1. Introduction

The Directive 2001/29/EC, commonly known as the Copyright Directive, has been implemented in Greece by the Law 3057/2002 and in particular Art. 81 (published in: Official Gazette A/239/10.10.2002), entitled as “Implementation of the Directive 2001/29/EC of the European Parliament and of the Council of 22.5.2001 on the harmonisation of certain aspects of copyright and related rights in the information society and other provisions�.

Art. 81 of Law 3057/2002 replaced some of the provisions of Law 2121/1993, which is the Law of copyright, related rights and cultural matters. Greece was (together with Denmark) the first EU Member State that met the deadline for implementation of December, 22^nd 2002.

The amendments brought about by Art. 81 of Law 3057/2002 are threefold: 1) the meaning of intellectual pro­­perty rights is now explicitly construed – and the extent of their exclusivity newly de­­fined – so as to cover the aspects relating to digital forms of dissemination of protected content, 2) new provisions have been inserted to protect technological measures and rights management infor­ma­tion 3) the pre-existing system of sanctions has been updated to comply with the latest de­fi­ned needs.

What follows is a brief overview about the way Greece has fulfilled the obligation followed by the Copyright Directive regarding the protection of technological measures on a national level.

2. Definition of Technological Measures

The provisions of Art. 6 of the Copyright Directive concerning the protection of technological measures were implemented in their entirety by the provision of Art. 81 of Law 3057/2002, which inserted a new Art. 66A into Law 2121/1993. In essence Art. 66A reproduces verbatim the content of the first paragraphs of Art. 6 of the Copyright Directive and provides for a mechanism implementing the provisions of the last paragraph of Art. 6 of the Copyright Directive with respect to voluntary or mandatory exceptions or restrictions.

According to Art. 66A of Law 2121/1993, protected “technological measures� are:

• any technology, device or component that
• in the normal course of its operation
• is designed to prevent or restrict acts
• in respect of works or other subject matter
• which are not authorised by the right holder of any copyright or any right related to copyright as well as the sui generis right of the data base producer.

3. Effectiveness

The provision about the effectiveness of the technological measures (regulated in Art. 66A par. 1, sent. 2) is also a copy of Art. 6 par. 3 of the Copyright Directive, without any clarification of the meaning of this requirement.

Technological measures shall be deemed “effective� where the use of a protected work or other subject-matter is controlled by the right holders through application of an access control or protection process, such as encryption, scrambling, or other transformation of the work or other subject-matter or a copy control mechanism, which archives the protection objective.

4. Restricted Acts, sanctions and remedies

Art. 66 par. 1 and 2 of Law 2121/1993 have been replaced and are now the same as Art. 8 par. 1 and 3 of the Copyright Directive.

The unlawful actions as well as the sanctions listed in Art. 66 par. 2 of Law 2121/1993 are exactly the same as those named in Art. 8 par. 1 of the Copyright Directive.

Circumvention

According to Art. 66A par. 2 of Law 2121/1993 it is prohibited to circumvent without the permission of the right holder, any effective technological measure when such act is made in the knowledge or with reasonable grounds to know that he is pursuing that objective.

Circumvention devices and services

Furthermore, there are some preparatory actions to circumvention that are prohibited (Art. 66A par. 3): It is prohibited without the permission of the right holder, to manufacture, import, distribute, sell, rent, advertise for sale or rental, or possess for commercial purposes devices, products or components, or provide services which: a) are promoted, advertised or marketed for the purpose of circumvention of, or b) have only a limited commercially significant purpose or use other than to circumvent, or c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures.

All mentioned  preparatory activities should be easily detectable as they normally require public  activities.

Civil Remedies

According to Art. 66A par. 4 of Law 2121/1993, activities in violation of the provisions related to the technological measures are punishable by imprisonment of at least one year and a fine of at least  2.900,00 € and at most 15.000,00 € (penal sanctions) and entails the civil sanctions of Art. 65 of Law 2121/1993.

These civil sanctions are:

- for all cases of infringement: the right of the right holder to demand recognition of his right, the suppression of the infringement and the omission of the infringement in the future,

- by intention or negligence: the right of the right holder to demand indemnification for moral damage caused and payment of damages of not less than twice the legally required or normally payable renumeration for the form of exploitation which the infringing party has engaged in without licence,

- instead of seeking damages and regardless of whether the infringement was committed by intent or negligence: the right holder may demand either 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 Art. 46-48 and 51 of Law 2121/1993, or the profit gained by the infringing party from such an exploitation,

- for each act of omission contributing to an infringement: the court may impose a fine from 880,41 € up to 2934,70 € payable to the right holder and imprisonment of up to one year.

