction of a literary, scientific or artistic work or an object of related rights, distribution, transportation or storage

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Contemporary Issues on Intellectual Property Law of illegal copies thereof, a person could be punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two year if the total value of the copies exceeds, according to the prices of legal copies or, in the absence thereof, according to the prices of originals of the reproduced works, the amount of 100 MSLs. If the total value of the illegal copies exceeds, according to the prices of legal copies or, in the absence thereof, according to the prices of originals of the reproduced works, the amount of 250 MSLs, a person is punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to three years. So, the punishment depends on the value. This type of liability is not only for a natural persons, but also is applied for a legal entities.

Administrative law Administrative liability is provided in Lithuanian Code of Administrative Offences, Art. 214(10): for illegal public performance, reproduction, communication to the public, any other use in any way and with any means of literature, scientific or art works (including computer programs and databases), or of the subject of related rights or any part thereof for non-commercial purposes as well as distribution, carriage or storage of them for commercial purposes. The person could be punished by administrative fines plus confiscation of illegally reproducted copies.

It is important to make distinction between criminal and administrative liability. It could be distinguished by two criteria: 

The amount of illegal copies

If the value is more than 100 MLS‘s, then is applied criminal liability, less amount – administrative liability. 

The illegal distribution

The illegal public performance, communication to the public and making available to the public of illegal copies are not covered under Criminal Code and the administrative liability application is one of the solution.

To sum up, three different liability types are in Lithuania, but none of them incriminate violations of photocopies reproduction in libraries. On the other hand, all general provision mentioned above, could be effectively used in the court if there are facts of violation of law, related to the intellectual property.

EU law As the Member of EU, Lithuania has to implement all directives in the field of the intellectual property law and gain results that must be achieved by the directives. For example, The Page 50

Contemporary Issues on Intellectual Property Law Law of the Republic of Lithuania on Copyright and Related Rights is harmonised with 8 legal acts of the European Union: 

Directive 2009/24/EC OF of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs;



Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights;



Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;



Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights;



Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art;



Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;



Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases;



Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

The main directive that governs reproduction is the Directive on the harmonisation of

certain aspects of copyright and related rights in the information society (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001). It deals with the reproduction rights and possible exceptions and limitations.36 Article 2 establishes right and duty of State to establish exclusive rights for authors: “Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part for authors, of their works…”

Article 5 sets that State shall provide exceptions or limitations of the reproduction right and should establish the compensation procedure: “In respect of reproduction on paper or any similar medium, effected by the use of any kind of photographic technique or some other process having 36 Introduction to reprography in copyright legislation, http://www.ifrro.org/node/51, [accessed 5 May 2014].

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Contemporary Issues on Intellectual Property Law similar effects, with the exception of sheet music, provided that rightsholders receive fair compensation”. The Directive to the Member States leaves the discretion to determine of the form, procedure of the fair compensation. As mentioned above, the Law on Copyright is harmonised with the Directive on the harmonisation of certain aspects of copyright and related rights in the information society and the provision of the fair compensation is established in Article 201 and the procedure is specified in the Governmental Resolution No. 905 of August 14, 2007.

International law The regulation of intellectual property rights in Lithuania is based on universally recognised principles/ treaties/ conventions of intellectual property law. Lithuania joined the World Intellectual Property Organisation (WIPO) and became a member of WIPO on 30 April 1992. When Lithuania became a member of the World Trade Organisation (WTO), all Lithuania legislation related to intellectual property was harmonised with the provisions of the Agreements on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS determine minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members. There are some international agreements existing before WTO, one of them - Paris Convention on the Protection of Industrial Property (mainly applied for patents and industrial design), second - Berne Convention for the protection of Literary and Artistic Works (mainly applied for copyright).

The foundation of modern copyright law is the Berne Convention. The right of reproduction is often said to be the cornerstone of copyright.37 Article 9 of the Berne Convention provides that “Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form”. IFRRO WIPO Publication on Collective Management in Reprography 38 provides different forms of reproduction: printing, photocopying, scanning, digital copying (CDs and DVDs), electronic storage in databases.

Paragraph 2 Article 9 of the Berne Convention establishes the exclusive right to States prohibit the reproduction: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”.

37 Introduction to reprography in copyright legislation, http://www.ifrro.org/node/51, [accessed 3 May 2014].

38 Introduction to reprography in copyright legislation, http://www.ifrro.org/upload/documents/wipo_ifrro_collective_management.pdf, [accessed 1 May 2014].

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Contemporary Issues on Intellectual Property Law Article 13 of the Agreements on TRIPS 39 provides similar rights for States as the Berne Convention Paragraph 2 Article 9: “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”.

The intellectual property legislation of Lithuania is in harmony with these international norms. Lithuania is also a member of a big number of other agreements/treaties/convention in the intellectual property law, but the issue of photocopies reproduction in libraries is not regulated by these international instruments.

Institution The main institution which deals with reproductions and their protection is LATGA in Lithuania – A. LATGA-A is a collective copyright management association established by Lithuanian authors and creative unions and is a non-governmental non-profit organisation which collectively manages the rights of copyright holders, collects and distributes royalties and remuneration for exploitation of works40. LATGA-A has the right of authors to receive remuneration for reprographic reproduction - by collecting and distributing remuneration for reprographic reproduction of works. It means that LATGA – A is the institution that implements the Governmental Resolution No. 905 of August 14, 2007 and administrate the collectable royalties and fees.

III. CASE STUDIES The situation of photocopies reproduction in libraries was not analized by Lithuania courts.

The majority cases related to photocopy reproduction are criminal and administrative. In these cases courts analyzed the liability of distribution of illegal copies or making illegal copies. But it is more applicable for media and video copies, not the books, the academic works, as usual in the libraries.

As it is established in the Law on Copyright, the compensation mechanism was adopted by Lithuania Parliament. It was adopted as Provisions of Governmental Resolution no. 997 of 29/09/2007 (first version was approved in 29/08/2003). Remuneration is collected through levies on media and equipment. 41 Remuneration is levied on media (audiocassette, videocassette, minidisc, DVD, CD, Blu Ray). From the 1st of March, 2012, remuneration is being paid for the mentioned

39 Agreements on Trade Related Aspects of Intellectual Property Rights, http://www.wto.org/english/docs_e/legal_e/27-trips.pdf, [accessed 5 May 2014].

40 Introduction to organization, http://www.latga.lt/apie/veikla [accessed 4 May 2014].

41 WIPO, Intellectual Property Handbook: Policy, Law and Use, Second edition, (Geneva, 2004).

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Contemporary Issues on Intellectual Property Law media, including memory sticks, USB, HDD,SDD, and equipment (PCs and other equipment with memory devices and audio/video recording capability). It is not specific covers the photocopies reproduction but it could be mentioned as the legal analogy.

The situation relating legal regulation of photocopies reproduction has been analyzed by The Supreme Court of Lithuania in the civil case Lietuvos autorių teisių gynimo asociacijos agentūra v.

UAB „Trajektorija“42.

The Supreme Court analyzed two main questions: 1) subjects who have a duty to pay the compensation for copying; 2) definition of media intended for personal reproduction (private copying).

The Supreme Court emphasized that the definition of the “importer” could not be given through application of tax laws. The Supreme Court concluded that “importer” shall be deemed every person who bring into the territory of Lithuania media intended for personal reproduction, both from third states and EU Member States. In response to the second question Supreme Court analyzed the notion of media intended for copying reproduction. The Court noted that remuneration is paid by the importers and producers of the blank audio and audiovisual recording media.

Due to legal regulation in Lithuania Supreme Court concluded that intent of the blank audio and audiovisual recording media – for private use is presumed by law, because remuneration is to be paid before any actual act of personal reproduction. Because of these reasons Supreme Court found entity, which actually sold blank media to professionals or used blank media for societal goals, an appropriate subject to pay copying remuneration under Lithuanian laws.

IV. CONCLUSIONS After analyzing the legal acts of Lithuania of intellectual property, the following conclusions could be made: 1. Lithuania’s legal regulation conforms to the EU and international standards.

2. Lithuania legal acts provide the definition of the photocopies reproduction in libraries.

3. Lithuania legal acts establish the compensation procedure to the author or any other owner of copyright.

4. There is an ambiguity in the Law on Copyright because there is no definition, what is “a short work” or “ a short extract of a writing”. Accurate number of pages should be specified in the 42 Rudzinskas Antanas, Čekanavičius Ąžuolas. Private copying exception in Lithuanian copyright law: compatibility with the Europ ean Union law after preliminary ruling in Padawan case. Jurisprudencija, Nr. 18 (1), 2011.

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Contemporary Issues on Intellectual Property Law definition of ‘’short work’’ and ‘’short extract of a writing’’ with the purpose to remove the gap in the legal regulation on IP law and make this situation clearer.

5. The protection of intellectual property rights is being implemented in Lithuania legal system through the application of civil, administrative and criminal liabilities.

6. There is no case law in the field of the photocopies reproduction in libraries.

Bibliography 1.

Republic of Lithuania Civil code . Official Gazette, 2000, No. VIII-1864.

2.

Republic of Lithuania Criminal code. Official Gazette, 2000, No. VIII-1968.

3.

Republic of Lithuania Code of Administrative Offences. Official Gazette, 1985 No. 1-1.

4.

Republic of Lithuania Law on Copyright and Related Rights and Annex to the Law. Official Gazette. 2006, No. 116-4400.

5.

WIPO Intellectual Property Handbook: Policy, Law and Use, Second edition, (Geneva, 2004).

6.

The Oxford English Dictionary,< http://www.oxforddictionaries.com/definition/english/>.

7.

Directive on the harmonisation of certain aspects of copyright and related rights in the information society (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001).

8.

Berne Convention for the Protection of Literary and Artistic Works. 09/09/1886.

9.

Paris Convention for the Protection of Industrial Property. 20/03/1883.

10. Agreements on Trade Related Aspects of Intellectual Property Rights. 01/01/1996.

11. Rudzinskas Antanas, Čekanavičius Ąžuolas. Private copying exception in Lithuanian copyright law: compatibility with the European Union law after preliminary ruling in Padawan case. Jurisprudencija, Nr. 18 (1), 2011.

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Contemporary Issues on Intellectual Property Law

Povilas Kamantauskas

Creative Commons licenses: voluntary resignation by the creator Case of Lithuania

VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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Contemporary Issues on Intellectual Property Law

Introduction Did You, the Reader, notice the little grey emblem on the title page? It was there for a reason, it supposedly serves an important legal purpose, to give You, the Reader the right to do almost whatever You wish with this text. It may however seem a little cryptic at first glance, so let us examine what it means.

Creative Commons (hereafter also referred to as CC) is a nonprofit organization founded in the USA in 2001, which enables people to share the content they created with the help of simple legal tools, a free online license generator, which allows the creator of the content to choose what kind of license she wants to give to anybody who will find the content worthy of use. On the website of creative commons the author selects the specific rights she will retain, and the kinds of permissible use of the content available to all. An emblem is generated, which represents the terms of the license, and this emblem is associated with the content online (it may for example be placed on a website with the content). If one clicked on the emblem, one would find that it was a hyperlink which leads to a website with an extensive explanation on what the licensee can do.

There are several most important clauses to the license. Firstly, there is attribution of the author (abbreviated BY/

); secondly â&#x20AC;&#x201C; non-commercial use of the content, allowing the licensee to

modify or otherwise use the licensed content in creating her own content, as long as the newly created content is not used for commercial purposes (abbreviated NC/

or

); alternatively there is a

clause prohibiting derivative works, according to which the content may be reproduced and distributed for commercial or non-commercial use as long as it is used in whole (abbreviated ND/ ); finally there is the share alike license which allows to do whatever one wants with the licensed content, as long as the newly created works will be licensed the same way, similarly to open source licenses (abbreviated SA/

). There may be a combinations of more than one license provisions,

some of which may materially alter the meaning of the provisions given above, for example an attribution, no derivative, no commercial use license would prohibit both commercial use of the content and use of it to create new content.

So, according to the license (emblem on the tittle page), You, the Reader, may do whatever You wish with this text as long as You give an attribution of it to the author. Or can You? Not only did the author license You the use of his pecuniary rights to the content but moral rights as well. Can one effectively resign oneâ&#x20AC;&#x2122;s moral rights or all the pecuniary rights for that matter? Was there even a contract formed? What if the author changed his mind and sued You for using his content, how could You defend yourself? Let us examine these problems one by one by as we look through the Lithuanian statutory law, EU law and as we criticize it, if necessary. And, evidently, it is quite

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Contemporary Issues on Intellectual Property Law necessary, as the present law disallows full or even partial resignation of rights by the author, even if voluntary.

There is very little Lithuanian case law related to the subject of CC, and none secincly on it, thus there is no separate section that would investigate case studies in this text, case law is used only as a means to specify and elaborate on the interpretation of statutory laws.

I. National law 1. Conclusion of contract (license) Was there a license at all? Again, did You notice the little gray emblem on the tittle page? If not, there is no contract.

The initiative of Creative Commons was a result of an effort to respond to the traditional copyright restrictions and changing reality of online content sharing 43 . Accordingly, Creative Commons licenses are given online, and that is a problem, because contract law is also unsuited to deal with the online reality. If a license is given in a form of an emblem on a webpage next to the licensed content, the circumstances of the formation of a Creative Commons license agreement amount to what is called a browse-wrap.

A license is a contract. It follows then that there may only be a license if the circumstances it was supposedly formed in satisfy the general requirements for formation of contract in the Lithuanian Civil Code.44 According to which “[a] contract is concluded either by proposing an offer and assenting to it (acceptance) or by any other actions of the parties that sufficiently show presence of meeting of minds” 45 . An offer is “[a] proposal for concluding a contract … if it is sufficiently definite and indicates the intention of the offeror to be … bound in the event of acceptance”46. This definition poses a problem. An emblem is not sufficiently definite in itself; it does not contain specific terms, requisite to an offer. An ordinary person, uninitiated in the ways of the Creative Commons, would only be aware that the emblem is indeed some kind of a license agreement if she clicked on it. People do not usually care about online agreements even when they are required to click (to agree to) something,

it

would

thus

be

naive to maintain that they would look for some license agreement that may or may not exist. It follows then that there is no offer to make license agreement, which could be accepted. On the other 43 Jurga Gradauskaitė, paper read at a seminar „Bibliotekos – specialistams, specialistai – bibliotekoms“ at Library of technology of Lithuania on 2013-11-17, < http://www.ilawfirm.lt/naujienos/advokates-jurgos-gradauskaites-straipsnis-apie-creative-commons-licenciju-suteikiamasgalimybes.html> [last visited on 2014-04-23].

44 Vytautas Mizaras, Autorių teisė, volume 2, (Vilnius: Justitia, 2008), p 162.

45 Lietuvos Respublikos Civilinis kodeksas (2000 07 18, Nr. VIII-1864) article 6.162 part 1.

46 Ibid. article 6.167 part 1.

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Contemporary Issues on Intellectual Property Law hand, though strong, these arguments have not yet been tested in courts and cannot be definitively said to be reliable.

Could there perhaps be other actions of the parties, sufficient to show existence of meeting of minds? Maybe the licensee takes the benefit of the agreement (uses the licensed content) with the knowledge of it being subject to some limitations in the license? No, if the offeree (licensee) would have had reason to know that the use of the content was subject to limitations (license agreement) that would be an offer, and there would be no need for other theories of contract formation.

But, say the licensee was actually initiated into the ways of the Creative Commons, and knew perfectly well, what the terms of the license were or how to easily find out what they were, a court would likely hold the contract to be formed, because an offer would have been presented to the offeree, who accepted it by conduct, rather than communicating information of acceptance to the offeror, such actions have proven to be binding in the context of electronic commerce 47 even if not in the context of browse-wrap contracts (there is no case law on this subject). Hence Creative common license agreements (browse-wrap agreements) are generally not, but could possibly be formed.

As far as online databases and computer programs are concerned, the form (browse-wrap) of a Creative Commons license agreement would certainly be in violation of Copyrights and related rights act: License agreements for the use of computer applications and databases that are accessible through computer networks may be assented to in electronic form, but a user must confirm her assent before the use of the computer program or online database.48 According to Article 42 part 1 of the Copyright and related rights act, a copyright agreement must be in writing; however it does not matter if the contract is concluded online. Lithuanian Civil Code states that information transmitted through electronic means is equated with one given in written form49, in addition to that the Statute on Information Society Services provides that the said services shall be provided in accordance with the principle of nondiscrimination of electronic form50, which

is

defined

in

the following way: “[p]rinciple of nondiscrimination of electronic form shall be understood as

47 UAB „Bobutės paskola“ v. E. R. Z., Kauno apygardos teismas (2013-09-26, Nr. 2A-1514-173/2013).

48 Lietuvos Respublikos autorių teisių ir gretutinių teisių įstatymas (1999-05-18, Nr. VIII-1185) article 42 str. part 2.

49 See footnote 45, article 1.73 part 2.

50 Lietuvos Respublikos Informacinės visuomenės paslaugų įstatymas (2006 05 25, Nr. 65-2380), article 3 part 1.

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Contemporary Issues on Intellectual Property Law prohibiting deprivation of legal power of information that was created, sent, received or stored by electronic means”.51 The Lithuanian Copyright and related rights act is very detailed in prescribing what provisions must be present in a copyright agreement. According to article 40 part 1 of the act, such an agreement must contain the following: name of the work, description of the work, pecuniary rights that are being licensed, the kind of license (exclusive/non-exclusive), territory in which the license is valid, term (duration) of the license, royalties, dispute resolution etc. Are all of these provisions essential to the formation of a license agreement? If they are, there would be no contract unless all of them were present. Scholars believe that this list does not specify the essential provisions to the contract, and that only the object of the agreement is an essential provision.

52

This would be

reasonable, but there is some case law that indicates to the contrary: The imperative requirement of written form for copyright (publishing) agreement should be associated with the need to ensure the rights of the copyright holder by way of having all the essential provisions to the contract put down on paper (article 40 part 1 [containing all the provisions given in the paragraph above] and article 44 part 2 of the Copyright and related rights act)53 This decision should not be overemphasized though; it is vague, somewhat unreasonable and may well be overturned. In addition to that, the issue of what provisions are essential to a copyright agreement was not an important one in that case, it was not discussed in it, rather mentioned there (almost by the way it seems). In addition to that, a license, agreement (as opposed to a publishing agreement) may be treated differently by the courts, despite the fact that the article 40 of the Copyrights and related rights act should in theory be applied to all copyright agreements (publishing, licensing or otherwise).

It thus remains unclear if a license agreement, not containing all the provisions required by the article 40 of the Copyrights and related rights act, remains valid. In addition to that, a Creative Commons license (browse-wrap license) is most likely not even concluded.

51 Ibid., article 3 part 2.

52 See footnote 44, p. 170; R. Birštonas et al. Intelektinės nuosavybės teisė (Vilnius: Registrų centras, 2010), p. 186.

53 L. J. v. Kęstučio Jono Vasiliausko įmonė, Lietuvos apeliacinis teismas (2006-06-08, Nr. 2A-248/2006).

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2. Resignation of pecuniary rights There is no special legislation that deals with Creative Commons (alternative) licenses, consequently general rules of contract, copyright law and licensing apply. Could a copyright holder successfully resign her pecuniary rights under them?

Freedom of contract is a very important principle in Lithuanian law. 54 There are several aspects to the principle of freedom of contract: freedom to choose the parties to contract with, freedom to set provisions to the contract that will suit the parties and freedom to choose the form of the contract (written, oral etc.).55 As it was discussed already, a license agreement must be in writing.56 Freedom to choose the parties to the contract will not be a problem as far as Creative Commons licenses are concerned, as they are given to anyone who may want them. Freedom to set the terms to the contract may prove to be more difficult though. Lithuanian Supreme Court explaines how the principle of freedom of contract should be interpreted: [F]reedom of contract is a guarantee on the constitutional level… A court, when deciding a contractual dispute, must adhere to the terms of the contract and shall only disregard the said terms if they are contrary to general principles of law (article 1.5 of the Civil Code), public policy (article 1.81 of Civil Code) or imperative statutory provisions (article 6.157 of the Civil Code). 5758 There are limits, set in the Copyrights and related rights act, on the extent to which an author may resign her rights. Most of these limitations are designed to protect the author against a sophisticated business entity (publishers for example) that could potentially abuse her superior bargaining position, but the limitations apply regardless of who is the person the author contracts with.

Article 38, part 3 of the Copyrights and related rights act states that no rights to future or clearly unspecified works shall be transferred, nor can rights be transferred to uses of the work that 54 See footnote 45, article 6.156 part 1.

55 S. Aviža et al., Civilinė teisė. Bendroji dalis, (Vilnius: Justitia, 2009), p 33.

56 See footnote 48 article 42 part 1. But failure to comply with the requirement of written form would not render the agreement invalid, rather it would prohibit the use of witness testimony as proof of existence of an agreement and its provisions in court according to article 1.93 part 2 of the Lithuanian Civil Code.

57 UAB „ŽVC“ v. AB „Pineka“, Lietuvos Aukščiausiasis Teismas (2010-09-27, Nr. 3K-7-262/2010); see also E. B., J. S., A. P., K. B., L. B. v.

UAB „Westauto“, Lietuvos Aukščiausiasis Teismas (2013-04-10, Nr. 3K-3-214/2013).

58 The cases, that have been referenced to in footnotes 5 and 15 should not be overemphasized, because the most important issues that were dealt with in them were focused on contract law, not intellectual property law. Consequently, it is unclear whether the court would apply the same rules if a case with a factual background more relatable to CC licenses would arise. That being said, a CC license is a contract, thus the same rules should apply.

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be

foreseen at the time of the creation of the work. 59 Thus, a CC provision allowing the use of the licensed content for derivative works may well be invalid as overly broad as it allows for the use of the work that cannot be foreseen. On the other hand a Creative Commons license is given for a specific and present work, not for some future work, so it is unlikely that article 38 would apply. However, Copyrights and related rights act has special rules for interpreting copyrights agreements that clearly favor the authors: 1. It is presumed that an author only transfers as much rights as is necessary to achieve the cause of the agreement...

2. If all the pecuniary rights have been transferred by way of a copyright agreement, it shall be held that those rights are transferred only to the extent that the work may be properly used in the manner, set in the copyrights agreement. If the said agreement does not provide any specific manner the work is to be used in, it shall be held that the agreement is concluded only for the use of the work which is necessary to achieve the cause of the agreement.

As the cause of a Creative Commons license, is to allow for as much online sharing as possible of the content, these rules of interpretation should not pose much difficulty. But it remains unclear, how would a Lithuanian court rule on the issue and what would the cause of a CC license be held to be.

There is also an important doctrinal problem: if one may not resign oneâ&#x20AC;&#x2122;s rights then one has duties, rather than rights. This problem will be elaborated on in the following section, because as far as pecuniary rights are concerned, few minor exceptions aside, they may be transferred (resigned).

3. Resignation of moral rights In short, an author cannot resign her moral rights. At least not with legal certainty, and certainly not through a license agreement. A license is an authorization by the copyrights and related rightsâ&#x20AC;Ś holder (the licensor) to an actor (licensee) to use the licensed work, or its copies within a specified territory in a manner in accordance with the provisions of the license agreementâ&#x20AC;Ś 60

59 Article 38 of the Copyrights and related rights act deals with transfers of rights by the author, which is done through a copyright agreements rather than a license agreements, but article 38 may still apply to Creative Commons licenses, under the principle of substance over forms an agreement may be held a copyright agreement, by which rights may be transferred, regardless of how it is called.

60 See footnote 48, article 2 part 21.

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Contemporary Issues on Intellectual Property Law Thus, a license agreement is not a suitable instrument to resign rights, since it is only intended to allow the licensees the use of some rights of the copyright holder. 61 Furthermore, according to article 38 part 4 of the Copyrights and related rights act, there is no legally binding way to assign moral rights of the author: Moral rights are not transferrable. The possession of moral rights is not contingent on possession of pecuniary rights to a work; moral rights to a work remain with the author even if pecuniary rights have been transferred.

Such regulation of moral rights is a result of French influence on Lithuania law, since moral rights are deemed to have a personal character, associated with the author, and intended to protect her interests, to preserve the integrity of the work and the author’s reputation. 62 Thus some provisions of Creative Commons licenses (the ones allowing for noncommercial use of the content as well as adaptation and modification of works, for example) may be unenforceable as infringing on the nonlicensable moral rights, such as the right to object to modifications of the work.

On the other hand, the Lithuanian Copyrights and related rights act does not expressly forbid the resignation of moral rights by the author, who may refuse to enforce her rights in whole or in part. For example, professor Alfonsas Vileta claims that an author may give license to someone to make changes to her work, but only to a specific person, in whose favor the author refuses to exercise her rights.63 This would not be applicable to Creative Commons licenses, where everyone could be the said “specific person”. In addition to that, this is only a theoretical argument, not yet tested in courts.

One that is quite likely in contradiction with statutory law: “[a] refusal to exercise of one’s rights shall not affect the existence of the said rights, unless the statutory law specifies to the contrary”64. Thus, even

though

the

realization of one’s rights is completely up to the will of the person who bears them (one can refuse to exercise one’s rights) one cannot effectively resign them, because such a resignation would not have any legal effect65 and validity of it would be contingent on the whim of the person who resigns the rights. Not the kind of legal certainty one expects from contract law by far.

Such regulation is arguably flawed because of the uncertainty it creates. A right is a mode of action available to a person as permissible (not forbidden by law) and protected by the state. 66 If A has 61 See footnote 44, p. 164; Jūratė Usonienė, Autorių teisių perdavimo ypatybės (Vilnius: Teisinės informacijos centras, 2008), p. 147 62 See footnote 44, volume 1, p. 285-286.

63 Alfonsas Vileta, Lietuvos Respublikos Autorių teisių ir gretutinių teisių įstatymo komentaras (Vilnius: Lietuvos rašytojų sąjungos leidykla, 2000), p. 59.

64 See footnote 45, article 1.137 part 6.

65 Rūta Petkuvienė, „Žmogaus teisių samprata teisingumo ir subjektinės teisės požiūriu“, Jurisprudencija Mokslo darbai (2006 6(84)), p. 86; 66 Ibid.

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Contemporary Issues on Intellectual Property Law a right to do X then A is free to do or refrain from doing X, it is what A may do, but not what X must do (if A must to X, then X is not a right, but rather a duty).67 Professor Alfonsas Vaišvila used a very similar argument in criticizing a decision by the Lithuanian Constitutional court which allowed a cut in salaries to members of the parliament as a right decision made for the wrong reasons (economic considerations): If receiving a salary is a right rather than a duty, then a person who has that right may use it or may not use it, perhaps use it in part, thereby relieving the other party (in this case the state) of its duty to pay the salaries. 68 If one has no right not to use one’s rights, those rights seem very much like duties, not rights. Yet a court may be unlikely to choose sound doctrinal reasoning over existing statutory law. All in all, the discussed regulation creates a lot of uncertainty, which must be taken into account when using copyrighted works in a manner that would infringe on the moral rights of the author, even if a Creative Commons license is given.

II. EU law There is little EU legislation that is relevant on the subject of Creative Commons licences.

There have been some interesting recent developments, though. Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in

the

internal market (even though it has a limited scope which only includes licensing of musical works) deals with alternative licences: As far as non-commercial uses are concerned, Member States should provide that collective management organisations take the necessary steps to ensure that their rightholders can exercise the right to grant licences for such uses... This Directive should not prejudice the possibility for rightholders to manage their rights individually, including for non-commercial uses.69 67 M.D.A.Freeman, Lloyd's Introduction to Jurisprudence (London: Thomas Reuters (Legal) Limited, 2008). p. 397.

68 Alfonsas Vaišvila, „Teisinio mąstymo antinomijos“, Socialinių mokslų studijos (2009, 3(3)), p 65.

69DIRECTIVE 2014/26/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, W hereas 19

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Rightholders shall have the right to grant licences for non-commercial uses of any rights, categories of rights or types of works and other subject-matter that they may choose.70 Thus despite the reluctance of the collective management associations to recognize alternative licenses71 and individual management of copyrights, those associations will be obliged to accommodate the rightholer’s wishes. The importance of these legislative developments will become apparent in the following chapter.

III. Institutions If some provisions of a license agreement are contrary to imperative statutory law or otherwise invalid, the actions of a licensee, who believed she had the license to use the work given by the author, may actually infringe the author’s copyrights.

The kind of violations relevant here (use of the work in excess of what was appropriate according to the valid provisions of the license) are mostly dealt with in civil litigation as opposed to criminal or administrative procedures. This mitigates the problem: even if some parts of the license agreement were invalid, and the licensee infringed the copyrights of the copyright holder, she would be unlikely to initiate civil litigation to protect her rights since the copyright holder gave a Creative Commons

license.

Admittedly, the situation is problematic enough if the licensee must count on the good will of the licensor not to get sued, but it is actually worse if collective management of copyrights is taken into account. A copyright holder does not always have sole discretion over how her rights should be defended; the institution for collective management of copyrights may have it.

An association for collective management of copyrights may, according to article 65 part 4 (in case of cable TV broadcasting) and article 67 part 4 (in unspecified situations), collectively manage copyrights and (or) related rights without a separate authorization. The author’s right to individually manage her copyrights may be limited as a result of contractual obligations between the author and a collective management institution.72 Consequently, the licensee in order not to get sued must count on the good will and understanding of not only the licensors (the author) but also the institution for collective management of copyrights.

70 Ibid. Article 5 part 3.

71 See footnote 72.

72 Mindaugas Kiškis, Intelektinės nuosavyės teisinė apsauga elektroninėje erdvėje, (Vilnius: Mykolo Romerio universitetas, 2011), p. 73.

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Enforcement Finally, let us discuss the issue of the enforceability of Creative Commons licenses: could a licensee effectively defend herself against a lawsuit for breach of copyright to a work that was used in accordance with a Creative Commons license agreement. The statutory law is clearly in favor of the copyrights holder, but the licensee could possibly use some principles of civil law as well as copyright law. One is admittedly in a bad position if one must resort to principles of law to support one’s position. But principles of law may indeed provide a very powerful instrument, and cases that involve a Creative Commons licensee defending herself against a claim by the licensor who in effect sued for an infringement of copyrights, that the licensor did, perhaps invalidly, but license non the less, may just be one of those cases.

Firstly, there are the general principles of law: justice (lit. – teisingumas), prudence (lit. – protingumas) and fairness (lit. – sąžiningumas). Parties themselves must follow these principles in their dealings 73 as well as courts who must interpret statutory law in accordance with these principles74. A court may refuse to enforce a party’s rights if she abuses them 75.

A licensee who honestly relied on a license agreement would have a strong argument, that the copyright holder abused her rights if she licensed the use of her work but afterwards sued for enforcement of her copyrights because some provisions of the license were invalid (contrary to statutory law). And if the copyright holder abused her rights, enforcement of those copyrights would be against the general principles of law.

In addition to the general principles of law, there are special principles of copyright law, relevant here. Encouragement of creativity is a recognized principle of copyright law by scholars 76 as well as the Lithuanian Constitution77 and the jurisprudence of the Lithuanian Constitutional Court78.

The principle of encouragement of creativity would probbably favor the licensee. Thus a Creative Commons licensee would have some theories to defend against a suit from the copyright holder.

IV. Conclusions and suggestions In conclusion, the uncertainty that is presently found in Lithuanian law favors the interests of the authors, whether or not they need it (or even want it) and the lack of legislation intended to 73 See footnote 45, article 1.5 part 1.

74 Ibid. article 1.5 part 4.

75 Ibid. article 1.137 part. 3.

76 See footnote 62, p. 52-53.

77 Lietuvos Respublikos Konstitucija (1992-11-30, Nr. 33-1014), article 42 part 1.

78 Lietuvos Respublikos Konstitucinio teismo nutarimas (2005-07-08, Nr. 10/02); Lietuvos Respublikos Konstitucinio teismo nutarimas (2007-0505, Nr. 18/06)

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Contemporary Issues on Intellectual Property Law deal with alternative licenses (including Creative Commons licenses) greatly diminishes the potential of the Creative Commons licenses. Presently, an author may not resign all of her rights, and a licensee relying on such a resignation may find herself in litigation with the author. Thus new legislation dealing with alternative licenses needs to be implemented. A translation of Creative Commons licenses into Lithuanian would also be beneficial.

To sum up, even though, as You, the Reader, may remember I, the author, gave You, a Creative Commons license to do whatever You wish with this text as long as You attribute it, I must warn You against actually doing so. Or at least against doing so in Lithuania, because You would be taking the risk of me changing my mind and suing You. In which case I would be likely to succeed in enjoining You from using this text, and perhaps even recovering damages.

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Bibliography 1.

Lietuvos Respublikos Civilinis kodeksas (2000 07 18, Nr. VIII-1864).

2.

Lietuvos Respublikos autorių teisių ir gretutinių teisių įstatymas (1999-05-18, Nr. VIII-1185).

3.

Lietuvos Respublikos Informacinės visuomenės paslaugų įstatymas (2006 05 25, Nr. 65-2380).

4.

Lietuvos Respublikos Konstitucija (1992-11-30, Nr. 33-1014).

5.

European Parliament legislative resolution of 4 February 2014 on the proposal for a directive of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market (COM(2012)0372 – C7-0183/2012 – 2012/0180(COD)).

6.

Vytautas Mizaras, Autorių teisė, volume 1, (Vilnius: Justitia, 2008).

7.

Vytautas Mizaras, Autorių teisė, volume 2, (Vilnius: Justitia, 2008).

8.

Jūratė Usonienė, Autorių teisių perdavimo ypatybės (Vilnius: Teisinės informacijos centras, 2008).

9.

Alfonsas Vileta, Lietuvos Respublikos Autorių teisių ir gretutinių teisių įstatymo komentaras (Vilnius: Lietuvos rašytojų sąjungos leidykla, 2000).

10. Valentinas Mikelėnas, Alfonsas Vileta Algirdas Taminskas, Lietuvos Respublikos Civlinio kodekso komentaras.

Pirmoji knyga. Bendrosios nuostatos, (Vilnius: Justitia, 2001).

11. Mindaugas Kiškis, Intelektinės nuosavyės teisinė apsauga elektroninėje erdvėje, (Vilnius: Mykolo Romerio universitetas, 2011).

12. M.D.A.Freeman, Lloyd's Introduction to Jurisprudence (London: Thomas Reuters (Legal) Limited, 2008).

13. Alfonsas Vaišvila, „Teisinio mąstymo antinomijos“, Socialinių mokslų studijos (2009, 3(3)).

14. Rūta Petkuvienė, „Žmogaus teisių samprata teisingumo ir subjektinės teisės požiūriu“, Jurisprudencija Mokslo darbai (2006 6(84)).

15. UAB „Bobutės paskola“ v. E. R. Z., Kauno apygardos teismas (2013-09-26, Nr. 2A-1514-173/2013).

16. L. J. v. Kęstučio Jono Vasiliausko įmonė, Lietuvos apeliacinis teismas (2006-06-08, Nr. 2A-248/2006).

17. UAB „ŽVC“ v. AB „Pineka“, Lietuvos Aukščiausiasis Teismas (2010-09-27, Nr. 3K-7-262/2010).

18. E. B., J. S., A. P., K. B., L. B. v. UAB „Westauto“, Lietuvos Aukščiausiasis Teismas (2013-04-10, Nr. 3K-3214/2013).

19. Lietuvos Respublikos Konstitucinio teismo nutarimas (2005-07-08, Nr. 10/02).

20. Lietuvos Respublikos Konstitucinio teismo nutarimas (2007-05-05, Nr. 18/06).

21. Jurga Gradauskaitė, paper read at a seminar „Bibliotekos – specialistams, specialistai – bibliotekoms“ at Library of technology of Lithuania on 2013-11-17, < http://www.ilawfirm.lt/naujienos/advokates-jurgos-gradauskaitesstraipsnis-apie-creative-commons-licenciju-suteikiamas-galimybes.html>.

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Gintarė Kumpikaitė

Character Merchandising Case of Lithuania

VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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I. I NTRODUCTION This legal research is conducted by implementing the Project „Intellectual Property Law“ at the Aristotle University of Thessaloniki, Greece and Vytautas Magnus University, Lithuania. The Project‘s aim is to investigate and compare legal regulation of intellectual property law, character merchandising issues in Lithuania and Greece and find the main differences in country legislation.

Character Merchandising is an important part of nowadays marketing and law. A character taken from a fairy tale or sketches, can have an important influence to products design and success on the market. Due to that, disputes among authors and character users often reach arbitrage. The owners of film studios often try to broaden the limits of ability to influence the fictional character while using it in new movies or selling their images to other companies In Lithuania, the rights to authorship are protected by Copyright and Related Rights Protection Law. This law states, that is not possible to reject or loose unmaterial rights to authorship, even if the material law is assigned to another party. 79 In the article published on metidalawfirm.wordpress.com, disputes among authors and users are analysed due to the authorship and rights to use a specific character on different parts of the market. Companies that buy the image of characters to design their products to increase their success, often face inflexibility due to various laws, moral rights given to an author in contrast with very restricted rules towards another party.

In this work, using the WIPO Intellectual Property Book and the Copyright and Related Rights Protection Law, I will analyse the material and intangible rights, authorship of each party who candidates to use, create the specific character and its image, further, ability to use on the market, in Lithuania.

As a great example would be taken a Lithuanian fairy tale character “Naminukas”. This character has got popular after the fairy tale was released and different kind of companies started using its image on their products. For example: magazines and packages of certain kind of food products. A specific detail is, that the character “Naminukas” belongs to public domain and has no particular author.

The goal of character merchandising research is to analyse the laws and legal practise related to character merchandising in Lithuania. The important part of this analyse is to find out the limits of character usage on different purposes and each companies rights to use it. Responsibilities and engagement to the main authors and their limits to assign their rights to other parties are also 79 Copyright and Related Rights Protection Law, article 38. Part 4

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Contemporary Issues on Intellectual Property Law important. The comparison between European Union law and Lithuania’s national law and court practise towards the issue of character merchandising would give a new attitude to Lithuania’s national law and the law system that regulates Intellectual Property Law. Character merchandising is important and interesting, new sphere that belongs to Intellectual Property Law. The legal issue of fair use has become an urgent due to economical growth.

The important part of the research is to find the laws and court cases that clarify the way of protection the material and intangible rights.

In this legal research one main question should be asked: what actions in character merchandising infringe intellectual property rights and what are the measures, procedures and remedies applied to avoid or combat these infringements.

Some of possible examples of infringements include the following: - Illegal character’s use for commercial purposes, without the knowledge of the author.

- Illegal character’s image backups, changing the characteristics of the personage without author’s permission.

- Public announcement of characters This research is library based and includes study of cases. The main sources of the research are: - Law applied to the protection of Intellectual property and character merchandising. It includes national and international legislation, treaties, conventions, books.

- Court cases. It includes the judicial proceedings in intellectual property cases and decisions of national courts of Lithuania.

II. L AW Lithuania as a member of European Union, has nationalized all the EU laws related to intellectual property and character merchandising. One of the main functions of EU is a free-trade that requires same circumstances and legislation in each member country of European Union.

Character or another artistic creature merchandising is considered as independent material law according to Lithuania’s legislation. The material form includes a visible tool, for example: wood, steal, paper or just a wall. A character that is merchandised, always be visible in one of these forms.

