Vassilis D. Maroulis,
Attorney at law (thridax/at/hol.gr)
This chapter aims to provide a succinct description of the proceedings for the implementation of Directive 2001/29/EC (“the Directive”) in Greece, of the changes brought about as a result in pre-existing Greek legislation on intellectual property rights and of the views of groups or organizations interested in the matter.
A summary presentation of the national legislative background will precede an account of the implementation procedure. A detailed description of the amendments to the Greek law on Intellectual Property will follow. An account of the reactions and respective positions of the organizations, corporations or groups interested in the matters touched by the Directive will close the report.
Until fairly recently, regulation of intellectual property matters in Greece was ensured by a number of laws enacted at wide intervals. The fundamental legislative text, Law 2387/1920, had been the first attempt at a comprehensive treatment of intellectual property matters; it afforded a degree of protection of rights in compliance with the requirements prevailing at the time of its promulgation and enabled Greece to participate in the international initiatives for a more effective protection of intellectual property rights.
Greece became a party to the International Treaty of Berne and its subsequent revisions (Royal Decree 16/31.3.1921, Law 5257/1931, Law 3565/1956) and to the 1952 World Treaty of Intellectual Property of Geneva (Legislative Decree 4254/1962).
After the fall of the military regime in the mid-1970s, a number of laws (1064/1980, 1597/1986, 1805/1988) regulated various aspects of intellectual property. In 1990, the Government took the initiative to put an end to fragmentation of intellectual property law; a new law was passed on February 11, 1993 and published in the Government’s Gazette on March 4, 1993, as law 2121/1993. It entered into force on the day of its publication and has been ever since the main instrument of regulation of intellectual property matters, alongside the above-mentioned international treaties to which Greece is a party.
Law 2121/1993 originally implemented the pre-existing EU Directives, Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. It was thereafter repeatedly amended either to address regulation needs that arose subsequently to its promulgation or to implement EU legislation.
Thus, new EU legislation was incorporated
into law 2121/1993 first by law 2819/ 2000 implementing the Directive 96/9/EC
of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases, then by law 2557/ 1997 implementing the 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 as well as Council Directive 93/98/EEC of 29 October 1993
harmonizing the term of protection of copyright and certain related rights.
Greece was the
first EU member state to incorporate the Directive 2001/29/EC (“the Directive”)
into its intellectual property legislation. It did so well ahead of the deadline
set by the Directive (December 22, 2002). On August 27, 2002, the Minister of
Culture introduced a bill comprising, among other things, the provisions
implementing the Directive before the second formation of the vacation
section of the Parliament; the bill was eventually voted into law by the
third formation of the section on September 19, 2002. Law 3057/2002, entitled “Amendment
and Completion of Law 2725/99, regulation of matters pertaining to the Ministry
of Culture and other provisions” was published in the Government’s
Gazette on October 10, 2002 (issue 239A). Section 81 of Law 3057/2002, entitled
“Implementation of 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 and other provisions”
(“Section 81”) implements the provisions of the Directive. According to section
84 of law 3057/2003, its date of entry into force coincided with the
circulation of the issue of the Government’s Gazette unless otherwise
stipulated by any of its provisions. Since Section 81 contains no such
stipulation, the implementation of the Directive was effected on October 10,
2002. A translation into English
of Section 81 is available at the website of the Greek Ministry of Culture
(http://www.culture.gr/8/84/ e8401.html).
In keeping with an unfortunate but well-established habit of the Greek legislature, the provision implementing the Directive was inserted into an unrelated bill of which it formed, quantitatively, but an insignificant part. As a result, on September 19, 2002, when the group of sections comprising section 81 was brought for discussion before the Parliament, the limitations imposed by the tight time-schedule forced the MPs of the various political parties to use their allotted time debating other sections related to politically charged issues and all but ignore the implementation of the Directive.
The Minister of Culture, Evanghelos Venizelos told the Parliament that the proposed provision of section 81 of the Bill essentially consisted of a translation of the Directive to be implemented, thereby implying that there really was no sense in extensively debating it. An MP of the Greek Communist Party, Ms Liana Kanelli, deplored this state of affairs and regretted the rejection by the Government of her party’s proposed amendments to section 81 (which however were not specific to the provisions of the Directive but identical to those proposed by her party in 1993 during the parliamentary debate on the bill that was to become law 2121/1993) but declared that her party would vote for the implementation of the Directive as proposed, since such implementation is mandatory under the EU treaty. Section 81 was eventually unanimously voted into law in the form proposed by the Government.
The Minister’s statement describing the provision of section 81 essentially as a translation of the Directive was accurate; all of its mandatory provisions were adopted. As for the optional provisions, most of the exceptions enumerated by Article 5 of the Directive were already provided for by law 2121/1993.
