What does copyright and related rights mean and cover, and is it the same all over the world?
Copyright protects literary, artistic and scientific works created by individuals, who are protected as authors. With the creation of the work, authors obtain the intellectual property rights to that work. These rights include, as exclusive and absolute rights, a) the right to exploit the work (economic right) and b) the right to protect their personal connection with the work (moral right). Copyright protects the work as an intangible object and not the physical carrier into which the work has been incorporated. Greek copyright law contains an indicative list of protected subject matter (i.e. works), as well as an indicative list of the type of works that are protected; any original intellectual creation can be protected. The prevailing criteria are the form of the work and originality. Computer programs and databases are also protected. The sui generis right of the maker of the database is also recognised under Greek law (in line with the EU Database Directive). The list of rights conferred on the author by economic rights is indicative. In particular, the author has, among other rights, the exclusive and absolute right to permit or prohibit the fixation and reproduction of his or her work, the translation, arrangement, adaptation and alteration of the work, the distribution of the original or copies of the work, its rental and public lending, its public performance, its broadcasting or rebroadcasting by any means, communication to the public of his or her work including making it available to the public, as well as the importation of copies in certain cases. The right of resale is also recognised for the authors of original works of art. Greek copyright law also provides for extensive protection of moral rights. Moral rights notably confer upon the author the following rights: the right of divulgement, the right of paternity, the right of integrity, the right of access to the work and the right of rescission.
Related rights have been granted to certain categories of beneficiaries that produce subject matter containing creativity or technical skill but cannot be qualified as intellectual works. Related rights cover the following beneficiaries: performers, producers of recordings, producers of audiovisual works, broadcasting organisations and publishers of printed matters. Previously unpublished works are also protected by a specific related right. Holders of related rights have the right to authorise or prohibit certain acts referred to exhaustively in the legislation. The right of equitable remuneration is recognised in certain cases.
Protection of copyright and related rights is territorial and is not the same all over the world. In Greece, copyright protection follows the author-centred system. Moral rights are awarded to authors and performers. Moral rights are never awarded to producers of recordings and audiovisual works or to broadcasting organisations. The initial holder of the economic and moral rights in a work is the author. Greece follows the principle of many European countries, which is that only a natural person can create a work. Legal persons cannot be considered authors, with the exception of specific cases relating to anonymous or pseudonymous works.
Who owns copyright and how does copyright benefit creators, 'rights holder(s), consumers, society, economy and culture as a whole?
The author is the person who has actually created the work and he or she is the initial owner of copyright. For joint/collaborative works, the co-authors of the work are the initial holders of the economic and moral rights. In the case of collective works, the natural person that is responsible for the intellectual direction and coordination of the authors contributing to the creation of the work is the initial holder of the economic and moral rights in that work. Each author of a contribution is the initial holder of the economic and moral right in his or her own contribution, provided that that contribution is original. In the case of audiovisual works, the principal director is considered as its author. For audiovisual contributions, the author of the screenplay, the author of the dialogue, the composer of music, the director of photography, the stage designer, the costume designer, the sound engineer and the editor are considered to be the authors. As for works created in the framework of an employment contract, the initial holder of the economic and moral rights in the work is the author. Only those economic rights that are necessary for the fulfilment of the purpose of the contract are transferred to the employer, if there is no stipulation to the contrary.
Greek copyright legislation provides for the possibility of transfer of the economic rights (or parts of them) and the non-transferability of moral rights between living persons. Both rights are transferred mortis causa. Greek copyright law provides for specific provisions on transfer, exploitation contracts and licences.
The aim of the law is full and effective protection for authors, a principle manifested in many provisions, such as in the broad protection of moral rights, the rule that only natural persons may be considered as authors, the establishment of a fee as a percentage of the gains of publishers or others that exploit a work, the obligatory written form of legal acts, non-entitlement to conclude contracts that cover the whole of future works or concern any future method of exploitation, equitable remuneration for the reproduction of works for private use, interpretative rules concerning the term, purpose, extent and means of exploitation, provisions concerning the enforcement of rights and, in particular, the civil sanctions, as well as strict penal sanctions.
According to the civil law tradition of author’s rights, Greek copyright law achieves the balance of rights and interests, notably through term provisions and limitations. In order to achieve a balance of interests, legal mechanisms outside copyright are sometimes used, that is, fundamental rights, competition law and general principles of civil law (abuse of rights, good faith, unforeseen change of circumstances on which the formation of a contract has been based). Greek copyright law provides an exhaustive list of limitations and exceptions to the economic rights. Limitations are not subject to a fee, apart from reproduction for private purposes. The three-step test is also provided for in the law.