Additionally, the author that has created an object that can be used for commercial or nonPage 71

Contemporary Issues on Intellectual Property Law commercial purposes, also, for public needs, always has a potential to get income from it. That explains why character merchandising belongs to material law. Since the moment of the object completion in an objective form, the author gets the rights and legal protection to his artistic creature.80 The goal of authorship rights protection is to protect the interest of the authors that made artistic creature. There no differences if the character or another creature would be used for commercial purposes or industry. An author of a character that is used on industry and commercial purposes always has a right to get a part of profit got after that character is merchandised. Permission to reproduce the work does not automatically mean permission to distribute. Without the author's permission distributing illegally made copy of a work, would be the infringement of the right to a property and reproduction.

The independence of character/artistic creature distribution means that the author can forbid the distribution of legally reproduced copies of the creature, if he/she has not given a permission to do definitely this action. Even if the artistic creature/character is legally reproduced and even distributed in the country that does not belong to European Economic Area, the author can forbid the distribution and import to Lithuania’s territory. This is an exceptional right of merchandising that the author can have in Lithuania. 81 Lithuanian Copyright and Related Rights law: article 15 part 1, 5th paragraph: “ The author has the exclusive right to authorize or prohibit the following act: the distribution of the original or a copy of the sale, rental, lending or other transfer of ownership or control, as well as import, export. „ The Civil Code of the Republic of Lithuania has enormous variety of laws those protect the authorship and other intellectual property rights.82 The examples of several laws are given: Article 1.52. Law applicable to contracts related to intellectual property rights 1. In the absence of the parties choice of applicable law (Article 1.37 of this Code), contracts related to intellectual property rights shall be governed by the law of the state where the party transferring the intellectual property rights or granting the use thereof has his domicile or the place of business.

80 Vytautas Mizaras. Autorių teisė. I tomas. 2008.

81 Autorių teisės Gretutinės teisės.Europos Bendrijos teisės aktai.2005 82 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=245495

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Contemporary Issues on Intellectual Property Law 2. Contracts between an employer and an employee regarding the rights to intellectual property created by the employee in the course of his employment shall be governed by the law applicable to employment contracts.

Article 1.53. Intellectual property rights and the law applicable to their protection 1. Intellectual property rights and their protection shall be governed by the law of the state where the protection of the intellectual property rights is sought.

2. In the event of infringement of intellectual property rights, the parties may agree after the occurrence of the damage that the applicable law shall be the law of the state where the court hearing the case concerned is located.

The Code of Administrative Offences of Lithuania has also laws regulating the authorship and other intellectual property rights. The example of the law is given: Article 214/10. Copyright and related rights Illegal literary, scientific or artistic work ( including computer programs and databases) or an object of related rights or part of a public performance, reproduction, communication to the public,but use different ways and means for non-commercial purposes, as well as distribution of illegal copies, transportation or storage of commercial purposes -punishable by a fine of one thousand to two thousand litas to work or object of related rights confiscation of illegal copies.

The same actions committed by a person who has already been convicted for in the first part of the violations -punishable by a fine of two thousand to three thousand, with a work or phonogram illegal copies of their plant or equipment was confiscated.

Note. Work or phonogram illegal copies of plant or equipment - hardware, materials, and other tools that are used exclusively or mostly a work or phonogram illegal copies reproduced and ( or) distributed or intended use of the direct and objective - to reproduce and ( or ) distribution of illegal work or phonograms.

The Criminal Code of Lithuania has several laws that provide liability of infringement due to authorship and intellectual property rights.83 The examples are given:

83 http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=366707

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Contemporary Issues on Intellectual Property Law Article 191. Misappropriation First person who, on their own behalf or released publicly announced a literary, scientific or artistic work (including computer programs and databases), or part thereof, shall be punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for up to two years.

Second person who, taking advantage of his official position or mental abuse forced the literary, scientific or artistic work (including computer programs and databases) or part of the author to recognize the other person or a co-author of the assignee, or give up ownership rights shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for up to three years.

Third for the offense under this Article shall be responsible and legal person.

Article 192 . Literature , science, art or object of related rights illegal reproduction , distribution of illegal copies, transportation or storage 1. Whoever illegally reproduces a literary, scientific or artistic work ( including computer programs and databases) or an object of related rights or in part for commercial purposes or transported or kept for commercial purposes illegal copies thereof, where the total value of legitimate copies and when they do not, according to the reproduced original works prices above 100 MSL amount shall be punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for up to two years.

2.Whoever did this Article offense under paragraph 1, if the total value of illegal copies of legal copies, and when they do not, according to the reproduced original works prices above 250 MSL amount shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for up to three years.

3. For the offense under this Article shall be responsible and legal person .

Article 193. For information on copyright and related rights in the management of the destruction or modification 1. Person who, without the copyright or related rights shall be permitted for commercial purposes destroyed or changed information on copyright and related rights management, where that information identifies the work, the author, the other owner of copyright or performer, performance, phonogram, phonogram manufacturer and other related rights, as well as information about the work, its performance or phonogram usage conditions and procedures, including any numbers or codes that Page 74

Contemporary Issues on Intellectual Property Law represent the work, performance or phonogram copies of records selected or communication to the public the information, shall be punished by a fine or by arrest or by imprisonment for up to one year.

2. for an offense under this Article shall be responsible and legal person.

An interesting observation is that authorship rights do not protect the idea and material of the artistic creature. It is not allowed to copy only the image or the figure of a creature without author’s official permission, but the idea expressed in the work can be copied without that author knows. The right to an idea is not protected due to different interpretations of each individual and it is not possible to prove that another person that uses a similar idea in his or her work is actually using not his or her idea.84 Problematic area is about computer graphic design. Legal literature in most of European Union countries states that the artistic creature made by computer programs can be protected by authorship rights if it is an original and a result of human’s intellectual work. The originality does not cause any hesitations, but international discussions appear due to an issue of freedom and efficiency of creativity while using computer programs. The common opinion is that as long as an author uses the computer as a tool to express his or her ideas through artistic creature and is able to make an influence to a work, that would be accepted as a result of intellectual work and would be protected by intellectual property rights. For example, according to United Kingdom authorship, design and patent law article 9, Part 3, the author of computer-generated work is a person that performed necessary actions to make the work happen. Without individual actions the work could not appear by itself.

Another opinion in this context is professor’s Cohen Jehoram from Netherlands. He states that there should be a difference between computer-generated works and works made with computer help. He thinks that the creatures those are generated by computer, should not be protected by authorship rights. The main argument is that these kind of creatures are in lack of originality. 85 Another type of Arts that a specific character can figure as an object too is a work of craftsmanship. Works of craftsmanship are made for practical use. Jewellery, furniture, clothes, wall ornaments, graphic, textile and etc. are counted as works of craftsmanship because of its potential for massive, commercial use. Character can be used on textile or clothes design, so this would be also

84 Vytautas Mizaras. Autorių teisė. I tomas. 2008 85 Autorių teisės Gretutinės teisės.Europos Bendrijos teisės aktai.2005

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Contemporary Issues on Intellectual Property Law protected by authorship rights, so that the third parties could not use, change the design of a character as if it is their own creature and get income on it.86 The main laws that are protecting and regulating the intellectual property rights in Lithuania are: Civil Code, Penalty Code, Copyright and Related Rights Protection Law, Treaty on Intellectual Property Rights in industry.

The institutions that are liable to protect Intellectual Property rights in Lithuania are : - The Association of LATGA - International Union of Literary and Artistic Works store - Copyright and Related Rights Protection association - The Ministery of Justice - Lithuanian Criminal Police Bureau - The State Patent Bureau - The Ministry of Culture and its office on Copyright and Related Rights.

The main laws and institutions that are protecting and regulating the intellectual property rights in European Union are: - European Community legislation II, III, IV sections - The European Patent Office.

Lithuania has ratified these European Union treaties and conventions related to Copyright and Related Rights Protection: - The Berne Convention on Literary and Artistic Works; - The International Convention for the Protection of Performers - Producers of Phonograms and Broadcasting Organizations; - Geneva Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms; - World Intellectual Property Organization Performances and Phonograms Treaty; - World Intellectual Property Organization Copyright Treaty.

The worldwide organization that Lithuania has joined in 1992 are World Intellectual Property Organization. World Copyrights Convention is also valid in Lithuania.87

86 Berne Convention 87 www.europa.eu/youreurope/business/start-grow/intellectual-property-rights/index_lt.htm#lithuania_lt_projecting-intellectual-property

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III.

C ASE STUDIES

The court cases are very important due to understanding of Lithuaniaâ&#x20AC;&#x2DC;s court practise in particular case or subject. Unfortunately, there are no cases regarding character merchandising issues appeared in Lithuania.

IV.

C ONCLUSIONS

Including all the analysis of the laws, the goal of this research is achieved. The enormous amount of laws related to authorship rights and character/artistic creatures merchandising issues in different Codes of Lithuania prove how strictly the intellectual property rights are protected and regulated by law. To sum up the research conducted in the legislation part of this article, the conclusions are as follows: 1. In Lithuanian legislation the author of a character/artistic creature has an exceptional right of distribution. The author has a right to decide if the character/artistic creature is allowed to be imported to Lithuaniaâ&#x20AC;&#x2122;s territory, even if it was legally reproduced in another country.

2. Character or another artistic creature merchandising is considered as independent material law according to Lithuaniaâ&#x20AC;&#x2122;s legislation. Additionally, the author that has created an object that can be used for commercial or non-commercial purposes, also, for public needs, always has a potential to get income from it. That explains why character merchandising belongs to material law. Since the moment of the object completion in an objective form, the author gets the rights and legal protection to his artistic creature.

3. In the Lithuanian Civil Code the material rights can always be sold or given to another party, but never the non-material rights. Since the character/artistic creature is completed in an objective form, the author always has the non-material rights to his/her creature.

Suggestions 1.

The authors of fictional characters have plenty of laws and moral rights to a character and often inflexibility to adjust the character according to the needs of the market. To encourage the growth of business, the rights of authorship should be more detained.

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B IBLIOGRAPHY : 1.

Republic of Lithuania Civil Code (18 July 2002 No VIII-1864)

2.

Berne Convention for the Protection of Literary and Artistic Works (September 9, 1886, completed at Paris on

May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1971 and amended on September 28, 1979)

3.

Republic of Lithuania Criminal Code (26 September 2000 No VIII-1968)

4.

Republic of Lithuania law on copyright and related rights (18 May 1999 No VIII-1185).

5.

Republic of Lithuania Code of Administrative Violations (24 March 2011)

6.

Vytautas Mizaras. Autorių teisė. I tomas. 2008

7.

Autorių teisės. Gretutinės teisės. Europos Bendrijos teisės aktai.2005

8.

www.europa.eu/youreurope/business/start-grow/intellectual-property-

rights/index_lt.htm#lithuania_lt_projecting-intellectual-property

9.

www.wipo.int/wipolex/en/profile.jsp?code=EU

10.

www.eteismai.lt

11.

http://www.latga.lt/en

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Contemporary Issues on Intellectual Property Law

Deividas Kiršys

PHOTOGRAPHER AND RELEASED PERSON – LEGISLATION AND JURIPRUDENCE Case of Lithuania

VYTAUTAS MAGNUS UNIVERSITY FACULTY OF LAW

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Contemporary Issues on Intellectual Property Law

I.

INTRODUCTION

Basic information This legal research is conducted by implementing the Project “Intellectual property Law” at the Aristotle University of Thessaloniki, Greece, and Vytautas Magnus University, Lithuania. The Project’s aim is to investigate and compare legal regulation of Intellectual Property law issues in Lithuania and Greece and find the main differences in countries’ legislation.

Summary This article focuses on the right to a person’s image with a small fraction of legislation and jurisprudence related to the protection of the photographer since both the provisions and court practice of Lithuania are more in favor of the personal rights of the natural person, rather than the commercial interest of the photographer. The article goes through the main legislation in the first part and answers the relevant issues of court practice in the second. It puts forth the importance of consent of the person being photographed, the limitations to the image right when it meets the public interest and the image as an object of property relationships and identifies problems related to the confrontation of the right to private life and freedom of expression in the context of European Convention on Human Rights provisions and the court practice of the European Court of Human rights.

Research method This research is library-based and includes study of Lithuanian court cases. The main sources of the research are: - Law applied to the protection of the photographer and the image of a person. It includes national and international legislation, treaties, articles, books, case reports and other researches.

- Court cases. It includes the judicial proceedings concerning the photographer and the image right of a person and decisions of national courts of Lithuania.

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II. LEGISLATION P HOTOGRAPHER AND THE RIGHT TO FREEDOM OF EXPRESSION The European Convention on Human Rights (hereafter – ECHR, Convention) is one of the most important sources of law regarding the right to freedom of expression. It officially became a part of the Lithuanian law system on 1995 when it was ratified by the legislative body of Lithuania (hereafter – Seimas).88 Article 10 of the ECHR provides as follows: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

Freedom of expression is enshrined in the Constitution on Lithuania as well as incorporated in the law on the provision of information to the public. 89 Even though at first glance, it might not appear that the right to collect and publish information has any direct connection with intellectual property it is actually closely associated with IP rights when it is interpreted by the European Court of Human Rights (hereafter – ECtHR.90 These sources of law and the Republic of Lithuania law on copyright and related rights (hereafter – Copyright law) are the defense basis for the protection of the commercial interest of the photographer. Article 6 part 1 of the Copyright law stipulates as follows: “The author shall be a natural person who has created a work.” Copyright Law article 4 part 2, paragraph 8 states as follows: “<…>The subject matter of copyright shall comprise the following:<…> 8) photographic works and other works created by a process analogous to photography;<…>” 91 Evidently, when a photographer takes a picture, he creates some kind of photographic work which is protected under Copyright law. Furthermore, when the taken picture is published, the photographer is also protected under the laws concerning freedom of expression, which as we will see

88

Statute on the ratification of the fourth, seventh and eleventh protocols of the European Convention on Human rights, (1995, No. 37-913).

89 Republic of Lithuania law on the provision of information to the public, 2 July 1996 – No I-1418 (As last amended on 6 November 2012 – No XI-2353), article 5 part 1, paragraph 3; 90 Welkowitz S. David, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles, Akron Law Review, 46, 2013, p. 683; 91 Republic of Lithuania law on copyright and related rights (18 May 1999 No VIII-1185);

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Contemporary Issues on Intellectual Property Law in the preceding chapters, rarely avoids confrontation with the right to private life and the image right of the person who is being photographed.

T HE RIGHT TO AN IMAGE Personality is a manner in which one individual is recognized by another. Through the creation of one’s personality, an individual creates an image of himself and his expected behavior in society. The image of a person is a specific right of a natural person among other personal rights, such as the right to a name, the right to privacy and secrecy, the right to honor and dignity, the right to inviolability and integrity of the person and others. In the European Union the right to image right is enshrined in article 8 of the ECHR which primarily protects private life. In Lithuania this right is protected under article 22 of the Constitution of the Republic of Lithuania (hereafter – Constitution), also articles 1.114 and 2.22 of The Civil Code of the Republic of Lithuania (hereafter – Civil Code).

Nonetheless, there are differences between regulation of the right to an image in the Civil Code and ECHR. Firstly, art. 8, part 1 of the Convention states that everyone has the right to respect for his private and family life, his home and his correspondence.92 According to the jurisprudence of the European Court of Justice (hereafter – ECJ) the right to an image is a component of private life 93 and it is set under a single article (article 8 of the Convention), whereas, in the Lithuanian Civil Code the right to private life is protected under article 2.23 and the right to an image under article 2.22. Since the right to a private life and the right to an image are regulated in different norms, it is crucial to clarify the relation between these two rules. In the Civil Code article 2.22 (the norm defending the right to an image) is a lex specialis in respect of article 2.23 (which defends the right to privacy). So the specific object of article 2.22 is the image of a person. Consequently, if the right to an image is the only value that has been violated, art. 2.22 is applied and if the right to private life and the right to an image have been violated together, both article 2.22 and article 2.23 will be applied. 94

T HE RIGHT TO AN IMAGE AS A NON - PROPERTY RIGHT First of all, to understand where the right to an image stands in the Lithuanian law system, we need to define the objects of civil law. The Civil Code article 1.1 part 1 stipulates: “The Civil Code of the Republic of Lithuania shall govern property relationships and personal non-property relationships related with the aforesaid relations, as well as family relationships. In the cases provided for by laws, other personal non-property relationships shall likewise be regulated by this Code.” 95 92

The European Convention on Human rights (Rome, 4.XI.1950) art. 8, part 1; European Court of Justice case: Peck v. The United Kingdom, Eur. Ct. HR, application no. 44647/98 (2003).

94 Valentinas Mikelėnas, Gintautas Bartkus, Vytautas Mizaras, Šarūnas Keserauskas Lietuvos Respublikos civilinio kodekso komentaras. Antroji knyga. Asmenys (Lithuanian Civil Code commentary)(Vilnius, Justitia, 2002) p. 54 95 Lithuanian Civil Code (18 July 2000 No VIII-1864) art. 1.1 part 1; 93

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Contemporary Issues on Intellectual Property Law According to this clause, we can say that the civil law object of regulation consists of three types of relationships: 

Property relationships;



Non-property relationships related with property relationships;



Non-property relationships unrelated with property relationships.96

Property relationships are different from non-property relationships in their object. The object of non-property relations is a natural or acquired feature. It is indistinguishable from its owner, because it is his substance. It does not have economic value so it cannot be sold or transferred in any way. Civil law regulates non-property rights which are not only important to the person himself, but also to society. Therefore, non-property relationships are an exceptional object of civil law, i.e. it can only be regulated if it is expressly mentioned in the Civil Code or another act of law. 97 In Lithuanian legislation the object of non-property relationships related with property relationships is a personal good which can be used to create property relations such as authorship, the name of a legal entity or a trademark. On the other hand, non-property relationships unrelated with property relationships are usually not regulated in Lithuania, but they can become an object of civil law if it is expressly set in the Civil Code or another act of law (For example, the right to a name, right to an image, right to privacy and secrecy, honor and dignity and etc., protected under articles 2.222.27 of the Civil Code).98 The Civil code sets the right to an image to be a non-property relationship unrelated with property relationships, however it can become an object of property law if it gains economic value.

For example, a photograph of a model can gain economic value and may be sold, but the general appearance of the person may not (You cannot sell your right to an image in general, you can only sell the photograph of your image). So the right to an image can be both a non-property relationship related with property relationships and a non-property relationship unrelated with property relationships.

In this instance it is necessary to define what the word “image” means. The authors of the Civil Code commentary state that an image are photographed or filmed parts of the human body that we are able to identify as a person (For example, the picture of a person at full length, waist-high or a face portrait). Therefore, this clause cannot be applied if a photo is taken, for instance, of only a 96

Egidijus Baranauskas, Inga Karulaitytė-Kvainauskienė, Julija Kiršienė and others, Civilinė Teisė. Bendroji dalis, Mykolo Romerio unversitetas, 2007, p. 41 97 Ibid, p. 47 98 Ibid, p. 48

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Contemporary Issues on Intellectual Property Law finger, a leg or other part of the body which cannot be identified as a specific person’s body part. 99 So, as we can see, only pictures that personify the individual can be protected under this norm.

The common rule stated in art. 2.22 part 1 is that if the person is identifiable in an image he must give his consent to be photographed, also for the image to be reproduced, sold, demonstrated or published.100 However, there are three exceptions to this rule, when the consent of a person shall not be required. These restrictions arise from the public interest and are stated in the 2nd part of the article: 1) Where such acts are related to person’s public activities, his official post, 2) when there is a request of law enforcement agencies, 3) where a person is photographed in public places. 101 (The particularity of these limitations will be more closely analyzed in the “Case studies” part of this article.) These three exceptions have a reservation of their own – the image “may not be demonstrated, reproduced or sold if those acts were to humiliate the person or damage his professional reputation.”102 Moreover, the Civil Code of Lithuania also protects the image right of a deceased person.

Article 2.22 part 1 says that after a person’s death the consent to use his image may be given by his spouse, parents or children. In the Lithuanian law system the deceased person’s personal nonproperty right is not transferable to other individuals, however, it is to be protected by his spouse, parents or children. This right ends after the death of the last spouse, parent or child. 103 The limitations to the image right of a deceased person are the same as the ones of a living person.

Civil Code article 2.22 part 3 stipulates the defense mechanism in case the right to an image is infringed. It simply states that if a natural person’s right to an image has been infringed he can request the court to oblige the discontinuance of these acts and to ask for compensation of pecuniary and non-pecuniary damage.104 Moreover, in the same article it is noted that after a person’s death the right to request the discontinuance of the illegal acts and to seek compensation transfers to the deceased person’s spouse, parents or children.105 Even though the regulation of the image right in Lithuanian legislation does not seem complicated the court practice reveals that there are quite a few exceptions and limitations of the rules that are set in Lithuanian law. These questions will be further analyzed in the next part of this article.

99

Danutė Jočienė, Europos žmogaus teisių konvencijos taikymas (Vilnius: Eugrimas, 2000), p. 151; Lithuanian Civil Code (18 July 2000 No VIII-1864) 2.22, part 1, 101 Ibid, article 2.22, part 2 102 Ibid; 103 Kristina Gelgotaitė, Ar po asmens mirties išlieka jo teisė į atvaizdą?, International Journal of Baltic Law, Volume 2, No. 3 (July, 2005), p. 120.

104 Lithuanian Civil Code (18 July 2000 No VIII-1864), article 2.22, part 3; 105 Ibid; 100

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III. CASE STUDIES I MPORTANCE OF C ONSENT Article 2.22 part 1 of the Civil Code stipulates that a persons’ image can only be used with his consent. 106 The article does not stipulate in what form this consent should be given, but the Supreme Court held that consent may be given verbally, in writing or its formation may be implied from conduct.107 The consent is a matter of fact, thus, in every different case the court must decide whether it was given or not.108 However, the Supreme Court says that “the consent to be photographed ex officio does not imply the consent for the photo to be reproduces, sold, demonstrated or printed, because the fact that a person may have given consent (or asked by himself) that the photo be taken, does not mean that he has given consent for his picture to be used in a commercial and likewise.”109 Moreover, it is also very important to determine the purpose why the image was taken and why it was published or printed. This means that if a person’s photo is taken for some particular purpose, it cannot be used for another. For example, in one case a newspaper published an article accusing a person of theft and fraud, this article also had the person’s picture next to it. As it turned out, the picture was taken in a show that the person had attended a few years ago, which was unrelated in any way with the article. So in this case, the image was taken legally but used for a wrong purpose.110 There are lots of situations in the Lithuanian court practice when other people are in the same picture with the person that has given consent to take his image. For example, in one case a newspaper published an article with a picture of a couple that died because of drug abuse. Because the couple died, the consent to use their picture must have been given by both of their parents. However, the girl’s parents, without asking the parents of the boy, handed the picture over to the press. So in this situation only one of the person’s parents gave consent, whereas, both of their parents should have agreed to let the press publish it. Therefore, the right to the person’s image was infringed. The Court noted that “to publish a picture in which there are two people, both of their consent is needed, and when they are dead – the consent of their relatives.”111

106

Ibid, article 2.22 part 1; Supreme Court of Lithuania 31 May 2011 ruling in case No. 3K-3-262/2011; 12 February 2002 ruling in case No. 3K-7-437/2002; 2 January 2008 ruling in case No. 3K-7-2/2008; 107

108

Supreme Court of Lithuania 31 May 2011 ruling in case No. 3K-3-262/2011; 2 January 2008 ruling in case No. 3K-7-2/2008; 109

Supreme Court of Lithuania 2 February 2003 ruling in case No. 3K-3-294/2003;

110

Supreme Court of Lithuania 16 March 2007 ruling in case No. 3K-3-113/2007;

111

Supreme Court of Lithuania 2 January 2008 ruling in case No. 3K-7-2/2008;

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Contemporary Issues on Intellectual Property Law Another important aspect is the person’s capability to give consent. The Civil Code states that contracts on behalf and in the name of the person, who as a result of mental illness or imbecility is not able to understand the meaning of his actions and was declared incapable, shall be concluded by his guardian.112 It also says that “the guardian and the curator shall represent their wards under law and shall defend the rights and interests of legally incapable persons or persons of limited active capacity without any special authorization“.113 Accordingly, the Supreme Court states in its practice that the incapable person’s image cannot be used without the consent of the person’s guardian.

Moreover, it does not matter if the person gave consent to be photographed before becoming incapable, because he must give consent not only to be photographed but also to separately allow the picture to be published.114 In the Lithuanian law system minors are also incapable of letting others use their image. The Supreme Court says that it is the legal representative that should give consent for the minor, however, his discretion is limited by the protection of the child’s interests. This means that the legal representative (a parent or a guardian) can agree to let other people use an image of the child only if it does not infringe the rights of the child. Furthermore, another point risen in the Lithuanian court practice was whether the school of the minor can give consent to use the image of the child. In this case, regulation of the school stated that the school represents pupils, teachers, parents, social partners and the local community. Therefore, the school council, being the highest body, gave consent to use the photographs of their pupils in the school’s internet webpage. However, the Supreme Court stated that despite the fact that the school council is a self-governing body which represents all concerned, it does not mean that it represents every pupil and his parent. Thus, the decision of the school council is not equivalent to the consent of the parent (or statutory representative) of the child. In other words, only the parents of a child (or statutory representatives) can give consent to use his image. 115

R IGHT TO AN IMAGE VS . R IGHT TO FREE EXPRESS ION The right to privacy is not absolute. Without this right, there are other rights in the Constitution and international regulation as well. There is a common collision between the right to private life (established in the Constitution article 22), and the rights to have one’s own convictions and freely express them (established in the Constitution article 25). So, as the Supreme Court suggests, it is essential to ensure the coexistence of all human rights and not to absolute one on the

112

Lithuanian Civil Code, adopted by Seimas of the Republic of Lithuania (18 July 2000 No VIII-1864), art. 2.10 part 1 and part 2; 113 Ibid, art. 3.240 part 1 114

Supreme Court of Lithuania 14 August 2008 ruling in case No. 3K-3-390/2008;

115

Supreme Court of Lithuania 31 May 2011 ruling in case No. 3K-3-262/2011;

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Contemporary Issues on Intellectual Property Law account of others, to seek their balance. 116 The jurisprudence of Supreme Court and the ECtHR, states that according to the Convention of Human Rights article 8 part 2, the right to a private life can be limited only if it meets these clauses: 1)

It is in accordance with the law;

2)

It is limited for a legitimate aim;

3)

This limitation is necessary in a democratic society.117

In reference to this regulation, article 2.22 part 2 of the Civil Code states that the right to an image can only be limited if “such acts are related to person’s public activities, his official post, request of law enforcement agencies or where a person is photographed in public places“. However, this clause has a limitation of its own – the image of a person “may not be demonstrated, reproduced or sold if those acts were to abase person’s honour, dignity or damage his professional reputation.” 118 To understand how this clause is invoked, it is necessary to look more closely into these three exceptions: 1) A person does not need to give consent to use his image if he is a public person. There are too types of public persons: firstly, persons that are public ex officio, i.e. they are well known to the society because of their job, duty, certain position in the community (for example, artists, politicians, actors, businessmen, sportsmen and etc.). Secondly, public persons that are public only briefly, they usually attain attention of the community because of a certain event or something they did, but only briefly (For example, a person that participated in a reality show or a person that saved a drowning child). Society usually forgets these people really fast and does not have a reason to have any interest in them anymore.119 2) Second exception – if a public authority demands to use the image. For example, if a person has committed crime, he can be photographed without his consent.120 3) Also, if a person is photographed or filmed in public places, such as a shop, park, theatre, and etc.

It is very important to mention that both in the practice of ECtHR and the Supreme Court these limitations are not invoked formally because in most cases the right to privacy collides with the right to free expression. In Lithuanian jurisprudence, the court has to determine whether a limitation 116

Supreme Court of Lithuania 18 November 2002 ruling in case No. 3K-1373/2002; Supreme Court of Lithuania 31 May 2011 ruling in case No. 3K-3-262/2011; 118 Lithuanian Civil Code (18 July 2000 No VIII-1864), art. 2.22 part 2; 119 Valentinas Mikelėnas, Gintautas Bartkus, Vytautas Mizaras, Šarūnas Keserauskas Lietuvos Respublikos civilinio kodekso komentaras. Antroji knyga. Asmenys (Lithuanian Civil Code commentary)(Vilnius, Justitia, 2002), p. 56; 120 Ibid, p. 57 117

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Contemporary Issues on Intellectual Property Law of the right to an image would be reasonable and in accordance with the law. For example, an ex officio public person cannot be photographed if it would infringe his right to private life (Civil Code article 2.23). Just because one is a public person, others do not have the right to stalk him/her. Also, one should not be photographed in a private or even a public place if it does not concern the public interest i.e. merely out of curiosity (For example, a politician having dinner with his family in a restaurant). The purpose of Civil Code article 2.22 part 2 is to inform society about public people and their work, not to offend or libel them.121 Moreover, even if a photograph of a person was taken in a public place, his image right is still protected. Even in public places people do not lose their individuality and privacy. So if the person does not want to be photographed in a public place, others should respect his choice. 122 In one case, a newspaper published a front page picture of a murdered person lying in a pool of blood, the headline saying: “The head of gang in a pool of blood”, even though, consent to use this picture was not given by any of the relatives of the deceased. The newspaper argued that the picture was taken by in a public place, so the consent of the dead person’s relatives was not necessary. However, the Supreme Court stipulated that taking photographs in a public place does not necessarily mean that the right to an image cannot be infringed. Publishing a picture with a murdered person would not contribute to revealing the crime or informing the public about it. Thereby, the court ruled that the person’s image right had been infringed.123 In every case, the court must decide if the publishing of an image is proportionate and necessary in respect of the public interest. For example, in a case where a newspaper published an article with a picture on a serious issue in society (which was violence in families), the Court ruled in favor of the newspaper. It stipulated that in this instance the newspaper was only trying to inform society about an existing problem, not to humiliate the person in the picture, so publishing the picture was proportionate and necessary.124 From the EU perspective, Von Hannover v Germany (No 1) is the landmark case concerning collision between right to privacy and the right to free expression. In this case the tabloid press published a series of photos depicting the princess of Monaco, Caroline von Hannover. She went to court in Germany but the courts adjudicated that most of the photos were taken legally reasoning that “The public had a legitimate interest in knowing where the applicant was staying and

121

Ibid, p. 56 Supreme Court of Lithuania 9 February 2004 ruling in case No. 3K-3-91/2004; 123 Supreme Court of Lithuania 6 August 2010 ruling in case No. 3K-3-358/2010; 124 Supreme Court of Lithuania 23 February 2004 ruling in case No. 3K-3-87/2004; 122

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Contemporary Issues on Intellectual Property Law how she behaved in public”. 125 At that time, unsatisfied with the court decisions she appealled to ECtHR. The court held that “that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest”and that “the public had no legitimate interest in knowing where the applicant is and how she behaves generally in her private life”.126 Hence, the ECtHR set a basic rule that the public’s interest to be informed must be balanced against the protection of privacy.

Even though the German courts took a new approach after the first von Hannover case, “stressing that the public are interested not only in political matters but also in issues concerning social and public life”127, the princess appealed to ECtHR again. In this decision, as David S. Welkowitz summarizes in his article: “The ECHR propounded five factors relevant to the balancing process: (1) the contribution to a debate of general interest; (2) how well known the person is and what is the subject of the report; (3) prior conduct of the person concerned; (4) content, form and consequences of the publication; and (5) circumstances in which the photos were taken.”128 The court basically tried to narrow the previously broader German court tolerance of press intrusion into the lives of public figures by stressing the importance information in the article published together with the picture. The court noted that when there is a sufficiently close link between the photo and the event described in the article and it is informing the public about a matter of general interest, the right to freedom of expression prevails against private interest.129 In conclusion, there is no major distinction between the court practice of Lithuania and the ECtHR. Both jurisdictions seek to balance the right to privacy (including the right to an image) with the right to free expression in each case taking into account if the interference with privacy is proportionate and necessary for the public interest. So far it has been discussed how the image right as a private right of a person might interfere with a right to free expression, which is a right of public nature. In the next chapter the image right will be analyzed in confrontation with property rights.

R IGHT TO AN IMAGE VS . P ROPERTY RIGHTS As mentioned in the “legislation” pat of this article, the right to an image originates from non-property relationships unrelated with property relationships, however, if it can be estimated in money, i.e. if it gains economic value, it can become an object of property relationships. When an 125

Von Hannover, App. No. 59320/00; Ibid; 127 Judith Janna Märten, Personality Rights and Freedom of Expression: A Journey through the Development of German Jurisprudence under the Influence of the European Court of Human Rights, (2012) 4(2) Journal of Media Law 333–349, p. 345; 128 Welkowitz S. David, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles, Akron Law Review, 46, 2013, p. 689; case commented by the author: Von Hannover (no. 2), App. No. 40660/08 at p. 15-20; 129 Von Hannover (no. 2), App. No. 40660/08; 126

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Contemporary Issues on Intellectual Property Law image of a person becomes merchandise there are very strict requirement concerning the consent to use it for commercial purposes. The Supreme Court explains that when an image is used for advertising, a special consent is needed. The model can withdraw privacy for a reward in money but must know that his image will be used for commercial purposes and must agree to it. When giving consent a person must consider if he/she wants to participate in commercial practice, if he/she wants to advertise a certain legal body, item or service, if the conditions of participation are suitable for him/her and other relevant factors. By doing so the person is protected from any possible financial damage that could emerge from illegal use of his image for commercial or other purposes. The conditions of publishing as well as consent of the person must be clear to the publisher. In case there are any doubts about the publishing conditions, they must be ruled in favor of the original owner of the image, not the person that acquires rights from it. Thereby, priority must be given to privacy of the person, not commercial interest.130 Furthermore, in another case the Supreme Court questioned whether the depicted person can be a subject of copyright law. A model posed for a company that sold pantyhose and her image was published on various marketing material. She argued that she had not given consent to use her image and that her rights must be protected under Republic of Lithuania Law on Copyright and Related Rights (hereafter – Copyright Law) because she is a performer, i.e. a subject of copyright law.131 Copyright Law Article 2 part 2 stipulates that a “Performer” is an actor, singer, musician, dancer or another person who plays in, sings, reads, recites, or otherwise performs literary, artistic, folkloric works or circus acts. For the purpose of this Law a “performer” shall also include a leader and conductor of an orchestra, ensemble or choir.”132 Article 2 part 11 sets the object of this law to be “the performance of a work, including direct (live) performance and its sound or visual fixation, a phonogram, the first fixation of an audiovisual work (film), radio and (or) television broadcast of a broadcasting organization.” 133 The Supreme Court stipulated that the object of related rights is a performance of a work. However, as can be seen in the case, the protected object is the image of the claimant, not a performance of a work. Therefore, Copyright Law does not protect the right to an image because the object is not appropriate. When protecting the right to an image, the protected object is a natural person and he/she is not a performance of a work. In conclusion, according to both national legislation and international law the subject of Copyright Law is a person performing some kind of original work in literature or art. It is obvious that a model does not meet the basic 130

Supreme Court of Lithuania 24 February 2003 ruling in case No. 3K-3-294/2003; Supreme Court of Lithuania 12 February 2002 ruling in case No. 3K-7-437/2002; 132 Republic of Lithuania law on copyright and related rights (18 May 1999 No VIII-1185), article 2 part 2; 133 Ibid, art. 2 part 11; 131

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Contemporary Issues on Intellectual Property Law requirement to be a “performer” – he/she does not perform any kind of original work of art or literature. Consequently, Copyright Law was not to be applied in this case.134 Obviously, the nature of the image right in Lithuania is quite ambiguous. It is a non-property right, yet it can be withdrawn for a reward in money. A solution to this problem could be to introduce the right to publicity, which is an intellectual property right. The right of publicity “is [an] inherent right of every human being to control the commercial use of his or her identity.” 135 It is the right to control the commercial use of one’s identity.136

P HOTOGRAPHER IN PROPERTY RELATIONS Another question is whether the photographer who produced the picture of a person has any defense mechanism against the person who was photographed. In Lithuanian court practice, the image of a person can be used in two alternative ways: 1. If a natural person was paid for being photographed, then his picture can be used freely without the person’s consent by the photographer, i.e. published, printed, distributed or used for creating other works of art. The court explains that when a model is rewarded for the use of his image in a picture, his/her image becomes the subject matter of a contract. In this case, when a reward is accepted by a person, it is presumed that consent has been given. Therefore, a separate consent is not needed.

2. If a natural person was not paid for being photographed, the picture can only be used with the person’s consent. There are two types of consent in this case: the person can give consent to use his image for a specific purpose (e.g. commercial, advertisement of a merchant of a specific product) or the person that is giving consent does not set a purpose and other clauses for which his image can be used. 137 Evidently, Lithuanian court practice is more favorable to the person being photographed, rather than the photographer or the merchant, since priority is given to the privacy of the person, not commercial interest.

134

Supreme Court of Lithuania 12 February 2002 ruling in case No. 3K-7-437/2002; Andrew T. Coyle, Finding a Better Analogy for the Right of Publicity (Brooklyn Law Review Vol.77:3, 2012); idea from: J. Thomas Mccarthy, The rights of publicity and privacy § 1:3 (2d ed. 2011); 136 A Celebrity Friendly Jurisdiction, by Jonathan Faber, published in Res Gestae, March 2000, Vol. 43, No. 9, found at http://rightofpublicity.com/brief-history-of-rop#sthash.K34fm3X9.dpuf 137 Supreme Court of Lithuania 12 February 2002 ruling in case No. 3K-7-437/2002; Panevėžys district court 10 May 2011 ruling in case No. 2A-184-212/2011; 135

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R EMEDIES The right to an image can be protected in two ways, stipulated in article 2.22 part 3. The first way is to request the court to oblige the discontinuance of illegal acts (actio negatoria), the second is to redress property and non-pecuniary damage. The Supreme Court takes notice that these are the only ways of protecting the right to an image and the person whose right was infringed cannot oblige the defendant to apologize.138 An apology is not a liability for damages, nor a means of protection. It is only a fact, considering which, the court may reduce the amount of non-pecuniary damage. Hence, the court cannot oblige the defendant to apologize. 139 The non-pecuniary damage in Lithuanian court practice is rather symbolical and varies from 500 Lt (EUR 145) to 5000 Lt (EUR 1450). Let us look at some cases analyzed in the article: 

3K-3-1343/2000, 3K-3-294/2003, 3K-3-113/2007, 3K-3-394/2008, 3K-3-358/2010 – 5000 Lt (EUR 1450);



3K-3-91/2004 – 4000 Lt (EUR 1160);



3K-3-390/2008 – 3000 Lt (EUR 870);



3K-3-390/2008 – 500 Lt (EUR 145).

As we can see, the amount of damage ruled by the court depends on the case, however the biggest amount in court practice is 5000 Lt (EUR 1450).

138

Supreme Court of Lithuania 6 August 2010 ruling in case No. 3K-3-358/2010; Supreme Court of Lithuania 6 March 2006 ruling in case No. 3K-3-169/2006; 14 August 2008 ruling in case No. 3K-3-390/2008.

139

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IV. CONCLUSIONS AND SUGGESTIONS C ONCLUSIONS 1. The legislation of the image right in Lithuania is inherently related to that of the European Union. However, in EU it is enshrined under a single provision as a part of the right to privacy, whereas in Lithuania it is set in a separate article in the Civil Code, protecting the image right.