As the latter is a reasonably recent legislative text, it should come as no surprise that many of the matters mentioned by the Directive (modern aspects of the intellectual property rights, the extent of their protection and the sanctions safeguarding their respect) were already recognized and regulated. This state of affairs allowed the implementation of the Directive in the manner already adopted with respect to implementation of previous EU legislation as mentioned above, i.e. by adapting, modifying or adding to the provisions of the existing law rather than by passing a new one.
The amendments brought about by section 81 are
threefold: the meaning of intellectual property rights is now expressly
construed – and the extent of their exclusivity newly defined – so as to
encompass the aspects relating to the enabling by digital technology of new
forms of dissemination of protected content; new provisions were inserted to
protect the technological measures and rights-management information; the
pre-existing system of sanctions was updated to comply with the newly defined
needs. Needless to say, the layout of the provisions of Section 81 more or less
follows the layout of the Directive.
Paragraph 1 of section 81 amended section 3 paragraph 1 of law 2121/1993 on the power of the right holder to permit or forbid reproduction of his work by listing “the direct, indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” as instances of reproduction, in compliance with the provision of Article 2 of the Directive.
It also replaced the reference, (letter d of section 3 paragraph 1) to circulation of the works by the term “right of distribution” (Article 4 paragraph 1 of the Directive) and added that the distribution right shall be exhausted within the Community only where the first sale or other transfer of ownership in the Community of the original or copies is made by the rightholder or with his consent (Article 4 paragraph 2 of the Directive).
It listed (letter e of section 3 paragraph 1) the rental or public lending with respect to the original or copies of the works as distinct rights and specified that such rights shall not be exhausted by sale or other act of distribution of the original or of the copies, except in the case of architectural works and works of applied arts; it also specified that the rental and public lending shall have the meaning provided by Council Directive 92/100 of November 19, 1992.
Finally, it specified the various manners of presentation to the public which come within the scope of the rightholder’s power (letter h of Article 3 paragraph 1), by listing the transmission 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; it also specified that these rights shall not be exhausted by any act of communication to the public (Article 3, paragraphs 2 and 3 of the Directive).
Paragraphs 3, 4 and 5 of section 81 amended sections 46, 47 and 48 of law 2121/1993 regarding the related rights held by performers or performing artists, producers of sound recordings and audiovisual recordings and radio and television organizations and aligned them with the stipulations of Article 2, Article 3 paragraphs 2 and 3 and Article 4 of the Directive, especially concerning the rights of reproduction, distribution, reproduction or communication to the public, rental and public lending as well concerning the question of exhaustion of the rights.
With respect to performing artists, the new paragraph 2 of section 46 supplemented the definition of their rights (the recording of the performance, the reproduction of the recording, the circulation by transfer of ownership, lease or public lending of the material, support of the recording and radio or TV transmission whether by electromagnetic waves, satellite transmission or cable) to bring them in line with the provisions of articles 2, 3 par. 2 and 3, 4 of the Directive.
Regarding producers of sound recordings and/or audiovisual or visual recordings, paragraph 4 of section 81 added two new sections to section 47 of law 2121/1993, rena-med producers of sound recordings “phonogram producers” and producers of visual or sound and visual recordings “producers of audiovisual works” and brought their rights in line with above-mentioned provisions of the Directive.
As to radio and television organizations, paragraph 5 of section 81 also redefined their rights in compliance with above-mentioned provisions of the Directive.
Paragraph 2 of section 81 implemented the provisions of Article 5 of the Directive concerning exceptions and limitations.
The mandatory exception provided for by Article 5 paragraph 1 of the Directive was implemented by the insertion into law 2121/1993 of a new section 28B which reproduces exactly the content of said Article of the Directive with a rearrangement of the wording which however does not in the least deviate from the meaning of the original provision.
Of the permissible exceptions listed in paragraphs 2, 3 and 4 of Article 5 of the Directive, section 81 only implemented the exception of paragraph 3 letter (b) concerning uses for the benefit of people with a disability by extending it to blind and deaf-mute persons and by providing for the possibility of future extensions for the benefit of additional categories of disabled people (new section 28A of law 2121/1993).