Law No 4481/2017 provides for the establishment of a Committee that can be notified regarding the infringement on the internet of copyright and related rights, in order to facilitate the out-of-court settlement of such cases. Within a short period of time (60 days maximum) a rights holder who applies to the Committee regarding works made available on the internet illegally can, if his or her complaint is substantiated, have the works immediately removed or access to them blocked, depending on the case. The rights holder does not waive his or her right to go to court. However, if he or she does go to court before submitting his or her complaint to the Committee or while his or her complaint is being processed, the Committee will close the case.
Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?
Copyright protects literary, artistic and scientific works. Related rights protect performances, sound recordings (phonograms), audiovisual recordings, broadcasts, typesetting and pagination format, as well as previously unpublished works. The sui generis right of the maker of a database is also considered by a part of the literature as a related right. The list of subject matter protected by copyright is open. In contrast, the list of subject matter that is subject to related rights is closed. Originality is a prevailing criterion for protected works. The law does not define originality except for computer programs and databases. Different criteria have been introduced by Greek theory and jurisprudence, that is, personal contribution, expression of the author’s personality, individuality, and statistical uniqueness. A specific definition is provided for computer programs and databases according to the acquis communautaire (‘the author’s own intellectual creation’). In photographs, originality is judged with lenience and for this reason the law does not make any reference to the definition given by the EU Term Directive, according to which a photograph is protected if it is ‘its author’s own intellectual creation’. Copyright protection does not apply to official texts authored by the State, notably to legislative, administrative or judicial texts, nor does it apply to expressions of folklore, news or simple facts and data.
No formalities apply, that is, publication, fixation or registration, for the acquisition or exercise of copyright. The principle of protection without formalities is valid for all kinds of works, including photographs. Economic and moral rights are vested in the author of a work without resort to any formality. Copyright arises with the creation of the work. According to Greek law, a copy of a work is deposited with the National Library, the Parliament Library and Public Libraries, but this is a purely administrative measure that aims to preserve cultural heritage.
Law No 4481/2017 amended the second paragraph of Article 69(1) of Law No 2121/1993; it is now expressly provided that the Hellenic Copyright Organization may, inter alia, provide time stamps, that is to say provide certified dates in relation to works or other objects that may be protected by copyright and/or related rights (time stamping service). The use of this service is not a prerequisite for the protection of a work under copyright law.
What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn't aware that I infringed something protected by copyright?
The concept of infringement is not defined by law. It has been held that infringement of copyright or related rights arises from provisions relating to the subject matter, ownership and content of such rights. Infringement is any act whose subject matter and content are identical to the subject matter and content of copyright or related rights, to the extent that they are protected by law, on condition that the act is not carried out by the beneficiary or with his or her consent and does not fall under the legitimate limitations of the economic right. In case of infringement, the law provides for civil and penal sanctions, provisional measures, evidence and in some cases for administrative sanctions. A person who by intent or negligence infringes copyright or the related rights of another person indemnifies that person for the moral damage and is liable for the payment of damages of not less than twice the legally required or normally payable remuneration for the form of exploitation that the infringing party has effected without licence.
Under which conditions can I use a work protected by copyright created by another? I was told that using works created by others is simply a quote and thus is always allowed.
The rights holder’s authorisation is required for the lawful use of a protected work. This usually takes place in the form of a written contract of exploitation or licence and may require a fee.
A series of legislative initiatives have taken place to set up a legal framework for opening-up data, such as the Reuse of Public Information Law, the Transparency (Diaygeia) Law and the Geodata Law. Open access is promoted in Greece by academic and research communities with the aim of supporting the free exchange of scientific information, open access to scientific material, public dissemination and preservation of digital content. In addition, many works are published under an open content licence, such as Creative Commons. Reuse of such a work, although still subject to the terms of the licence chosen by the rights holder, on most occasions will not require the author’s prior authorisation.
Greek copyright legislation provides for a closed list of exceptions. Quotation of short extracts of a lawfully published work by an author for the purpose of providing support for a case advanced by the person making the quotation or a critique of the position of the author is permissible without the consent of the author and without payment, provided that the quotation is compatible with fair practice and that the length of extracts does not exceed that justified by the purpose. The quotation of the extract must be accompanied by an indication of the source of the extract and of the names of the author and the publisher, provided that the said names appear on the source. Quoting long extracts is illegal, even if the source is mentioned. The quotation must be made to corroborate an opinion or to criticise a position and should not be the sole source for a book. Quoting the entire work is illegal. A specific provision sets out the rules on the permitted uses of orphan works.
Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?
When an end-user makes an arrangement of a musical work protected by copyright with the aim of uploading it to social media without the authorisation of the author or other rights holder, the following acts may be affected: the right of reproduction, the right of adaptation and the right of communication/making available to the public. Moral rights may be also affected, and in particular, the right of paternity and the right of integrity. National legislation does not contain a specific limitation concerning user-generated content (UGC) and there is no discussion about exempting UGC from copyright infringement. Limiting the quotation of short extracts may be relevant. However, quoting the entire work is illegal. The incidental inclusion exception was not implemented in Greek law. The different acts pertinent to copyright law could be allowed on the basis of the principle of freedom of expression but there is no case-law upon which to base such a decision.
Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
Greek copyright legislation regulates reproduction for private use. The provision applies to analogue and digital reproduction that acknowledges for the author and for certain holders of related rights (performers, producers of recordings and producers of audiovisual works) the right to equitable remuneration if technical media are used for the reproduction of the work for private use. The permitted private copy only applies to lawfully published works. The term ‘private use’ does not include use by an enterprise, service or organisation. ‘Private use’ covers personal use made by the user personally and use in the narrow circle of his or her family and immediate social circle. The freedom to make a reproduction for private use does not apply when the act of reproduction is likely to conflict with normal exploitation of the work or to prejudice the author’s legitimate interests, notably: a) when the reproduction is an architectural work in the form of a building or similar construction and b) when technical means are used to reproduce a fine art work that circulates in a restricted number of copies, or when the reproduction is a graphical representation of a musical work. The three-step test is also applied. Equitable remuneration is due to the creator of the work and to certain beneficiaries of related rights, with the exception of assets to be exported. The remuneration is paid by the importers or producers of such items and is noted in the invoice. It is collected by collecting societies operating with the approval of the Ministry of Culture.
Am I allowed to download a work protected by copyright from the internet and does it matter which technology is used and whether I download only parts of the work?
Downloading a work from the internet constitutes an act of reproduction and needs the authorisation of the creator or other rights holders. The method of reproduction or the means of technology are immaterial. The reproduction is considered to be ‘in part’ if the part of the work has the characteristic of originality. It should be noted that there are no quantitative requirements for a work to be protected. Titles and slogans or other ‘short works’ may be protected by copyright if they are original. Downloading a work under agreed contractual terms is lawful. End-users can also lawfully download a work from the internet under Creative Commons licences or any other open content licence.
The private copying exception cannot be applied because this exception (see Article 18 of Greek Law 2121/1993 and Article 5(2)(b) of Directive 2001/29/EC) does not cover private copies made from an unlawful source (CJEU, Case C‑435/12, ACI Adam BV and Others v Stichting de Tuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding). Consequently, downloading a copyright-protected work amounts to copyright infringement, even if it is for personal and private use.
I tried to copy a movie from a DVD to my computer, but could not do it because of something called ‘Technical Protection Measures’. What is that and am I allowed to get around them in order to make private copies?
An easy definition of ‘Technical Protection Measures’ (TPM) is: technology used to control access to protected works or other subject matter or to prevent users from copying protected works or other subject matter. According to the definition of the law, ‘technical measures’ means 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, that are not authorised by the rights holder of any copyright or any related right, as well as the sui generis right of the database maker. Copyright law contains the relevant provisions. Exceptions to the protection against the circumvention of TPM are related to reproduction for private use on paper (reprography), reproduction for teaching purposes, reproduction by libraries and archives, reproduction for judicial or administrative purposes, as well as use for the benefit of people with disabilities. In these cases, rights holders have the obligation to give to the beneficiaries the means of ensuring that the content can be used to the extent necessary and where the said beneficiaries have legal access to the protected work or subject matter concerned. If the rights holders do not take voluntary measures, including agreements between rights holders and third parties benefiting from the exception, the rights 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 Hellenic Copyright Organisation. The mediators make recommendations to the parties. If no party objects within one month of the recommendation being forwarded, all parties are considered to have accepted the recommendation. Otherwise, the dispute is settled by the Court of Appeal of Athens at first and last instance. These provisions do 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 chosen by them. Civil and penal sanctions, as well as injunction measures, are applied for those who circumvent TPM unlawfully.
What are copyright levies?
The system of copyright levies concerns reproduction for private use.
Law No 4540/2018 replaced Article 18 of Law No 2121/1993, as it was amended by Law No 4481/2017.