2. Both the European Court of Human Rights and Lithuanian courts stress the balance between the right to privacy (the image right) and the right to free expression. According to both judiciaries, neither should be disproportionately constrained.

3. In Lithuanian court practice the image right prevails against commercial interest.

4. The person depicted in an image is not a subject of Copyright law and it is not clear if a person how a person can freely dispose of his image right in Lithuania. A solution to this could be to introduce the right of publicity.

S UGGESTIONS 5. The nature of the image right in Lithuania is unclear. It is a non-property right, yet it can be withdrawn for a reward in money. This creates confusion which could be dispelled by introducing the right to publicity.

6. The symbolical amounts of damages ruled in favor of the person whose right to an image had been infringed are very unlikely to remunerate for the inconveniece and psychological stress caused to the person. Thus, the remedies should be bigger.

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BIBLIOGRAPHY 1. Republic of Lithuania law on copyright and related rights (18 May 1999 No VIII-1185).

2. Convention on the rights of the child, ratified by the Republic of Lithuania 1995-07-03 statute No. I-983 (1995, No. 60-1501).

3. Republic of Lithuania law on the provision of information to the public, 2 July 1996 – No I1418 (As last amended on 6 November 2012 – No XI-2353).

4. Welkowitz S. David, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles, Akron Law Review, 2013.

5. Statute on the ratification of the fourth, seventh and eleventh protocols of the European Convention on Human rights, (1995, No. 37-913).

6. Lithuanian Civil Code (18 July 2000 No VIII-1864).

7. Egidijus Baranauskas, Inga Karulaitytė-Kvainauskienė, Julija Kiršienė and others, Civilinė Teisė.

Bendroji dalis, Mykolo Romerio unversitetas, 2007.

8. Danutė Jočienė, Europos žmogaus teisių konvencijos taikymas (Vilnius: Eugrimas, 2000).

9. The European Convention on Human rights (Rome, 4.XI.1950).

10. European Court of Justice case: Peck v. The United Kingdom, Eur. Ct. HR, application no. 44647/98 (2003).

11. Valentinas Mikelėnas, Gintautas Bartkus, Vytautas Mizaras, Šarūnas Keserauskas Lietuvos Respublikos civilinio kodekso komentaras. Antroji knyga. Asmenys (Lithuanian Civil Code commentary)(Vilnius, Justitia, 2002).

12. Kristina Gelgotaitė, Ar po asmens mirties išlieka jo teisė į atvaizdą?, International Journal of Baltic Law, Volume 2, No. 3 (July, 2005).

13. Supreme Court of Lithuania 31 May 2011 ruling in case No. 3K-3-262/2011.

14. Supreme Court of Lithuania 12 February 2002 ruling in case No. 3K-7-437/2002.

15. Supreme Court of Lithuania 2 January 2008 ruling in case No. 3K-7-2/2008.

16. Supreme Court of Lithuania 2 February 2003 ruling in case No. 3K-3-294/2003.

17. Supreme Court of Lithuania 16 March 2007 ruling in case No. 3K-3-113/2007.

18. Supreme Court of Lithuania 14 August 2008 ruling in case No. 3K-3-390/2008.

19. Supreme Court of Lithuania 18 November 2002 ruling in case No. 3K-1373/2002.

20. Supreme Court of Lithuania 9 February 2004 ruling in case No. 3K-3-91/2004.

21. Supreme Court of Lithuania 6 August 2010 ruling in case No. 3K-3-358/2010.

22. Supreme Court of Lithuania 23 February 2004 ruling in case No. 3K-3-87/2004.

23. Supreme Court of Lithuania 12 February 2002 ruling in case No. 3K-7-437/2002.

24. Panevėžys district court 10 May 2011 ruling in case No. 2A-184-212/201.

25. Supreme Court of Lithuania 6 March 2006 ruling in case No. 3K-3-169/2006.

26. Von Hannover, App. No. 59320/00, European Court of Human rights.

27. Von Hannover (no. 2), App. No. 40660/08, European Court of Human rights.

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ELSA THESSALONIKI

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National Researchers Hector Tsamis Despoina N. Poutakidou Dimitra Karydi Eugenia Liontou Konstantina Tsilipria Despina Kornilaki Eleftheria Chanialaki Georgia Theologidou Anna Michalou

Academic Supervisors Professor Dr. Lambros Kotsiris

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Hector Tsamis

PHOTOCOPY REPRODUCTION IN LIBRARIES

Aristotle University of Thessaloniki

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I. Introduction Intellectual property law aims at creating a balance between the interests of authors and publishers and the right to scientific information. Libraries and archives constitute the guardian of intellectual heritage and the most important means of education and research. Open libraries accessible to the public operate as a timeless source of knowledge and dissemination of ideas respecting the principle of equality. However, there is a thin line between individual rights and public interests, which world’s legal systems have been trying to preserve in different ways. All copyright restrictions emanate from people’s desire to absorb knowledge. But can this craving be confined? The objective of this study is to present the legislation on different cases of photocopy reproduction in libraries and, at the same time attempt a comparison amongst legal provisions of diverse legal orders.

The main focus will be the Greek Intellectual Property Law and, based on that, further analysis will flourish.

II. Objectives of Intellectual Property Legislation The Current Greek copyright legislation does not allow unrestricted photocopy reproduction practices in libraries, archives and information centers without authorization from the beneficiary, unless educational and cultural reasons are confirmed. The fundamental principle of intellectual property law is the protection of works granted despite the cost or purpose of it.

In the preamble of the WIPO Copyright Treaty, the need for the maintenance of the balance between broader public interest on intellectual heritage and the rights of authors is recognized and upheld.140 This dual aspect is also outlined in article 27 of the Universal Declaration of Human Rights: “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. Heading towards the same direction, preambulatory clauses 4, 5 and 14 of the Directive 2001/29/EC promote a scheme of coexistence of the protection of intellectual property and the public interest for education and culture in the scope of society adapting itself to modern reality. 141 However, at this point, there rises a question 140

WIPO Copyright Treaty, World Intellectual Property Organization. http://www.wipo.int/treaties/en/text.jsp?file_id=295166 141 Directive 2001/29/EC, Eur-Lex. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001L0029

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Contemporary Issues on Intellectual Property Law on whether intellectual property hinders people’s access to information. The answer is negative, since copyright law does not impede any passive private use of an individual, such as reading a book, or listening to a CD for as many times as one wishes.

III.

Sources and Terminology

A. Greek Legal Framework The Greek legal framework of photocopy reproduction in libraries is defined by Act 2121/1993 on Intellectual Property (also known as Copyright Act), which has been the main source of the respective legal field for over two decades, amended by various laws enacted in 1994, 1996, 1997, 2000, 2002, 2007 and 2010142, in order for it to adapt to modern conditions and incorporate provisions issued by European Union Directives and International Conventions.

In the Greek legal system, the basis of intellectual property is believed to be art. 16 of the Constitution, which enacts the individual personal freedom of the artist and, at the same time, guarantees art as a social institution. Furthermore, art. 5, par.1, and art. 14, par. 1, refer to the unrestricted development of one’s personality and the freedom of expression and dissemination of ideas respectively, thus enriching the foundation of the protection of author’s moral rights on his or her creation. On the other hand, art. 5A, par. 1 establishes the right to information, but with respect to the protection of other rights and especially copyright.143 The two rights are not supposed to be conflicting each other, but shall exist in harmony and be exercised always in respect to the boundaries and conditions set by law and the principle of proportionality.

Art. 1 of Act 2121/1993 designates that all authors hold two kinds of absolute and exclusive rights over their creation, namely property and moral ones. The right to reproduction constitutes a property right and, according to art. 3, provides the author with the right to allow or forbid any impression and reproduction of the work, direct or indirect, temporary or permanent, overall or partly, with any means or form it may take place. Transfer of the object neither brings about transfer of exploitation rights over it nor is transcended by the right to information. Thereupon, libraries obtain ownership over bought books as objects, but they do not hold any of the authorities emanating from property rights, unless agreed otherwise. Any restriction to property rights enacted in the

142

Kotsiris, L. (2011), Intellectual Property Law and Acquis Communautaire. Thessaloniki, Sakkoulas Publications, p.

42.

143 The Constitution of Greece, Hellenic Parliament. http://www.hellenicparliament.gr/UserFiles/f3c70a23-769649db-9148-f24dce6a27c8/001-156%20aggliko.pdf

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Contemporary Issues on Intellectual Property Law aforementioned Act is established upon social, educational and informative purposes aiming at the protection of public interest.

Art. 2 sets originality as a crucial factor for the designation of a work as worth of copyright protection. Thereafter, historical events, bibliography, folkloric expressions and other creations lacking the element of originality do not fall under intellectual property law, unless they become part of an innovative collection. Letters are copyright-protected if pervaded by novelty.

Photocopy reproduction constitutes a widespread and simply implemented form of permanent reproduction with electrochemical means. The term also includes the reproduction of a work from digital to analog form, scilicet the printing of data on a piece of paper. Subsequently, photocopy reproduction shall be carried out in the context of the author’s right to reproduction, videlicet only with a respective authorization issued by the author of the work. Art. 51 provides that publishers shall also enjoy some authority for the purposes of commercial exploitation, typesetting and pagination of the works they have published. Such rights fall under the term “related rights”, which also offer the publishers the authority to allow or forbid photocopy reproduction. It is worth mentioning that all restrictions applied on author’s rights, are also applied on related ones, as states art. 52, while the protection duration of related rights is 50 years (instead of 70 as for author’s ones) after the last publication and when this period of time elapses, the use of the works is unrestricted.

It is noticeable that, although art. 22 of the Copyright Act refers to the reproduction of works in libraries, there is no specific provision in the Greek intellectual property legislation concerning merely photocopy reproduction. For the comprehension of intellectual property law, Greek civil code influences the criteria for photocopy reproduction practices with art. 281 on the prohibition of abuse of rights.

B. Foreign Legal Framework Most important foreign legal sources include European Union Directives 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, and 2004/48/EC on the enforcement of intellectual property rights, as well as the 1886 Berne Convention for the protection of literary and artistic works.

1.

European Union Directives

The EU Directive 2001/29/EC enacts a special provision for reproduction in libraries in art.

5, par. 2 (c) reading that “Member states may provide for exceptions or limitations to the reproduction right […] in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by Page 100

Contemporary Issues on Intellectual Property Law archives, which are not for direct or indirect economic or commercial advantage.” Specific acts may include preservation, replacement, archiving.144 According to the same article, par. 2 (a), copyright restrictions are imposed only on “reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation”. This legal provision allows member states to introduce a general copyright exception on photocopy reproduction in exchange for the deposit of a fair compensation to the beneficiary, author and/or publisher. As far as the enactment of copyright restrictions is concerned, preambulatory clause 32 of this Directive clarifies the existence of the list of optional restrictions in art. 5, par. 2, by explaining that member states shall not introduce or preserve in their respective legislation any different copyright restrictions on photocopy reproduction than the provisions of the Directive, but they shall choose which of these restrictions wish to incorporate to their related legal frameworks, aiming at furthering the harmonization of intellectual property rights throughout the European Union.

2.

The 1886 Berne Convention

Considered as a milestone for the IP law internationally, the Berne Convention recognizes the exclusive right of authors to permit the reproduction of their works, as advocates in art. 9, par. 1.

It was amended in 1967 in Stockholm with the introduction of art. 9, par. 2, which allows the reproduction of works under the cumulative fulfillment of three conditions, known as “three step test”. The paragraph reads as follows: “It shall be a matter for legislation in the countries of the Union [Berne Union] to permit the reproduction of such works: a.

in certain special cases,

b.

provided that such reproduction does not conflict with a normal exploitation of the work and,

c.

does not unreasonably prejudice the legitimate interests of the author.”145

The three step test is nowadays considered as a general clause applied to all copyright restrictions enacted in the legislation of a member state, and being applied to EU legislation, so that they are accepted as legitimate. Comparatively to the three step test, in the Greek legal theory on intellectual property law, Lambros E. Kotsiris, Emeritus Professor in the Department of Commercial and Economic Law in the School of Law at the Aristotle University of Thessaloniki, has developed the theory of the purpose of the transfer of copyright, including the theory of the purpose of the

144

Papadopoulou, A. (2006), Photocopy Reproduction by Libraries and Intellectual Property Issues. Business and Company Law, Vol. 4/2006. Athens, Nomiki Vivliothiki, p. 350.

145 Berne Convention for the Protection of Literary and Artistic Works, World Intellectual Property Organization. http://www.wipo.int/treaties/en/text.jsp?file_id=283698

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Contemporary Issues on Intellectual Property Law copyright restrictions. He has extended the theory named “Zweckübertragungstheorie” 146 , firstly supported by Wenzel Goldbaum, a German jurist, and has commented on art. 15, par. 4, of Act 2121/1993, where the theory is enacted. The theory of the purpose of the transfer of copyright is used in Greek legislation and case law as an interpretation rule which advocates the freedom of contracting parties, the copyright authority of the author, the narrow interpretation of every transferring contract and upholds that, in case of doubt, the common purpose of the parties prevails.147 As far as the last point is concerned, the interests of the author refer both to property economic and moral ones. Furthermore, according to art. 7, par.1, of the Convention, copyright protection lasts during the life of the author and ends 50 years after his death. Par. 6 allows member states to establish a longer duration for copyright protection. Greek legal order has established the end of copyright protection at 70 years after the author’s has passed away in art. 29 of Act 2121/1993.

C. Libraries Prior to any analysis on the provisions of photocopy reproduction in libraries, it is indispensable to cite the definitions of the term “library” in the various legal frameworks that will be further discussed upon. Art. 22 of the Greek Copyright Act delimits the scope of implementation of its provision to non-profit libraries and archives. It is worth mentioning that the article excludes even libraries merely related to profit associations or organizations. According to the EU Directive 2001/29/EC, the term includes libraries accessible to the public, educational institutions and museums, which do not intend to any economic or commercial benefit. The Directive seems to extend the scope of the term, by stating specifications identifying the accessibility of the library to the public and the absence of economic or commercial intentions. Even though the European provision is seemingly more precise than the Greek one, which provides a more concise definition, preambulatory clause 42 of the Directive determines that activities launched by the library shall ad hoc determine the objective of the library and, hence, qualify it for falling under the aforementioned provisions: “The organizational structure and the means of funding of the establishment concerned are not the decisive factors in this respect.”

IV. Legal Provisions 146

V A N H E E S , H. ( 199 3) , E E N

JU RIDISCH E AN ALY S E VA N D E GRON DSL AGE N, INHO UD EN DRA AG WIJ DT E V A N

AUT EU RSR ECH TEL IJKE EXP LOITAT IE CO NTR ACTE N.

A N T W E R P E N – A P E L D O O R N , MAKL U U I T G E V E R S , P P . 17 9180.

147 Kotsiris, L. (2011), Intellectual Property Law and Acquis Communautaire. Thessaloniki, Sakkoulas Publications, pp.

222-225.

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Contemporary Issues on Intellectual Property Law Prior to the presentation of specific legal provisions on the various situations of photocopy reproduction in libraries, some general observations are necessary, due to their differentiated nature and character of provision. As far as music libraries, every photocopy reproduction of music sheets and music books is considered illegal without the authorization of the composer or any other beneficiary. Moreover, art. 28 constitutes a measure in favor of people suffering from blindness and hearing impairment. Reproduction is permitted if there is no intention for commercial use, when the use is related to the specific disability and up to the point that the disability requires.

Any violation of the Greek copyright law involves the civil penalties of art. 65 of Act 2121/1993, and the criminal penalties of both imprisonment and fine. The Code of Civil Procedure provides the possibility of precautionary measures by applying the rule of art. 64 of Act 2121/1993.

Collective Management of copyrights is applied in photocopy reproduction for two reasons.

First, it is considered to be the most convenient for both beneficiaries and users, and second, it is the most appropriate method taking into account the widespread and uncontrolled photocopy reproduction practices. Collective Management Organizations (CMOs) have been founded aiming at facilitating authorization, receiving fees and providing beneficiaries with the proportionate amount of money. In Greek legislation, these practices are referred in art. 18, par. 3, of the Act 2121/1993. All CMOs are operating under the aegis of the International Federation of Reproduction Rights (IFFRO).

Copyright restrictions presented below delimit the deference of authorâ&#x20AC;&#x2122;s individual interest in favor of the general one, always at the respected level and extent of their establishment in the law.

Moreover, they are always implemented in the context of a narrow interpretation, with a possibility of proportionate application of the law. Restrictions enacted in Greek Act 2121/1993 reflect the principle of social undertaking of individual rights and the principle of free participation in information society. Last but not least, copyright provisions are applied both to authorâ&#x20AC;&#x2122;s and related rights, as provided by art. 52 of the aforementioned act.

The analysis of legal provisions will follow a categorization of works based upon the status of copyright protection.

A. Photocopy Reproduction of Copyright -Protected Published Works A work is considered as published from the moment it is removed from the authorâ&#x20AC;&#x2122;s private sphere with the aim of its publication. An exception to this rule is observed in art. 24 of Greek Act 2121/1993 concerning the reproduction for judiciary or administrative purposes. In this case, the Page 103

Contemporary Issues on Intellectual Property Law work photocopied shall not necessarily be legitimately published. Besides, art. 2 advocates that official state texts, such as laws, decrees, verdicts etc., and generally all legislative, administrative and judiciary texts issued by state bodies and aiming at expressing political will do not constitute a copyright subject, unless considered as part of a collection. No authorization from or defray of compensation to the author is required. Every action deliberately directed to the use from other people beside the author attaches the characterization to a work as published.

1.

for Internal Organization and Operation Purposes

As stated in art. 22 of the Greek Copyright Act, libraries and archives are entitled to reproduce only one extra copy of the original work, which is part of their permanent collection, without the author’s authorization being requested or a fair compensation being deposited – due to the social role of open libraries and non-profit institutions – with the purpose of either preserving it as a backup copy, or transferring it to a different non-profit library or archive. There is, nonetheless, an additional prerequisite, according to which, the reproduction of the work is considered legitimate only if the conditions do not grant an immediate or fairly possible procurement of the original work from the market. Conditions shall be interpreted under the principle of objectivity. However, there emerges a question on the use of this additional copy.

The prevailing opinion on this issue lies on the narrow interpretation of the copyright restrictions and the reasoning that a possible objective of the provision is the safe preservation of the work for future users, in case the market copy is destroyed, stolen or lost, and thus forbids the use of the additional copy when an emerging need may be satisfied by the market one. 148 Notwithstanding the aforementioned view, a teleological approach of the provision focusing on the facilitation of library operation and of the users' access as its objective, justifies the broader interpretation of the restriction in special cases, such as if there are missing pages of a book.

This case is clearly enacted in art. 5 of the Finnish Copyright Decree, which allows only the photocopy reproduction of a small part of the market copy if need be, while forbidding the reproduction of it as a whole. Art. 16 of the Swedish Copyright Act, art. 42 of the British Copyright, Designs, and Patents Act, art. 4 of the Finnish Copyright Act, and art. 108 of the American Copyright Act state that photocopy reproduction of a single article part of a collection of works, of magazine or newspaper, with the objective of it being borrowed instead of the whole volume or magazine or newspaper. The latter one though permits the reproduction of three copies instead of one, offering 148

Papadopoulou, A. (2006), Photocopy Reproduction by Libraries and Intellectual Property Issues. Business and Company Law, Vol. 4/2006. Athens, Nomiki Vivliothiki, p. 349.

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Contemporary Issues on Intellectual Property Law American libraries greater flexibility. In several EU states’ copyright acts, especially in Danish Act 164/2003 (art. 16) and Finnish Acts 446/1995 (art. 16) and 574/1995 (art. 1), photocopy reproduction in libraries is permitted for reasons of internal organization unless there exists a commercial or economic purpose.

As far as the transferring of the additional copy to a different non-profit library or archive is concerned, Rapporteur’s Report of the Greek Copyright Act states that the enrichment of the collections constitutes the objective of the related provision. A legitimate transferring shall also fulfill the prerequisite of no copy being available at the market. Interlibrary loans do not fall under the provision of art. 22. A similar restriction is enacted in art. 41 of the British CDPA. 2.

by Related Library Services

Art. 22 of the Greek Copyright Act does not explicitly allow libraries to institute any photocopy reproduction services in their premises aiming at the respective assistance of users. The most widely accepted interpretation of this lack of provision is the illegitimacy of any services established in libraries undertaking orders for photocopy reproduction of works. There has never been observed an exception to that rule no matter the objective of the reproduction.

3.

by Users Themselves

On the contrary, the only legitimate possibility provided by art. 18 of the Act 2121/1993 to a single user of library material is the photocopy reproduction by himself or herself for private use. The ratio legis of this provision lies to the encouragement of a person’s educational and cultural engagement.149 The same article adds that this reproduction shall not require the authorization of or compensation to the author. However, due to the widespreading possibility of photocopy reproduction for private use, art. 18, par.2, introduces a special economic burden to the price of the objects and material used in the process, aiming at counterbalancing the loss the beneficiaries deal with. Compatible with art. 4, par. 1, and art. 5, par. 1, of the Greek Constitution, this additional burden shall be defrayed by the merchant or the importer of the objects and material used to collective management organizations on the basis of a private contract.

At this point, it is important that “private use” be defined. The term is designated a contrario from the definition of “public use” in art. 3, par. 2, which reads as follows “Public use is considered every use or performance or presentation of the work, which renders it accessible to a circle of people broader than family or close social environment…”. Therefore, private use is assumed to incorporate the groups of people 149

Marinos, M.-T. (2000), Intellectual Property. Athens, Sakkoulas Ant. N., p. 222.

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Contemporary Issues on Intellectual Property Law excluded by the aforementioned provision. Moreover, it refers to individuals thus excluding the socalled â&#x20AC;&#x153;big usersâ&#x20AC;?, namely companies, associations, organizations, services, which may proceed in photocopy reproduction only after related authorization provided by the beneficiary. It should also be clarified the fact that the user shall proceed himself or herself to reproduce the work. As a consequence, it is widely advocated that libraries are not considered as liable if a user violates the related legal provisions.

Even though the related legal provision does not specify the limit of pages that a user may legitimately photocopy from a work, the most common interpretation does not support the reproduction of the whole work, which does not fall under art. 18, due to the fact that it hinders regular exploitation of the work and damages the legal interests of the beneficiary. 150 Counter to the Greek law, the Austrian copyright law enacts a restriction enabling users to reproduce a whole work to a handwritten copy. It is worth mentioning the respective provision of the National Library of Greece Regulation on the Operation of the Main Reading Room151, which specifically and in detail forbids the photocopy reproduction of books published before 1920, volumes with artistic bookbinding, volumes of 45 x 33 cm size, multipage volumes with over 500 pages, volumes with paper or paperback or damaged bookbinding or without a cover, and volumes made by oxidized paper. The objective of this clause is the protection of collections consisted of old or rare books.

Regarding books under copyright, photocopy reproduction of only 1/10 of the whole work is permitted. As far as manuscripts are concerned, their photocopy reproduction is allowed unless the process may cause damage to the manuscript. Additionally, an illegal copy shall not be reproduced even in the context of private use. Legitimacy shall not affect only the first publication, but also any subsequent publication or presentation of the work.

4.

by an Interposed Person

Photocopy reproduction by an interposed person for a user may seem similar to the one presented under section A.1. However, according to art. 38 and 39 of the British CDPA, published works are allowed to be reproduced by library employees on behalf of the library users who have asked for a copy for research purposes or private use. The prerequisites include the confirmation of the purpose, the reproduction of only a part of the work, and the existence of charge for the copies.

The same possibility is provided with special licenses from Collective Management Organizations, according to Danish intellectual property law. Due to practical reasons, such as the facilitation of the 150

Kallinikou, D. (2007), Intellectual Property and Libraries. Athens, Law and Economy P. N. Sakkoulas, p. 69.

Regulation on the Operation of the Main Reading Room, National Library of Greece. http://www.nlg.gr/www/node/69 151

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Contemporary Issues on Intellectual Property Law reproduction for the library users and the protection of the works being photocopied, de lege ferenda, Greek library employees should be allowed to constitute interposed people, not under the meaning advocated by art. 18 of Act 2121/1993. Nevertheless, if such a provision is enacted, library liability issue should be addressed.152 Besides, German copyright law favors private photocopy reproduction through an interposed person in art. 53 UrhG (Urheberrechtsgesetz).

Art. 5, par. 2 (a), of the Directive 2001/29/EC upholds the reproduction by a third interposed natural person or legal entity, since it constitutes a general provision for photocopy reproduction without any restriction as far as the person who acts is concerned. Similar regulations are enacted in art. 19, par. 2, and art. 42, par.2, of the Swiss and Austrian Copyright Acts respectively.

Art. 5, par. 2 (b), of the aforementioned Directive states that every reproduction addressed for private use shall be completed only by the user. The fact that the Greek copyright law has not been harmonized with this distinction allows the interpretation presented in the previous paragraph.

5.

for Teaching Purposes

In the Greek Act 2121/1993, there is enacted a special copyright restriction concerning reproduction for teaching purposes. Art. 21 states that photocopy reproduction of works is allowed without any authorization from or defray of compensation to the author inasmuch it refers to teaching or exam purposes, is not contrary to morality and does not impede regular exploitation of the work. Legitimate reproduction for the aforementioned purposes addresses both elementary and high schools, as well as universities and is limited inside their premises. Narrow interpretation of this provision concludes to the exclusion of any creation of studying folders distributed regularly throughout the academic year to the students, unless the material included is comprised by the teacherâ&#x20AC;&#x2122;s or professorâ&#x20AC;&#x2122;s notes. On the basis of the points analyzed above regarding the subject fulfilling the reproduction in libraries, teachers and professors shall photocopy any works they may need by themselves. Art. 13 of Danish Act 164/2003 and art. 14 of Finnish Act 446/1995 advocate the legitimacy of reproduction for teaching purposes in the context of exploitation rights licenses. The preface to Section 107 of US Code, Title 17, Chaprte1, explicitly acknowledges that photocopy reproduction is permitted for classroom use, a legitimate purpose that presumably also allows the reproduction of copies of entire works.

152

Papadopoulou, A. (2006), Photocopy Reproduction by Libraries and Intellectual Property Issues. Business and Company Law, Vol. 4/2006. Athens, Nomiki Vivliothiki, p. 353.

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B. Photocopy Reproduction of Unpublished Works Greek copyright law does not permit photocopy reproduction of unpublished work found in a library, even though its publication may follow. Besides, even though Directive 2001/29/EC does not clearly present the status of unpublished books, a possible legitimacy would oppose to the three step test, since it would cause unreasonable damage to the author’s interests. The only exception in the Greek intellectual property law refers to judiciary and administrative purposes, as presented under section A. Moreover, Art. 42 of the Austrian Copyright Act upholds the reproduction of a whole work for private use – as an exception to the general rule – in case it has not been published or printed. The legal framework applied to these copies is the one applied for original market copies.

At this point a distinction between unpublished works under copyright protection and unpublished works whose protection has elapsed is regarded as significant, since, as far as the latter works are concerned, if a library proceeds to their publication, it obtains the property rights and, subsequently, the right to reproduction, as stated in art. 51A of Greek Act 2121/1993. The duration of copyright protection is the same for both published and unpublished works, as defined in art. 29 of Greek Copyright Act. Following a different reasoning, section 43 of the British CDPA and art. 42, par. 7, of the Austrian Copyright Act permit the reproduction of an unpublished work in libraries for research purposes or for private use, insomuch the work has not been recently published or the author has not explicitly forbidden its reproduction.

C. Photocopy Reproduction of non-CopyrightProtected Works Based on the cases presented above, a related conclusion is drawn. There is no restriction concerning photocopy reproduction of non-copyright-protected works or formerly copyrightprotected works, unless there applies another legal framework, such as the legislation on the protection of cultural heritage.

V. Foreign Legislation and Legal Systems Apart from the foreign legal provisions that have already been mentioned as part of the presentation of the different cases of photocopy reproduction in libraries, it is worth mentioning some general comparative observations.

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Contemporary Issues on Intellectual Property Law In American and British copyright law, the concepts of “fair use” and “fair dealing” – respectively – do not enact specific legal provisions on the issue. They constitute general restriction clauses defined ad hoc on the basis of the goal, the kind and the extent of reproduction, as well as the cost of reproduced copy and its influence on the market. Therefore, in the United States, universities are the subjects of issuing regulations for the conduct of users in libraries, including the process of photocopy reproduction. However, taking into consideration the extensive amount of copying, the courts have generally been hesitant to accept fair use as a defense. 153 Section 108 has enacted the greatest opportunity for preservation by American libraries, which comes in the last 20 years of a work’s copyright. At this stage, copies of works can be made legitimately in digital or analog form only for purposes of preservation, scholarship or research.

Art. 75 of the Portuguese Act 45/1985 provides the libraries with the possibility of undertaking photocopy reproduction on the basis of the restriction concerning the use of the copies only for library – and not public – use. In Spanish Act 1/1996, art. 37 adopts a general copyright restriction regarding photocopy reproduction in libraries provided the existence of research objectives and the absence of any profit purposes. Last but not least, in Italy (art. 68 of the Act 633/1941) allows photocopy reproduction of works in libraries only on the conditions of private use.

In the European system of intellectual property – including the Greek one - the enumeration of exceptions to copyright is restrictive and the related provisions are developed on the principle of numerus clausus. On the contrary, due to the fact that the character of each use is deduced ad hoc, American law and fair use have an open floor for new restrictions.

VI. Suggestions The Greek copyright law is not considered to have accomplished balance between author’s rights and public interest. It is thought that the operation of libraries is unduly restricted by the provisions of Act 2121/1993 and the numerus clausus of EU Directive 2001/29/EC. An international harmonization practice is in process under the application of the three step test, which is implemented as a general rule and criterion in most legislations of the world. In 2008, the European Commission issued the cornerstone “Green Paper on Copyright in the Knowledge Economy” fulfilling its objective for the expansion of the scope of copyright restrictions for libraries and archives, for educational and teaching purposes, and for people with disabilities. Nevertheless, it

153

D R E Y F U S S , R. , Z I M M E R M A N , D. , F I R S T , H. ( 201 0) , W O R K I N G W I T H I N T H E B O U N D A R I E S O F I N T E L L E C T U A L P R O P E R T Y : I N N O V A T I O N P O L I C Y F O R T H E K N O W L E D G E S O C I E T Y . O X F O R D , O X F O R D U N I V E R S I T Y P R E S S , P . 43.

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Contemporary Issues on Intellectual Property Law is deemed as expedient the granting of authorization on behalf of the beneficiaries, with the purpose of defining the conditions upon which photocopy reproduction is permitted.154 In addition, the limit regarding the maximum of pages that can be copied by a work shall be defined on the elements and conditions of every specific case. Associations of libraries and collective management organizations could propose the introduction of provisions, so that their voice should be taken into account.

Besides, the right to information refers to both authors and public· author to one work, public to another, especially as far as the academic society, namely professors and students, is concerned, since they do not only exploit knowledge, but they also produce new aspects of it. In the European level, related issues are raised by the European Bureau of Library, Information, and Documentation Association (EBLIDA), which ought to adopt a more active policy on the matters under discussion, even by recommending or drafting respective Codes of Conduct, applying American fair use. Last but not least, the cost of photocopies should incorporate a small percentage for intellectual property rights contributed by the user himself or herself. All in all, a possible combination of Greek, European and American provisions may create an effective legislative framework for the best implementation of both interests, the one of the authors and the other of the public.

VII.

Conclusion

There is still ground for achieving balance between two of the most significant rights.

Sharing knowledge is what promotes innovation and development, while safeguarding one’s freedom of expression and dissemination of personal ideas acknowledges author’s strive for research and desire to knowledge contribution. Libraries ought to remain wide open to the public and issues related to intellectual property should be addressed in a mild and negotiatory context, for the digital age has proven that we are all potential authors.

154

Kallinikou, D. (2007), Intellectual Property and Libraries. Athens, Law and Economy P. N. Sakkoulas, p. 74.

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B IBLIOGRAPHY 1.

The GreekCopyright Act 2121/1993 http://www.opi.gr/index.php/2013-10-03-12-24-10/21211993#a1

2.

3.

The Constitution of Greece http://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148f24dce6a27c8/001-156%20aggliko.pdf EU Directive 2001/29/EC http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001L0029

4.

1886 Berne Convention http://www.wipo.int/treaties/en/text.jsp?file_id=283698

5.

WIPO Copyright Treaty http://www.wipo.int/treaties/en/text.jsp?file_id=295166

6.

Green Paper on Copyright in the Knowledge Economy http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf

7.

The Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/index.shtml#a27

8.

Regulation on the Operation of the Main Reading Room, National Library of Greece http://www.nlg.gr/www/node/69

9. Kallinikou, D. (2007), Intellectual Property and Libraries. Athens, Law and Economy P. N. Sakkoulas.

10. Kotsiris, L. (2011), Intellectual Property Law and Acquis Communautaire. Thessaloniki, Sakkoulas Publications.

11. Marinos, M.-T. (2000), Intellectual Property. Athens, Sakkoulas Ant. N. 12. Dreyfuss, R., Zimmerman, D., First, H. (2010), Working within the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society. Oxford, Oxford University Press.

13. Vanhees, H. (1993), Een juridische analyse van de grondslagen, inhoud en draagwijdte van auteursrechtelijke exploitatiecontracten. Antwerpen â&#x20AC;&#x201C; Apeldoorn, MAKLU Uitgevers.

14. Velentzas, G., (2008), Technology and Innovation Law. Thessaloniki, IuS. 15. Papadopoulou, A. (2006), Photocopy Reproduction by Libraries and Intellectual Property Issues.

Business and Company Law, Vol. 4/2006. Athens, Nomiki Vivliothiki 16. 8th Panhellenic Conference of Jurists on Civil Law. Intellectual Property in Greek Theory and Jurisprudence (2008). Athens, Law and Economy P. N. Sakkoulas.

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Contemporary Issues on Intellectual Property Law

DESPOINA N. POUTAKIDOU

PHOTOGRAPHER AND RELEASED PERSON

Aristotle University of Thessaloniki

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Contemporary Issues on Intellectual Property Law Abstract The present paper focuses on the issue of the photographer and the released person mostly under the light of the greek legislation. The protection of photographs through the relevant provisions of intellectual property law and the protection of the rights of both the photographer and the photographed person are the main topics around which the paper evolves.

LIST OF ABBREVIATIONS ΑΠ

Άρειος Πάγος (Supreme Civil and Criminal Court of Greece)

ΕφΑθ

Εφετείο Αθηνών (Appellate Court of Athens)

ΕφΘεσσαλ

Εφετείο Θεσσαλονίκης (Appellate Court of Thessaloniki)

ΜΠρΑθ

Μονομελές Πρωτοδικείο Αθηνών (First Instance Court of Athens)

ΜΠρΘεσσαλ

Μονομελές Πρωτοδικείο Θεσσαλονίκης (First Instance Court of Thessaloniki)

ΠΠρΑθ

Πολυμελές Πρωτοδικείο Αθηνών (First Instance Court of Athens)

ΣτΕ

Συμβούλιο της Επικρατείας (Supreme Administrative Court of Greece)

ECHR

European Convention for the Protection of Human Rights and Fundamental Freedoms

ECJ

European Court of Justice

ECtHR

European Court of Human Rights

EWCA

England and Wales Court of Appeal

EWHC

England and Wales High Court

p.

page(s)

U.N.T.S.

United Nations Treaty Series

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Contemporary Issues on Intellectual Property Law

I. Introduction The present paper concerns a rather complicated issue in the field of intellectual property law. The problematic on the taking and use of photographs is undoubtedly a topic that deserves considerable attention. And when the protagonist of photographs is a person then the issue becomes even more complex. Under what circumstances are photographs protected? What are the rights of both the photographer and the photographed person? These are the core questions that will be given effort to answer in the following pages.

The paper starts with the analysis of the concept of photograph and the protection of this form of art under the relevant provisions of the law on intellectual property. To what extent is a photograph protected? Are there any specific requirements that need to be met in order for a photograph to be considered protected?

Then attention is drawn upon the rights of the photographer. But is the photographer the only one that enjoys certain rights? Does the person depicted in photographs have any rights? That brings us to another very important issue, the problematic on image as part of oneâ&#x20AC;&#x2122;s personality and the right to privacy. Is the right to privacy superior to the freedom of expression? And what exactly is the right of publicity?

All the aforementioned are examined mostly under the light of the greek legislative provisions including, of course, the legislation of the European Union as enacted in national law.

Therefore, apart from the selected bibliography it is considered crucial to look into the relevant judgments of the ECJ and the national courts and also the decisions of the competent national authorities, such as the Greek Data Protection Authority. Furthermore, the paper makes reference to some of the most important cases that have been brought in front of the ECtHR, as well. This helps in order to have an as complete as possible picture of the issue at question, since all European Union member states are at the same time contracting parties to the ECHR. Apparently, the limited length of the present paper does not allow for a thorough analysis of the complicated topic at hand, the photographer and the released person. Nevertheless, effort was made to approach all relevant issues and answer to the arising questions in a spherical and concise manner.

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II. The protection of photographs under the provisions of the law on intellectual property In article 2 of the Berne Convention 155 it is stated without ambiguity that “The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as…photographic works to which are assimilated works expressed by a process analogous to photography…” Moreover, pursuant to article 6 of directive 93/98/EEC and of directive 2006/116/EC156 “photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Article 1. No other criteria shall be applied to determine their eligibility for protection. Member States may provide for the protection of other photographs.”157 It is worth mentioning that the Commission’s initial proposal concerning the aforementioned provision in the body of directive 93/98/EEC was that “protected photographs shall have the term of protection provided for in Article 1.” However, the Council was of the view that having different national rules protecting photographs would create more problems within the internal market. As a consequence, the criterion of originality was inserted in the directive and was adopted along with the no-other-criteria clause.158 In the greek legal order the basic legislation concerning the protection of photographs is law 2121/1993. 159 In its earlier form, before it came into effect, the law was making reference to “photographic works”, using thus the term that was used in the Berne Convention, as already mentioned. Nevertheless, in order to avoid any misunderstandings and make it clear that the law 155

Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and amended on September 28, 1979. For information on the Berne Convention see Peter Burger, The Berne Convention: Its History and Its Key Role in the Future, Journal of Law & Technology, Winter 1988 (accessible at Westlaw).

156

Directive 93/98/EEC of the Council of the European Communities of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, Official Journal of the European Communities, L 290, 24.11.1993, p. 0009 – 0013. The directive was repealed by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version), Official Journal of the European Union, L 372, 27.12.2006, p. 0012 - 0018.

157

As it is stated in recital 17 in the preamble to directive 93/98/EEC “whereas the protection of photographs in the Member States is the subject of varying regimes;…whereas a photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account; whereas the protection of other photographs should be left to national law.” See also recital 16 in the preamble to directive 2006/116/EC. 158 For the aforemantioned legislative background of the directive establishing the originality criterion see Stef Van Gompel and Erlend Lavik, Quality, merit, aesthetics and purpose: An inquiry into EU copyright law’s eschewal of other criteria than originality (accessible at: http://www.ivir.nl/publications/vangompel/RIDA_236.pdf, last accessed on 10.10.2014), pages 6 – 8.