It should be mentioned, however, that law 2121/ 1993 already comprised a wide range of exceptions analogous or identical to most of those mentioned in paragraphs 2, 3 and 4 of the Directive, such as exception for reproductions on paper or similar media by the use of any kind of photographic or equivalent technique for private use (Art. 5 par. 2 letters a and b of the Directive corresponding to section 18 of law 2121/1993), reproduction by public libraries, educational establishments or museums, or by archives (Art. 5 par. 2 letter c of the Directive corresponding to section 22 of law 2121/1993), use for the sole purpose of illustration for teaching (Art. 5 par. 3 letter a of the Directive corresponding to section 21 of law 2121/1993), use of protected works or other objects while presenting topics of current interest or of broadcast works to the extent justified by the purpose to inform (Art. 5 par. 3 letter c of the Directive corresponding to section 25 of law 2121/ 1993), quotations for criticism or review to the extent required by the specific purpose (Art. 5 par. 3 letter d of the Directive corresponding to section 19 of law 2121/ 1993); use to ensure the proper performance or reporting of administrative or judicial proceedings (Art. 5 par. 3 letter e of the Directive corresponding to section 24 of law 2121/1993); use during official celebrations (Art. 5 par. 3 letter g of the Directive corresponding to section 27 of law 2121/1993); use of works, such as works of architecture or sculpture, made to be located permanently in public places (Art. 5 par. 3 letter h of the Directive corresponding to section 26 of law 2121/1993), use in anthologies used for teaching purposes and in school textbooks.
Finally, paragraph 2 of section 81 incorporated the general clause on exceptions (three steps test) into law 2121/1993 (new section 28C).
The provisions of Article 6 of the Directive concerning protection of technological measures were implemented in their entirety by the provision of subsection 11 of section 81, which inserted a new section 66A into law 2121/1993. In essence, section 66A reproduced verbatim the content of the first three paragraphs of Article 6 of the Directive and provided for a mechanism implementing the provisions of the last paragraph of Article 6 with respect to voluntary or mandatory exceptions or restrictions as provided therein.
The definition of Article 6 paragraph 3 of the Directive is reproduced in new section 66A paragraph 1 of law 2121/1993. Paragraphs 2 and 3 of section 66A introduced prohibitions of the acts described in paragraphs 1 and 2 of Article 6 of the Directive respectively. Paragraph 4 provides for sanctions in the event of violation of the prohibitions of the preceding paragraphs; it threatens imprisonment of at least one year and a fine of 2,900—15,000€ and entails the civil sanctions of section 65 of Law 2121/1993: payment of damages, pecuniary penalty, personal detention, restitution to the rightholder of the illicit profit realized by the transgressor etc. It also empowers the one-member first instance court to order an injunction in accordance with the Greek Code of Civil Procedure as well as seizure of the objects constituting proof of the infringement of the protected rights. Alternatively the court may order the creation of a detailed inventory (including photographs) of such objects.
Lastly, paragraph 5 of section 66A introduced the mechanism for the implementation of the exceptions and restrictions referred to by paragraph 4 of Article 6 of the Directive. It stipulates that, relating to the limitations to certain intellectual property rights[1], should the rightholders fail to take voluntary measures including agreements between themselves and third parties benefiting from the exception, then the rightholders themselves as well as such third parties may ask for the assistance of one or more mediators selected from a list set up by the Copyright Organization. The mediators make recommendations to the parties. If no party objects within one month from the forwarding of the recommendation, all parties are deemed to have accepted the recommendation. Otherwise, the dispute is submitted to the Court of Appeal of Athens for final settlement. It is furthermore stipulated that this provision shall not apply to works or other subject-matter available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 7 of the Directive on the obligations of member states in regard of information on rights management is another instance of almost verbatim transposition of its provisions into law 2121/1993. Paragraph 11 of section 81 added a new section 66B to law 2121/1993. Paragraph 1 of the new section exactly reproduced the definition of "rights management information" as given by the Directive. Paragraph 2 introduced a general prohibition of the activities described in paragraph 1 of Article 7 of the Directive. Paragraph 3 declared transgression of the prohibition punishable by imprisonment of at least one year and a fine of 2,900—15,000€ and by the civil law sanctions of section 65 Law 2121/1993 as described in the preceding section. The one-member First Instance Court may order injunction in accordance with the Code of Civil Procedure, and may order seizure of the objects constituting proof of the infringement of the protected rights. Alternatively the court may order the creation of a detailed inventory (including photographs) of such objects.
As previously
mentioned, law 2121/1993 being a recent piece of legislation, it provided,
right from the time of its promulgation, for a high degree of protection of
intellectual property rights. Chapter 11 of the law is exclusively devoted
to sanctions, civil as well as penal, threatened against transgressors of the
protected rights. It also provides for provisional relief in the event of an
emergency or in order to avoid an imminent danger.
In view of this
situation, the requirements of the provisions of paragraphs 1 and 2 of
Article 8 of the Directive were already fulfilled and no extensive amendments
were required for their implementation. Paragraphs 9 and 10 of section 81 adjusted
the wording of the existing provisions particularly regarding the description
of the actions constituting offensive behavior in order to make it coincide
with the terminology of the Directive concerning protected rights.