Accordingly, if, for the free reproduction of the work for private use, technical means are used, such as audio or video recorders or audio and video recorders, magnetic tapes or other material suitable for the reproduction of sound or images or sound and images, including digital reproduction devices and media, in particular, CD-RW, CD-R, DVD and other storage media with a capacity of more than 4 GB, computers, portable electronic devices (tablets), smartphones, devices or components, irrespective of whether their operation falls within the context of computers and are used for the digital copying, transcription or reproduction by any other means, photocopying machines and paper suitable for photocopies, scanners and printers, a reasonable remuneration is due to the creator of the work and to the holders of related rights under this provision, with the exception of the items to be exported. The reasonable remuneration is determined as follows.
- The remuneration due for computers, portable electronic devices (tablets) and smartphones is set at 2 % of their value. Such remuneration will be distributed between authors, performers or performing artists, producers of recorded magnetic tapes or other sound or image or sound and image recording medium, and publishers of printed material. The distribution of the reasonable remuneration rates in respect of the technical means referred to in the previous subparagraph to collective management organisations representing each category or subcategory of rights holders, as well as the collection and methods of payment will be determined in accordance with paragraph 9.
- The remuneration due for sound or image or sound and image recording apparatus, magnetic tapes or any other media suitable for sound or image or sound and image reproduction, for digital reproduction devices and media, and other storage media with a capacity of more than 4 GB, as well as the remuneration due for devices or components irrespective of whether their operation takes place in the context of computers or not and are used for the purposes of digital copying, transcription or reproduction by any means, is set at 6 % of their value. The remuneration due for digital reproduction devices and media, and other storage media, as well as for devices or components irrespective of whether their operation takes place in the context of computers or not and are used for the purposes of digital copying, transcription or reproduction by any means, will be distributed among the collective management organisations representing copyright and related rights holders in accordance with the procedure set out in paragraph 9. The remuneration due for sound or image or sound and image recording apparatus will be allocated to the respective rights holders as follows: 55 % to authors, 25 % to performers or performing artists, and 20 % to producers of recorded magnetic tapes or any other sound or image or sound and image recording medium.
- The remuneration due for photocopying machines, scanners, printers and for the paper suitable for photocopying, is set at 4 % of their value. Such remuneration will be shared equally between authors and publishers of printed material. Any multifunctional machine capable of copying will be also included within the meaning of ‘photocopying machines’.In any of the aforementioned cases, the value will be calculated upon import or disposal from the factory. The remuneration will be paid by the importers or the producers of those items, entered on the invoice and collected by the collective management organisations operating on the basis of an authorisation issued by the Minister of Culture and Sports and covering, either in whole or in part, the category of rights holders concerned.
Am I infringing copyright if I watch a movie by streaming it instead of downloading it from the internet?
Watching a film through a streaming service is not infringing if the source of the stream is lawful. If the streaming service has not acquired prior authorisation from the rights holders, the act is unlawful. If the film is stored or recorded on some kind of device during the process of streaming, this is infringement of the right of reproduction (if the act of making available has not been authorised). In that case the reproduction cannot be justified on the basis of the exception of temporary and transient or incidental reproduction. Application of the exception of reproduction for private use may be possible, if the making available of the work is authorised by the rights holder.
If copyright-protected works are included into my posts automatically by social media platforms, am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog?
Copyright rules also apply to social media. Uploading a work to a social media post constitutes an act of reproduction and communication to the public. Uploading to a social media website works protected by copyright is lawful if the upload is authorised by the author or other rights holder, or is permitted on the basis of a limitation or exception provided in law or if the work is available under an open content licence. In Svensson and Others (C‑466/12, EU:C:2014:76), the CJEU ruled that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public. That means that the owner of a website may, without the authorisation of the copyright holders and without paying a fee, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. This judgment was confirmed in BestWater International. The Multi-Member First Instance Court of Athens, in its decision No 5249/2014, referred to the BestWater case-law and stated that the linking to audiovisual works that were freely available to a website was not an act of infringement, regardless of the fact that some of the works were uploaded and communicated to the public without the authorisation of the rights holders. The consumer is not responsible for the copyright infringement if the protected work was inserted automatically into the social media account, because this act was not initiated by the user. In the event of litigation, the quotation of another’s work may be relevant, but the conditions of application are very strict. The online intermediary can be held liable if he or she has the control over the content transmitted or stored and his or her activities are not limited to the technical process of operating and giving access. It is to be noted that Greek legislation has implemented verbatim Articles 12 to 14 of Directive 2000/31/EC on electronic commerce. According to Greek copyright law, rights holders may apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Single-Member First Instance Court of Athens, in its decision No 4658/2012, ordered temporary technical measures in order to prevent the subscribers of the defendants, which were companies providing internet access services, from digitally downloading works included illegally on the websites with specific internet addresses (domain names) and IP addresses. In two other cases, which followed, the same court refused to grant a blocking order because it held that this was considered to be a disproportionate measure given that this particular site included both lawful and unlawful content (judgments No 13478/2014 and No 10452/2015). As a reaction to these decisions, the collecting societies applied for an order at the Multi-member First Instance Court of Athens and a final decision is pending.