159 Law 2121/1993 (as amended): Intellectual Property, related rights and cultural issues [Νόμος 2121/1993 (ΦΕΚ Α 25/4-3-1993): Πνευματική ιδιοκτησία, συγγενικά δικαιώματα και πολιτιστικά θέματα (όπως τροποποιήθηκε)].

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Contemporary Issues on Intellectual Property Law protected all kind of photographs and not only the artistic ones, the term “photographs” was introduced.160 The latter are protected through intellectual property law only if they are original. 161 To be more specific, according to article 2 paragraph 1 of this law the protection is granted to all works that are original intellectual creations of speech, art or science, expressed in all kind of forms. But since the law does not make any further reference to the elements of originality, on what criteria is a photograph considered to be original?

I. The originality criterion As it is generally accepted in greek law, according to the criterion of statistical uniqueness that has been formed in theory and jurisprudence, originality is met when a third person being under the same circumstances and aiming at the same goal could not create the same work.162 That means that the photograph as work is not necessary to be new 163 compared to already existing ones, but, at least theoretically, there is a comparison between the works that exist already and the works that might be created.164 Pursuant to the greek jurisprudence, a photograph is also original when it has a certain individuality or a “minimum limitation of ‘creative height’ ”, meaning a distance from what is known.165 It has been held that a photograph is original when it is not a mere photographic and materialistic depiction of the photographed person, but it represents the uniqueness of the creative procedure followed by the photographer. The uniqueness is based on elements such as the lighting,

160

See Διονυσία Καλλινίκου, Πνευματική Ιδιοκτησία & Συγγενικά Δικαιώματα, Β’ έκδοση, Δίκαιο και Οικονομία Π.Ν. Σάκκουλας, Αθήνα 2005, page 33 and ΑΠ 1493/2009 (accessible at NOMOΣ Database).

161

It is worth mentioning once again that no stricter criterion applies concerning the protection of photographs. See also ΑΠ 152/2005 (accessible at NOMOΣ Database) and ΕφΑθ 2211/2010 (accessible at NOMOΣ Database).

162 See Ειρήνη Σταματούδη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας, Επιστημονική Επιμέλεια: Ειρήνη Α. Σταματούδη, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2009, σελίδες 263 – 297, page 266. From the greek jurisprudence see ΑΠ 1493/2009 (accessible at NOMOΣ Database), ΑΠ 152/2005 (accessible at NOMOΣ Database), ΕφΑθ 2724/2012 (accessible at NOMOΣ Database), ΕφΑθ 2211/2010 (accessible at NOMOΣ Database) and ΠΠρΑθ 5821/2010 (accessible at NOMOΣ Database).

163

Διονυσία Καλλινίκου, Πνευματική Ιδιοκτησία & Συγγενικά Δικαιώματα (supra note no. 6), page 28.

164

Ειρήνη Σταματούδη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας (supra note no. 8), page 266.

165 ΕφΑθ 2724/2012 (accessible at NOMOΣ Database), ΕφΑθ 2648/2010 (accessible at NOMOΣ Database), ΕφΑθ 2211/2010 (accessible at NOMOΣ Database), ΕφΑθ 6234/2007 (accessible at NOMΟΣ Database) and ΠΠρΑθ 6119/2009 (accessible at NOMOΣ Database).

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Contemporary Issues on Intellectual Property Law the clash of colours, the pose and the face expressions of the photographed person, the angle of view.166 As regards the ECJ jurisprudence, it was held in Infopaq International case that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation.167 Moreover, in Painer case the ECJ ruled that a portrait photograph can be protected by copyright if it is the result of an intellectual creation of the author not only reflecting his personality but also expressing his creative choices in the production of that particular photograph.168

II. The creator of a photograph - The creator’s rights It is only logical to conclude that the creator of a photograph is the photographer. 169 The question that arises is whether there could be a co-creator in respect of a photograph. In case that the final aesthetic result is attributed to more than one person (for instance, when one person takes the photograph and another undertakes the digital processing of it),170 then the existence of a co-creator cannot be excluded.171 The creator of a photograph that meets the aforementioned criteria has the rights described in articles 3, 4, 5 and 38 of law 2121/1993. More specifically, intellectual property on photographs includes, as absolute and exclusive rights, the right to exploit the work (property right) and the right to

166

ΕφΑθ 2724/2012 (accessible at NOMOΣ Database).

167

ECJ C – 5/2008, Decision of 16 July 2009, Infopaq International A/S v Danske Dagblades Forening, §35.

168

ECJ C-145/10, Decision of 1 December 2011, Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG, §99. In particular, the court held that “As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting.

When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.” (§§ 90, 91, 92) 169 In decision no. 6119/2009 the First Instance Court of Athens held that in case that a photograph was taken by a camera using film, then the possessor of the negatives of the film is considered to be the creator of the photograph [ΠΠρΑθ 6119/2009 (accessible at NOMOΣ Database)].

170

Ειρήνη Σταματούδη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας (supra note no. 8), page 274.

171 See ΜΠρΘεσσαλ 24610/2004 (accessible at NOMOΣ Database), where the court deals with a case of an intellectual property work and declares that the creators of a work that is a product of cooperation are co-holders of both the property and moral right of the work. See also ΜΠρΑθ 2264/1996 (accessible at NOMOΣ Database) mentioning that the direction of a photograph could be seen as cooperation.

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Contemporary Issues on Intellectual Property Law protect the personal connection to the work (moral right).172 Starting from the latter, and even though its close connection to the right to personality, the moral right of the photographer is recognised as an intellectual property right because of its connection to a particular photograph. 173 To be more precise, the moral right of the photographer as prescribed in law 2121/1993 includes the right to publish the photograph,174 the right of recognition of the authorship, the right to maintain the photograph as such and the right of access (article 4).

On the other hand, article 38 of law 2121/1993 makes specific reference to the photographer’s rights concerning the publication of photographs in mass media. The photographer allows the publication of the photograph(s) to the specific mass media, meaning a specific newspaper, television channel etc. (paragraph 1). Unless it is specifically agreed, the publication of the photograph does not include the electronic version of this mass media or any other electronic use of the photograph at question. 175 Furthermore, the photographer has the right to have his/her photos returned in case that they haven’t been published within three months since the agreement on publication (paragraph 3). In addition to this, the law recognizes that the mass media that published the specific photo has the right to reproduce it, in the same mass media, by paying half the current price for each reproduction (paragraph 1). Is goes without saying that in each case the name of the photographer must be mentioned (paragraph 4), even when the photos are not protected by intellectual property law.176 It is worth mentioning that photographs, as intellectual property works, enjoy the protection of article 1 of Protocol 1 of the ECHR, 177 as well.

172

Article 1 of law 2121/1993. See also ΕφΑθ 2648/2010 (accessible at NOMOΣ Database). It is important to note that the creator of the work is the initial holder of these rights. The latter are acquired without any particular wording (article 6 of law 2121/1993).

173

Λάμπρος Ε. Κοτσίρης, Δίκαιο Πνευματικής Ιδιοκτησίας, Τέταρτη Έκδοση, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2005, page 119.

174

See decision no. 20669/1998 of the First Instance Court of Athens [ΜΠρΑθ 20669/1998 (accessible at NOMOΣ Database)] which held that printing a limited number of copies for purposes of approval of the work publication does not constitute publication and it is not violating the right of distribution from the moment that the work is not accessible by the consumers.

175

Ειρήνη Σταματούδη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας (supra note no. 8), page 277.

176 Article 72 paragraph 5 of law 2121/1993. See also Ειρήνη Σταματούδη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας (supra note no. 8), page 280 where the author mentions that this provision is of limited importance since nowadays most photographs are protected as intellectual property works.

177 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13), Rome, 4.XI.1950, 213 U.N.T.S. 222, entered into force September 3, 1953. The ECtHR held unanimously that the aforementioned right is applicable to intellectual property as such [ECtHR, Grand Chamber, Case of Anheuser-Busch Inc. v. Portugal (Application No. 73049/01), Judgment, Strasbourg, 11 January 2007, §72]. This “holding is an unequivocal endorsement of the view that the right

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Contemporary Issues on Intellectual Property Law But how is the creator of a photograph protected when his/her rights are violated? To begin with, the violation exists when it takes place any act that intervenes with the creators’ powers, as already described, and this act takes place without the permission of the holder of the intellectual property right.178 In such a case, the photographer could file a lawsuit a) in order for his/her right to be recognised, b) for the violation to stop and not be repeated, c) for unjust enrichment, d) in order to gain the profit, e) for compensation, as article 65 of law 2121/1993 provides. 179 The protection of photographs as described above means that photographs are protected as such and not the object depicted in them.180 The protection of the object of the photograph, and more specifically the protection of the person captured in a photograph, is being analysed in the sections that follow.

III. The protection of the photographed person I. The right to personality – Image as aspect of one’s personality In every democratic society each person is recognised as holder of the right to personality.

The protection of this right is spherical, because the right to personality itself has many aspects. These protected aspects of personality include every element that allows the determination of personality, such as the image and the name of a person. 181 In particular, concerning photographs and their of property protects the financial interests of intellectual property owners in their inventions, creations, and signs” [Laurence R. Helfer, The New Innovation Frontier? Intellectual Property and the European Court of Human Rights, Harvard International Law Journal, Volume 49, Number 1, Winter 2008 (accessible at: http://www.pijipimpact.org/wp-content/uploads/2013/01/The-New-Innovation-Frontier-Intellectual-Property-and-the-Europe.pdf, last accessed on 10.10.2014), page 12].

178 The violation must refer to the work, meaning the photograph itself. See ΑΠ 1493/2009 (accessible at NOMOΣ Database).

179

See also ΕφΑθ 2724/2012 (accessible at NOMOΣ Database).

180

The intellectual property law provisions protect the creator of a photograph. The person depicted in a photograph enjoys the protection of the provisions on the right to personality. See ΠΠρΑθ 4661/2004 (accessible at NOMOΣ Database).

181

In the greek legal order the protection of someone’s image is absolute without being necessary to prove an infringement of some other aspect of personality. For more information see Μαρία Κανελλοπούλου – Μπότη, Δικαίωμα στην προσωπικότητα και δικαίωμα στη φωτογραφία, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας, Επιστημονική Επιμέλεια: Ειρήνη Α. Σταματούδη, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2009, σελίδες 233 – 262, pages 244 – 255. From the greek courts’ jurisprudence see ΕφΘεσσαλ 1543/2007 (accessible at NOMOΣ Database) and ΠΠρΑθ 2303/2006 (accessible at NOMOΣ Database). In France the right to one’s image was initially seen as a minor personality right and quite often it was perceived as part of the right to privacy. Later, and despite the lack of a statutory provision, the case law recognised the right to image as an autonomous right.

Nowadays, this right is recognised in the french civil code. For more information on that issue see Elisabeth Logeais and Jean-Baptiste Schroeder, The french right of image: an ambiguous concept protecting the human persona, 18 Loyola of Los Angeles Entertainment Law Journal, 1998 (accessible at Westlaw). For more information on how the right to one’s image is being treated in different European countries see Tatiana Synodinou, Image right and

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Contemporary Issues on Intellectual Property Law relation to personality, as Lord Phillips M.R. observed in Douglas v. Hello “a photograph can certainly capture every detail of a momentary event in a way which words cannot, but a photograph can do more than that. A personal photograph can portray, not necessarily accurately, the personality and the mood of the subject of the photograph.”182 As a consequence, photographing someone without their consent is a violation of their right to personality. At least this is the rule. 183 Moreover, the violation of the right to personality is irrelevant to the publication or the somehow presentation of that photograph to the public. 184 The Supreme Civil and Criminal Court of Greece rendered a decision declaring that the violation of the right to personality through the use of photos without the consent of the photographed person becomes more important when the person is presented nude or semi-nude even if he/she was photographed in the past in a similar way with his/her consent. 185 The above analysed right to personality and its more particular aspect, the right to one’s image, is closely connected to the right to privacy. The diverse aspects of the latter and balance that needs to be achieved concerning the freedom of expression are examined as follows.

copyright law in Europe: divergences and convergences, MDPI, Law, 2014, 3, p. 181 – 207, pages 183 – 189. For a comparative analysis on the law applicable in cases of violations of privacy and rights relating to personality in both civil and criminal cases in the European union member states see Comparative study on the situation in the 27 Member States as regards the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, JLS/2007/C4/028, Annex III – EU 27 National Reports, European Commission, Directorate General Justice and Home Affairs, Directorate C: Civil Justice, Rights and Citizenship, November 2008 (accessible at: http://ec.europa.eu/justice/civil/files/study_privacy_annexe_3_en.pdf, last accessed on 10.10.2014).

For the historical background of the development of personality rights in Europe see John Blackie, Doctrinal History of the Protection of Personality Rights in Europe in the Ius Commune: General Actions or Specific Actions?

Electronic Journal of Comparative Law, Volume 13, March 2009, p. 1 – 22 (accessible at: http://www.ejcl.org/131/art131-1.pdf, last accessed on 10.10.2014).

182 [2005] EWCA Civ 595, Between: Michael Douglas (1st Respondent), Catherine Zeta-Jones (2nd Respondent), Northern & Shell Plc (3rd Respondent) and Hello Limited (1st Appellant), Hola S.A. (2nd Appellant), Eduardo Sanchez Junco (3rd Appellant), 18 May 2005, §106. For the treatment of the right to privacy in common law jurisdictions see N.A. Moreham, Privacy in the Common Law: A Doctrinal and Theoretical Analysis, Law Quarterly Review, Volume 121, October 2005, p. 628 – 656 (accessible at: http://ssrn.com/abstract=2383498, last accessed on 10.10.2014).

183

In Decision No. 44/2004 the Hellenic Data Protection Authority held that taking photos of the complainant and using them in order to support a legitimate interest is not a procedure that demands for the consent of the subject of the photograph. On the contrary, the Court of First Instance of Athens that addressed the same case held that such behavior violates article 57 of the greek civil code that protects personality [ΜΠρΑθ 959/2004 (accessible at NOMOΣ Database)]. See Αλεξανδροπούλου-Αιγυπτιάδου Ευγενία, Η Αυθαίρετη Φωτογράφηση Προσώπου και η Προστασία του από την Ειδική Νομοθεσία για τα Προσωπικά Δεδομένα (Με αφορμή την υπ’ αριθ. 959/2004 απόφαση του Μονομελούς Πρωτοδικείου Αθηνών και την υπ’ αριθ. 44/2004 απόφαση της Αρχής Προστασίας Προσωπικών Δεδομένων), Αρμενόπουλος 2, 2005, σελίδες 313 – 317.

184 See ΜΠρΑθ 959/2004 (accessible at NOMOΣ Database). That means that the violation exists even if the photograph never gets published.

185 ΑΠ 782/2005 (accessible at NOMOΣ Database). Besides, we should keep in mind that the previous cooperation of a person with the press could not be used as an argument depriving that person of protection against the publication of other, new photographs [ECtHR, First Section, Case of Egeland and Hanseid v. Norway (Application No. 34438/04), Judgment, Strasbourg, 16 April 2009, Final 16/07/2009, §62].

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II. Right to privacy and freedom of expression: do they conflict with each other?

In their article published in December 1890 Samuel Warren and Louis Brandeis observed that it is the right to privacy that protects any kind of productions of not only the intellect, but of the emotions as well and that this protection is also extended to personal appearance.186 The perception on the right to privacy differs between the European and the American legal order. Whereas in Europe the right to privacy is mostly treated as a right to dignity, in America it is seen more as a liberty against the state.187,188 Of course, the right to privacy is recognised to all people including public figures. 189 The decision of the ECtHR in the Von Hannover v. Germany case 190 constitutes a landmark in the evolvement of the case law of the European Union member states. The court held that Germany failed to protect the princess’s private life191 breaching thus its obligation under article 8 of the ECHR. In the von Hannover case, and in many other similar cases, the ECtHR and domestic courts as well had to find the balance between two important principles. On one hand, there is the right to privacy, a right of paramount importance for every human being, and on the other hand there is the freedom of expression, one of the cornerstones in every democracy. Yet the latter is not a freedom of absolute character and not only has to be balanced with other competing rights, but also needs to be exercised 186

Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review, Volume 4, No. 5 (December 15, 1890), p.

193 220 (accessible at: http://www.jstor.org/stable/pdfplus/1321160.pdf?acceptTC=true&jpdConfirm=true, last accessed on 10.10.2014), page 213.

187

James Q. Whitman, The Two Western Cultures of Privacy: Dignity versus Liberty, The Yale Law Journal, Volume 113, 2004, p. 1151 – 1221, pages 1160 – 1164. Other scholars support the social value of privacy, meaning that this right protects the individual for the sake of the whole society (see Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, San Diego Law Review, Volume 44, 2007, p. 745 – 772, page 736).

188 At the same time such an acknowledgment reveals the different approach towards the relationship between the person and the state.

189 According to Council of Europe Resolution 1165 (1998) on the Right to Privacy [Text adopted by the Assembly on 26 June 1998 (24th Sitting)] “…7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain….” As regards the United States legal system, the Supreme Court in order to classify a person as a public figure requires both attempt to influence public opinion and deliberate involvement in a controversy with evidence of tendency by the Court to focus more on the former [Scott J. Shackelford, Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures (accessible at: http://ssrn.com/abstract=1396378, last accessed on 10.10.2014), page 57. The latter also proposes the creation of a four category system concerning the definition of public figures in United States law (pages 101 - 106)].

190 ECtHR, Third Section, Case of Von Hannover v. Germany (Application No. 59320/00), Judgment, Strasbourg, 24 June 2004, Final 24/09/2004.

191 The court held that the concept of private life includes elements relating to a person’s right to their image and the publication of a photograph falls within the scope of private life. See also ECtHR, Fourth Section, Case of Eerikäinen and Others v. Finland (Application No. 3514/02), Judgment, Strasbourg, 10 February 2009, Final 13/03/2009, §61 and ECtHR, First Section, Case of Lillo-Stenberg and Sæther v. Norway (Application No. 13258/09), Judgment, Strasbourg, 16 January 2014, §26.

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Contemporary Issues on Intellectual Property Law according to the ethics of journalism.192 The ECtHR consistently affirms that the key element is the existence or not of contribution made by photographs (or articles) in the press to a debate of general interest.193 That means that the public interest in the publication of a photograph and the need to protect private life must be balanced.194

III. The right of publicity and its connection to intellectual property law It is important to note that the right to respect for private life, as enshrined in the ECHR, goes beyond the right to privacy, the right to enjoy the protection from publicity. 195 Furthermore, it has been argued that the aforementioned right to privacy and its supremacy, at least in some cases, could lead directly to another right, namely the right of publicity. 196 According to this point of view, a right of publicity arises from the context of article 8 of the ECHR expanding thus the right to privacy in order to make it possible to protect a public figure against unwanted merchandise, because that dishonors that person’s name.197 Concerning the right of publicity, unlike the right to privacy that has created many controversies in the legal world, the former has been welcomed with enthusiasm by commentators and courts,198 at least in the anglo-saxon legal systems. It can be defined as the right of a person to use

192

Laurent Pech, Balancing Freedom of the Press with Competing Rights and Interests: A Comparative Perspective (accessible at: http://ssrn.com/abstract=909507, last accessed on 10.10.2014), page 4.

193 As noted by Warren and Brandeis, the right to privacy does not mean that the publication of any matter of public or general interest is prohibited [Samuel D. Warren and Louis D. Brandeis, The Right to Privacy (supra note no. 32), pages 214 – 216].

194 ECtHR, First Section, Case of Hachette Filipacchi Associes v. France (Application No. 71111/01), Judgment, Strasbourg, 14 June 2007, Final 12/11/2007, §43. In Theakston v. MGN Limited {[2002] EWHC 137(QB), Between: Theakston (Claimant) and MGN Limited (Defendant), 14 February 2002} no public interest was found in the publication of the particular photos. See also case no. 248/2009 of the Supreme Administrative Court of Greece [ΣτΕ 248/2009 (accessible at NOMOΣ Database)] where it was held that the publication of the specific photos was neither necessary for the communication of the news nor connected to the public’s right of information on issues of public interest and the Decision No. 18/2008 of the Hellenic Data Protection Authority which came to the same conclusion (§15).

195 As the ECtHR observed. Nevertheless, it is a right that remains semi-defined (N.A. Moreham, The Right to Respect for Private Life in the European Convention on Human Rights: A Re-examination, European Human Rights Law Review, Issue 1, 2008, p. 44 – 79, page 45).

196 David S. Welkowitz, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles, Akron Law Review, 46, 2013, p. 675 – 726 (accessible at: http://www.uakron.edu/dotAsset/436b8cbe0db3-4792-8075-7a8c13a2dde5.pdf, last accessed on 10.10.2014), page 686.

197

David S. Welkowitz, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles (supra note no. 42), page 693.

198 Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, California Law Review, Volume 81, Issue 1, 1993, p.

125 – 240 (accessible at: http://scholarship.law.berkeley.edu/californialawreview/vol81/iss1/3, last accessed on 10.10.2014), page 132. For more information on the right to publicity see Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems, Spring 1954, p. 203 - 223 (accessible at: http://scholarship.law.duke.edu/lcp/vol19/iss2/6, last accessed on

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Contemporary Issues on Intellectual Property Law some or all elements of his/her personality in order to gain financial profit.199 As regards the nature of the right of publicity, it has been argued that it is an intellectual property right and that its character as a property right derives from the commercial value it carries. 200,201 On the contrary, in Europe, and in Greece in particular, the right of publicity is considered to be one of the aspects of the right to personality.202

IV. Concluding Remarks The protection of photographs is one of the most difficult issues concerning intellectual property law. The criterion of originality is not strictly defined allowing thus for a more flexible interpretation based on the characteristics of each photograph. As a consequence to the protection of photographs, the photographer is recognised with certain rights. On the other hand, the right to one’s image is indissolubly connected to the very being of a person. Closely related to the right of personality is the right to privacy. The distinction between the latter and the freedom of expression does not mean that the former is a priori protected in all cases over the latter. What is important to note is that each case should be read through its own particular characteristics in order for a fair result to be achieved. In the context of the European Union it is difficult to achieve uniform solutions regarding the topic at hand. The 28 member states have different legal and historical backgrounds, 10.10.2014) and Marshall Leaffer, The Right of Publicity: A Comparative Perspective, Albany Law Review, Volume 70, 2007, p. 1357 – 1374 (accessible at: http://www.albanylawreview.org/Articles/Vol70_4/70.4.1357-Leaffer.pdf, last accessed on 10.10.2014). See also Jeffrey Malkan, Stolen photographs: personality, publicity, and privacy, 75 Texas Law Review 779, March 1997 (accessible at Westlaw) where the author analyses whether the publication of stolen photos is violation of the right to privacy or violation of the right of publicity.

199

See Ioannis K. Karakostas, Greek Mass Media Law, Ant. N. Sakkoulas, Athens, Bruylant, Brussels, 2007, page 247.

200

Andrew B. Sims, Right of Publicity: Survivability Reconsidered, Fordham Law Review, Volume 49, 1981, p. 453 – 499 (accessible at: http://ir.lawnet.fordham.edu/flr/vol49/iss4/10, last accessed on 10.10.2014), pages 453 and 456.

201 See also Stacey L. Dogan and Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, Stanford Law Review, Volume 58, February 2006, p.

1161 – 1220 (accessible at: http://www.stanfordlawreview.org/sites/default/files/articles/dogan.pdf, last accessed on 10.10.2014) where the authors support that the right of publicity could be seen by analogy to trademark law than copyright law.

202

See Ioannis K. Karakostas, Greek Mass Media Law (supra note no. 45), page 247. More specifically, in Greece both theory and jurisprudence do not recognise the existence of an independent right to use some aspects of personality, but accept that there can be an agreement on certain restrictions to the right to personality and consequently such an agreement is no longer in force after the death of the holder of the right (see Πιερρίνα Κοριατοπούλου – Αγγέλη, Right of Publicity – Άδεια χρήσης δικαιωμάτων προσωπικότητας – Πτυχές Εμπορευματοποίησης, Δίκαιο Μέσων Ενημέρωσης και Επικοινωνίας 1/2007 – Έτος 4ο, σελίδες 22 – 27, page 23). See also ΠΠρΑθ 6615/2010 (accessible at NOMOΣ Database) where the court held that the commercial exploitation of the image of an actor, in case that the photo was not taken during his/her interpretation, constitutes a violation of the right to personality. Otherwise, there is violation of the intellectual property right.

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Contemporary Issues on Intellectual Property Law even though in most cases the divergences between them are not chaotic. The most possible approximation of national laws is the big challenge for the European Union on the issue of photographer and released person.

BIBLIOGRAPHY 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

Αλεξανδροπούλου-Αιγυπτιάδου Ευγενία, Η Αυθαίρετη Φωτογράφηση Προσώπου και η Προστασία του από την Ειδική Νομοθεσία για τα Προσωπικά Δεδομένα (Με αφορμή την υπ’ αριθ. 959/2004 απόφαση του Μονομελούς Πρωτοδικείου Αθηνών και την υπ’ αριθ. 44/2004 απόφαση της Αρχής Προστασίας Προσωπικών Δεδομένων), Αρμενόπουλος 2, 2005, σελίδες 313 – 317. Καλλινίκου Διονυσία, Πνευματική Ιδιοκτησία & Συγγενικά Δικαιώματα, Β’ έκδοση, Δίκαιο και Οικονομία Π.Ν. Σάκκουλας, Αθήνα 2005. Κανελλοπούλου – Μπότη Μαρία, Δικαίωμα στην προσωπικότητα και δικαίωμα στη φωτογραφία, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας, Επιστημονική Επιμέλεια: Ειρήνη Α. Σταματούδη, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2009, σελίδες 233 – 262. Κοριατοπούλου – Αγγέλη Πιερρίνα, Right of Publicity – Άδεια χρήσης δικαιωμάτων προσωπικότητας – Πτυχές Εμπορευματοποίησης, Δίκαιο Μέσων Ενημέρωσης και Επικοινωνίας 1/2007 – Έτος 4ο, σελίδες 22 – 27. Κοτσίρης Ε. Λάμπρος, Δίκαιο Πνευματικής Ιδιοκτησίας, Τέταρτη Έκδοση, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2005. Σταματούδη Ειρήνη, Δικαιώματα Φωτογράφων και Δημοσίευση Φωτογραφιών σε ΜΜΕ, σε: Δημοσιογράφοι και εκδότες ΜΜΕ: ζητήματα πνευματικής ιδιοκτησίας, Επιστημονική Επιμέλεια: Ειρήνη Α. Σταματούδη, Αθήνα – Θεσσαλονίκη, Εκδόσεις Σάκκουλα, 2009, σελίδες 263 – 297.

Blackie John, Doctrinal History of the Protection of Personality Rights in Europe in the Ius Commune: General Actions or Specific Actions? Electronic Journal of Comparative Law, Volume. 13, March 2009, p. 1 – 22 (accessible at: http://www.ejcl.org/131/art131-1.pdf, last accessed on 10.10.2014).

Burger Peter, The Berne Convention: Its History and Its Key Role in the Future, Journal of Law & Technology, Winter 1988 (accessible at Westlaw).

Comparative study on the situation in the 27 Member States as regards the law applicable to noncontractual obligations arising out of violations of privacy and rights relating to personality, JLS/2007/C4/028, Annex III – EU 27 National Reports, European Commission, Directorate General Justice and Home Affairs, Directorate C: Civil Justice, Rights and Citizenship, November 2008 (accessible at: http://ec.europa.eu/justice/civil/files/study_privacy_annexe_3_en.pdf, last accessed on 10.10.2014).

Dogan L. Stacey and Lemley A. Mark, What the Right of Publicity Can Learn from Trademark Law, Stanford Law Review, Volume 58, February 2006, p. 1161 – 1220 (accessible at: http://www.stanfordlawreview.org/sites/default/files/articles/dogan.pdf, last accessed on 10.10.2014).

Helfer R. Laurence, The New Innovation Frontier? Intellectual Property and the European Court of Human Rights, Harvard International Law Journal, Volume 49, Number 1, Winter 2008 (accessible at: http://www.pijip-impact.org/wp-content/uploads/2013/01/The-New-Innovation-Frontier-Intellectual-Propertyand-the-Europe.pdf, last accessed on 10.10.2014).

Karakostas K. Ioannis, Greek Mass Media Law, Ant. N. Sakkoulas, Athens, Bruylant, Brussels, 2007.

Leaffer Marshall, The Right of Publicity: A Comparative Perspective, Albany Law Review, Volume 70, 2007, p. 1357 – 1374. (accessible at: http://www.albanylawreview.org/Articles/Vol70_4/70.4.1357Leaffer.pdf, last accessed on 10.10.2014).

Logeais Elisabeth and Schroeder Jean-Baptiste, The french right of image: an ambiguous concept protecting the human persona, 18 Loyola Los Angeles Entertainment Law Journal 511, 1998 (accessible at Westlaw).

Madow Michael, Private Ownership of Public Image: Popular Culture and Publicity Rights, California Law Review, Volume 81, Issue 1, 1993, p.

125 – 240 (accessible at: http://scholarship.law.berkeley.edu/californialawreview/vol81/iss1/3, last accessed on 10.10.2014).

Page 124

Contemporary Issues on Intellectual Property Law 16. Malkan Jeffrey, Stolen photographs: personality, publicity, and privacy, 75 Texas Law Review 779, March 1997 (accessible at Westlaw).

17. Moreham N.A., Privacy in the Common Law: A Doctrinal and Theoretical Analysis, Law Quarterly Review, Volume 121, October 2005, p. 628 – 656 (accessible at: http://ssrn.com/abstract=2383498, last accessed on 10.10.2014).

18. Moreham N.A., The Right to Respect for Private Life in the European Convention on Human Rights: A Reexamination, European Human Rights Law Review, Issue 1, 2008, p. 44 – 79.

19. Nimmer B. Melville, The Right of Publicity, 19 Law and Contemporary Problems, Spring 1954, p. 203 - 223 (accessible at: http://scholarship.law.duke.edu/lcp/vol19/iss2/6, last accessed on 10.10.2014).

20. Pech Laurent, Balancing Freedom of the Press with Competing Rights and Interests: A Comparative Perspective (accessible at: http://ssrn.com/abstract=909507, last accessed on 10.10.2014).

21. Shackelford J. Scott, Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures (accessible at: http://ssrn.com/abstract=1396378, last accessed on 10.10.2014).

1. Sims B. Andrew, Right of Publicity: Survivability Reconsidered, Fordham Law Review, Volume 49, 1981, p. 453 – 499 (accessible at: http://ir.lawnet.fordham.edu/flr/vol49/iss4/10, last accessed on 10.10.2014).

22. Solove J. Daniel, “I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy, San Diego Law Review, Volume 44, 2007, p. 745 – 772.

23. Synodinou Tatiana, Image right and copyright law in Europe: divergences and convergences, MDPI, Law, 2014, 3, p. 181 – 207.

24. Van Gompel Stef and Lavik Erlend, Quality, merit, aesthetics and purpose: An inquiry into EU copyright law’s eschewal of other criteria than originality (accessible at: http://www.ivir.nl/publications/vangompel/RIDA_236.pdf, last accessed on 10.10.2014).

25. Warren D. Samuel and Brandeis D. Louis, The Right to Privacy, Harvard Law Review, Volume 4, No. 5 (December 15, 1890), p.

193 220 (accessible at: http://www.jstor.org/stable/pdfplus/1321160.pdf?acceptTC=true&jpdConfirm=true, last accessed on 10.10.2014).

26. Welkowitz S. David, Privatizing Human Rights? Creating Intellectual Property Rights from Human Rights Principles, Akron Law Review, 46, 2013, p.

675 – 726 (accessible at: http://www.uakron.edu/dotAsset/436b8cbe-0db3-4792-8075-7a8c13a2dde5.pdf, last accessed on 10.10.2014).

27. Whitman Q. James, The Two Western Cultures of Privacy: Dignity versus Liberty, The Yale Law Journal, Volume 113, 2004, p. 1151 – 1221.

28. ECJ C-145/10, Decision of 1 December 2011, Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG. 29. ECJ C – 5/2008, Decision of 16 July 2009, Infopaq International A/S v Danske Dagblades Forening.

30. ΣτΕ 248/2009 (accessible at NOMOΣ Database) 31. ΑΠ 1493/2009 (accessible at NOMOΣ Database) 32. ΑΠ 782/2005 (accessible at NOMOΣ Database) 33. ΑΠ 152/2005 (accessible at NOMOΣ Database) 34. ΕφΑθ 2724/2012 (accessible at NOMOΣ Database) 35. ΕφΑθ 2648/2010 (accessible at NOMOΣ Database) 36. ΕφΑθ 2211/2010 (accessible at NOMOΣ Database) 37. ΕφΑθ 6234/2007 (accessible at NOMOΣ Database) 38. ΕφΘεσσαλ 1543/2007 (accessible at NOMOΣ Database) 39. ΠΠρΑθ 6615/2010 (accessible at NOMOΣ Database) 40. ΠΠρΑθ 5821/2010 (accessible at NOMOΣ Database) 41. ΠΠρΑθ 6119/2009 (accessible at NOMOΣ Database) 42. ΠΠρΑθ 2303/2006 (accessible at NOMOΣ Database) 43. ΠΠρΑθ 4661/2004 (accessible at NOMOΣ Database) 44. ΜΠρΘεσσαλ 24610/2004 (accessible at NOMOΣ Database) 45. ΜΠρΑθ 959/2004 (accessible at NOMOΣ Database) 46. ΜΠρΑθ 20669/1998 (accessible at NOMOΣ Database) 47. ΜΠρΑθ 2264/1996 (accessible at NOMOΣ Database) 48. [2005] EWCA Civ 595, Between: Michael Douglas (1st Respondent), Catherine Zeta-Jones (2nd Respondent), Northern & Shell Plc (3rd Respondent) and Hello Limited (1st Appellant), Hola S.A. (2nd Appellant), Eduardo Sanchez Junco (3rd Appellant), 18 May 2005.

49. [2002] EWHC 137(QB), Between: Theakston (Claimant) and MGN Limited (Defendant), 14 February 2002.

50. ECtHR, First Section, Case of Lillo-Stenberg and Sæther v. Norway (Application No. 13258/09), Judgment, Strasbourg, 16 January 2014.

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Contemporary Issues on Intellectual Property Law 51. ECtHR, First Section, Case of Egeland and Hanseid v. Norway (Application No. 34438/04), Judgment, Strasbourg, 16 April 2009, Final 16/07/2009.

52. ECtHR, Fourth Section, Case of Eerikäinen and Others v. Finland (Application No. 3514/02), Judgment, Strasbourg, 10 February 2009, Final 13/03/2009.

53. ECtHR, First Section, Case of Hachette Filipacchi Associes v. France (Application No. 71111/01), Judgment, Strasbourg, 14 June 2007, Final 12/11/2007.

54. ECtHR, Grand Chamber, Case of Anheuser-Busch Inc. v. Portugal (Application No. 73049/01), Judgment, Strasbourg, 11 January 2007.

55. ECtHR, Third Section, Case of Von Hannover v. Germany (Application No. 59320/00), Judgment, Strasbourg, 24 June 2004, Final 24/09/2004.

56. Decision No. 18/2008 57. Decision No. 44/2004 58. European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13), Rome, 4.XI.1950, 213 U.N.T.S. 222, entered into force September 3, 1953.

59. Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, and amended on September 28, 1979.

60. Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version), Official Journal of the European Union, L 372, 27.12.2006, p. 0012 - 0018.

61. Directive 93/98/EEC of the Council of the European Communities of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, Official Journal of the European Communities, L 290, 24.11.1993, p. 0009 – 0013.

62. Council of Europe, Resolution 1165 (1998), Right to Privacy [Text adopted by the Assembly on 26 June 1998 (24th Sitting)] 63. Law 2121/1993 (as amended): Intellectual Property, related rights and cultural issues [Νόμος 2121/1993 (ΦΕΚ Α 25/4-3-1993): Πνευματική ιδιοκτησία, συγγενικά δικαιώματα και πολιτιστικά θέματα (όπως τροποποιήθηκε)].

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Contemporary Issues on Intellectual Property Law

Dimitra Karydi

Webhosting providers' liability and digital copyright piracy: The harmonization of Greek legislation with the EU Directives

Aristotle University of Thessaloniki

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I. Introduction It has been inarguably remarked that the digital world has increasingly expanded its presence on various aspects of human activities. From banking and commercial transactions to social networking, the digital era has its advantages and disadvantages as every technological progress does.

On one hand speedy, borderless and cost effective products and services may be delivered world widely through Internet. On the other hand, many risks lurk within the size of the Internet, its capabilities, complexity and anonymity.

From a legal point of view, covering the width of the arising issues, such as copyright infringements or pornography, has been an ongoing challenge. For instance, when Napster and its centralized system of file-sharing among its users was found guilty of contributory and vicarious infringement of copyright, decentralized systems of file sharing such as Grokster and Kazaa emerged where contributory or vicarious liability was harder to be established. 203 On the process of dealing with the plague of online copyright piracy, Internet service providers' activities, such as webhosting services, have been put under scrutiny in an attempt to strike a balance between the development of the Internet and the need to somewhat supervise online illegal activities. Several European Union (EU) directives were issued concerning the aforementioned providers' liability for Internet users' illegal behaviors particularly pertaining to intellectual property.

Greece has incorporated in its national law the respective provisions.

Initially, this paper presents how webhosting providers function from a technical point of view in order to portray their role in the digital world. It proceeds by referring to the EU legal framework and important jurisprudence regarding the interconnection between webhosting providers and copyright protection on the online environment. Finally, it surveys the harmonization of Greek legislation and the stance of Greek jurisprudence towards the arisen vexing issues with regard to 

The focal point of this essay is on Internet service providers' liability for hosting unlawful content provided by third parties. For details on webhosting agreements under Greek Law, see Ι.Ιγγλεζάκης, 'Η σύμβαση φιλοξενίας ιστοσελίδων στο Διαδίκτυο (Web Hosting) - Έννοια, λειτουργία και νομική φύση', ΕπισκΕΔ Δ/2002 995 (2002).  Black’s Law Dictionary definition of piracy: "the unauthorized and illegal reproduction or distribution of materials protected by copyright, patent or trademark law" see Black’s Law Dictionary (West, 9th Edition, 2009) at 1266. For the purposes of this essay the term piracy will be related to copyright. Moreover, ‘digital copyright piracy’ will refer to copyright infringements taking place on the Internet.

203

A&M Records Inc v. Napster Inc, 239 F.3d 1004 (2001); Metro-Goldwyn-Mayer studios Inc et.al. v. Grokster Ltd et. al., 259 F. Supp.2d 1029 (C.D. Cal. 2003); For further discussion on the Napster case and generally filesharing cases in the U.S. and the U.K., see Colin Nasir, ‘Taming the beast of file-sharing - legal and technological solutions to the problem of copyright infringement over the Internet: Part 1’, 16/3 Ent. L.R. 50-55 (2005), Colin Nasir, ‘Taming the beast of file-sharing - legal and technological solutions to the problem of copyright infringement over the Internet: Part 2’, 16/4 Ent. L.R. 82-88 (2005), Warren R. Shiell, ‘Viral online copyright infringement in the United States and the United Kingdom: the end of music or secondary copyright liability? Part 1’, 15/3 Ent. L.R. 63-71 (2004).

