Greece

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.

Implementation of the Directive

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.

Description of the amendments to law 2121/1993

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.

The author’s property right

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).

The property rights of the holders of related rights

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.

Exceptions and limitations

Paragraph 2 of section 81 implemented the provisions of Article 5 of the Directive con­­­cer­ning exceptions and limitations.  

The mandatory exception

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.

The optional exceptions

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).

Technological protection measures

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.

Rights-Management Informatio­n

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.

Enforcement and penalties

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 national debate

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.

Summary

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