Two new provisions were
inserted by virtue of paragraphs 8 and 14 of section 81 respectively. The first
allows, in compliance with the provision of Article 8(3) of the Directive, for
provisional relief against intermediaries whose services are used by a
third party to infringe a copyright or related right or the sui generis
right of a data base maker (new section 64A of law 2121/1993). The second
submits felonious infringement of copyright and related rights directly to
the jurisdiction of the three-member Court of Appeal for Felonies (addition
to section 66 paragraph 3 of law 2121/1993).
For penal sanctions,
infringement of the rights protected by law 2121/1993, as currently in force,
or by multilateral international conventions on the protection of copyrights
ratified by Greece, is punishable by imprisonment of not less than one year and
by a fine from 2,900—15,000€. However, in the event the illegal benefit of the
transgressors was exceedingly high, the minimum penalty of imprisonment and
the fine margins are doubled. Finally, in case the transgressor commits the illicit
actions on a professional basis or the circumstances under which such actions
were committed show that the transgressor represents a particular danger to intellectual
property rights, the penalties threatened are further raised to a minimum 10
years of imprisonment, a fine of 14,673—58,694€ and revocation of the license
of the enterprise through the medium of which the illicit acts were committed.
Punishment of the transgressions requires criminal intent (of any degree) on
the part of the transgressor; acts committed by negligence are not
punished.
The haste with which
the Greek Government introduced the provisions of the Directive into Greek
law, the fact that it happened to introduce the relevant bill for discussion
before Parliament during the summer, the adoption of the method of embedding
the provisions on intellectual property in a thematically unrelated
legislative context, and the presentation of the matter as the carrying out of
a formal task consisting in introducing a translation of non-negotiable EU
legislation of a technical nature (particularly regarding the measures of
protection, circumvention and circumvention devices) effectively prevented
any public debate at the time of promulgation of law 3057/2003.
As far as the writer
of this report was able to ascertain, the Greek Intellectual Property Organization
(a public law entity, supervised by the Ministry of Culture) has not up to date
published or otherwise made available a critical appraisal of the implementation
of the Directive.
The same applies to A.E.P.I.
(http://www.aepi.gr), a long-standing company for the collective management
of intellectual property rights which administers and represents in
Greece almost the whole of Greek and foreign repertory. A.E.P.I.’s chief concern
is to collect the due to the copyright holders and to suppress illegal
exploitation of intellectual rights; therefore it is not averse to measures
leading to an enhanced degree of protection.
Organizations such as BSA (Business Software Alliance) or the Union of Greek Producers of Phonograms (the Greek branch of the International Federation of Phonographic Industry), anxious to see piracy curbed, predictably expressed themselves in favour of strict measures of protection of intellectual property rights and consider the provisions of the Directive as a step in the right direction.
Critical voices emanated from Digital Rights Greece, an online site dedicated to promoting the
freedom of speech online (http://digitalrights.uoa.gr). It took issue mainly
with the provisions of Article 6 of the Directive on technological measures and
complained that the restrictions these end up imposing overshoot the needs of
copyright protection. It pointed out that the exceptions to the rules of
Article 6 of the Directive are practically insignificant. The Hellenic Linux Users
Group (http://www.hellug.gr), in a
statement issued after promulgation of law 3057/2003 also complained of the
excessively restrictive effects of technological protection measures,
especially regarding the use of audio CDs and region-locked DVDs.
Finally,
the provisions of the Directive and their implications on the various fields of
activities affected by its scope were discussed in a conference organised in
April 2003 by the Athens Bar Association. The contributions of the participants
and the conclusions of the discussion that ensued were unfortunately not
available for review at the time of drafting of the present report; they are
however due for publication in the course of the summer and would then
provide an opportunity for an update of this section.
Directive 2001/29/EC
was implemented in Greece by Law 3057/2002 (publication date October 10, 2002).
Virtually no debate or exchange of views between the interested parties
preceded the introduction of the relevant bill before Parliament. The implementation
itself, effected in an unquestioning manner, more or less amounted to embedding
a translation of the Directive’s provisions in the text of law 2121/1993 on
intellectual property rights on an “as is” basis. As a result, no steps were
taken to mitigate the potential side-effects of the protection granted by the
Directive to copyright holders of digitally available content (protection of
technological measures and bans on circumvention) or to address other related
issues, such as interoperability; therefore, no national policy, in the sense
of attempting to balance the requirements of the Directive against equally
legitimate concerns arising from the danger of unwarranted consequences of
the measures newly adopted, can be said to exist.
[1] i.e. reproduction for private use on paper or any similar medium, for teaching purposes, by libraries and archives, for judicial or administrative purposes, as well as the use for the benefit of people with disability, the rightholders are under the obligation to give to the beneficiaries the means to enjoy the benefit of the exception to the extent necessary to the extent those beneficiaries have legal access to the protected work or subject-matter concerned