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Contemporary Issues on Intellectual Property Law webhosting and related copyright violations. As it will become evident, Greek law in principle goes along with the instructions of relevant Community legislation while Greek jurisprudence has set foot in adopting a more sophisticated way of dealing with complex issues of intermediaries' services and copyright violations on the Internet.

II. Webhosting services from a technical perspective Web hosting refers to the practice of providing access to a website over the World Wide Web.204 It is customarily made available by providers of internet hosting services, namely companies - institutions, to users in order to allow for content and/or services dissemination.

In the context herein, users are divided into two broad categories: (a) the users that request a web hosting provider’s services and thus their content is to be provided, and (b) the users that request the aforementioned user’s content and thus represent the content consumers (Figure 1).

Figure 1: An abstract representation of the information flow and roles of users when content is accessed through a web hosting provider’s services.

The services typically offered by a web hosting provider revolve around space for the content to be hosted, a server that will manage the content/services as well as connectivity to the Internet for the aforementioned server. In case of very simple web hosting services, the web server, although existent, is not made available for feature-tuning to the web hosting service’s user and the content appears to be directly interconnected to the internet (Figure 2).

204

See http://en.wikipedia.org/wiki/Web_hosting_service.

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Figure 2: An abstract representation of common services offered by Web hosting providers. The dashed line indicates the perceived direct interconnection of content to the Internet in cases of very simple web hosting services where the server is transparent to the web hosting serviceâ&#x20AC;&#x2122;s user.

For the three main offered services of a web hosting provider, namely the web space, the internet connectivity and the server, numerous attributes exist that make each providerâ&#x20AC;&#x2122;s services distinguishable. Web space is measured in bytes and describes the maximum volume of data available to the providing user that the web hosting service has allocated. Internet connectivity does not only refer to the availability of an interconnection between the providing userâ&#x20AC;&#x2122;s content and the Internet but also to the volume of data that the web hosting service allows to be transferred mostly towards the consuming user.

Finally, the server, if not transparent and available for feature-tuning, is made of components that are selected ad hoc. A very generic configuration includes a webpage server application that provides the requested web-pages, a database that stores information in an organized manner and a scripting environment that allows for programming the server.

The above mentioned modules of web hosting services, seen as an integrated service, are usually described by availability and uptime. Availability refers to the percentage of time in which the provided content is accessible and reachable via the internet. Uptime measures the percentage of time in which the service is active but does not take into consideration its interconnection through Internet.

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Contemporary Issues on Intellectual Property Law The categorization of web hosting is highly volatile due to developments in numerous fields and thus not an easy task. Common assignment of hosting into categories is based on features such as: 

the cost of the service: usually paid though advertisement-based or limited features free of charge services do exist,



the number of users’ content provided by a single server of the web hosting service provider: divided into two broad categories, the shared and private services,



the nature of the web hosting service’s server: divided into two broad categories, the virtual and the ones based on hardware,



the platform and/or distribution of the content adopted by the web hosting service: solutions include cloud, grid and clustered hosting.

Thus, it is apparent that webhosting services are of great importance to the online

environment, since they support the fundamental value of Internet, meaning the syndication of information among netizens.

III. Webhosting providers' liability and online copyright protection Initially, in the vast digital world, it was deemed practically easier for right holders to chase after Internet service providers for their users' illegal conduct,205 opting also this way to instruct and deter future infringers.206 Indeed reality had shown that identifying and pursuing individual infringers is a rather difficult and inefficient way of combating online piracy nor would this certainly stop infringers from just moving their illegal activities to other servers. 207 On the other hand, holding intermediaries liable for each and every illegal content provided by a user on the Internet would hold back its progressive nature.208 As aptly stated, asking Google to locate illegal content before rendering results, would mean no automatic search results, 209 which is Google's fundamental function, and following its current business model, a service to the community .

In an attempt to underpin the dissemination of information and the development of Internet and electronic commerce and at the same time supervise and limit the volume of online illegal activities, such as copyright infringements, intermediaries' services, including webhosting, and their 205

Ευαγγελία Βαγενά, 'Ζητήματα Προστασίας και Επιβολής των Δικαιωμάτων Πνευματικής Ιδιοκτησίας στο Περιβάλλον του Διαδικτύου', 55 ΝοΒ 1058, 1059 (2009).

206 Γιώργος Ν. Γιαννόπουλος, Η ευθύνη των παρόχων υπηρεσιών στο Internet σελ.63, Νομική Βιβλιοθήκη (2013).

207 See note 205 above, at 1059.

208 Mark A. Lemley, 'Rationalizing Internet Safe Harbors', 6 J. On Telecomm. & High Tech. L. 101 (2007).

209 Id.

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Contemporary Issues on Intellectual Property Law correlation with Internet users' illegal behaviors were considered in need of harmonized regulation on an EU level.

3.1. The EU legal framework The EU legislator introduced Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-Commerce Directive), trying to maintain balance between the different interests at stake. 210 Accordingly, this Directive set up, inter alia, exemptions from liability for service providers, including webhosting providers, who act merely as intermediaries with no any knowledge or control over the online content, in cases of users' illegal activities within the information society. 211 One of the main objectives of the E-Commerce Directive in setting these provisions limiting liability, was to ensure the availability of basic services and the creation of a harmonized framework for the development of e-commerce and the Internet.212 Accordingly, as regards to webhosting services,213 Article 14(1) of the E-Commerce Directive provides immunity from liability to intermediaries for hosting third parties' illegal content, provided that: a) the host has no actual knowledge of the illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent, and b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Unfortunately, the EU Directive follows a quite general wording with no any kind of specification as for the core term "actual knowledge" the absence of which entails liability for webhosting providers. In any case, national law of each member state is put forth to construe the definition of the term. However, in case the aforementioned conditions are not met, intermediaries are not exempted from liability.

By virtue of Article 15 of the E-Commerce Directive, no general obligation is imposed on webhosts to monitor the transmitted or stored information nor actively to seek facts or circumstances indicating illegal activity. Apparently, the EU Directive reserves a "passive-reactive" attitude for 210

Recital 41, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), O.J L 178/1 [hereinafter E-Commerce Directive].

211 Recital 42, E-Commerce Directive; The EU Directive follows an horizontal line of liability meaning that there is only one liability regime for any violation irrespectively of the field of law, for more details see Pablo Baistrocchi, 'Liability of Intermediary Service Providers in the EU Directive on Electronic Commerce', 19 Santa Clara High Tech. L.J. 111, 117 (2002).

212 Report From The Commission To The European Parliament, The Council And The European Economic and Social Committee, First Report on the application of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) 12-13, COM (2003) 702 final.

213 The term "hosting" refers to an information society service offered by "service providers who store information supplied by and at the request of a recipient of the service", see Denis Sparas, 'EU regulatory framework for ecommerce', WTO Workshop, Geneva, 18 June 2013; "Hosting" includes also bulletin boards, chat rooms, blogs and social networking means, see note 206 above, at 130 and Pablo Baistrocchi, note 211 above, at 122.

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Contemporary Issues on Intellectual Property Law intermediaries against users' behavior. 214 Notwithstanding the aforementioned, the E-Commerce Directive expressly states that judicial and administrative authorities will have the power to require the service provider to terminate or prevent an infringement.215 In addition, following the United States (U.S.) Digital Millennium Copyright Act (DMCA) "notice and take down" and "notice and put back" provisions, 216 the E-Commerce Directive prescribes the possibility for member states to establish procedures governing the removal or disabling of access to information, 217 although it does not refer to any "put back" provision.

With regard to online copyright protection, the E-Commerce Directive liability provisions paired with the EU Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society (Copyright Directive),218 aim at creating a clear framework for intermediaries' liability on copyright and relating rights infringements on an EU level.219 By stating that "intermediaries are best placed to bring such infringing activities to an end", 220 the Copyright Directive proceeds in prescribing injunction relief measures for copyright holders against intermediaries whose services are used by infringers.221 The Copyright Directive also mentions that such measures should be available even when intermediaries' acts fall within the exemptions of Article 5(1) of the Copyright Directive.222 Furthermore, Article 11 of the Directive 2004/48 on the enforcement on intellectual property rights (Enforcement Directive) reiterates that owners of intellectual property rights should be entitled to injunction measures against intermediaries. 223 In addition, Article 8 empowers judicial authorities to order infringers or third parties to give information on the origin and distribution networks of the goods or services (right of information). Nevertheless, the "without prejudice to other statutory provisions" clause included in this article, may limit the value of the right of information for this is likely to fall up against, inter alia, rules of personal data protection or confidentiality of communications.224

214

Jeremy de Beer & Christopher D. Clemmer, 'Global Trends In Online Copyright Enforcement: A Non-Neutral Role For Network Intermediaries?', 49 Jurimetrics 375, 376-377 (2009).

215 Article 14(3), E-Commerce Directive.

216 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).

217 See note 215 above.

218 Directive 2001/29 of the European Parliament and of the Council of 22 May 2011 on the harmonization of certain aspects of copyright and related rights in the information society, O.J L 167/10 (2001) [hereinafter Copyright Directive].

219 Recital 50, E-Commerce Directive; Recital 16, Copyright Directive.

220 Recital 59, Copyright Directive.

221 Article 8(3), Copyright Directive.

222 See note 220 above; Article 5(1), Copyright Directive.

223 Article 11, Directive 2004/48 of the European Parliament and of the Council of 29 April 2004 on the enforcement on intellectual property rights, O.J L 157 (2004) [hereinafter Enforcement Directive].

224 See note 206 above, at 244.

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Contemporary Issues on Intellectual Property Law Apparently, the aforementioned provisions put forth by the respective EU Directives, define specific exemptions from liability for webhosting providers coupled with rules in favor of right holders so that member states can control to some extent the flux of netizens' infringing activities.

For further guidance and elaboration on the Directives' wording, judicial interpretation of the Court of Justice of the European Union (ECJ) should be looked into.

3.1.1.

EU relevant jurisprudence

The ECJ has dealt with some essential issues pertaining to intermediaries' services and intellectual property rights (IPRs) infringements on the Internet. In the L’Oréal v eBay case, 225 the Court clarified that a webhosting provider is entitled to the exemption of liability clauses when he only engages in the "technical and automatic processing of data" of the recipient's unlawful content stored by the provider.226 Moreover, when paying damages is at stake, the Court specified that an intermediary may be held liable in case he "has been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31", possible way, either own initiative or notification.

228

227

where "becoming aware" refers to any

Most importantly, the Court maintained that IPR

holders are entitled to take measures that will not only cease alleged infringements but also prevent further violation in the future.229 However, these measures should not oppose to the provision of no general obligation to monitor set in Article 15 of the E-Commerce Directive and, in principle, they should be fair, proportionate and not excessively costly. 230 In SABAM v Netlog,231 the ECJ found that a webhosting provider, namely Netlog which run an online social networking platform, could not be forced, via injunction orders, to install, in abstracto and as a preventive measure, a system filtering information stored by its users in order to terminate the unlawful transmission of copyrighted works. Firstly, as the Court stated, such measure would entail the general monitoring of the content stored by its users which is against the provision laid down in Article 15 of the E-Commerce Directive.

232

225

Secondly, the hosting provider's right of

L’Oréal SA and Others v eBay International AG and Others, Case C-324/2009, Court of Justice of the European Union,12 July 2011.

226 Id, par. 119.

227 Id, par. 120.

228 Id, par. 121 & 122.

229 Id, par. 130-134.

230 Id, par. 139.

231 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, Case C-360/2010, Court of Justice of the European Union,12 February 2012 [hereinafter SABAM v Netlog]; See also Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), Case C 70/2010, 24 November 2011 [hereinafter Scarlet v SABAM] and Opinion of Advocate General Cruz Villalón, delivered on 14 April 2011, Case C-70/2010, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM).

232 See par. 37 & 38, SABAM v Netlog.

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Contemporary Issues on Intellectual Property Law freedom to conduct business would be impaired, should this measure had been imposed, since it would expect providers to apply a complicated, costly and permanent mechanism at their own expense which opposes to Article 3(1) of the Enforcement Directive. 233 Thirdly, the Court found that such a filtering system would interfere with the users' right of protection of their personal data and their freedom to receive or impart information because of the identification, systematic analysis and processing of information involved.234 Finally, this system could possibly obstruct the free flow of information in case it could not adequately separate lawful from unlawful content.235 In other words, the Court maintained that webhosting providers should not be asked to apply a far-reaching proactive tactic of monitoring content provided by their users in order to control copyright violations.

In sum, in the aforementioned cases, as much as in Scarlet v SABAM,236 the Court set out that taking measures to protect copyright owners' rights, in the context of the information society, should be done with due respect to the fundamental rights of service providers and users and the principle of proportionality.237 Thus, sweeping filtering systems are ruled out. However, more limited ones could be accepted. For instance, it is likely that less expensive and complex to apply monitoring mechanisms could be accepted if less harmful to intermediaries' freedom to conduct business. 238

3.2. The Greek legal framework Following Article 14 of the E-Commerce Directive, Greek Law in Article 13 of Presidential Decree 131/2003 (P.D. 131/2003), 239 offers a safe harbor to host providers under the prerequisites stated in the E-Commerce Directive. When it comes to construing "actual knowledge" of the illegal activity, under Greek penal law, a web host will bear liability if acting fraudulently. Whereas, as regards to civil law claims, a web host will be held liable in case of having "positive knowledge" of the illegal activity or if acting in gross negligence, meaning that he has knowledge of the illegal activity but hastily hopes he bears no liability, or he does not take into proper consideration the notification of illegal activity he was given and thus does not realize the illegal activity. 240 The absence of general obligation to monitor has also been prescribed into Article 14 of P.D. 131/2003. According to Article 233

Id, par. 44-47.

Id, par. 48 & 49.

235 Id, par.50.

236 See note 231 above.

237 Πιερρίνα Κοριατοπούλου-Aγγέλη, 'Η αρχή της αναλογικότητας ως ρυθμιστικός παράγοντας για την επιβολή κυρώσεων στις διαδικτυακές προσβολές δικαιωμάτων πνευματικής ιδιοκτησίας. Με αφορμή την ΜΠρΑθ 2658/2012', 1 ΔΙΜΕΕ 33, 38 (2013); See also Productores de Música de España (Promusicae) v Telefónica de España SAU, Case C-275/06, Court of Justice of the European Union, 29 January 2008.

238 Stefan Kulka & Frederik Zuiderveen Borgesiusb, 'Filtering for Copyright Enforcement in Europe after the Sabam cases', 11 E.I.P.R. 54 (2012).

239 Presidential Decree 131/2003, FEK A' 116/16-05-2003 [hereinafter P.D. 131/2003].

240 See note 206 above, at 133-134; See also Ioannis Iglezakis, 'e-Commerce directive - The Greek response', 21 Computer Law & Security Report 38 (2005).

234

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Contemporary Issues on Intellectual Property Law 17 of P.D. 131/2003, injunction measures can be ordered by Greek Courts as an answer to alleged infringements.

Article 8(3) of the Copyright Directive was also incorporated into Article 64A of Greek Law 2121/1993 (Greek Copyright Law), according to which copyright holders may ask for injunction measures against intermediaries whose services are used for copyright violations.241 In addition, the right of information, as prescribed in Article 8 of the Enforcement Directive, has been embodied in Article 63A of Greek Copyright Law. However, in the context of Greek legislation, this right is deemed to be of limited practical value in getting information by intermediaries for suspicious users. 242 And this is because of the existent strict legal framework for the protection of personal data and the non inclusion of copyright violations in the relevant law as a reason to lawfully circumvent the confidentiality of communications.243 Regrettably, Greek legislation did not follow the instructions of the E-Commerce Directive regarding the adoption of procedures governing the removal or disabling of access to information. In other words, Greek law does not oblige intermediaries to establish a "notice and take down" process, such as the DMCA one or the French HADOPI "three-strike-rule".244 These mechanisms have been widely criticized on the basis that, in case of doubt, intermediaries would be eager to remove any piece of information, either legal or illegal, in order to avoid the possibility of being held liable. 245 More importantly, it is maintained that there is no judicial assessment of alleged violations or the measures taken against the infringers, thus there is no legal certainty.246 For instance, the first version of HADOPI law created much debate on the issue whether an independent administrative authority has the power to impose measures obstructing fundamental rights such as the internet access right, freedom of information and participation in the information society and the presumption of innocence.247 It is maintained that a similar law in Greece would come 241

Article 64A, Greek Law 2121/1993, as amended, on Copyright, Related Rights and Cultural Matters, FEK A' 25/4-3-1993 [hereinafter Greek Copyright Law].

242 See note 205 above, at 1073-1075.

243 Id.; See also Greek Law 3471/2006 on the protection of personal data and privacy in the electronic telecommunications sector and amendment of law 2472/1997, FEK A' 113/28-6-2006; Greek Law 2225/1994, as amended, on the communication security and privacy, FEK A' 121/20-7-1994.

244 For the French HADOPI law (named after the 'Haute Autorité pour la Diffusion des oeuvres et la Protection des droits sur Internet'), see www.hadopi.fr and Loi n° 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet, available at www.legifrance.gouv.fr.

245 See note 206 above, at 80 &130- 131; See also Tyler Moore & Richard Clayton, 'The Impact of Incentives on Notice and take-down', in M. Eric Johnson ed., Managing Information Risk and the Economics of Security 199, 202, Springer, New York (2008) where the authors refer to a 2003 and a 2004 experiment demonstrating that internet service providers "are generally keen to avoid liability, do not establish the accuracy of complaints, and may need to be asked more than once before they act".

246 See note 206 above at 81, 248.

247 See note 237 above, at 35 (footnote 20); Eventually, the French Constitutional Council found HADOPI law against constitution, thus, amendments took place and HADOPI II came into effect; Alexandra Giannopoulou, 'Copyright enforcement measures: the role of the ISPs and the respect of the principle of proportionality', 3/1 European Journal for Law and Technology (2012).

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Contemporary Issues on Intellectual Property Law up against similar thorny issues of constitutionality, thus, IPR holders and industry should instead place emphasis on applying suitable remuneration systems or digital rights management systems. 248

3.2.1

Greek relevant jurisprudence

In 2012, the First Instance Court of Athens with its decision No 4658, offered an important Greek judgment relevant to intermediaries' services and copyright infringement on the Internet. 249 Although it referred to Internet Access Providers (IAPs) and not webhosting providers,250 it is worth looking further into the judgment since this is the first Greek case regarding intermediaries' liability for users' copyright violations and the enforcement of technological measures fighting digital piracy.

In particular, several Greek collecting societies representing copyright and related rights holders sued various Greek licensed IAPs asking the Court to block the access of Internet users in two websites, hosted in foreign countries, on the grounds that these websites were hosting and offering to Internet users third parties' copyrighted material without authorization. The websites' owners and subscribers engaged into the unlawful digitization of various works and then made them available to users who could download and store the material on their computer.

The Court found that the acts of digitization and making available to the public violated copyright. More importantly, for the first time in Greek jurisprudence, the Court imposed injunction measures against intermediaries whose services are used by a third party for illegal activities, applying thus article 64A of Greek Copyright Law which incorporated Article 8(3) of the Copyright Directive.

The detailed reasoning of the Court's decision mentioned that imposing restrictions to specific webpages for specific acts does not oppose to the no general obligation to monitor provision nor to the ECJ relevant jurisprudence which objected to the application of a general content filtering system.

The blocking methods proposed by the experts were upheld by the Court as being necessary to alleviate the damage caused and proportional since the benefit outweighed the damage inflicted. In addition, these methods were found easy to apply and cost effective. The Court mentioned that a general monitoring framework that cuts off or substantially hampers the provision of services to Internet users is in principle against Greek constitutional rules. Nevertheless, specific measures, that are judicially examined and imposed, are not deemed harmful or disproportionate to the constitutional right of freedom and the fundamental right to participate in the information society.

Generally speaking the aforementioned judgment has been hailed as a landmark for it is the first time a Greek Court handles such complex and crucial issues of copyright protection on the 248

Georgios N. Yannopoulos, 'Constraints For Introducing A "HADOPI" Law: The Example of Greece', in M. Bottis ed., An Information Law for the 21st Century 642 (2011).

249 ΜΠρΑθ 4658/2012.

250 To the knowledge of these authors, until now there has not been any Greek case involving webhosting providers and copyright law violations on the Internet.

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Contemporary Issues on Intellectual Property Law Internet. Contrary to the general tendency of Greek jurisprudence not to engage in scrupulous analysis of complex copyright law and technology issues, 251 this time the Court offered a quite thorough examination of the IAPs role and their technical applications pertaining to copyright law. In addition, it sought to deal with the complicated issue of balancing copyright protection with the constitutional right of participation in the information society, and whether suspending access to websites is an appropriate, necessary and proportionate technological sanction. However, there has been some criticism as for the lack of further elaboration on the relevant issues of providing links to other infringing sites and the eventual ineffectiveness of the measures imposed.252 All in all, Greek legislation has, to a certain degree, incorporated the relevant instructions provided by the EU Directives on the field of webhosting services and copyright protection which aim at alleviating the plague of digital piracy without impeding the development of the Internet and ecommerce. Greek jurisprudence follows slowly but steadily an upward course towards elaborating more complex issues on the area of online copyright protection in a more sophisticated manner, keeping at the same time an eye on the guidelines offered by relevant ECJ rulings.

IV. Conclusion In conclusion, intermediaries' liability and copyright protection in the information society have been interrelated, in the context of EU legislation, in an attempt to balance all interests involved, namely copyright holders' protection, intermediaries' freedom to conduct a business, Internet users' fundamental freedoms and the need to boost e-commerce and the development of the Internet. It goes without saying that this is not an easy task to achieve and, thus, each case should be examined on its own merits.

Following Community rules, Greek legislation provides for liability exemptions for webhosting providers for their users' copyright violations under certain preconditions. Furthermore, in principle it has incorporated most of the provisions of the relevant EU Directives. With regard to Greek jurisprudence, although still limited on this area, it seems to follow the directions pointed out by the ECJ. It remains to be seen how things will evolve when Greek jurisprudence falls upon more extended issues of intermediaries' liability and digital copyright infringements.

251

Tatiana Sinodinou, 'A Greek premiere: Greek ISPs ordered to block access to infringing websites', available at www. kluwercopyrightblog.com (last visited August 15, 2014).

252 Id.; See also note 206 above at 143-144, where the author finds that the measures imposed, namely InternetProtocol and/or domain name-level access blocking and DNS-level access blocking, can be surpassed by dynamic IPs or by getting new domain names while he concludes that the Court's decision is more of a theoretical value in instructing intermediaries and users.

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Contemporary Issues on Intellectual Property Law

Eugenia Liontou

PEER TO PEER FILE SHARING LEGAL IMPLICATIONS OF THE PROCESS

Aristotle University of Thessaloniki

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I. H ISTORICAL BACKGROUND AND ORIGINS OF PEER TO PEER SYSTEMS In the late 90â&#x20AC;&#x2122;s, an innovative service, called Napster appeared in the field of Internet.

Napster was a pioneering peer-to-peer (p2p) file sharing Internet service that emphasized on sharing audio files, such as music files, encoded in MP3 format. Its technology allowed people to share MP3 files easily. Although the original service was shut down by court order, the Napster brand survived after the company's assets were liquidated and purchased by other companies through bankrupcty proceedings.253 The most important fact about Napster was what it achieved: the inauguration of a new Internet era.

After Napster was shut down, the most popular peer-to-peer services were Gnutella and Kazaa, which allowed users to download files, such as movies and games.

Napster and eDonkey2000, which both used a central server-based model, may be classified as the first generation of p2p systems. These systems relied on the operation of the respective central servers, and thus were susceptible to centralized shutdown.

The second generation of p2p file sharing systems encompass networks like Kazaa, Gnutella and Gnutella2, which are able to operate without central servers, thus eliminating the central vulnerability by connecting remoted users. But this arrangement is still open to potential copyright abuse because of technical limitations that prevent P2P networks from filtering out copyrighted content.

The third generation of file sharing networks are the so-called darknets. There are 2 types of these networks: Friend-to-friend (e.g. Metanet, WASTE, MUTE), where the network is defined by degrees of familiarity or relationships between users and users depend on the endorsement of other users for access to files, and anonymous (e.g. GNUnet, Entropy, Freenet), where much like the first and second generations of P2P networks, file-sharing is primarily based on the availability of files.254 The BitTorrent protocol represents a special case. In fact, it is a first generation protocol, where the trackers (central servers) coordinate users, without forming a network in the traditional sense. For every set of files, called a torrent, new separate networks of coordinating users are created, instead. Newer extensions of the protocol remove the need of centralized trackers, allow the usage of a decentralized server-independent network for source identification purposes, referred to as the Mainline DHT. This allows BitTorrent to encompass certain aspects of a second generation file

253 254

http://en.wikipedia.org/wiki/Napster Pearson Education, Introduction to Information Technology, 2008, p.393

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Contemporary Issues on Intellectual Property Law sharing network as well. Users create an index file containing the metadata of the files they want to share, and upload the index files to websites where they can be shared with others.255

II. P EER TO PEER FILE SHARING : Operating procedure of the software Peer-to-peer file sharing is the distribution and sharing of digital media using peer-to-peer (p2p) networking technology. P2p file sharing allows users to access media files such as books, music, movies, and games using a p2p software program that searches for other connected computers on a p2p network to locate the desired content. The nodes (peers) of such networks are end-user computer systems, that are interconnected via the Internet.

In order to obtain a digital archive via p2p systems, there are two specific requirements: a p2p software256 installed at the computer and internet connectivity. A web page 257will interconnect this archive to the peer to peer software and the archive will be downloaded. Apart from web pages,

255

Χάρης Γεωργακόπουλος, Ο αντίκτυπος της τεχνολογίας peer to peer στην προστασία της πνευματικής ιδιοκτησίας στο πεδίο του διαδικτύου, Χρονικά Ιδιωτικού Δικαίου, 2008, σελ. 492 and also http://en.wikipedia.org/wiki/BitTorrent 256 Most common p2p softwares are: μtorrent, bit torrent, frost wire, transmissions etc.

257 Most common webpages are: pirate bay, kickass, sumo torrents etc.

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Contemporary Issues on Intellectual Property Law net meetings and chat rooms can also be used.258 Through peer to peer system, searching for an audio file is a really easy and fast procedure.

By typing the name of the file, the system searches over the connected peers/computers, in order to find the desired content. In case that the query is successful, the file is transferred. During the transfer, both nodes are protected, since neither of them can access each other’s content.

III. F ILE SHARING V S THE L AW As we mentioned before, peer to peer file sharing programs enable users to access digital content, which can be acquired either legally or illegally. P2p systems usually override the lawful disposal of works in the Internet and for this reason the ‘non-payment’ is identical to the peer to peer concept. However, efforts have been made by the European Union (EU) to protect both the creator and his works, through the adoption of the Copyright Directive.

1. The EU provision The Copyright Directive (Directive 2001/29/EC) The Copyright directive is a European Union directive that enacted to implement the WIPO Copyright Treaty259 and to harmonize aspects of the copyright laws, such as copyright exceptions, across Europe, The directive was enacted according to the internal market provisions of the Treaty of Rome.

The content of the directive is orientated to the: Harmonization of powers which includes: The right to reproduce, distribute and display in public.

Exceptions and limitations which are being used in order to maintain a balance of rights and interests among various categories of beneficiaries, as between them and the users of protected objects, exceptions and limitations which are applicable in the Member States had to be reviewed under the prisma of new electronic environment and the degree of their harmonization had to be based on their impact to the smooth functioning of the internal market.

258

Χάρης Γεωργακόπουλος, Ο αντίκτυπος της τεχνολογίας peer to peer στην προστασία της πνευματικής ιδιοκτησίας στο πεδίο του διαδικτύου, Χρονικά Ιδιωτικού Δικαίου, 2008, σελ. 491 259 The World Intellectual Property Organization Copyright Treaty is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides additional protections for copyright deemed necessary due to advances in information technology since the formation of previous copyright treaties before it.

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Contemporary Issues on Intellectual Property Law Technological measures or else ‘obligations’ in order to provide remedies against activities designed to circumvent the technological measures which intend to protect copyright or related rights.

This harmonization was necessary in order to avoid a piecemeal adoption of the legislative measures.

Information about the rights: The creator has to provide information about the recognition of the work or the rights or other related information.

Sanctions: The directive requires that EU Member States both provide appropriate, effective, proportionate and dissuasive sanctions260 and remedies for right and obligations infringements and take all necessary measures to ensure the implementation. 261 The directive was result of intense pressure and copyright industries saw this outcome as a great success. Member States had to implement the Directive into their national laws until 22 December 2002. However, only Greece and Denmark met the deadline and the European Commission eventually initiated enforcement action against six Member States for nonimplementation.

2. Other relative proposed laws The United States has tried really hard to restrict the use of p2p file sharing over the last years. Although many laws appeared for discussion, not a single one of them succeeded to remain in force.

SOPA-PIPA-ACTA- CFSA proposed laws On October 23, 2007 the United States of America presented an anti-piracy initiative, called Anti-Counterfeiting Trade Agreement (ACTA). ACTA was a multinational treaty aiming to establish international standards for intellectual property rights enforcement. This agreement concerns counterfeit goods, copyright infringement on the Internet and generic medicines and focuses on creating a new governing body, like WTO for instance.

Later, on May 12, 2011 Anti-piracy bills PROTECT IP Act (PIPA) and Commercial Felony Streaming Act (CFSA) were introduced in U.S. Senate. PIPA was a proposed law, whose goal was to restrict access to rogue websites dedicated to the sale of infringing or counterfeit goods and CFSA was a bill that would make unauthorized streaming of copyrighted material for the purpose of "commercial advantage or personal financial gain", a felony. On September 2011 the Center for Rights planned an initiative, called Fight for the Future, to oppose PIPA and CFSA.

260

such as injunction, seizure of the relevant material, deposition of a lawsuit etc. Κοτσίρης Λάμπρος Ε., Δίκαιο πνευματικής Ιδιοκτησίας,2011, σελ. 392

261 261

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Contemporary Issues on Intellectual Property Law On October 1, 2011 the United States, Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore signed ACTA in Tokyo, whereas the European Union and its members expected to sign in January 2012.

On October 26, 2011 the Anti-piracy bill Stop Online Piracy Act (SOPA) was introduced in the U.S. House. SOPA was also a bill, aiming to expand the ability of U.S. law enforcement to combat online copyright infringement and online trafficking in counterfeit goods.

On November 9, 2011 Mozilla hosted a “brown bag” meeting for Internet companies, nonprofits, activists, and congressional staffers to plan protest against SOPA/PIPA. On November 16, 2011 (American Censorship Day) the House Judiciary Committee held hearings on SOPA and people called Congress to oppose SOPA. On January 14, 2012 the Obama Administration responded to “We the People” petitions and opposed SOPA/PIPA’s potential harm to free speech, open Internet, and cyber security. On January 18, 2012 Wikipedia, Google, Wired Magazine, Craigslist, Reddit, Tumblr, Wordpress, and thousands of other sites went black in largest Internet protest in history. On January 20, 2012 Congress indefinitely suspended consideration of SOPA and PIPA bills due to protest.

On January, 2012 a massive protest against ACTA, involving thousands of people in 50 cities in Poland, took place. On February 11, 2012 street protesters opposed to ACTA (over 100,000 people in 250 cities in 27 EU countries). On June 21, 2012 EU Parliament’s International Trade committee recommended (19 to 12) rejecting ACTA and finally, on July 4, 2012 EU Parliament rejected ACTA by a landslide vote of 478 to 39.262

IV. L EGAL A SPECTS OF ONLINE SHARING 1. Intellectual property law: a general overview Before we proceed to the examination of the issue, we will provide some information about intellectual property law.

Intellectual property law is the law which includes the rules (of private law) in order to protect the creator263 and in particular, the rights that the legal system recognizes to the creator for his creations of mind (works)264.

262

Edward Lee, The fight for the future, page 12.

Creator is the person whose mental activity resulted in the work, in other words the one who gave to the work it’s discriminant individuality.

264 Work is the creation of the human mind that has a form accessible to the sensations, arises from the personality of its creator and is characterized by relevant originality.

263

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Contemporary Issues on Intellectual Property Law The IP right is both absolute and exclusive: absolute because the creator has the right to turn against the offender and exclusive because the creator has the exclusive power to authorize or prohibit the exploitation of his work. The intellectual creations of speech, art or science are protected, while the concept of work consists of two main elements: form and originality.

2. File sharing: legality of the process File sharing is a really controversial issue and has raised an important discussion, especially over the last 8 years. File sharing raises copyright issues and has led to many lawsuits. 265 The case law is ongoing but for now, there are two very interesting perspectives over the matter which we will analyze right away.

As mentioned before, file sharing presupposes the creator’s permission. With his consent, the creator grants both his right to distribute to the public, that is the disposal of his work to other users and his right to reproduction, that is the right to copy or download his work via such networks, since these latter acts are both considered to be reproductions. 266 When there is no consent, file sharing is illegal and as a result, it conflicts with the normal exploitation of the work, prejudices the legitimate interests and of the creator and causes economic damage. Then, the creator has to deal with three categories of people: software producers, consumers and ISPs. 267 The purpose of copyright is also to ensure a high level of protection to the creator, encourage investments in the field of cultural industries and ensure balance between the beneficiaries and the rest of the people. New technologies contribute to this but they also create threats, as far as the circumvention of the law is concerned. Peer to peer systems do not rely on a central node, they have a completely decentralized character which means that the recipients of the software cannot interfere with file sharing or control the user and his illegal act. Also, user data is usually difficult to be reached and the only way to find this data is through the ISPs. As a result, the creator loses control over his work, nobody can compensate him for the money loss and nobody is punished for this illegal act. The work is spread all over the Internet and people have free access, any time, only by using internet and some programs (like μtorrent).

On the other hand, there is a different perspective over the matter which focuses on the real meaning of free Internet and free knowledge.

The Peer to Peer foundation268 mentioned that: ‘The copyright, patents and trademarks are described by the term intellectual property. This term implies that intellectual creations are analogous 265 266

In the United States, some of these lawsuits have even reached the Supreme Court.

Καλλινίκου Δ. Πνευματική Ιδιοκτησία και συγγενικά δικαιώματα, 2008, σελ 147 Και εδώ Καλλινίκου Δ., σελ 148 268 The P2P Foundation is an international organization focused on studying, researching, documenting and promoting peer to peer practices in a very broad sense. - http://p2pfoundation.net/Main_Page 267

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Contemporary Issues on Intellectual Property Law to those of material property, thus creating an artificial scarcity. Information is not competitive commodity. Its value is not amortized with the use, on the contrary, the sharing of information increases its value. Information is a prerequisite for the creation of new information. Such exclusive rights, with monopolistic character, lock information and hamper innovation. At this very moment, where the basic tools (computers) of information production are available to millions of people, the law insists to favor large capital companies against small businesses and citizens.’

Also, a Spanish Judge from Logroño, stated that […] ‘it is not possible to determine the damage and corresponding compensation due to loss of benefits to the rights holder, for the simple reason that customers of pirated copies of music and movies, when making the purchase of pirated copies, externalize their decision not to be customers of music and movies as originals, so there is no profit that could have been gained. In other words, those customers either buy a pirated copy at a low price or they don’t buy an original at a price between 15 and 20 Euros.’269 This fact is true, since not long ago, before the appearance of peer to peer software, large companies prospered by raising the price of disks, DVDs, etc. excessively, taking advantage of the monopoly that existed in the field. The consumer had to choose between paying the exorbitant amount or not having access to what he wanted at all.

In any case, reversing the legal argument, it is evidable that a consumer, after hearing or viewing the pirated copy, may decide to purchase the original one. In this way, the sale of pirated copies, far from harming, benefits the market of original items. For many consumers out there, this is very true. Albums, books, games and movies are so expensive that some people are unlikely to buy them new without knowing ahead of time that they will like them. And if there isn’t a reliable way to preview the item, the person will resort to piracy.

Moreover, what the various industries have so far mostly failed to acknowledge is that the person who turns to free downloads is often not doing so as an alternative to purchasing — they were never going to buy the item to begin with. If they were unable to find the album or movie online, they would simply do without. It isn’t a lost sale because they pirated it, it was a sale that was never going to happen. On the other hand, hearing an album might inspire someone to go buy a physical copy or tickets to a concert, or seeing a few episodes of a TV show might send him to get it on DVD. If you get your hands on an illegal copy of a book, you may love it and decide to buy something else written by the same author. But without having consumed the media beforehand, this particular person wouldn’t have considered purchasing anything at all. Crazy as it may sounds, peer to peer system can operate as a really good advertising method.

269

http://www.elotrolado.net/noticia_sentencia-afirma-que-las-copias-piratas-favorecen-la-venta-de-originales_19864

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Contemporary Issues on Intellectual Property Law In conclusion, one should not forget the reason why peer to peer file sharing is so popular: it is often the only way to have access to a work. For instance, in Greece you can only find season one and season two of Sherlock series. The only way to see season 3 (which in United Kingdom for instance is easy to find) is by ordering it via Amazon (without Greek subtitles) or by downloading it from let’s say, kickass torrent and watch it within minutes with subtitles. The choice is obvious.

V. C ONCLUSIONS AND OBSERVATIONS Taking the above into account, it is evident that the solution can be achieved, if many parameters are properly combined. Undoubtedly, file sharing without the creator’s consent is illegal.

Although creators and industries have rights to protect and they should do so, they are not authorized to require extreme solutions, such as the absolute prohibition of peer to peer programs and web pages (like SOPA or ACTA tried to do under their pressure). 270 After all, some artists promote the distribution of their work via peer to peer file sharing systems, which leads to the conclusion that not all file sharing is illegal. Content can be freely shared in public and even works protected by copyright can be shared under certain circumstances. For example, some artists, publishers, and record labels grant the public a license for unlimited distribution of certain works, sometimes with conditions, and they advocate free content and file sharing as a promotional tool271.

The battle between industries and online file sharing will continue to exist for a long time.

The heart of the problem lies on the fact that it is hard to balance the conflicting rights represented by the two sides, industries or creators and Internet users. Retreats ought to be made by both of them and measures adapted to the new technologies should be taken. The new Internet technologies and especially the new customer needs that showed up over the last years should be taken into consideration. Practices such as legal prosecution of individual people (like the pirate bay trial in 2008, with the Hollywood industries filing lawsuits against the 3 people behind the website) will not provide any effective closure to the matter.

There will always be people who will download or hack as an alternative to purchasing. This is not common only in the Internet, since people used to record movies off TV, copy tapes and CDs and buy from the black market long before the invention and use of computers. This does not justify the illegal part, but it is a fact that cannot be ignored.

270

These proposed laws mentioned, led to the shutdown of many websites and furthermore, angered the internet users who created new and more powerful, in terms of data security, peer to peer websites.

271 Radiohead band distributed the album ‘In rainbows’ exclusively through the band's website and allowed buyers to pay any amount they wished (from 0 to 99 pounds). This unusual method described as the most important CD distribution in the modern history of the music industry.

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Contemporary Issues on Intellectual Property Law Industries should adapt to the changes in the external environment which they are faced with. More specifically, industries should not only make changes to fulfill customer needs, but they should also keep finger on the pulse of modern society and the new technological development.