Decision No 1909/2017 of the Court of Appeal of Athens is of interest here. This is the first judgment by a Greek court to apply the recent case-law of the Court of Justice of the European Union (decision in GS Media) concerning one of the most controversial contemporary issues in European copyright law, namely the legal assessment of hyperlinks to protected works that have been published without the consent of the rights holder. The court upheld judgment No 5249/2014 by the Single-Member Court of First Instance of Athens, which had upheld the action of the webmaster of a website that gathered and published hyperlinks both to protected works posted on the internet with the consent of the rights holder and to illegally published works. An important criterion for the decision was that the placement of the hyperlinks to the works was not for profit-making and therefore there was no making available to the public. By judgment No 1909/2017, the Court of Appeal confirmed that the plaintiff was neither required to obtain a licence from the competent collecting management organisation nor obliged to sign a contract and pay remuneration to rights holders for placing hyperlinks that led the user to third-party websites where the protected works were published. Applying the Svensson judgment criterion of a ‘new public’, the Court of Appeal, like the Court of First Instance, accepted that the placement of hyperlinks to legally published and freely accessible online works did not constitute making available to the public in accordance with Article 3 of Law No 2121/1993, since the public to which the works were made available was that taken into account by the rights holders when they gave their consent to the initial making available to the public, rather than a ‘new public’.
When I create a work and upload it online, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?
The law permits the transfer of the economic right as a whole, but this is rarely done. Every individual economic right can be transferred. Exploitation contracts and licences are concluded in writing. If that is not the case, then the invalidity of the contract may be invoked by the author only. Greek copyright law contains interpretation rules concerning transfers, exploitation contracts and licences. Contracts cannot include forms of exploitation that are unknown at the time of the contract’s conclusion. If such are included, these provisions of the contract are considered null and void. If the duration of the transfer or of the exploitation contract or licence is unspecified, its duration is deemed to be limited to five years, provided conventional mores do not indicate otherwise. If the extent and the means of exploitation that the transfer concerns or for which the exploitation or licence is agreed are unspecified, the said acts refer to the extent and the means that are necessary for the fulfilment of the purpose of the contract or licence. The law provides for the non-transferability of moral rights between living persons. Any clause in terms and conditions that describes a waiving or transfer of moral rights is void. However, the law provides that the author may consent to certain actions or omissions that would otherwise constitute an infringement of his or her moral rights.
In addition, the terms and conditions can be viewed from a consumer law perspective in order to decide whether some of the terms and conditions are unfair according to Greek law. Finally, it should be pointed out that in case of doubt, standard contracts are interpreted in favour of the authors’ interests (in favorem auctoris).
My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?
In certain cases avatars may be protected by copyright, if the prevailing criteria of intellectual works (form and originality) are covered. Images of film stars, cartoon characters or sports clubs cannot be protected by copyright. However, the imaginary form of a cartoon character may be protected by copyright. The performance of a film star is protected by related rights (economic and moral rights). In certain cases, the image of a film star or cartoon character may be protected by trade marks. Legislation on unfair competition may also be applied. An image of a film star or an athlete may be protected by the personality right. The publication of an athlete’s photograph for commercial or publicity use requires the written permission of the athlete or his or her professional association, according to a specific legislative provision. The use of elements protected by copyright without the authorisation of the author or other rights holder for the creation of an avatar can be justified on the basis of certain limitations explicitly provided for by the copyright legislation (i.e. quotation). Article 281 of the Greek Civil Code, prohibiting the abuse of rights, could be applied to limit the exercise of copyright in appropriate cases. The principle of good faith provided for in Article 288 of the Greek Civil Code may also be relevant.
How do I know whether a work is offered legally or illegally online?
It is not easy for the consumer to know whether a work is offered legally or illegally online. There is no official repository of legally offered works. The consumer can presume that the work is offered legally if there is a copyright notice allowing the use of the protected works or if there is a notice that the work is in the public domain or that the work is disseminated under an open content licence. In case of doubt, it is better to obtain the permission of the author or other rights holder.