Penal Sanctions

For penal sanctions, infringement of the rights protected by Law 2121/1993, 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 € up to 15,000 €.

However, in the event the illegal benefit of the infringer is exceedingly high, the minimum penalty of impri­son­ment and the fine margins are doubled.

In case the infringer 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 are further raised to a minimum 10 years of imprisonment, a fine of 14,673 € up to 58,694 € and revocation of the license of the enterprise through the medium of which the illicit acts were com­mit­ted.

Punishment of the infringers requires criminal intent (of any degree) on the part of the transgressor, so that acts committed by negligence are not punishable under penal law.    

5. Exemptions and exemption procedure

Optional exceptions

As stated in Art. 66A par. 5 of Law 2121/1993, notwithstanding the legal protection provided for in Art. 66A par. 2, the right holders have the obligation to give to the beneficiaries of the limitations (exceptions) provided for in Section IV of Law 2121/1993, as exists, related to reproduction for private use on paper or any similar medium (Art. 18), reproduction for teaching purposes (Art. 21), reproduction by libraries and archives (Art. 22), reproduction for judicial or administrative purposes (Art. 24), as well as the use for the benefit of people with disability (Art. 28A), the measures to ensure the benefit of the exception to the extent necessary and where that beneficiaries have legal access to the protected work or subject-matter concerned.

If the right holders do not take voluntary measures including agreements between right holders and third parties benefiting from the exception, the right holders and third parties benefiting from the exception may request the assistance of one or more mediators selected from the list of mediators drawn up by the Copyright Organisation. The mediators make recommendations to the parties. If no party objects within one month from the forwarding of the recommendation, all parties are considered to have accepted the recommendation. Otherwise, the dispute is settled by the Court of Appeal of Athens trying at first and last instance.

These provisions 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. By this provision, Greece has taken the measures, Art. 6 par. 4 of the Copyright Directive is referring to.

6. Neighbouring Rights and Database Rights

The protection of technological measures applied to neighbouring rights (Art. 46 - 53 of Law 2121/1993) and database rights (Art. 45A of Law 2121/1993) is similar to the protection of technological measures applied to copyright, as it is stated in Art. 66A par. 1 (a) of Law 2121/1993. In line with the Copyright Directive the copyright protection is limited to databases of which the selection and arrangement of the contents are the author’s own intellectual creation.

7. Technological protection of Software

The protection of technological measures introduced in Art. 66A of Law 2121/1993 does not apply to software. The technological protection of software is regulated in the Articles 40–45 of Law 2121/1993 that implemented the relevant provisions of the 91/250/ECC Software Directive.

Penal sanctions are applicable to any person “who uses or distributes, or possesses with the intent to distribute, any system or means whose sole purpose is to facilitate the unpermitted removal or neutralisation of a technical system used to protect a computer program�.

This provision does not address the act of circumvention itself. It prohibits to undertake preparative actions that lead to an infringement. Art. 66 par. 5 seems to be stricter than Art. 6 of the Directive, since according to that the use of the systems itself is illegal without the need of holding back to commercial scope or economic benefits.

8. Miscellaneous and controversial subjects

The fact that Greece introduced the provisions of the Copyright Directive into Greek law long before the end of the implementation deadline 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 3057/2002.  

There have been some critical voices in Greece to the provisions of Art. 6 of the Copyright Directive. These came from Organisations as well as academics and politicians. “Digital Rights Greeceâ€�, for example, a website, dedicated to promo­ting the freedom of speech online (http://digitalrights.uoa.gr), complained that the restrictions of Art. 6 of the Copyright Directive overshoot the needs of copyright protection and that the ex­ceptions to the rules of Art. 6 of the Copyright Directive are practically insignificant. Another critical voice came from “The Hellenic Linux Users Groupâ€�, in a statement is­sued after promulgation of Law 3057/2002, also complaining of the excessively restrictive ef­fects of technological pro­tection measures, especially regarding the use of audio CDs and region-locked DVDs.

As a result, there is a large group of people who think that no steps were taken to mitigate the po­tential side-effects of the pro­tection granted by the Copyright 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. It is beeing said that no national policy exist, in the sense of attempting to balance the requirements of the Copyright Directive against equally legitimate concerns arising from the danger of unwar­ran­ted consequences of the measures newly adopted.

Author:
Maria Sinanidou
LL.M. , Attorney at Law from the Sinanidis and Sinanidou Law Firm, and Legal Advisor at he Greek Copyright Organisation

E-mail: m.sinanidou@dsa.gr