Subscription membership websites could also smooth over the situation, since they require that users pay an affordable monthly or annual subscription in order to access works protected by copyright. A typical example could be the Spotify application. Once the software is locally installed, users can access on-line audio content of high quality, for free. There is however one major problem: advertisements interfere randomly with the application. In case that the user either wishes to download audio files and listen to music offline or enjoy better performance without interruptions an extra amount of money must be paid. Since the software proved to be successful, the same idea could also be adopted by ISPs. Piracy and sales are complicated issues. On one hand, downloading both hurts and helps various artists in terms of popularity. On the other hand, sales dropped since the use of Internet has become popular. Companies should consider that there are many different reasons why this occurs, such as public ideology changes that might steer customers away from making purchases. In any case, many changes, measures and recommendations will take place in the area of internet the following years. Letâ&#x20AC;&#x2122;s hope that they will be the right ones.

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Contemporary Issues on Intellectual Property Law

Konstantina Tsilipria

Free Software Philosophy

Aristotle University of Thessaloniki

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Contemporary Issues on Intellectual Property Law

I. Introduction Basic Information Free software, software libre, or libre software272 is computer software that gives users the freedom to run the software for any purpose as well as to study, modify, and distribute the original software and the adapted versions.273To use free software is to make a political and ethical choice asserting the right to learn, and share. Free software has become the foundation of a learning society where knowledge is shared in a way that others can build upon.

Free in free software is referring to freedom, not price. In particular, four freedoms define free software. The freedom to run the program, for any purpose, the freedom to study how the program works, and adapt it to your needs, the freedom to redistribute copies so you can help your neighbor and the freedom to improve the program, and release your improvements to the public, so that the whole community benefits.

Placing restrictions on the use of Free Software, such as time274, purpose275 or geographic area 276 makes a program non-free. Moreover placing legal or practical restrictions on the comprehension or modification of a program, such as mandatory purchase of special licenses, makes the preferred human way of comprehending and editing a program ("source code") inaccessible and proprietary (non-free). Software should be copied/distributed according to these freedoms at virtually no cost.

These freedoms are rights, not obligations. In particular, it should be understood that Free Software does not exclude commercial use. If a program fails to allow commercial use and commercial distribution, it is not Free Software. Free Software makes it legal to provide help and assistance; it does not make it mandatory.

272

GNU Project. "What is Free Software". Free Software Foundation.

"Software Freedom Law Center" 274 "30 days trial period", "license expires January 1st, 2004" 275 "permission granted for research and non-commercial use", "may not be used for benchmarking" 276 "must not be used in country X" 273

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Contemporary Issues on Intellectual Property Law

F REE S OFTWARE P HILOSOPHY AND I NTELLECTUAL P ROPERTY P RINCIPLES Intellectual property rights are the legally recognized exclusive rights to creations of the mind. 277 Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases,

symbols,

and

designs.

Common

include copyright, trademarks, patents, industrial

types

design

of

intellectual

rights, trade

dress,

property

rights

and

some

in

jurisdictions trade secrets.

The ease of accessing information through the Internet has caused serious concern about protecting

intellectual

property.

Software

piracy is

the

illegal

copying

of

copyrighted

software. Intellectual Property Rights are generally designed to exclude others from using someoneâ&#x20AC;&#x2122;s ideas and inventions. At first glance the two concepts (Free Software and Intellectual Property Rights protection) seem irreconcilable. That is, Free Software implies a willingness to allow knowledge produced to spill over to others (possibly in with the expectation of receiving knowledge spillovers from others in return) whereas Intellectual Property Rights protections enable someone to exclude others from using that knowledge.

Free

Software

Foundation 278 founder Richard

Stallman argues that,

although the

term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion". He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights". Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term.

The Free Software model demonstrates a creativity paradox. Inventors of Software technologies could take advantage of incentives provided by intellectual property rights, based on traditional Intellectual property rights regimes, by obtaining monopoly rights and thus an

277

Intellectual Property Licensing: Forms and Analysis by Richard Raysman, Edward A. Piscaretta, and Kenneth A. Adler, Law Journal Press, 1998â&#x20AC;&#x201C;2008. ISBN 973-58852-086-9[ 278 The Free Software Foundation (FSF) is a non-profit organization founded by Richard Stallman on 4 October 1985 to support the free software movement, which promotes the universal freedom to create, distribute and modify computer software, with the organization's preference for software being distributed under copyleft ("share alike") terms.

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Contemporary Issues on Intellectual Property Law advantageous market position. Nonetheless Intellectual Property Rights are not implemented and Software is freely disseminated. 279

Free software and Open source Concerning the question how free software is related to “open source”: The Open Source Initiative is a marketing program for free software. Free software is the original term for software that respects freedom. Free Software connotes freedom, and when translated there is a clear distinction between freedom and price. While the Free Software Foundation and the Open Source Initiative work to help each other, they are not the same thing. The Free Software Foundation uses a specific license and provides software under that license. The Open Source Initiative seeks support for all open source licenses, including the one from the Free Software Foundation. The grounds on which each argues for making source code freely available sometimes divides the two movements, but the fact that two ideologically diverse groups are working toward the same goal lends credence to the efforts of each.

The Free Software movement is headed by the Free Software Foundation, a fund-raising organization for the GNU project. Free software is more of an ideology. The oft-used expression is “free as in speech, not free as in beer”. In essence, free software is an attempt to guarantee certain rights for both users and developers. In order to guarantee these freedoms, the GNU General Public License (GPL) was created. The GPL, in brief, provides that anyone distributing a compiled program which is licensed under the GPL must also provide source code, and is free to make modifications to the program as long as those modifications are also made available in source code form. This guarantees that once a program is “opened” to the community, it cannot be “closed” except by consent of every author of every piece of code (even the modifications) within it.280 The “free” part is in the liberties you have with the source code, not in the price you pay for the software.

Free software license A free software license is a notice that grants the recipient of a piece of software extensive rights to modify and redistribute that software. These actions are usually prohibited by copyright law, but the rights-holder (usually the author) of a piece of software can remove these restrictions by accompanying the software with a software license which grants the recipient these rights. Software using such a license is free software as conferred by the copyright holder.

279

E L AD H AR I S O N , ” I N T E L L E C T U AL P R O P E R T Y R I G H T S , I N N O V AT I O N A N D S O F T W A R E TECHNO LOGI E S: THE ECON OMIC S OF MON OPOLY RIGHT S AND KNO W LED GE D I S C L O S U R E “, E D W AR D E L G A R P UB L I S H I N G , 1 Ι Α Ν 2008 280

Slackware Linux Essentials, Chapter 1, An Introduction to Slackware Linux

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Contemporary Issues on Intellectual Property Law Some free software licenses include "copyleft" provisions which require all future versions to also be distributed with these freedoms. Other, "permissive", free software licenses are usually just a few lines containing the grant of rights and a disclaimer of warranty, thus also allowing distributors to add restrictions for further recipients.

The most widely used free software license is the GNU General Public License as mentioned above. Certain licenses restrict distribution in order to force derived projects to allow the freedom to use, study, modify, and redistribute the derived project. Some free software licenses carry requirements and restrictions which apply to distributors. There exists an ongoing debate within the free software community regarding the fine line between what restrictions can be applied and still be called "free". Most newly written free software licenses since the late 1990s include some form of patent retaliation clauses. These measures stipulate that one's rights under the license (such as to redistribution), may be terminated if one attempts to enforce patents relating to the licensed software, under certain circumstances.

II. Legislation European and American Law Under the laws of European countries, through the Berne Convention 281, and of members of the World Trade Organization through the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, copyright is automatically attached to every novel expression of an idea, whether through text, sounds, or imagery. Any creation is the sole property barring any contractual abrogation of the copyright. This creation cannot be copied, displayed, or otherwise commercially exploited by any person other than the creator for the life of the copyright. Among other things, no person other than the creator has the right under copyright law to create “derivative works”—works that depend upon or develop from the original, copyrighted work. This limitation is of particular significance to open source licensing.

Nevertheless copyright law does not protect any particular idea. Rather, copyright protects only the expression of that idea. The creator has a right to the commercial exploitation of only that particular expression. This right is no limitation on the right of others to create, and to commercially exploit, their own expressions. This limitation to expressions excludes protection from copyright of creations that are not expressed in a tangible, reproducible medium.

Computer software can be protected through copyright in both its source code and object code forms. Copyright law admits to three general categories of works: (1) Original Work: a new work 281

SE E BERN E CON VENT ION S E P T E M B E R 9 1886

FOR THE

PROT E CT ION

OF

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L I T E R AR Y

AN D

A RT IST IC W OR K,

Contemporary Issues on Intellectual Property Law that is not derived from an existing work; (2) Derivative Work: work that is derived from, includes or amends existing works; and (3) Compilations: work that is a compilation of existing new and derivative works.282 The US Legislature in the 1980 Copyright Act made it even clearer by listing computer programs as one of the copyright subject matters. Every new piece of software, both in its source code and object code form, became automatically copyrighted once written. Copyright holders own the exclusive rights to copy, modify and redistribute the program. Although traditionally software proprietors had tried to make source code unavailable by releasing the program only in the form of object code, the 1980 Copyright Act clearly recognized their entitlement to fully fledged copyright protection without having to disclose the knowledge and ideas behind the object code. 283

National Law The legal protection of patentable inventions in Greece is regulated by the Patents Act (Law 1733 / 1987 - Technology Transfer, Inventions, and Technological Innovation, Official Journal FEK A 171,22-09-1987). The most important document for Intellectual Property Rules in Greece is the Copyright Act (Law 2121 / 1993 - Copyright, Related Rights and Cultural Matters, Official Journal FEK A 25, 04-03-1993).

According to the 1st and 2nd Art : (1) Authors shall have, with the creation of the work, the right of copyright in that work, which includes, as exclusive and absolute rights, the right to exploit the work (economic right) and the right to protect their personal connection with the work (moral right). The term “work” shall designate any original intellectual literary, artistic or scientific creation, expressed in any form…The term “work” shall, in addition, designate translations, adaptations, arrangements and other alterations of works.Law 2121/1993 states that subject to the provisions of Chapter 7 of this law,electronic computer programs and their preparatory design material shall be deemed as literally works protected under the Copyright Act ( Art 2 par. 3) According to Greek copyright law, the author of an intellectual work has an intangible right of ownership over that work, this right being exclusive and binding upon third parties( art 1).

Authorship belongs, unless proved otherwise, to the person or persons, who have created the work.

There is no need to register a work in order to claim protection under the Greek law, since it is

282

P AT R I C K K I E R K E G A A R D A N D A N G E L A A D R I A N , “ W I KI T O P I A : B A L A N C I N G I N T E L L E C T U A L P R O P E R T Y R I G H T S W I T H I N O P E N S O UR C E R E S E A R C H D AT AB A S E S “, C O M P UT E R L A W A N D S E C U R I T Y R E VI E W : T H E I N T E R N AT I O N AL J O U R N E Y O F T E C H N O L O G Y A N D P R A C T I C E , 2010 283

SHUN-LING CHEN, “Freedom as in a Self-sustainable Community: the Free Software Movement and its challenge to copyright law”, Policy Futures in Education, Volume 4, Number 4, 2006

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Contemporary Issues on Intellectual Property Law protected ex lege by the mere fact of its creation. Practically copyright exists in every form of original work, whether recorded on paper, on a computer, on-line or off-line.284

III. Legal precedents The free software community does not currently have problems with the general idea of the software copyright as such. The difference compared to other uses of copyright is that free software licenses use copyright to get benefits directly to the community (or even arguably to the society at large).285 In researching the legal precedents for Free Software licenses, it can be noticed that the most free software license disputes are with regard to the GNU GPL v2, which was written in 1991 by the free software Foundation.286 The most interesting trials concerning the validity and legality of Free Software licensing are MySQL v Progress Software 287 (2002), Herald Welte v Dlink (2001) / Fortinet UK Ltd (2005) / Gigabyte Technology Co. Ltd(2004) /Iliad( 2007) / Sitecom( 2004) / Skype(2008) , SCO v Noveli (2004), FSF v Cisco (2008).

The SAS Institute, Inc. ("SAS") v. World Programming, Limited ("WPL") decision in the European Court of Justice involved the scope of copyright protection for computer programs. The case involved the copying of the scripts and certain functions of the SAS analytical software.

“Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.”

A separate but related case is Oracle v Google which changed the setting. Oracle sued Google for the alleged infringement of Oracle’s copyrights in the Java software (which it had acquired from Sun Microsystems, Inc.) and certain Oracle patents. At first the jury found that Google had infringed the copyrights in Oracle’s APIs whereas the lower court issued then a decision finding that the Java APIs were not protectable under copyright law. Finally the Appeals court on May 2014 stated that Oracle's Java APIs are in fact covered by copyright. The critical part of the decision stated: 284

D Ē M Ē T R Ē S N. M AN I Ō T Ē S , I O AN N I S I G L E Z A K I S , “C Y B E R L A W I N G R E E C E ” , K L U W E R L A W I N T E R N AT I O N A L , 2011, C H AP T E R 2 L E G A L P R O T E C T I O N O F S O F T W AR E 285 Ville Oksanen and Mikko Viilimfiki “Free Software and Copyright Enforcement: A Tool for Global Copyright Policy? “Knowledge, Technology and Policy, 2006 286 Å S E S T I L L E R , “T H E O P E N S O UR C E T R I A L S : H AN G I N G I N T H E L E G A L B A L AN C E O F C O P Y R I G H T AN D C O P Y L E F T ” , M A R C H 2011 287

The GPL v2 License was accepted by the court

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Contemporary Issues on Intellectual Property Law „ …we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection”

IV. Conclusions It is supported that information wants to be free, especially in the open terrain of the cyberspace.288 Reform of intellectual property legislation which applies to software is the most direct legislative strategy to support information justice in the software domain.289 There are several reasons though for being hesitant about overthrowing the traditional intellectual property rights regime. These rights restrict the free flow of information, but they are required to encourage investment in innovation.290 Finally these rights are critically important for autonomy. An author should have the right to exercise some control over his or her creative expression, especially since that expression is an extension of the author’s personality. A regime of collective ownership or information socialism would be unfair to creators and inventors. The control of the integrity of their work should be enacted by the creators.291

288

R I C H A R D A. S P I N E L L O AN D H E R M AN T . T A V A N I , “I N T E L L E C T U AL P R O P E R T Y R I G H T S I N A N E T W O R KE D W O R L D : T H E O R Y AN D P R AC T I C E ” I D E A G R O U P I N C , 2005 , 289 S. Chopra and S. Dexter, “ Free software and the economics of information justice”, Springer Science + Business Media B.V. 2010 290 R I C H A R D A. S P I N E L L O , “A D E F E N S E O F I N T E L L E C T U A L P R O P E R T Y R I G H T S ” , E D W A R D E L G AR P UB L I S H I N G , 2009 291 R I C H A R D A. S P I N E L L O , “A D E F E N S E O F I N T E L L E C T U A L P R O P E R T Y R I G H T S ” , E D W A R D E L G AR P UB L I S H I N G , 2009

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Contemporary Issues on Intellectual Property Law

Despina Kornilaki

Moral rights on the World Wide Web

Aristotle University of Thessaloniki

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Contemporary Issues on Intellectual Property Law

I. I NTRODUCTION W H AT

AR E MO R AL R I GH T S ?

“Moral rights", as a term, stems from "droit moral” , which is a core concept under French law292. It is not connected with morals as principles or habits, but rather with the special bond 293 of an author with the work he or she created. Every author has a very particular and personal relationship with his or her own work, as they have invested part of themselves in producing it. It is the very nature of creative process that generates such an intimate relationship between author and work and renders creators vulnerable to personal harm, which is why the moral rights doctrine focuses on protecting exactly this sacred relationship. In the Greek moral rights theory 294 , moral rights are inherent to the author and have two crucial characteristics that clearly set them apart from economic rights. First of all, moral rights can't be waived. A creator can't legally relinquish his paternity (this has been called a “moral suicide”) or permit modifications to his work which are harmful to his reputation. Furthermore, moral rights are inalienable: they can't be transferred by means of an inter vivos act, even if it would be in exchange for something of value. The “inalienability” characteristic is particularly important for moral rights, because of the very close link of an author's personality to the work he has created. The severity of this doctrine can be softened by allowing waivers of moral rights under specific and limited circumstances.295 Copyright laws of different countries and contrasting legal systems offer a tremendous variety of possible interests that could be included under the broad moral rights doctrine. However, two basic moral rights are widely recognized: the “right of attribution”, which means that authors are granted the right to have their own works consistently attributed to them by name, and the “right of integrity”, which is an author's right to protect his work from harm: the author becomes vulnerable to harm through the mistreatment of his creation.296

292 Copinger and Skone James, On Copyright, Thomson Professional Pub Cn, Vol.1, 1999, p. 605, Cornish and th th Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 6 ed. Sweet&Maxwell, 6 , p.

485-486 293 Sundara Rajan, Moral rights: principles, practice, and new technology, Oxford University Press, 2011, p.33 294 Ioannis Kikkis, Το μέλλον του ηθικού δικαιώματος του δημιουργού στην Κοινωνία της Πληροφορίας, ΧρΙΔ Ε/2005, p. 295-299 295 Papadopoulou A., in E-Publishing and Digital Libraries, Chapter 10: The Digitization of Contents in Digital Libraries: Moral rights and Limits, 2011, p. 183 296 Fernandez Molina J. and Peis E., The moral rights of authors in the age of digital information, Journal of the American Society for Information Science and Technology, 2000, p. 109-110

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Contemporary Issues on Intellectual Property Law Moral rights in the “digital age” Undoubtedly, the entirety of our cultural history and knowledge of the world constitutes the substance of digitization and exchange. In the new digital era, this is simply considered “content”.

When works are transformed into digital ones, new kinds of separation and distance between them and their authors (the human beings that originally created them) are introduced. This brings along many new possibilities of harm to moral rights. A crucial issue is the tremendous plasticity of digital works297: digital altering, processing and disseminating of works to an infinite number of individuals, results in Internet users often knowing nothing about the genuine content of the original product, or who the author actually is.

As this new digital environment continuously changes and evolves (which is the very characteristic that renders most international copyright agreements obsolete soon after they have been adopted), we have to consider some key questions: What is the place of moral rights in such a technology-dominated environment, where the public demands -and to a large extent possesses- so much control over information, and we are talking about the “democratization of knowledge”? Is it possible – or beneficial- to achieve the harmonization of moral rights? How can moral rights be enforced?

II. International Regime The Berne Convention A typical example of moral rights protection is to be found in he “Berne Convention for the protection of Literary and Artistic Works” 298, which is the first and still most significant international copyright convention in the world. It establishes minimum standards of protection for implementation into its members' national laws. The fundamental moral rights of 1) attribution and 2) integrity are protected in the Berne Convention, since 1928 (the revision in Rome), with Article 6bis299 – the Convention itself dates from 1886. Article 6bis, para.1, mentions explicitly the right of the creator to demand attribution of the work to his name, as well as the right to protest against any alteration or modification of the work that is detrimental to his reputation or fame. Para.2 of the same Article states that the moral right remains after the creator's death at least as long as the economic right, and is exercised by the persons or institutions that have the respective legal power to do so, according to the national legislation of the country where protection is requested. Almost all

297 298 299

Cornish and Llewellyn, as above, p. 841-842 Papadopoulou A., as above, p. 184 Cornish and Llewellyn, as above, p. 486

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Contemporary Issues on Intellectual Property Law countries are nowadays obliged to protect moral rights at the (minimum) standard set by this Convention. Article 5 states that the rights may be exercised with no formal prerequisites, and also that they are “independent of the existence of protection in the country of origin of the work.” As a result, although moral rights do not receive clear protection in nations like the USA, for example, they should be taken into account in relation to international dealings.

The TRIPS Agreement Intellectual creations are also the subject of commerce and international trade agreements: the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) was administered by the World Trade Organization (WTO) in 1994. TRIPs sustains that technological creation should not be treated in a different manner than conventional copyright works. It is stated in Article 9 that WTO members must join and adhere to the Berne Convention rules, with the exception of Article 6bis on moral rights, which were unfortunately left out of the WTO' s dispute settlement and enforcement mechanisms300.

The WIPO Treaties In an effort to step up and address the ever-changing and dynamic landscape of intellectual property in the digital world, the World Intellectual Property Organization (WIPO) developed the two “Internet Treaties”, as they are best-known301; the goal was to re-adjust copyright, bearing in mind the new concerns brought along by the evolution of digital technology.

The two Treaties are the pioneering WIPO Copyright Treaty (WCT), and the more specialized WIPO Performances and Phonograms Treaty (WPPT); they concentrate directly and purely on digital issues302.

Article 5 of the WPPT establishes a moral right for performers: the rights of attribution and integrity that are shaped based on the regulations of the Berne Convention (mutatis mutandis), however the idea of “honor” for the integrity right is eliminated in the WPPT. Only live audio performances are protected, or those that have been recorded on a phonograph. The moral right is protected even after the transfer of economic rights. There are two notable contributions made by this Treaty: it establishes moral rights for performers, and it affirms moral rights in the digital landscape. Moral rights in the WPPT are adapted to digital actions such as the communication of 300 Copinger and Skone James, as above, p. 1206 301 Sundara Rajan, as above, p.13 302 E. Stamatoudi, Τα τεχνολογικά μέτρα για την προστασία και τη διαχείριση των δικαιωμάτων του δημιουργού υπό το πρίσμα της Συνθήκης WIPO, της Οδηγίας 2001/29/ΕΚ για την Κοινωνία της Πληροφορίας και του Ν 2121/1993 περί Πνευματικής Ιδιοκτησίας, ΧρΙΔ 2003, p. 565

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Contemporary Issues on Intellectual Property Law performances through digital technology - e.g. accessing performances through sound files on the Web. WPPT was adopted along the WIPO Copyright Treaty (WCT). The novelty of the WCT is the establishment of a right of “making available”. Copyright works handled on the Internet, are brought into the scope of copyright rules. Moral rights are not directly mentioned in the WCT, but the idea of the “right of communication” in Article 8 corresponds to creators' moral as well as economic rights; This particular right appears to be similar to the “moral” notion of disclosure.

The Beijing Treaty To fill the gap left by the WPPT in the protection of performances, WIPO adopted the Beijing Treaty on Audiovisual Performances in June 2012; it regulates copyright for audiovisual performances and expands performers' rights. The Beijing Treaty safeguards performers' rights from unlawful use of their performances in audiovisual media. Moral rights in Article 5 (drawn, to a degree, from Article 5 of the WPPT and, through it, Article 6bis of the Berne Convention), are extended to performers in the audiovisual context, but the respective provisions are somewhat limited. It grants performers the two basic moral rights of attribution and integrity, so as to prevent lack of attribution or distortion of their performances. According to WIPO "the new treaty brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time.", meaning the provision for protection of their works on-line. What is questionable about the Beijing Treaty is that changes to works made through “the normal course of exploitation” are not considered a violation of the integrity right; in addition, the list of exclusions from this moral right provided by the Treaty is quite comprehensive: “such as editing, compression, dubbing, or formatting”303.

European Union Unfortunately, the European Union law has been focusing solely on the economic rights of authors, aiming to ensure that the internal market of the EU functions smoothly 304. There has not been any harmonization of moral rights at an EU level; it is rather left upon each member state's legislation. Moral rights are unevenly protected within the EU, due to the significant differences between common law and civil law countries (France having generally the most expansive scope of moral rights). Both in legislation as well as in case law, there is a notable absence of moral rights in 303 See WIPO, Beijing Treaty: Helping Audiovisual Performers – Background Brief, online at http://www.wipo.int/pressroom/en/articles/2012/article_0013.html 304 Copinger and Skone James, as above, p. 609. See also: Follow-up tp the Green Paper on Copyright and Related Rights in the Information Society, COM(96) 568 final of Nov 20, 1996

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Contemporary Issues on Intellectual Property Law the EU. There have been quite a few relevant Directives, such as the Software Directive 91/250, codified by 2009/24, the Databases Directive 96/9, the Copyright Term Directive 2006/116 and the Information Society Directive 2001/29, none of which harmonized moral rights at an EU level.

It is perhaps only the Software Directive in 1991 that recognized moral rights protection for software owners. It does not state that explicitly, but it can be deduced from its referral to the Berne Convention in Article 1 and from the separation of the economic rights exercised by the employer (Article 2.3).

The Directive on Harmonization of the Droit de Suite (resale royalty right), may perhaps be perceived as a precursor to the much needed harmonization of moral rights. The droit de suite is even stronger than the integrity or attribution right in some aspects, because even though the latter rights are waiverable in some countries (such as the UK), the droit de suite continues to belong to the artist. As to the Directive 2001/29 on Copyright in the Information Society, it could have been a good opportunity to address the issue of moral rights, but it only seems to grant silent recognition to an author's moral right of disclosure in the form of an extended right of communication to the public – though without specifically mentioning moral interests. It is stated in the Directive that “The moral rights of rightsholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive.”

Noteworthy judgments of the Court of Justice of the EU, are the Magill case of 1995, which recognized the need to “protect the moral rights in the work” as a part of the “essential function” of copyright law, and the GEMA case of 1981 that found that the presence of moral rights in copyright law did not require the differential treatment of copyright subject-matter within the EU. Despite the general reluctance to address the moral rights issue at an EU level, it has in fact been debated by the EU Commission: the Green Paper in 1991 recognized that moral rights were a reflection of the personality of the author and that copyright does cover moral as well as economic rights.

III.

National Legislations

The Civil Law countries of Europe, (with legal systems that derive, directly or indirectly, from Roman Law) , where the moral rights doctrine originated, traditionally preferred strong moral

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Contemporary Issues on Intellectual Property Law rights protection: a work is considered to be the author's “spiritual child” 305; a reflection of his unique personality, even an extension of himself: the law protects the right of paternity, and the author's reputation in relation to the work is protected long after his death. This conception helps us understand the emphasis given on the personal relationship between author and work, a relationship legally recognized in the moral rights doctrine, and the reason why authors have a personal interest in their works that has almost nothing to do with monetary value.

Common Law countries on the other hand appear reluctant in this respect; they choose a more restricted form of protection and recognition to moral rights, which are often protected through common law actions, (e.g. tort) that are more limited in scope than copyright laws. We will start with the Common Law system first:

United Kingdom and USA The UK law adopts a rather materialistic view of intellectual property rights; compensation is usually given for the financial loss suffered306. Economic exploitation of a piece of property is the main concern of the law. Despite the fact that in many other countries (epsecially France) there is a long tradition of safeguarding an author's moral rights, it was with much caution, in the “Copyright, Designs and Patents Act 1988”, that the UK law has finally established moral rights for the creator.

United States, another Common Law nation, does not include the concept of "moral rights" in its copyright law, or a form of legal ability for an artist to control the attribution or integrity of the work (or a copy of that work) after it is no longer in their possession. The copyright approach, once more, is an economic and materialistic one; the owner of a work or copy of a work can, to a certain degree, do with it what he or she wants: for the most part the artist can't legally protest against the presentation or destruction of his works after they have been sold. Moral rights are only recognised in the Visual Artists Rights Act 1990. They are, however, exclusively limited merely to artistic works and to the artist's lifetime.

France : the dualist or “classical” French theory France offers the best version of the contrary approach of the Civil Law countries. The French term droit d' auteur is generally understood as copyright, but, while copyright derives from the property in the “copy”, the droit d'auteur is much more personal (even spiritual) and entails much

305 Sundara Rajan M., as above, p.33 306 Marett P., Information Law in Practice, 2nd edition, p.5 and p. 141-143, Copinger and Skone James, as above, p.606-607

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Contemporary Issues on Intellectual Property Law more than simply the exclusive right to the economic exploitation of the work 307 . An author is granted moral rights in a work, that are personal, inalienable and perpetual: the right to be recognized as author, the right to publish (or not publish) the work, the right to object to mutilation or distortion of the work, and even to withdraw from contracts for publication. While the author's economic rights cease 70 years after his death, the moral rights remain, theoretically speaking, for ever.

Germany: the monist doctrine German legislation (firmly within the Civil Law system) takes on that copyright is a single right (monist doctrine): the creatorâ&#x20AC;&#x2122;s economic and moral interests are interwoven 308. The author's right approach is followed in Germany like in France, in contrast to the copyright approach of the Common Law systems: the German term Urheberrecht means author's right. Moral rights are protected, and they entail the attribution right, the integrity right, the divulgation right, and the right of access.

Greece: Law 2121/1993 The current Greek legislation for intellectual property and related rights is based on the provisions of Law 2121/1993. Like in Germany, Greek Law has chosen the monist approach, which describes intellectual property as a single right that generates other rights protecting the creator's moral and financial interests309 . Article 1 of this law states that intellectual property includes two exclusive rights, the economic right and the moral right. The latter is of a very personal nature and aims to protect the personal bond between a creator and his work. Moral rights are inalienable: they cannot be transferred inter vivos and only with the creator's death are they transferred to his heirs.

The duration of moral rights lasts for the entire lifetime of the creator, and 70 years after his death.

After this time has elapsed, only the State can intervene to exercise some of the powers of the moral right (Art. 29 para.2, Law 2121/1993). Moral rights under Greek law are nontransferable, but, with the consent of the creator, contractual restrictions of the moral right are allowed as long as they concern the exercise of the moral right and don't violate the core value of the right (Article 16 of Law 2121/1993). Criminal protection of the moral right concerns only the right of divulgation and the right of integrity, violations of which are easier to trace.

Moral rights under article 4 of Law 2121/1993 include: 307 308 309

Marett P., as above, p. 126-127 Cornish and Llewellyn, as above, p. 486 Kikkis I., as above, p. 294-295

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Contemporary Issues on Intellectual Property Law 1) The right of divulgation: the creator can decide about the time, place and manner in which the work will be available to the public. Greek legal theory maintains 310 that this right is not exhausted upon the first publication, so that the creator preserves the right to decide for every specific manner and form of divulgation of his work, even after the first permission for presenting the work to the public. This is very important when it comes to the digital environment because it gives the creator the power to control any use of his work on-line.

2) The paternity right, that is the right to be identified as author of the work and in particular the right to have the author's name mentioned on copies of the work and in any public use or even the right to stay anonymous or use a pseudonym311.

3) The integrity right receives protection, which enables the creator to prohibit any alteration of his work that occurs without his permission – a violation of this right could also occur through the manner of presentation of the work to the public. It is notable that the Berne Convention mentions only the harmful modifications of the work, that damage the creator's reputation. If the creator has assigned the exploitation of his work to a third person, the right of integrity remains directly connected to his personality, since the moral right is nontransferable (Article 12 para.2 of Law 2121/1993).

4) The right of access, meaning the right of the creator to access his work, even if the economic right or the ownership of the material body of the work belongs to another individual.

Access to the work must be carried out in such a manner that causes the least possible disruption for the holder. 5) The moral right of retraction, which allows the author to withdraw from contracts on transfer or exploitation of works, if it is necessary for the protection of their personality due to a change in their beliefs or their circumstances and with compensation to the contractor for their damage.

IV.

Intellectual property in the World Wide Web

P R O T ECT ED W O R KS According to a basic definition, the “Web” is a system of interlinked hypertext documents that are accessed via the Internet. With a web browser, one can view web pages that may contain text, images, videos, and other multimedia, and navigate among them with the use of hyper-links.

310 Papadopoulou A., as above, p. 186. See also Κοτσίρης Λ., Δίκαιο Πνευματικής Ιδιοκτησίας και Κοινοτικό Κεκτημένο, Έκτη Έκδοση, Εκδόσεις Σάκκουλα 2011, αρ. 202 311 Klavanidou D., Η δημοσίευση του έργου και η πατρότητα του δημιουργού, Αρμ. 2010, σελ. 3-19

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Contemporary Issues on Intellectual Property Law Within the Web, both web pages themselves, as well as their content, may fall under the scope of moral rights protection. Therefore, works on the Web may be digitized works, or inherently digital ones.312 The protection of a web page (as a whole), as a literary or multimedia work is possible provided that it is original. It is also possible to protect the individual elements of the web page: software functions, components (such as links, original text, photos, graphics, audio and video), as well as the manner in which it is displayed (design, layout, color, structure), again on the condition of originality313. Depending on the work, they are protected as literary or artistic works, as multimedia works, or as works of applied art, and so on.314 Despite the contrasting opinions between the views of technologists and legal theory, it is generally supported that the law should apply to the Internet just as it does elsewhere.315 More specifically, images as original works are protected by intellectual property law and online retransmission is prohibited. According to the ruling of One-member Court of First Instance of Athens 2122/2004, the unauthorized reproduction of photographs, by any technical method constitutes a violation of the publisher’s economic right and the author’s moral right316.

Software products on the Internet are also protected as intellectual works. They are considered literary works, or in other cases, a special category of works317. In the CJEU case “ SAS vs.

World Programming”, the Court affirmed the exclusion of ideas from software copyright protection.

It also confirms the multitude of copyright rules applicable to software: firstly the rules protecting the graphic user interfaces, programming languages, user manual (as literary works, in accordance with the Information Society Directive) and secondly the protection of the form of the expression of the program (source code, object code and preparatory design material) by the Computer Programs Directive.

Databases present another issue: the software necessary for the function of databases is protected as a computer program. The content of databases is protected when it is subject of independent protection. The creator of a database has rights on the whole database, which is protected as an intellectual work, provided that there is a certain level of originality.

There is no unanimity concerning user-created content (UCC). Web users produce and disseminate texts, videos and photographs though blogs, wiki, file or video sharing, and podcasts, becoming therefore creators of web content, while at the same time, other copyright works are often

312 313 314 315 316 317

Papadopoulou A., as above, p. 181 Kallinikou D., Πνευματική Ιδιοκτησία και Internet,2001. Δίκαιο και Οικονομία Π.Ν. Σάκκουλας., p. 37 X. Tsigkou, ΛΕΞΙΚΟ ΠΝΕΥΜΑΤΙΚΗΣ ΙΔΙΟΚΤΗΣΙΑΣ, 2008, Νομική Βιβλιοθήκη, p. 282 P. Marett, as above, p.39 DiMEE 4/2005 - 2nd year, p. 100, comment X. Tsigou.

Marinos M.-T. & Iglezakis I., Cyber Law in Greece, Kluwer Law International, 2011 p. 919

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Contemporary Issues on Intellectual Property Law used as a foundation. Many websites require users to waive their moral rights in advance. However, it remains uncertain whether UCC should be regulated, and to what extent.

I N F R IN GEM ENT

OF MO R AL R I GH T S ON THE

I N T ER N ET – T ECH N I CAL

I SSUE S Moral rights are rendered especially vulnerable to harm by the numerous possibilities for information production, transformation/alteration, and dissemination through the World Wide Web. There are countless instances where the paternity 318 and integrity 319 rights were violated on the Internet, and this violation was facilitated by the constant development of the Web and the great plasticity of digital works320.

Information on the identity of the author is oftentimes lost when a work is downloaded from the Web, or when the work is distributed through the Internet under a false name (usually the user’s name or his on-line pseudonym).

What is more, digital technology makes it possible that, although the author's information is correct, alterations have been made to the work itself, such as unapproved omissions (e.g. a specific extract of the work is disseminated on-line, that represents a biased view of the author) or added material. As a result, the original creator's name, after the processing of his work by an Internet user, would be bound to a creation that expresses ideas that are biased or completely opposite to his own, thus constituting derogatory treatment moral rights infringement. In much the same way, pictures can be processed and altered digitally so as to present a “fake reality” to the public. Regarding multimedia products, bits of a multitude of works can be combined into one, creating a problematic situation when trying to decide who is the author of which piece (musical, visual, literary), and also which piece is which work, given that they are all merged together321. This is the reason why relinquishing of moral rights is especially significant for producers of this category of works, while also ensuring that the new work does not infringe the moral rights on the pre-existing works that were used. Links and frames on the Web as well as the download and upload of files are also major issues strongly connected to moral rights infringement on the Internet and are discussed more thoroughly below.

318

See for example the LG Köln, judgment of 30.1.2014, 14 O 427/13.

319 For example, the display of fragments of content (such as scanned books) in Google's search results can constitute bad representation of the works that harms the authors' moral rights.

320 Cornish and Llewellyn, as above, p. 496-497, Fernandez-Molina and Peis E., as above, p. 114 321 Cornish and Llewellyn, as above, p. 838-842,

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Contemporary Issues on Intellectual Property Law - L I N KI N G

AN D F R AM I N G

Links redirect users to other web pages or web sites and can have any digital content, such as text, sounds, images, video. Redirecting is automatic: when clicked on, the link leads users directly to the point of reference. A hyper link from one web page to another doesn't violate intellectual property rights, as the goal of a page is exactly to be found through links or other pages or search engines. However, a user may, for example, link the creator's work to a web page including content of which the creator disapproves (e.g. to a neo-Nazi organization page), which would constitute derogatory treatment322 of the work and thus violation of the creator's moral rights.

Problems for intellectual property rights may arise through other forms of linking such as deep-linking, framing and in-line linking 323. There is hierarchical organization in websites: a home page at the top and other, secondary pages deeper in the web site. Links on the home page lead to those deeper web pages. It is practice of deep-linking that allows users to reach the deeper pages directly, bypassing the home page324. When links redirect users not to the home page, but to a more specific page or to elements of that specific page, and the origin of these elements is not certain, problems begin to arise, especially in relation to the attribution right. The same problem exists in the use of frames, where the content of two separate web pages is revealed to the user within the same web page he or she is viewing (framing divides the screen into non-overlapping windows, each one displaying a separate HTML file), and without any conscious action on his part, or without him realizing that he has been moved to another page by changing URL325. Generally, it is allowed to use links for redirecting to the entire content of a page, provided of course that the web page does not have any access restrictions, such as a password. But the same thing is not allowed when the user is led directly to an element of a web page, such as a software program, especially if the origin of this work is not clearly stated, so that the user might consider it part of the web page which he was visiting, and not of the one it actually belonged to.

Finally, in-line links place works, such as an image (JPEG or GIF) that are part of a specific web site onto a different one, which is being visited by the user. This creates the impression that it is in fact part of the web page being viewed. However, the image is not in fact physically present on that web page, but rather only virtually. By abusing this feature, one can also utilize a link to pass off another's work as one's own. Again, this could lead to a violation of the moral right of attribution

322 Copinger and Skone James, as above, p. 630-631 323 Ιγγλεζάκης Ι., Σύνδεσμοι στο Διαδίκτυο, Ζητήματα Ευθύνης, Εισήγηση στο Νομικό συνέδριο: Ηλεκτρονικό Έγκλημα - Προσωπικά Δεδομένα - Ηλεκτρονικό Εμπόριο (20-21/2/2011) 324 X. Tsigkou, as above, p. 283, Cornish and Llewellyn, as above, p. 848 325 Cornish and Llewellyn, as above, p. 849

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Contemporary Issues on Intellectual Property Law and integrity.326 - F I LE

SH AR I N G , UP LO ADI N G AN D DO WN LO ADI N G CON T EN T

Digital media enable the fragmentation of complete works into distinct parts327, such as the splitting of a music album into distinct pieces for download. This practice has led to infringments of the musicians' moral right of integrity. In a recent case, the famous band Pink Floyd sued EMI records for selling individual songs through on-line downloading, claiming that the integrity of their work (which was the original album that had been split up by the company) had been violated. In a different case, the German Supreme Court concerning the use of music tracks for mobile ringtones, ruled that the mere adaptation of songs to ringtones does not result in a violation of the creatorâ&#x20AC;&#x2122;s moral rights328. This ruling is interesting in a digital context, because the conversion of music tracks to ringtones requires that technical alterations are made to the work and separate smaller parts are extracted from the songs. However, in the similar case of French rapper MC Solaar329, where he accused the company Media Consulting of violating his right to the integrity of his songs by transforming them into ringtones, the French judges ruled that the conversion of these two works into ringtones was in fact a modification harmful for the author, and an infringement of his absolute right to demand the respect of the integrity of his works.

Finally, further disclosure of the work on the Internet without prior permission of the author

constitutes

moral

rights

infringement.

In

another

recent

French

case,

the lyrics to a song by Jean Ferrat, a deceased songwriter, were published on the Internet and were thus considered to breach the moral right of disclosure. If the author agrees to a broadcast of his work in general, there must be an expressed authorization for disclosure on the Internet.

328

Papadopoulou A., as above, p. 188 Cornish and Llewellyn, as above, p. 496, Decision of the Bundesgerichtshof of 18 December 2008, I ZR 23/06

329

Decision of the Paris High Court of 7 November 2003

326 327

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Contemporary Issues on Intellectual Property Law

B IBLIOGRAPHY 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

Marett P., Information law and practice, Gower, 1991.

James C. - James S., On Copyright, vol. 1, Thomson Professional Pub Cn 1998.

Pollaud-Dulian F., The Internet and Authors' Rights, vol. 5, Sweet and Maxwell 1999.

Stamatoudi I. - Torremans P., Copyright in the new digital environment: The need to redesign copyright, Sweet & Maxwell, 2000.

Fernández-Molina J.C. Peis E., The moral rights of authors in the age of digital information, Journal of the American Society for Information Science and Technology, 2000 Koepsell D., The Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property, Open Court Publishing 2003.

Ricketson S. - Ginsburg J., International Copyright and Neighbouring Rights, Oxford 2006.

Sterling J., World Copyright Law, Sweet and Maxwell 2008.

Sundara Rajan M., Moral Rights - Principles, Practice and New Technology, OUP USA 2011.

Kur A. - Planck M. - Dreier T., European Intellectual Property Law, Edward Elgar Publishing 2013.

Stamatoudi I. - Torremans P., EU Copyright Law - A Commentary, Edward Elgar Publishing 2014. Παπαδοπούλου Α., Το Δικαίωμα του Δημιουργού για Διατήρηση της Ακεραιότητας του Έργου του, Σάκκουλας 1997. Καρακώστας Ι., Δίκαιο και Internet - Νομικά ζητήματα του διαδικτύου, Σάκκουλας Π. Ν. 2001. Δεσποτίδου Α. - Κουμάντος Γ., Κοινωνία των Πληροφριών και Πνευματική Ιδιοκτησία - Η νέα Κοινοτική Ρύθμιση. σ. 11 - Οι περιουσιακές εξουσίες του δημιουργού κατά το άρθρο 3 παρ. 1 Ν. 2121/93, Εκδόσεις Αντ. Ν. Σάκκουλα 2003. Κοριατοπούλου-Αγγέλη Π. - Τσίγκου Σ., Πνευματική ιδιοκτησία, Νομική Βιβλιοθήκη 2008. Καλλινίκου Δ., Πνευματική Ιδιοκτησία και Συγγενικά Δικαιώματα, 3η έκδοση, Π.Ν. Σάκκουλας 2008 Βαγενά Ε., Η τεχνολογική προστασία και η ψηφιακή διαχείριση της πνευματικής ιδιοκτησίας, Σειρά Μελετών Αστικού Δικαίου, Νομική Βιβλιοθήκη 2010. Ιγγλεζάκης Ι., Σύνδεσμοι στο Διαδίκτυο, Ζητήματα Ευθύνης, Εισήγηση στο Νομικό συνέδριο: Ηλεκτρονικό Έγκλημα - Προσωπικά Δεδομένα - Ηλεκτρονικό Εμπόριο (20-21/2/2011). Κοτσίρης Λ., Δίκαιο Πνευματικής Ιδιοκτησίας και Κοινοτικό Κεκτημένο, Έκτη Έκδοση, Εκδόσεις Σάκκουλα Α.Ε. 2011.

20.

21.

22.

23.

24.

25.

Electronic Frontier Foundation, Retrieved 20/8/2014 from https://www.eff.org.

World Intellectual Property Organization, Retrieved 20/8/2014 from http://www.wipo.int.

UK Intellectual Property Office, Retrieved 20/8/2014 from http://www.ipo.gov.uk.

Hellenic Copyright Organization, Retrieved 20/8/2014 from http://www.opi.gr.

1709 Blog: for all the copyright community, Retrieved 20/8/2014 from http://the1709blog.blogspot.gr.

Iglezakis I., Informatics and Law (20/8/2014), Retrieved 20/8/2014 from http://informaticslaw.blogspot.gr.

26. Sinodinou T., A Greek premiere: Greek ISPs ordered to block access to infringing websites (21/11/2012), Retrieved 20/8/2014 from http://kluwercopyrightblog.com/2012/11/21/a-greek-premiere-greek-ispsordered-to-block-access-to-infringing-websites.

27. Sinodinou T., Decrypting the code: CJEU SAS vs. World Programming (7/5/2012), Retrieved 20/8/2014 from http://kluwercopyrightblog.com/2012/05/07/decrypting-the-code-cjeu-sas-vs-world-programming.

28. http://copyrightandtechnology.com/ :French Court Finds Google Guilty over Book Scanning, December 20, 2009

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Contemporary Issues on Intellectual Property Law

Eleftheria Chanialaki

Regulation of the remunerations of the Collective Management Organizations based on the weighting of each otherâ&#x20AC;&#x2122;s interests and economic positions

Aristotle University of Thessaloniki

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Contemporary Issues on Intellectual Property Law

A.

I NTRODUCTORY REMARKS The exclusive nature of intellectual property rights has a positive and a negative aspect.

The positive aspect lies in the absolute discretion of the author to decide on the way and on the operating conditions of the exploitation of his work by setting financial and other terms of use.330 The negative aspect regards the ability of the author to prevent imminent use or to defend a third attack to his work by using the enforcement measures, provided by the law.331 The author, as the owner of the intellectual property right, is the person who determines the financial exploitation of his copyright work and has a choice of ways in which to benefit from his right commercially. He may exploit it himself, assign it to a third party or license it. 332 There are, however, cases where the financial progress of copyright works is assigned to the relevant collecting society and the author loses the ability to control and influence the financial operating conditions of his work.333 In these cases, the author assigns to the society only the -absolutely- necessary powers for the management (according to the “purpose of the transfer”)334 and there is no alienation from his work. It is worth noting that the accession to a collecting society constitutes only a management operation and not a disposal.335

B. T HE FUNCTION AND THE PURPOSE OF THE C OLLECTIVE M ANAGEMENT O RGANIZATIONS I.

A DMINISTRA TION

OF RIGH TS BY

C OLLECTI NG S OC IET IES

The nature of copyright which is an immaterial commodity accessible to all, the author’s inability to control it in person, the developing technology for work multiplication and mainly the enormity of the international market area make any author incapable of self-protection.336

330

Kotsiris, L. (2010). “Intellectual Property Law” (in Greek). 5th Edition. Athens - Thessaloniki: Sakkoulas, pp.

154, 241.

331 Stavridou, S. (1999). “The management contract in Copyright Law – A study on the relation between authors and Collective Management Organizations” (in Greek). Athens - Komotini: Sakkoulas, p. 25.

332 Jones, A., Surfin, B. (2011). European Competition Law. 4th Edition. Oxford: University Press, p. 714.

333 Stavridou, S. Supra note 2, p. 26.

334 According to this principle, a crucial criterion to the extent of the allotted rights is the purpose of the transfer to which the volition of both parties coincides. If doubt exists the contract is construed in favour of the author, who would never have transferred more rights than those absolutely necessary for the realization of the purpose of the contract. [Kotsiris, L. (2012). Greek Copyright Law. Thessaloniki: Ius, p. 115].

335 Kotsiris, L. (2006). “Authors’ successors – The assignment of the collective management or protection to collecting societies” (in Greek). Published in the Greek law journal: Media & Communications Law (ΔιΜΕΕ), p.

318.

336 Koumantos, G. (1995). “Intellectual Property” (in Greek). 6th Edition. Athens: Ant. N. Sakkoulas, p. 337.

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Contemporary Issues on Intellectual Property Law Τhe author seems to have at his disposal a “bundle of rights” (the right to copy his work, the right to adapt it, the right to perform it in public, the right to sell copies, the right to rent out copies and so on),337 deriving from the legal relationship that exists between the author and his work, and the right, based on the principle of the freedom of contracts, according to which the author can exploit financially his work in the way that he wishes. This is, however, only a theoretical illustration, which is totally opposite to the factual situation. In fact, authors and their counter-contracting parties (users) do not operate individually but collectively, through various collective carriers. With regard to the authors, they operate as collecting societies of writers, music composers, songwriters, painters, sculptors etc. Collecting societies are also created by the holders of neighbouring rights such as publishers, theatrical or music producers, actors, singers, film directors. 338 The collecting societies mainly aim not only at the authors’ protection but also at the administration of the economic powers, since authors are considered as financially weaker parties.339 It deserves to be noted that nowadays new technological solutions (encryption technology, digital identification numbers, rights management information systems, etc.) have been appeared and are still being developed. The freedom of right-holders to choose between individual and collective management of their rights and among various possible forms of collective management (“traditional” collective management, “one-stop-shop” systems, etc.) seems to have been extended. New methods of licensing, monitoring use, collecting and distributing the remunerations have been introduced. 340 It is supported, however, that the use of the above described systems, which constitutes a transition from analogue to digital environment (for example from printed books to e-books), will not replace the collecting societies’ action with the authors’ individual management of their own works but it will facilitate the societies’ purpose.341

II.

C OMPETE NCES

OF THE

C OLLEC TI NG S OCIET IES

As expressed in article 55 par. 1 of Greek Copyright Law (Law 2121/1993), the main competences of the collecting societies include contracts with users, securing on authors’ behalf a percentage fee, collecting sums and compensation from the users and distributing these to the

337

Arnold, R. (1990). Performer’s Rights and Recording Rights (UK Law under the Performers’ Protection Acts 1958-72 and the Copyright, Designs and Patents Act 1988). Oxford: ESC, p. 1.

338 Kotsiris, L. (2012). Greek Copyright Law. Thessaloniki: Ius, p.168.

339 Mikroulea, A. (1999). “The effect of the Free Competition Law on the Intellectual Property Law and in particular on the Collecting Societies” (in Greek). Published in the Greek law journal: Overview of Commercial Law (ΕπισκΕΔ), p. 458.

340 Vazquez Lopez, V. (2008). Collective Management of Copyright and Related rights; Challenges in the Digital Environment. Available at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=101377, p. 1.

341 Vagena, E. (2010). “The technological protection and the digital management of the Intellectual Property” (in Greek). Athens: Nomiki Vivliothiki, p. 184.

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Contemporary Issues on Intellectual Property Law authors.342 Moreover, collecting societies take effective measures and any kind of administrative, extrajudicial or judicial task concerning authors’ legal protection, civil or penal. They also carry out, in collaboration with the authorities, necessary inspections of sale outlets so as to verify any violations occurring.343 Presumption of locus standi is established in favour of the collecting society for the protection of all the works and of all the creators that are under the society’s jurisdiction, either through transfer of the relevant powers or by power of attorney, provided written documentation exists on the part of the society. As a result, collecting societies are entitled to take judicial or extrajudicial action in their own names as representatives of the authors. 344 In order to obtain judicial protection for the works and for the authors that are protected by the society, reference by a sample list is sufficient and an exhaustive detail list is not required. 345

III.

T HE

NON - PROFI T CHARACT ER OF THE

C OLLE CTIV E

M ANAGE ME NT O R GANIZAT IONS At the international level, collecting societies aim to defend their members’ interests and they don’t intend to their own financial profit. As a consequence of their non-profit nature, collecting societies withhold an amount of the total revenue, which consists of management fees and other legal deductions, and they only give the rest to the beneficiaries.

The other side of the coin is that, according to Greek Copyright Law, Collective Management Organizations with profit purpose can exist and operate in parallel with non-profit organizations but they are submitted to a more rigorous control (article 54 par. 5 section 2 and par. 8 of the Law 2121/1993). The Organizations with profit purpose aim to increase the revenue for authors, a fact that increases proportionately the remuneration of the Organizations.346

IV.

C OLLE CTIV E

MANAGE MENT AT AN I NT ERNATIO NA L LEVE L

The majority of the Collective Management Organizations functions according to the state legislation of their seats, in the territory of which they take all the control measures and develop the

342

Kinini, E. (2001). “Collective Management Organizations and Free Competition Law” (in Greek). Athens: Nomiki Vivliothiki, p. 332.

343 Kotsiris, L. Supra note 9, p. 170.

344 Vossos, K. (2011). “The procedural privileges in favour of the Collective Management Organizations” (in Greek). Published in the Greek law journal: Media & Communications Law (ΔιΜΕΕ), p. 462.

345 Kotsiris, L. Supra note 9, p.170.

346 Stavridou, S. Supra note 2, pp.34-35.

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Contemporary Issues on Intellectual Property Law required remunerations’ collecting network. It is obvious that in this case the national Intellectual Property Law is applied.347 There are, however, some cases in which a national Collective Management Organization assigns the administration abroad of its works to the competent collecting society of a foreign state.

Respectively, the national Collecting Society undertakes the administration of the foreign society’s works in its territory.348 It functions by signing «reciprocal agreements»349, regulated in article 72 par. 3 section 2 of Greek Copyright Law. It is stressed that the Organization shall treat both foreign and national beneficiaries in a same way (same tariff tables, same methods and means of remunerations’ collection and distribution, etc.) and shall give them the same opportunities for economic exploitation according to its national Copyright Law.350

C.

T HE TARIFF TABLES OF THE COLLECTING SOCIETIES

I.

T HE “ REAS ONABLENESS ” OF THE TARIFFS

The tariffs and other licensing conditions set by the collective management organizations should be reasonable and should not involve any abuse of a dominant position of the collecting society.351 In order the remuneration to be reasonable, the following conditions must be met: a) before establishing the remuneration to be paid, negotiations should take place with the representatives of the authors, and b) legal procedures should exist available in case of disputes, including the case of any alleged misuse of the monopolistic position of the collective management organization. In certain countries, specific copyright tribunals or mediation/arbitration bodies deal with such disputes, whereas in other countries the settlement is left to the ordinary courts. With respect to the negotiations, they usually take place with some major right-holders such as broadcasting organizations and a standard tariff system is applied, according to which the same remuneration is regulated for the same category of beneficiaries and for the same kind and extent of the use.

347

Id at pp. 56-57.

Mikroulea, A. Supra note 10, pp. 463.

349 Examples of foreign collecting societies, which cooperate with Greek collecting societies by signing reciprocal agreements are the following: SWISS PERFORM, GVL (german), SPEDIDAM (french), AIE (spanish), SAMI (swedish), CREDIDAM (romanian), EJI (hungarian), AGATA (lithuanian), GRAMEX (danish), NORMA (dutch), MICROCAM (belgian), STOART (polish), RIGHTS AGENCY LTD (english-american).

350 Stavridou, S. Supra note 2, p. 58∙ Kinini, E. Supra note 13, pp. 55-56.

351 Mikroulea, A. Supra note 10, p. 466.

348

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Contemporary Issues on Intellectual Property Law It is a fact, however, that the collective management organizations establish the tariffs in a «unilateral» manner without any previous consultations or negotiations with the representatives of the authors. The setting of unreasonably high tariffs does not finally function in favor of the organization’s and authors’ interest. In other words, high tariffs may discourage users to ask for licenses, and thus the result may be just the opposite to the one that the organization wishes to achieve, i.e. the overall amount of remuneration may be decreased rather than be increased, or, at least, it may not reach the desirable level.352

II.

T HE CASE LAW OF “SACEM” 353

Τhe dispute between the French Collective Management Organization on musical works “SACEM” and the French owners of discotheques regarding whether the tariffs are reasonable was raised before the European Court of Justice. The discotheques’ owners argued that the fee, required to be paid for the granting of licenses by them, was disproportionate in relation to the compensations ultimately paid to the beneficiaries354 and that the withholding rate of 33% for administrative expenses was undue.355 Τhe European Court of Justice, taken into consideration the peculiarities of Intellectual Property Law among the different legal orders, indicated to the national judges to determine a criterion regarding the reasonableness of the fees.356

III.

T HE ESTABLISHMENT OF THE TARIFF TABLES

The main obligation of the collecting societies is to grant exclusive copyright licenses to the users357 and to collect remunerations in favour of the authors. It is noted that these exclusive licenses are referring to the total number of works of the society’s national and foreign repertoire.358

352

Ficsor, M. (2005). The establishment and functioning of Collective Management Organizations: The main features. Available at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=38604, pp. 10-11.

353 See: C-242/88 SACEM v Soumagnac∙ C-241/88 SACEM v Debelle∙ C-110/88 Lucazeau and Others v SACEM and Others∙ C-373/87 SACEM v La Croisette∙ C-270/86 Cholay and Bizon's Club v SACEM∙ C-402/85 Basset v SACEM∙ C-22/79 Greenwich Film v SACEM. Available at: http://curia.europa.eu.

354 Stamatoudi, E. (1998). “Collective Management Organizations in the light of the European Competition Law” (in Greek). Published in the Greek law journal: Critical Review of Legal Theory and Practice (ΚριτΕ), p. 235.

355 Stavridou, S. Supra note 2, p. 291.

356 Stamatoudi, E. Supra note 25, p. 235.

357 According to Greek Copyright Law, users are every natural or legal person that exploits financially copyright works, protected by the Law. Users are usually enterprises where public performance of a copyright work takes place by any means and process. (Koumantos, G. Supra note 7, p. 348).

358 Stavridou, S. Supra note 2, p. 222. See: the case law “SACEM” where the collecting society on musical works “SACEM” denied the disposal of a part of its repertoire to the discothèques’ owners of France, i.e. the EnglishAmerican repertoire. The European Court of Justice held that this practice is not against the Competition Law and the restriction of the authors’ contractual freedom is necessary for the effective protection of their rights according to the principle of proportionality. (Mikroulea, Α. Supra note 10, p. 469). But see: the case law “SABAM” where the European Court of Justice stressed that the enforcement of transferring the total amount of the authors’ economic rights (current or upcoming, regarding any kind of financial exploitation) to the collecting society

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Contemporary Issues on Intellectual Property Law On the issue of the remunerations, it is typical that collecting societies establish standard tariff tables that are submitted to the control of the administration as a condition of their validity.359 To ensure transparency, Greek Copyright Law requires the publication of the tariff tables to three newspapers, one of which is financial (article 56 par. 3 section 5 of the Law 2121/1993). According to the users’ right to information, the publication requirement is extended to any change regarding remunerations.360 The establishment of such tariffs is frequently preceded by collective negotiations with the representatives of users’ associations (such as association of concert bureaus, restaurant owners, hotels, retail shops). The conclusion of a framework-agreement between the collective management organization and such an association does not necessarily mean that the members of the association can automatically use the full organization’s repertoire but it depends on the existing legal regulation and the terms of the agreement. In other words, the individual contracts will finally regulate the relations between each member of the users’ association and the collective management organization.

Standard tariffs guarantee equal treatment to users wishing to use the collective management organization’s works in certain cases for certain purposes under certain conditions. 361 In the case of the collecting societies of musical performing rights, for example, the basis for the calculation of standard tariffs for the use of their repertoire includes various criteria, such as whether live or recorded music is used; whether music plays a decisive role in the establishment (such as in a discotheque or in a karaoke bar) or it is just “background” music (such as in hotels, shops, restaurants, etc.);362 the nature and size of the use; the quality and corresponding price-category of the use; the number of participants, etc.. 363 The above described tariffs are of great advantage for both the organizations and the users because they don’t have to be engaged in lengthy, costly and timeconsuming negotiations before the conclusion of each concrete licensing contract.364 It deserves, additionally, to be noted that the collecting society is not entitled, in the absence of a serious reason, to deny users the establishment of contracts. If the user claims that the collecting society demands compensation clearly in excess of the one usually payable in similar (“blanket licensing”) indisputably constitutes an abuse of a dominant position. (Stamatoudi, E. Supra note 25, p.

233).

359 Stavridou, S. Supra note 2, p. 217.

360 Marinos, M.-Th. (2004). “Intellectual Property” (in Greek). 2nd Edition. Athens - Komotini: Ant. N. Sakkoulas, p. 378.

361 Ficsor, M. Supra note 23, pp. 11-12.

362 See Greek case law about broadcasting acts in hotel rooms: Court of Appeal of Thessaloniki 1721/2011∙ Court of Appeal of Athens 5757/2010∙ Court of Appeal of Thessaloniki 1897/2010∙ Court of First Instance of Thessaloniki 22796/2007 (with a single judge)∙ Court of First Instance of Thessaloniki 23398/2006 (with a single judge)∙ Court of First Instance of Thessaloniki 258/2006 (with a single judge)∙ Court of First Instance of Thessaloniki 37632/2005 (with a single judge)∙ Court of First Instance of Thessaloniki 36047/2005 (with a single judge).

363 Ficsor, M. Supra note 23, pp. 13-14.

364 Id at p. 11.

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Contemporary Issues on Intellectual Property Law circumstances, then the amount that the society requires is paid in advance and compensation is determined by court decision (art. 56 par. 2 of Greek Copyright Law). 365 With respect to the disagreement between collecting societies and users, regarding the level of the amounts to be paid by users to the collecting society, 366 the article 56 par. 5 of Greek Copyright Law foresees the appointment of an “arbiter for the establishment of a fee” who establishes the fee according to tariff tables issued by the Hellenic Copyright Organization (H.C.O.).367

D.

T HE CALCULATION OF THE REMUNERATION ACCORDING TO THE

G REEK C OPYRIGHT L AW

2121/1993 It goes without saying that every author should demand to be paid the amount corresponding to what the collective management organization has charged for the author’s works368, after managerial and cultural deductions. This principle has stemmed from the legal position of the collective management organization as the trustee of the authors’ economic rights. All authors should be treated in an equal way and no preferential treatment or privilege should be allowed.369 According to Greek Copyright Law, the method of determining the remuneration varies and depends on the kind of work, the type and the extent of the use. Let’s examine every kind of remuneration, as they are regulated in Greek Law.370 I.

T HE PERCENTAGE REMUNERATION The collecting societies are entitled to require percentage remuneration in favour of the

author, which is freely determined between the parties and shall be calculated based on: a) the gross revenues or b) the gross expenses or c) both the gross revenues and expenses (article 32 par. 1 in 365

Kallinikou, D. (2008). “Copyright and Related Rights” (in Greek). 3rd Edition. Athens: P. N. Sakkoulas, pp.

338-339.

366 See Greek case law where the determination of the remunerations was decided by the Court because of the disagreement in negotiations between the users and the collecting societies: Court of Appeal of Thessaloniki 1175/2011∙ Court of First Instance of Athens 2004/2007 (with a single judge)∙ Court of First Instance of Piraeus 4971/2005 (with a single judge)∙ Court of First Instance of Patras 1651/2005 (with a single judge).

367 Kotsiris, L. Supra note 9, p. 171.

368 See Greek case law about the reasonable author’s remuneration: Court of First Instance of Chalkidiki 1/2013 (bench of judges)∙ Court of First Instance of Thessaloniki 10329/2012 (bench of judges)∙ Court of First Instance of Thessaloniki 1687/2012 (bench of judges)∙ Court of First Instance of Katerini 62/2012 (bench of judges)∙ Court of Appeal of Thessaloniki 303/2012∙ Court of First Instance of Katerini 19/2012 (bench of judges)∙ Court of First Instance of Katerini 64/2012 (bench of judges)∙ Court of First Instance of Chalkidiki 59/2012 (bench of judges)∙ Court of First Instance of Chalkidiki 86/2012 (bench of judges)∙ Court of Appeal of Thessaloniki 1175/2011.

369 Vazquez Lopez, V. Supra note 11, p. 9.

370 Stavridou, S. Supra note 2, p. 215.

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Contemporary Issues on Intellectual Property Law conjunction with article 56 par. 1 section 1 and article 55 par. 1 section b of Greek Copyright Law).371 This calculation method guarantees the author’s proportional participation in the financial exploitation of his work.372

II.

E XCEPTIONS OF THE PER CENTAGE REMUNERATION – THE

“ LUMP SUM ” COMPENSATION

Exceptionally, the remunerations of the authors can be set to fixed “lump sum” compensations when objective difficulties in applying the percentage remuneration exist. Such difficulties are the organization’s failure to control the use of work, the case that the expenses required for the calculation- are disproportionate to the remuneration, the nature or the conditions of the exploitation.

Further exceptions to the percentage fee are described in the article 32 par. 2 of the Law 2121/1993 for some specific kinds of work (i.e. the works of employees, computer programs, any kind of advertisement). In these specific categories, the copyright work is created according to the contract of employment or hire of work and as a result the remuneration is specified in advance under the terms of the contract (“lump sum” compensation).373

III.

T HE AMOUNT OF THE DEDUCTION

Collective Management Organizations manage to meet their administrative and operational expenses, such as salaries of employees, Board members and managers, logistic costs, judicial costs etc., by retaining a predetermined percentage on the total revenues. The rate of withholding is calculated at the base of the actual costs, required for the effective management of the rights, and it is formed in the light of the specificities of each management practice.

The question whether the withholding rate is unreasonable or disproportionately high cannot be easily answered. It is supported that an “a priori” certain percentage cannot be considered as reasonable. The conformation of the administrative costs and thus the final amount of withholding depend on the object of the management and the scope of the organization’s action. Some factors that increase the management expenses are the technological equipment, the intensification of

371

Koumantos, G. Supra note 7, p. 300.

Sinodinou, T.-E. (2008). “The collective management of copyright in musical works and the contract for the phonographic industry” (in Greek). Published in the Greek law journal: Media & Communications Law (ΔιΜΕΕ), p. 41.

373 Stavridou, S. Supra note 2, pp. 216-217.

372

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Contemporary Issues on Intellectual Property Law prosecutions for any form of piracy, the systematic use of staff to carry out inspections. Organizations that have high management costs should justify them presenting the corresponding effective work. 374 As expressed in article 57 par. 6 section 1 of Greek Copyright Law, collecting societies shall define, in general, for all the authors of a certain category and for each way of exploitation a specific rate of deduction to cover administration expenses. This rate should be announced to the authors before signing the contract with the collecting society.375 It is supported, however, that this provision is not able to limit an excessive deduction, the amount of which is eventually left to the discretion of the management body.376

IV.

T HE DISTRIBUTION TO THE AUTHORS

The 57th article par. 5 of Greek Copyright Law provides that the distribution to authors is "... in proportion, as it is possible, to the actual use of their works ...". The determination of the distribution -based on the actual use of work- ensures the financial participation of the author in any form of exploitation of his work but it is applied only to personalized or partially controlled form of use. It is stressed that the effectiveness of this distribution depends on the collaboration of the users by giving information regarding the kind of works and the extent of their use. This distribution cannot, however, be applied to the cases that objective weakness of control exists because of the massiveness and the uncontrollable nature of the use. In these cases, the distribution is based on sampling checks or statistics data and it reveals the organization’s operational weakness, which offends the authors’ interests.377 Regarding the holders of neighbouring rights, the remuneration collected by the collecting society is distributed equally in order: half (50%) to performers and half (50%) to producers of sound recordings (art. 49 par. 3 of the Law 2121/1993). Further distribution among the various members of each category is effected pursuant to agreements among them contained in the rules of each collecting society.378 Distribution of revenues to the authors takes place at least annually and is proportional to the use of their works. In order to be able to overcome any arising difficulty the law places the reservation “to the extent possible”.379

374

Id at pp. 230-231.

Koumantos, G. Supra note 7, p. 346.

376 Stavridou, S. Supra note 2, p. 232.

377 Id at pp. 234-235.

378 Manteniotou - Liratzopoulou, K. (2004). “The collective management of related rights of performers and producers of sound recordings or video recordings or sound and video recordings in contemporary practice” (in Greek). Published in the Greek law journal: Chronicles of Private Law (ΧρΙΔ), p. 381.

379 Kotsiris, L. Supra note 9, p. 193.

375

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V.

R IGHTS AND OBLIGATION S BETWEEN THE AUTHORS AND THE COLLECTING S OCIETIES

The collecting society cannot, in the absence of a serious reason, deny an author the assignation of administration or protection of his rights because this assignation is the collecting society’s object according to its official license.380 On the other hand, the authors have the right, but not the obligation, to assign the exploitation of their works to a collecting society. 381 Obligation on the part of the collecting societies is enacted to inform authors on certain matters concerning administration, rules of distribution and protection of their economic rights. 382 A reverse obligation exists on the part of the authors to inform collecting societies of the works that have been published or that are being published after the assignation of administration.383 In addition, authors should acquiesce in the management of their works by the collecting society and should refrain from operational acts which have been assigned to the society.384

E. T HE STATE ’ S INTERVENTION AND CONTROL IN THE ACTION OF THE COLLECTING SOCIETIES I.

C ONTROL

AT THE FOUNDI NG OF THE COLLE CTI NG SOC IET IES

The initial authorization function of a collecting society requires approval of the Ministry of Culture. In order to obtain approval the collecting society is obliged to lodge a statement to the Ministry together with its Rules, providing minimum required content of which is stated in article 54 par. 4 of Greek Copyright Law especially concerning: its capital, company status, the society’ s representative, the organization structure, the number of authors / assignors of administration, the legal form of title assignation and its duration, its principles, the time and mode of profit distribution to the right-holders, other data to prove the society’s viability and the level of management expenses.385 The last requirement does not apply in the following conditions: a) the collecting society is not profit oriented, b) it is managed by the authors themselves and c) its members would be forced

380

Marinos, M.-Th. Supra note 30, pp. 373-374.

Koumantos, G. Supra note 7, p. 345.

382 Mikroulea, A. Supra note 10, p. 468.

383 Kotsiris, L. Supra note 9, p. 171.

384 Koumantos, G. Supra note 7, 347. See relevant Greek case law: Court of Appeal of Thessaloniki 1299/2011∙ Court of First Instance of Piraeus 1340/2006 (with a single judge)∙ Court of First Instance of Athens 8266/2005 (with a single judge).

385 Stavridou, S. (1997). “The control in the action of the collecting societies according to the article 54 of Greek Copyright Law” (in Greek). Published in the Greek law journal: Corporate and Business Law (ΔΕΕ), p. 947.

381

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Contemporary Issues on Intellectual Property Law to assign the management and the protection of their rights to collecting societies that do not meet the above two requirements (article 54 par. 8 of the Law 2121/1993). 386

II.

C ONTROL

DURING THE OP ERATIO N OF THE COLLE C TI NG SOCIET IES

During the operation of the organization, there is an ongoing supervision over the function of the management which is also assigned to the Ministry of Culture by the Greek legislature.

The Ministry is responsible for monitoring the compliance with the Copyright Law’s provisions and the collecting society’s Rules in the legal form that it has been approved.387 As part of this supervision, any change to the association’s memorandum, its representatives and Board members, the terms of its contracts and anything concerning withholding and distribution to the authors should be announced to the Ministry of Culture for approval.388 The collecting society has to submit its accounts and any other necessary data (financial, corporate, managerial), required for effective control, to the competent department of the Ministry (art. 54 par. 4 and 5 of Greek Copyright Law).389

III.

P ENALTIES IN CASE OF INFRINGEMENTS

In case where a society is found to have violated the law or its Rules, then by advance notification, the Minister of Culture may impose an administrative penalty of 1.500 to 30.000 euros.390 If serious or consecutive violation of the law or of the Rules is ascertained, the Minister of Culture may, at the Hellenic Copyright Organization’ s suggestion, proceed with temporary or definite revocation of the collecting society’ s authorization to operate (art. 54 par. 6 and 9 of the Law 2121/1993).391

F. C ONCLUSION According to the above-mentioned analysis, it is obvious that the action of the collecting societies is absolutely necessary for authors. The individual exercise of authors’ economic rights is impractical in cases that users have massive and rapid access to a large number of works, without granting a license. Collecting societies’ purpose should be the protection of copyright by forcing users to pay remunerations and by carrying out necessary inspections for verifying any violations. Adequate 386

Kotsiris, L. Supra note 9, p. 172.

Manteniotou-Liratzopoulou, K. Supra note 49, p. 380.

388 Stavridou, S. Supra note 2, p. 280.

389 Kotsiris, L. Supra note 9, pp. 172-173.

390 Koumantos, G. Supra note 7, p. 344.

391 Kotsiris, L. Supra note 9, p. 173.

387

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Contemporary Issues on Intellectual Property Law steps, however, must be taken to ensure that collecting societies establish reasonable tariffs and distribute compensations to the authors for the financial exploitation of their copyright works. From the other hand, these tariffs should be determined under economically viable conditions for the users in order to motivate them to ask for licenses.

BIBLIOGRAPHY 1. Arnold, R. Performer’ s Rights and Recording Rights (UK Law under the Performers’ Protection Acts 1958-72 and the Copyright, Designs and Patents Act 1988). ESC Publications, Oxford 1990.

2. Ficsor, Μ. The establishment and functioning of Collective Management Organizations; The main features.

Retrieved from: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=38604 (publication date: 1/1/2005).

3. Jones, A., Surfin, B. European Competition Law. 4th Edition. Oxford University Press Publications, Oxford 2011.

4. Kallinikou, D. “Copyright and Related Rights” (in Greek). 3rd Edition. P. N. Sakkoulas Publications, Athens 2008.

5. Kinini, E. “Collective Management Organizations and Free Competition Law” (in Greek).

Nomiki Vivliothiki Publications, Athens 2001.

6. Kotsiris, L. “Authors’ successors – The assignment of the collective management or protection to collecting societies” (in Greek). Published in the Greek law journal: Media and Communications Law (ΔιΜΕΕ). Nomiki Vivliothiki Publications. Athens 2006, pp. 317-325.

7. Kotsiris, L. “Intellectual Property Law” (in Greek). 5th Edition. Sakkoulas Publications, AthensThessaloniki 2010.

8. Kotsiris, L. Greek Copyright Law. Ius Publications, Thessaloniki 2012.

9. Koumantos, G. “Intellectual Property” (in Greek). 6th Edition. Ant. N. Sakkoulas Publications, Athens 1995.

10. Manteniotou-Liratzopoulou, K. “The collective management of related rights of performers and producers of sound recordings or video recordings or sound and video recordings in contemporary practice” (in Greek). Published in the Greek law journal: Chronicles of Private Law (ΧρΙΔ). P. N. Sakkoulas Publications. Athens 2004, pp. 378-383.

11. Marinos, M.-Th. “Intellectual Property” (in Greek). 2nd Edition. Ant. N. Sakkoulas Publications, Athens-Komotini 2004.

12. Mikroulea, A. “The effect of the Free Competition Law on the Intellectual Property Law and in particular on the Collecting Societies” (in Greek). Published in the Greek law journal: Overview of Commercial Law (ΕπισκΕΔ). Mentzelopoulos Publications. Athens 1999, pp.

452-476.

13. Sinodinou, T.-E. “The collective management of copyright in musical works and the contract for the phonographic industry” (in Greek). Published in the Greek law journal: Media & Communications Law (ΔιΜΕΕ). Nomiki Vivliothiki Publications. Athens 2008, pp. 35-43.

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Contemporary Issues on Intellectual Property Law 14. Stamatoudi, E. “Collective Management Organizations in the light of the European Competition Law” (in Greek). Published in the Greek law journal: Critical Review of Legal Theory and Practice (ΚριτΕ). Ant. N. Sakkoulas Publications. Athens-Komotini 1998, pp.

217-250.

15. Stavridou, S. “The control in the action of the collecting societies according to the article 54 of Greek Copyright Law” (in Greek). Published in the Greek law journal: Corporate and Business Law (ΔΕΕ). Nomiki Vivliothiki Publications. Athens 1997, pp. 944-953.

16. Stavridou, S. “The management contract in Copyright Law – A study on the relation between authors and Collective Management Organizations” (in Greek). Sakkoulas Publications, Athens - Komotini 1999.

17. Vagena, E. “The technological protection and the digital management of the Intellectual Property” (in Greek). Nomiki Vivliothiki Publications, Athens 2010.

18. Vazquez Lopez, V. Collective Management of Copyright and Related rights; Challenges in the Digital Environment.

Retrieved from: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=101377 (publication date: 20/5/2008).

19. Vossos, K. “The procedural privileges in favour of the Collective Management Organizations” (in Greek). Published in the Greek law journal: Media & Communications Law (ΔιΜΕΕ).

Nomiki Vivliothiki Publications. Athens 2011, pp. 461-475.

20. http://curia.europa.eu (European Law) 21. http://www.wipo.int (World Intellectual Property Organization) 22. http://www.opi.gr (The above-mentioned Greek case law is available online at the official website of the Hellenic Copyright Organization.)

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Contemporary Issues on Intellectual Property Law

Georgia Theologidou

CREATIVE COMMONS LICENSE

Aristotle University of Thessaloniki

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Contemporary Issues on Intellectual Property Law

I. Introduction A Creative Commons (CC) license is one of the several public copyright licenses which enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use, and build upon a work that he has created 392. The CC licenses which were initially released on December 16, 2002 by Creative Commons, a U.S. nonprofit corporation founded in 2001, provide authors with flexibility (for example, the author might choose to allow only non-commercial uses of his own work) and protect people, who use or redistribute an author's work, from concerns of copyright infringement as long as they abide to the conditions that are specified in the license under which the author distributes the work 393.

The regime of the Creative Commons licenses lies on the proprietary system that characterizes the current legislation. Therefore, work licensed under a Creative Commons license is governed by applicable intellectual property law 394 .However, the licenses aim at the same time at stimulating another practice of copyright in order to provide a different image than that of a system which restrains creation and access to works. Therefore the CC licenses can be considered as private agreements, which apply â&#x20AC;&#x2DC;on the top of the lawâ&#x20AC;&#x2122; as a form of exploitation of rights emerging from copyright395.

There are several types of CC licenses which will be analysed in the following chapters. The licenses differ by several combinations that condition the terms of distribution 396. These licenses can be applied to all work falling under copyright, including: books, plays, movies, music, articles, photographs, blogs and websites. However, the Creative Commons organization does not recommend the use of Creative Commons licenses for software.397

392

Lessig L., Code version 2.0,Basic Books, New York, 2006,p. 10, Lessig L., Free culture. How big media uses technology and the law to lock down culture and control creativity, Penguin Press, New York, 2004,p. 25, Lessig L., The future of ideas. The fate of commons in a connected world, Vintage Books, New York, 2001,p.

12, Lessig L., Code and other laws of cyberspace, Basic Books, New York, 1999,p. 16, Carver B., Share and share alike: Understanding and enforcing open source and free software licenses, Berkeley Tech. L. J. vol 40 (2005), 444, Katz Z., Pitfalls of open licensing: An analysis of creative commons licensing, IDEA. vol 46 (2006), 393.

393 Elkin â&#x20AC;&#x201C; Korren N., What contracts cannot do: The limits of private ordering in facilitating a creative commons, Fordham L. Rev. vol 74 (2005), 375,Conheim W., Creative commons nurtures the public domain, Information Today vol 19 (2002), 7.

394 Valimaki M. - Hietanen H.,The challenges of the creative commons licensing,Computer Law Review vol 6 (2004), 176.

395 Lessig L., The creative commons, Mont. L. Rev. vol 65 (2004), 11.

396 Carroll M.,Creative commons and the new intermediaries, Mich. St. L Rev. vol 45 (2006), 45.

397 https://wiki.creativecommons.org/FAQ#Can_I_use_a_Creative_Commons_license_for_software.3F.

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Contemporary Issues on Intellectual Property Law

II. The form of CC licenses a.

T HE FORMAT AND CONTENT OF CC LICENSES

With respect to the format of a CC license it should be noted that each Creative Commons license is divided into three different layers: the Commons deed (human-readable code), the Legal Code (lawyer-readable code) and the metada (machine -readable code)398. The first part of the license (Commons deed) summarises the content of the license in order to ensure that the user of the license, who does not possess any legal knowledge, can fully understand the rights and the restraints deriving from the CC license. The second part of the license (Legal code) describes in full detail using the appropriate legal terms the exact content of the license. Finally, the last part (metadata) of the CC license consists of technological data, which allow the recognition of the works licensed under a CC license399.

Icon

Right

Description Licensees may copy, distribute, display and perform the work and

Attribution (BY) make derivative works based on it only if they give the author or licensor the credits in the manner specified by these.

Licensees may distribute derivative works only under a license Share-alike(SA) identical to the license that governs the original work. (See also copyleft.)

Licensees may copy, distribute, display, and perform the work and make derivative works based on it only fornoncommercial purposes. However, the "non-commercial" Non-

option included in some Creative Commons licenses is

commercial (NC) controversial in definition, as it's sometimes unclear what can be considered a noncommercial setting, and application, since its restrictions differ from the principles of open content promoted by other permissive licenses.

398

Kallinikou D. - Karounos Th. â&#x20AC;&#x201C; Papadopoulos M.,The Greek version of creative commons licenses, DiMEE 2007, p. 379.

399 Papadopoulos M., The Greek version of creative commons licenses V3.0,http://www.marinos.com.gr/bbpdf/pdfs/msg70.pdf.

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Contemporary Issues on Intellectual Property Law

No Derivative

Licensees may copy, distribute, display and perform only verbatim

Works (ND)

copies of the work, not derivative worksbased on it.

Further regarding the content of a CC license the creator is free to choose among some "baseline rights" the ones he wishes to grant. Those ''baseline rights'' include the following options400: Mixing and matching these options produces sixteen possible combinations, out of which only the eleven are valid Creative Commons licenses. Out of the five invalid combinations, the four are invalid because they include both the "nd" and "sa" clauses, which are mutually exclusive; while the one is invalid because it includes none of the clauses 401. Finally, out of the eleven valid combinations, the five that lack the "by" clause have been retired because 98% of licensors requested attribution, though they do remain available for reference on the CC website. Therefore this leaves only six regularly used licenses402: Icon

Description

Acronym

Attribution alone

BY

Attribution + NoDerivatives

BY-ND

Attribution + ShareAlike

BY-SA

Attribution + Noncommercial

BY-NC

Attribution + Noncommercial + NoDerivatives Attribution + Noncommercial + ShareAlike

400

BY-NC-ND

BY-NC-SA

Kallinikou D.,Copyright law and related rights. Ant. N. Sakkoulas Publication. Athens – Komotini. 2008 (3rd Edition). p. 102.

401 Garlick M.,A review of creative commons and science commons, EDUCAUSE Review vol 40 (2005), 78.

402 Tsiavos P. Approaching the “creative commons licensing” issue: The legal, organizational, ideological and technological perspectives, http://www.ebusinessforum.gr/engine/index.php?op=modload&modname=Downloads&action=downloadsview file&ctn=1469&language=el.

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b. T HE RIGHT TO ATTRIBUT ION IN PARTICULAR The attribution of the original author appears to be the most important right granted to the author since all CC licenses have required since 2004 the attribution of the original author (the BY component).The attribution must be given to "the best of [one's] ability using the information available"403. Generally this implies the following:  Include any copyright notices (if applicable): If the work itself contains any copyright

notices placed there by the copyright holder, those notices must be left intact, or reproduced in a way that is reasonable to the medium in which the work is being re-published.  Cite the author's name, screen name, or user ID, etc: If the work is being published on

the Internet, it is nice to link that name to the person's profile page, if such a page exists.  Cite the work's title or name (if applicable), if such a thing exists: If the work is being

published on the Internet, it is nice to link the name or title directly to the original work.  Cite the specific CC license the work is under: If the work is being published on the

Internet, it is nice if the license citation links to the license on the CC website.  Mention if the work is a derivative work or adaptation: In addition to the above

mentioned, one needs to identify that their work is a derivative work, e.g., “This is a Finnish translation of [original work] by [author].” or “Screenplay based on [original work] by [author].”404

III. The legal framework of CC licenses a.

T HE GENERAL LEGAL FRA MEWORK

As it was mentioned above, all works licensed under a Creative Commons license are still governed by applicable intellectual property law. Therefore, the application of a Creative Commons license cannot modify the rights allowed by fair use and cannot exert restrictions, which violate copyright exceptions405. On the contrary, CC licenses can be considered as private agreements, which apply on the top of the law as a form of exploitation of rights emerging from copyright406.Furthermore, CC licenses are non-exclusive and non-revocable. As a result, any work or

403

"Frequently Asked Questions". Creative Commons. https://wiki.creativecommons.org/FFAQ#How_do_I_properly_attribute_a_Creative_Commons_licensed_work .3F 404 Kallinikou D. - Karounos Th. – Papadopoulos M., The Greek version of creative commons licenses, DiMEE 2007, 381.

405 Dusollier S., The master’s tools vs the master’s house: Creative commons vs Copyright, Colum. J. L. & Arts. vol 27 (2005), 278.

406 Feminella J., Online terms and conditions agreements: Bound by the web, St John’s Legal Comment. vol 17 (2003), 87.

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Contemporary Issues on Intellectual Property Law copies of the work obtained under a Creative Commons license may continue to be used under that license until the license is revoked407.

The original non-localized Creative Commons licenses were developed with the US legal system in mind. Therefore, the wording of these licenses was incompatible within different local legislations, which rendered the licenses unenforceable in various jurisdictions. To address this issue, Creative Commons ported various licenses to accommodate local copyright and private law. The porting process involved both linguistically translating the licenses and legally adapting them to particular jurisdictions. By August 2011, Creative Commons licenses have been ported in over 50 different jurisdictions worldwide408.

However, the latest version 4.0 of the Creative Commons licenses, released on 25 November 2013, consists of generic licenses, which are applicable to most jurisdictions and do not usually require ports. As a result, no new ports have been implemented after the development of the version 4.0 of the CC licenses, since this version aims at acting as a single global license 409.

b.

T HE COMPATIBILITY OF CC LICENSES TO THE G REEK

COPYRIGHT LAW The CC licenses were translated and introduced into the Greek legal system for the first time in 2007 following the initiative of Greek Free/Open Source Software Society, an organization which aims at developing and promoting Open Licensing in the public and business sector 410.

CC licenses constitute a type of non-exclusive license by virtue of which the authors can license the users to exploit some of their intellectual property rights under the restrictions that the authors place. In the Greek legal system similar types of licensing are established by virtue of Article 13 seq. of Law 2121/1993411. However, CC licensing has some fundamental differences compared to the licenses based on Law 2121/1993, as the grant of certain rights by the CC licenses appears to be incompatible with the provisions of Law 2121/1993. In particular, the modification of certain works can constitute a violation of the author's moral right to ensure that his work remains at its initial form (‘right of integrity’). Additionally, in CC licenses it seems quite difficult for the author to exercise the right of withdrawal, which is a very important right appointed to the author by virtue of Paragraph 1 of Article 4 of Law 2121/1993. Furthermore, the grant of the CC licence for an indefinite period of

407

Stilianou K., From “all rights reserved” to “some rights reserved”, DiMEE 2007, 215. ''Creative Commons FAQ'' https://wiki.creativecommons.org/FAQ 409 "What's new in 4.0?". Creative Commons. 2013. http://creativecommons.org/Version4 410 Further information see in Iglezakis I, Issues concerning the open licensing, EpiskEmpD 2007, 1065.

411 Kotsiris L.,Copyright law and the community acquis, Sakkoulas Publication,Athens – Thessaloniki, 2011, p.

212.

408

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Contemporary Issues on Intellectual Property Law time seems to contradict the provisions of articles 13 and 15 of Law 2121/1993 412. Nevertheless, taking into account that CC licensing does not aim at overthrowing the Intellectual Property legal system, since it is clearly stated in the CC licences that all works are still governed by the applicable intellectual property law, the concept of CC licensing should not be rejected. If the author wishes to grant certain rights to the users under the CC licensing, his contractual freedom to do so should not be restrained413. Finally, in order for these licenses to be compatible with the Greek legal system, they always have to be in written form complying with the requirements of Article 14 of Law 2121/1993 and should not touch upon moral rights, since the latter cannot be transferred in life (according to Paragraph 2 of Article 12 of Law 2121/1993).

IV. Case studies regarding CC licenses It is difficult to predict the legal implications of large numbers of works being licensed under Creative Commons licenses. However, there is speculation that media creators often lack insight to be able to choose the license which best meets their intent in applying it414.

Therefore, certain works licensed using Creative Commons licenses have been involved in several court cases. Creative Commons itself was not a party to any of these cases; they only involved licensors or licensees of Creative Commons licenses. When the cases went as far as decisions by judges (that is, they were not dismissed for lack of jurisdiction or were not settled privately out of court), all decisions have validated the legal robustness of Creative Commons licenses 415 . The following are some notable cases:

a.

T HE D UTCH T ABLOID C ASE

In early 2006, podcaster Adam Curry sued a Dutch tabloid who published photos from Curry's Flickr page without Curry's permission. The photos were licensed under the Creative Commons NonCommercial license. While the verdict was in favor of Curry, the tabloid avoided having to pay restitution to him as long as they did not repeat the offense416. Professor Bernt Hugenholtz, main creator of the Dutch CC license and director of the Institute for Information Science of the University of Amsterdam, commented, "The Dutch Court's decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content 412

Kallinikou D.,Copyright law and the relevant rights, Ant. N. Sakkoulas Publication, Athens â&#x20AC;&#x201C; Komotini, 2008, (3rd Edition), p.104.

413 Kallinikou D.,Copyright law and the relevant rights, Ant. N. Sakkoulas Publication, Athens â&#x20AC;&#x201C; Komotini, 2008, (3rd Edition), p.105.

414 Katz Z., Pitfalls of open licensing: An analysis of creative commons licensing, IDEA. vol 46 (2006), 393.

415 ''Creative Commons Case Studies''. https://wiki.creativecommons.org/Case_Law 416 "Creative Commons License Upheld by Dutch Court". Groklaw. http://www.groklaw.net/article.php?story=20060316052623594

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Contemporary Issues on Intellectual Property Law licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."417

b. T HE V IRGIN M OBILE C ASE In 2007 Virgin Mobile Australia launched a mobile add campaign promoting their cellphone text messaging service by using the work of amateur photographers who uploaded their work to Flickr using a Creative Commons-BY (Attribution) license. Users licensing their images this way made their work available for use by other entities without requiring any compensation, on the condition that the original creator was attributed credit418. Virgin upheld this single restriction by printing an URL leading to the photographer's Flickr page on each of their ads. However, one picture, depicting 15 year-old Alison Chang at a fund-raising carwash for her church, caused some controversy when she sued Virgin Mobile. The photo was taken by Alison's church youth counselor, Justin HoWee Wong, who uploaded the image to Flickr under the Creative Commons license. In 2008, the case (concerning personality rights rather than copyright as such) was thrown out of a Texas court for lack of jurisdiction419.

c.

T HE SGAE VS F ERNANDEZ C ASE

In the fall of 2006in Spain, collecting society Sociedad General de Autores y Editores (SGAE) sued Ricardo Andrés Utrera Fernández, owner of a disco bar located in Badajozwho,for playing CC-licensed music. SGAE argued that Fernández should pay royalties for the public performance of music during the period between November 2002 and August 2005. However, the Lower Court rejected the collecting society's claims because the owner of the bar proved that the music he was using was not managed by the society420.

417

''Digital Copyright and the Consumer Revolution: Hands Off My Ipod - Matthew Rimmer - Google Böcker''.http://books.google.se/books?id=1ONyncVruj8C&printsec=frontcover&dq=Digital+Copyright+and+t he+Consumer+Revolution:+Hands+Off+My+Ipod+-+Matthew+Rimmer+-+Google+Böcker 418 "No personal jurisdiction over Australian defendant in Flickr right of publicity case". Evan Brown (January 22, 2009). https://web.archive.org/web/20110713050011/http://blog.internetcases.com/2009/01/22/nopersonal-jurisdiction-over-australian-defendant-in-flickr-right-of-publicitycase/http://blog.internetcases.com/2009/01/22/no-personal-jurisdiction-over-australian-defendant-in-flickrright-of-publicity-case.

419"Lawsuit Against Virgin Mobile and Creative Commons – FAQ". https://creativecommons.org/weblog/entry/7680.

420"Case Studies". Creative Commons.http://creativecommons.org/weblog/entry/5830.

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d. T HE G ATE H OUSE M EDIA , I NC . VS . T HAT ' S G REAT N EWS , LLC C ASE On June 30, 2010 GateHouse Media filed a lawsuit against ‘That's Great News’. GateHouse Media owns a number of local newspapers, including Rockford Register Star, which is based in Rockford, Illinois. 'That's Great News' made plaques out of newspaper articles and sold them to the people featured in the articles. GateHouse sued ‘That's Great News’ for copyright infringement and breach of contract. GateHouse claimed that ‘That's Great News’ violated the non-commercial and noderivative restrictions on GateHouse Creative Commons licensed work by publishing the aforementioned material on its website. On August 17, 2010 the parties agreed on the settlement of the case421.

V. Conclusion In conclusion, the Creative Commons licenses appear to forge a balance inside the traditional “all rights reserved” setting, which is created by the copyright legal framework, since this type of license can provide every creator with a simple, standardized way to grant copyright permissions for his creative work. In particular, CC licenses help creators retain copyright; while at the same time they can allow other users to copy, distribute, edit and remix their work all within the boundaries of copyright law. For this reason, it is of great importance that CC licenses do not affect freedoms that copyright law grants to users of creative works otherwise protected by copyright, such as exceptions and limitations to copyright law.

Nevertheless, the grant of such extensive permissions on the behalf of the creator may give rise to certain concerns with respect to the compatibility of CC licenses to the Greek Copyright Law. However, as a matter of Greek Law those concerns can be waived taking into account the fundamental contractual freedom of the creator to grant consensually permission for any use of his work. Therefore, taking into account the flexibility that CC licenses can provide and the increasing popularity of the new technologies, which require such flexibility, the CC licenses are undoubtedly becoming an extremely useful tool in the distribution and use of creative works especially via internet and social media.

421"New Copyright Lawsuit Involves Creative Commons". Evan Brown (July 2, 2010). Internet Cases: A blog about law and technology.http://blog.internetcases.com/2010/07/02/new-copyright-lawsuit-involves-creativecommons.

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Bibliography 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

Kallinikou D. Copyright lawand relevant rights. Ant. N. Sakkoulas Publication. Athina – Komotini. 2008 (3rd Edition) Kotsiris L. Copyright law and the community acquis. Sakkoulas Publication. Athina – Thessaloniki. 2011.

Lessig L. Code version 2.0. Basic Books. New York. 2006.

Lessig L. Free culture. How big media uses technology and the law to lock down culture ande control creativity. Penguin Press. New York. 2004.

Lessig L. The future of ideas. The fate of commons in a connected world. Vintage Books. New York. 2001.

Lessig L. Code and other laws of cyberspace. Basic Books. New York. 1999.

Carroll M. Creative commons and the new intermediaries. Mich. St. L. Rev. vol 45 (2006). 45.

Carver B. Share and share alike: Understanding and enforcing open source and free software licenses. Berkeley Tech. L. J. vol 40 (2005). 444.

Conheim W. Creative commons nurtures the public domain. Information Today. vol 19 (2002). 7 Dusollier S. The master’s tools vs the master’s house: Creative commons vs Copyright. Colum. J. L. & Arts. vol 27 (2005). 278.

Elkin – Korren N. What contracts cannot do: The limits of private ordering in facilitating a creative commons.

Fordham L. Rev. vol 74 (2005). 375.

Feminella J. Online terms and conditions agreements: Bound by the web. St John’s Legal Comment. vol 17 (2003). 87.

Garlick M. A review of creative commons and science commons. EDUCAUSE Review. vol 40 (2005). 78.

Iglezakis I. Issues concerning the open licensing. EpiskEmpD 2007. 1065.

Kallinikou D. - Karounos Th. – Papadopoulos M. The Greek version of creative commons licenses. DiMEE 2007. 377 Katz Z. Pitfalls of open licensing: An analysis of creative commons licensing. IDEA. vol 46 (2006). 393.

Lessig L. The creative commons. Mont. L. Rev. vol 65 (2004) 11.

Papadopoulos M. The Greek version of creative commons licenses, v.3.0. http://www.marinos.com.gr/bbpdf/pdfs/msg70.pdf.

Stilianou K. From “all rights reserved” to “some rights reserved” DiMEE 2007. 215.

Tsiavos P. Approaching the “creative commons licensing” issue: The legal, organizational, ideological and technological perspectives, http://www.ebusinessforum.gr/engine/index.php?op=modload&modname=Downloads&action=downloads viewfile&ctn=1469&language=el.

Valimaki M. - Hietanen H. The challenges of the creative commons licensing. Computer Law Review vol 6 (2004). 176.

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Anna Michalou

THE LEGAL PROTECTION OF ARCHITECTURAL WORK BY INTELLECTUAL PROPERTY LAW

Aristotle University of Thessaloniki

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I. A NALYSIS OF ARCHITECTURAL WORKS AND THEIR PROTECTION Architectural works and the Greek law on intellectual property (Law 2121/93) The recognition of the protection of architectural works over the intellectual ownership patterns requires that the architectural work meets the requirements as described under the law of intellectual property. This protection concerns the architectural work itself and the form of the work is generally protected.

The architectural work are considered to fulfill the terms of legal protection, when the following legal requirements are cumulatively satisfied.

Human personal creation First of all, the architectural work must be a human piece of work, i.e. it must come from a natural person, from the architect-creator. The architectural work must have been created by a particular person and as a result those projects, which were carried out by machines or devices, are not protected by the Law 2121/1993.The human factor, which has contributed to the creation of the architectural work, must therefore exist in every case.

In case of using technical means, appliances, tools, the intellectual creator should be the one that coordinates the creation of architectural work, in order to say that we have here a human personal creation. As far as the products created through the use of a computer are concerned, they are protected by the law of intellectual property, when the computer doesnâ&#x20AC;&#x2122;t follow a stand-alone program, but there is an intellectual creator that decides according to its own human free will. In this case, technique is used as the mean of creation.

Intellectual content Furthermore, the architectural works, in order to be protected by the Intellectual Property Law, should refer to an intellectual background and constitute a unity that incorporates an aesthetic content.

Form-Idea/Material underlying According to article 2 paragraph 1 of the Law 2121/1993, fall within the scope of the Law 2121/1993 all the creations that show any form. There is therefore a distinction between protected

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Contemporary Issues on Intellectual Property Law form and free idea according to the above article that specifically defines “work means any original intellectual creation of speech, art and science that is expressed in any kind of form”.

According to the above article the creator is allowed for selecting the mode of expression and the form of the work. The idea is the stimulus for creative work and for the form, while the form is the means of expression of the intellectual products and it externalizes the idea of the creator.

The protection of each architectural work should not be seen as the protection of a united and undivided work, but we must distinguish between the different parts and elements of the work, from which others are found under the protection of Intellectual Property Law and others are not.

Consequently, the above described distinction is attributed to the division between “form” and “idea”. Beginning from the above mentioned division we assume that in the work ideas are not the subject of the protection by the Law 2121/1993, because ideas are a public domain. Every work is created in three stages: Firstly, an idea arises and comes along the inspiration. Secondly, follows the processing of the theme and the materials, namely the combination of ideas and thirdly, the work is completed by the expression and the externalization of the idea through the work itself. Subsequently, and in the architectural works is not protected the idea, that inspired the architect for the creation of his work, but the work itself, which is shown and externalized in every kind of form.

As far as the characteristic of material body –underlay, as important element for the protection of architectural work by the Intellectual Property Law, is concerned, has been made a special report in the International Convention of Bern (Paris) in the article 2 paragraph 2, pursuant to which there is a dependence between the protection of the work and their impression on a material form (Article 2 par.2: It shall, however, be a matter of legislation in the countries of the Union to regulate that works in general or any specified categories of works shall not be protected, unless they have been fixed in some material form).Besides, the distinction between material body and intangible property runs through the full content of Intellectual Property.

According to the greek law for Intellectual Property 2121/1993, the intellectual creation is intangible property. However, for the recognition of existence of architectural work by the I.P. Law there must be some aesthetic underlay, usually material, without the identification of architectural work with its material underlay. Specifically, the work according to I.P Law requires the ability of work’s perception with the senses, which is possible only when the work is expressed with at least one aesthetic underlay. The present problematic accepts that architectural creations must have a material or constant form, without being complete works in order to be protected by I.P Law. This is very important for the work of architects-intellectual creators, because the process from the creation of the first architectural plan until the completion of the construction work is long. Consequently, all the first and intermediate levels of creation, such as architectural models, drawings and also incomplete

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Contemporary Issues on Intellectual Property Law works are protected. They must be, in every stage of the creation, perceived and have a form impressed on a material body, through which they are externalized. In every case, the existence of an aesthetic underlay, through which the intellectual creation will be perceived, is essential. Besides the architectural works, as two-dimensional creations should be drawn at least on a piece of paper(material body).It’s not protected the underlay itself but the architectural work as intangible property with intellectual content.

The legal concept of originality Many theories have been formulated for the legal concept of originality. The position advocated in this essay is based on the dogmatic principle that according to the greek law the theory of statistical uniqueness and the theory of the height of creation are the basic theories for the threshold of originality. Emphasis is given on the personality of the creator and thus his work distinguishes from the previous work. Prevails in this field of science and in jurisprudence the judgement that under similar circumstances and with the same goals, no other intellectual creator, with reasonable probability, could be able to create a similar work or that the work shows unique characteristics or a minimum threshold of “height of creation”, in order to distinguishes and differ from the everyday works or from other similar works.

The originality of the work can be found in the characteristics of the architectural work (theme, conception, construction,) based on the type and nature of the architectural work. It is not sufficient to transfuse originality in an architectural work by simply the fact that this is not a copy of other work. In addition, originality doesn’t coincide with the effort, the diligent approach, the utility, the length, the duration required for its development, but it must show as entity or as separate part the required originality, and i.e. it is statistically unique. The above are also established in case-law and we can find for example the same principles in the very important legal decision from the Piraeus Court of Appeal with the number 281/2005 and in the legal decision from Areios Pagos (the Supreme Court of Greece) with the number 1118/2006.Furthermore, as the greek case-law shows that follows both the theory of statistical uniqueness and the theory of the height of creation, the architectural work is protected regardless of its artistic or aesthetic value and its destination.

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II. MORAL AND ECONOMIC RIGHTS OF THE ARCHITECT-CREATOR The moral and economic rights are the intellectual property rights given by the law to the intellectual creation, who in our case is the architect-creator. The greek law has adopted the monistic theory. According to this theory, the intellectual property right is a single composite right which includes the moral and economic powers with a relative independence between them. The moral right protects as a rule the intellectual rights of architect without being possible a separation of interests between moral and economic-material rights.

Characteristics and an overview of moral rights The moral right expresses the personal contribution and the bond of the creation with its creator and therefore its protection. The moral right through its exercise functions as a means of control by the architect-creator for the outward circulation of the architectural work. The moral rights leave the creator a considerable freedom of making decisions about the preservation of the architectural work’s appearance and its communication to the public .As a result of the importance of moral rights for the protection of the connection of the creator with his work, it is forbidden to waive these rights. In addition, moral rights represent the strong connection of the architect-creator with its architectural work and therefore the moral rights are non-transferable in vivo. The moral rights can be transferred from the creator only to his heirs after the creator’s death. The moral rights last as long as the creator is alive and for seventy years after his death according to Article 29 of the law 2121/1993 and its exercise is also subject to legal limits according to Articles 14 and 16 of the law 2121/1993.

The moral right of the architect as intellectual creator according to Article 4 of the greek law for I.P. 2121/1993 includes five moral authorities: i. The publication authority: the author has the right to decide if, when and how to publish and present his work. ii. The authorship of the work: the power of the creator to mention his name on each copy of the work or in any public presentation or publication of his work. The architect has also the right to keep his anonymity or to use a pseudonym. iii. The right to the integrity of the work, i.e. to prohibit any distortion, abridgement or other modification of the work. iv. The right of access, i.e. the authority of the author to have access to his work, even if the work’s economic right or ownership belongs to a third person, in which case access must be granted in a way that causes the minimum possible annoyance to the right holder.

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Contemporary Issues on Intellectual Property Law v. The moral authority of repudiation, which gives the author the right to repudiate contracts of transfer or exploitation of literary or scientific works, if this is necessary for the protection of his personality, due to changes in his beliefs or circumstances, and with the obligation to compensate the counter party for his positive damages.

In this project the right to the integrity will be further discussed.

The right to the integrity of the work This project focuses on an issue of great practical and legal importance concerning the right to integrity of the work, i.e. the conflict between the right to integrity and the right of ownership.

Specifically, as far as the architectural works are concerned, there is a conflict between the intellectual property right of the architect-creator and the ownership right of the property-owner in relation to the protection of the right to integrity.

This coexistence of these two rights in architectural work allows future modifications according to the developing building and construction techniques, which usually are imposed by force majeure and not by aesthetic.

It is examined as well whether there are any grounds for restriction on the right of the owner of the architectural work in favour of intellectual property right, like it happens for example in the situation of architectural works placed in public or private space. If the architectural work is in a public space, it will be visible to a wide circle of persons and there must be a limit to the way of its presentation. It must be presented as close as possible to its original form. Subsequently, the owner of architectural work has the obligation to preserve the work in its original form and not to infringe the integrity of the work. On the contrary, in the case that the work is in a private space, the control of owner’s use of the work is very difficult. Furthermore, in every case the use of the work must be examined, in order not to affect the substance of the work, the reputation of the creator and not to infringe the right to integrity with any kind of modification.

The boundaries, that function as borderline in relation to modifications and changes, that the architect creator must tolerate, are defined by the following factors: the form and the intensity of offence and the height of the creation.

The form and the intensity of offence are of great importance, in order to take place a balancing of interests. As far as the form of offence is concerned, it is very important to define the incentive of the work’s change. If the incentive is functionality or the purpose of use, the interests of intellectual creator will be considered secondary and subordinate to the owner’s interests. The offences that concern the general component parts of the work, must become accepted by the architect-creator, because they are not closely related to architects’ intellectual property rights. On the

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Contemporary Issues on Intellectual Property Law other hand, if the offences are related to components that show the uniqueness of the work, the interests of architect must be regarded as more important than the owner’s interests. As far as the intensity of the offence is concerned, it is accepted that the stronger and deeper the form of offence is, the more justified is the architect’s refusal of the changes on his work.

One more important criterion is the height of the creation. The bigger is the uniqueness of the work, i.e. the level of creative particularity, the more important are the creator’s personal and intellectual interests against those of the owner.

In the case of the construction works, which serve a purpose of utility, there is a small height of creation, because the definition of the purpose leaves a free space for creative activity. The modification of an absolute aesthetic and artistic construction will be allowed in very few cases, because of the work’s high level of creative particularity, in contrast with the buildings that serve the fulfilment of a specific purpose of use.

All the other individual issues must be examined with the question whether a change of the work, that had be drawn by the owner or has just happened, would infringe the creator’s intellectual property rights and would cause a distortion, mutilation or other modification of his work and any offence to the author. That would, however, does not necessarily mean that any change will lead to change restrictions. On the contrary, there will be a balance of interests since the right of property and the right of intellectual property are both protected by the greek Constitution.

The unique characteristics of architectural works due to the purpose they serve, i.e. the practical needs they serve, strengthen the owner’s interests against those of architect-creator.

Subsequently, some changes to the integrity of the work are inevitable. Both the architect’s moral right and the owner’s property right must be exercised in such way that they preserve the harmony of intellectual property.

The conflict of interests can occur at the stage of preliminary study and design or at the stage of final design or at the completion of architectural work. As far as the moral right is concerned, we conclude that the owner’s property right prevails from the creator’s moral right, because the majority of architectural works is aimed at meeting the needs and at a specific use and the aesthetic pleasure doesn’t prevail.

The complete satisfaction of owner’s interests often leads to a conflict of moral rights and restrictions of the creator’s intellectual property rights. In either case, the balance of interests must be based on each individual case and depend on the type of architectural work, the creative elements of the work, the height of the creation and the purpose, which the specific architectural work serves. The above approach seems to settle determinedly and in a convincing the conflicting interests without unnecessary theorizing. As a result, a change always through a balance of interests is allowed, when

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Contemporary Issues on Intellectual Property Law the purpose of the architectural work requires it. Absolute aesthetic works and designs never excuse any changes. In each case, the aim is the intellectual property rights to be influenced as little as possible.

In conclusion, the ownerâ&#x20AC;&#x2122;s interests prevail against those of architect, when economic, constructional or functional connections lie at the heart. It is recommended to enter into a written agreement within the framework of a design contract. This will ensure, that a conflict will be avoided in the case of proposed changes on the architectural works.

III. THE ECONOMIC RIGHTS OF THE ARCHITECT The economic rights refer to the economic utilization of the architectural work. An overview of the economic rights of architects follows.

The right to authorize or prohibit the reproduction of the work The reproduction of the work is provided in the article 3 of the law 2121/1993 and in article 9 in the International Convention of Bern (Paris). In the case of the architectural works, the reproduction right usually happens and is fully realized in the case of architectural plans and design.

Specifically, the architectural plans can become the basis for the construction of other similar buildings or to become a subject of reproduction of other plans, pictures or photos. The most important forms of reproduction for an architect are: the imitation, i.e. the copy of the original construction work or of the architectural plan or drawing or the illustration on a promotional brochure or card-postal or the construction of the same architectural work.

The right of arrangement, adaptation or other alteration of their works The right of arrangement is provided in the article 3 of the law 2121/1993 and in the article 12 of the International Convention of Bern and has an important practical use on literature work and on the works of music industry and not so often on architectural works. In the field of Intellectual Property Law, arrangement is the transfer, the performance of the work to another form accompanied by alterations of specific elements of the work and covers any alteration in the form and structure of the work. The arrangement is the result of a creative process based on the existing work.

On the other hand, there is no arrangement but free creation, when the original existing architectural work functions only as a source of inspiration for the creation of a new work.

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The right of distribution of the work to the public The article 3 paragraph 1 element d of the law 2121/1993 refers to the right of distribution both for the original works and for the copies in harmony with the Directive 2001/29.Distribution of architectural works to the public is the sharing and distribution of architectural creations to the public from the architect-creator or from third persons and the granting of work’s or the copies’ use to third parties.

The distribution right is specifically regulated in article 6 of WIPO, whereas in the articles of International Convention of Bern there are no references to this right and only the distribution cinematographic works is regulated. The right of distribution relates to the original and copies of architectural works and protects the material body, which integrates the architectural work. In the article 3 is regulated that these rights shall not be exhausted by any act of communication to the public in the European Community, as set out in this provision. This regulation protects the creator from a probable exhaustion of the right after the first sell of the material body of the architectural work by the right holder or with his consensus in every country of the world. Specifically, this regulation provides that the first sell or transfer of the material body or its copies in the European Community demands the consensus of the right holder or these actions must be done by the architect himself.

As far as the architectural works and the creations that are presented in digital form are concerned, subject of the distribution right will be solely considered the exchange of software systems peer to peer, in order to be able the users to download and display on their computer the files, that incorporate architectural works protected by the intellectual property.

The right of communication to the public of their works According to article 3 paragraph 1 element h of the law 2121/1993, as it was amended by the article 81 of the law 3057/2002, is provided the communication to the public of their works, by wire or wireless means or by any other means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them. The use of the term ‘communication” in the article 3 of the greek law 2121/1993 is very wide and it covers all the forms of presentations according to the most recent technical developments. It should be clarified that the public communication is on the one hand addressed to a wide circle of persons not related with a personal connection, on the other hand it is not required that the presentation of architectural work identifies necessarily with public space , in order to be characterized “public”.

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Contemporary Issues on Intellectual Property Law The right of communication to the public has a practical application for the digital environment and it is related with the right of arrangement. It refers to the ability of access to the architectural works wherever and whenever they choose. The right of communication to the public differs from the right of radio broadcasting.

The right of broadcasting the architectural works One more power of the economic rights is “the broadcasting or rebroadcasting of their works to the public by radio and television, by wireless means or by cable or by any kind of wire or by any other means, in parallel to the surface of the earth or by satellite”, according to article 3 paragraph 1 element g of the law 2121/1993 as it was amended by article 81 of the law 3057/2002. It is also regulated in article 11 of WIPO Convention.

The broadcasting or rebroadcasting of the work is probable to be related with architectural works, which are presented under television broadcasting, in documentaries, in ordinary tours to museums etc. Both the broadcasting and the rebroadcasting can be cable, satellite or television broadcasting or rebroadcasting.

The creator can allow or forbid every form of broadcasting or rebroadcasting of the work and he can also transfer this right to different persons with a different license each time, because the work is directed every time to a new different audience. The broadcasting right is not a very important and profitable way for the economic exploitation of the architectural work. However, it aims to the protection of architect’s intellectual property rights.

Resale Right - Droit de Suite According to the article 5 of the greek law 2121/1993, this right aims to support the creators of figurative artwork and functions as a privilege helping them to promote their work and its economic exploitation. It is an additional reward for the creators for their artwork, whose economic exploitation is very limited due to their rarity and the “solitude”, because of its unique integration as a rule, which leads to the alienation of the creator from the material body of his work.

It is a right with its own specificity, a sui generis right and it is also a peculiar right, because it shows differences with the other moral and economic rights. This right has no application for architectural works. It comes from the category of the economic rights, but it differs. It doesn’t have the absolute character of economic rights. It cannot be transferred as long as the creator is alive and it cannot be transferred to his heirs after his death. The creator of figurative artwork and his heirs can request a percentage of the price paid to any original work’s resale in public.

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Contemporary Issues on Intellectual Property Law At this point I must state of course the opposite view, which argues that the architectural works belong to the works of fine arts. This opinion comes as a result of different interpretations of the definition of listed works in the article 2 of the greek law 2121/1993.Therefore, the architectural works are not excluded from the resale right.

On the other hand, there is the prevailing opinion that considers that the quotation of the works of fine arts is distinguished from the architectural works through the conjunction “and” in the article 2 of the greek law 2121/1993.There is another important difference between the architectural works and the works of fine arts. The architectural works beyond the aesthetic effects serve a purpose of utility and functionality.

IV. PENALTIES-LEGAL FRAMEWORK The greek law of intellectual property 2121/1993 protects the creator in relation to his work.

The architectural works aren’t protected themselves, i.e. it’s not legal protected the so called “monuments protection”.

For this reason, active legitimated, i.e. the one who is legitimated to sue for the protection of his work’s moral and economic rights, is the architect as an intellectual creator. After the creator’s death, the right of intellectual property is transferred to the heirs, which are now legitimated. After seventy years since the creator’s death according to the Article 29 par. 2 of the law 2121/1993 active legitimated is the Minister of Culture, because ends the protection of intellectual property rights. All co-creator can autonomously exercise their legislative claims without the involvement or the consent of another co-creator.

Judicial measures We will focus on the judicial measures, which are constituted by the application for interim measures, civil, administrative and criminal provisions.

Injunction measures and Precautionary Evidence Injunction measures are an additional measure that is ordered by the One-member First Instance Court, when there is a degree of danger probability for the infringement of intellectual property rights. According to Article 64 of the law 2121/1993, in case of alleged infringement of copyright or related right provided for by articles 46 to 48 and 51 or the special right of database creators, the One-member First Instance Court shall order the precautionary seizure of items in the possession of the alleged infringer that constitute means of commission or product or evidence of the infringement. Instead of precautionary seizure, the court may order the detailed description of such Page 205

Contemporary Issues on Intellectual Property Law items, including the taking of photographs. Article 687ยง1 of the Code of Civil Procedure shall be applied in such cases and a provisional order shall be issued according to article 691ยง2 of the Code of Civil Procedure.

Civil Sanctions According to Article 65 of the law 2121/1993, in any case of infringement or threat of infringement of copyright or related rights, the author or the right holder may claim the recognition of this right (article 70 of the Code of Civil Procedure), the discontinuation of the infringement and its omission in the future, which the architect can claim, when the danger is probable at present or in the future. An owner of the work, who by intent or negligence infringes copyright or a related right of the architect-creator shall indemnify that owner for the moral damage caused, and be liable for the payment of damages of not less than twice the legally required or normally payable remuneration for the form of exploitation which the infringing party has effected without license. Instead of seeking damages, and regardless of whether the infringement was committed by intent or negligence, the author or the right holder of the related right may demand either the payment of the sum accrued by the infringing party from the unlicensed exploitation of a work, or of the object of a related right, pursuant to Articles 46 to 48 and 51 of this Law, or the profit gained by the infringing party from such an exploitation.

Criminal sanctions In Article 66 the law 2121/1993 establishes a complete and independent criminal system of protection of intellectual property with severe penalties. The infringement of the intellectual property right is a misdemeanor which is punishable by up to a year in jail and include a payment of a fine of 2900-1500 euros and is prosecuted ex officio. It becomes a felony, when is done in a professional way and in a commercial case and as a result there are more severe penalties by the law 2121/1993.

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B IBLIOGRAPHY 1. Ioannou T.,Likiardopoulos K, Intellectual Property, second edition, 1962.

2. Kallinikou D., The fundamental rights of the Law.2121/1993 and related rights, 1994.

3. Kallinikou D, The jurisprudence for Intellectual Property, 1986.

4. Kotsiris Lambros, The Intellectual Property Law, sixth edition, 2011.

5. Melas V., The protection of architectural works under the Intellectual Property Law, EEN 31/1964.

6. Papadopoulou A., The creator’s right to integrity of his work, 1997.

7. Alexander- Katz, Paul, Die geistige Arbeit der Deutschen Architekten und Ingenieure und ihr Rechtsschutz, Berlin, 1986.

8. Beigel Herbert, Urheberrechte des Architekten, IBR 1995, 256.

9. Eich Rainer, Interessenkonflikt : Werk der Baukunst und Kunst Im Bau, IBR 1998, 483.

10. Engl.Sabine, “Der Urheberrechtsschutz für Architektenleistungen“, 2004.

11. Hancks Gregory B., Copyright Protection for architectural Design-A Conceptual and Practical Criticism, 71 Washington Law Review, 177-203(1996).

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Notes

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