How can authors and related right rightholders protect their rights (preventive measures, e.g. technological and legal means, civil and criminal penalties, etc.)
Copyright and related rights are protected by a web of civil, administrative and criminal penalties, as well as by preventive measures.
A) TECHNOLOGICAL MEASURES AND INFORMATION ON RIGHTS MANAGEMENT
The technological industry has already developed Technological measures of Protection (TMP) for the protection of the works on the Internet and in any digital form in general. Technological measures are technologies, devices or constituent elements which, in their common way of operation, aim to prevent or restrict actions regarding works or other protected items, which are not permitted by the rightholder of any author’s rights or related rights.
Typical examples of technological measures that control or prevent access to a file or service, are the use of a password or identification number, the implementation of cryptographic techniques, which transmit the information in an incoherent form, so that a decryption key is needed for its reversion to a coherent form, the technique of marking a work with digital watermarkings or dry markings, the systems that restrict the ability to create serial copies (SCMS – Serial Management Systems), as well as components and hardware e.g. [smart cards, dongles, hardware locks-HASP].
While the technological measures that control or restrict the use or reproduction of the work, usually, while they allow short-term reproduction – downloading to the computers’ temporary memory (browsing), so that the information that interests the user can appear on the screen –, they do not allow long-term reproduction (storing to a disk) or printing hard copies or, if they do, it must be a limited number of copies.
Without the rightholder’s permission, our national legislation (art. 66A) prohibits:
- the elimination of any effective technological measure by a person aware of his actions or having reasonable grounds that allow him to know that he is seeking this purpose and
- the construction, import, distribution, sale, rental, advertisement for sale or rental or possession for commercial purposes of devices, products, components or services that:
- are promoted, advertised or traded for the purpose of eliminating protection, or
- apart from eliminating protection, they have a commercial purpose or usage of limited importance or
- have been primarily designed, produced, adapted or realized in order to allow or facilitate the elimination of protection provided by any effective technological measures.
The exercise of activities in violation of the aforementioned provisions raises the civil penalties provided by art. 65 of Law 2121/1993, while there are also criminal penalties against the offender (imprisonment of one year and money penalty of 2,900 – 15,000 Euro) and the ability to issue an injuction.
The rights management technological measures (Digital Rights Management-DRM or Electronic Copyright Management Systems-ECMS) function in the same direction as the technological protection measures, allowing the rightholders to control and manage the author’s rights in digital forms of reproduction and propagation.
B) COURT AND ADMINISTRATIVE MEASURES
If a violation of author’s rights or related rights is suspected, an injuction can be issued to prohibit the commission realization of an act that would violate copyright, without being necessary to specifically define the concerned works.
Besides, in any case where an act of copyright violation is imminent - as in the case of public performance of a theatrical, cinema or musical play without the author’s required permission - the local police authority should prohibit this act, following the author’s or his rightholders’ request, in accordance with Law 2121/93 (art. 63 para.1), . The district attorney, if requested, should issue a relevant order to the police authority. The same stands in the case that the public performance began with the permission of the author but payment of the due fee is delayed for more than two days.
C) CIVIL & CRIMINAL PENALTIES
In the context of civil law, the author and the rightholder of a related right can file:
- a lawsuit regarding the recognition of their right
- a lawsuit for the cessation of the violation
- a lawsuit for the omission of the violation in the future, in case that violation or continuation or repetition of violation is threaten
- a lawsuit for compensation and granting of no-material harm, if the offender is culpable of the violation
- a lawsuit for ruling of inappropriate enrichment of the offender.
- a lawsuit for payment of the profit that the offender earned from the management of another person’s property
Civil penalties provide the rightholder's right to compensation for the violation of his rights, which cannot be less than double the fee usually or legally paid for the exploitation that the offender carried out without permission.
According to art. 66 of law 2121, almost all violations of author’s rights and absolute related rights are punishable actions. Criminal penalties include imprisonment from 1 to 10 years and a money penalty of 2,900 to 59,000 Euro.
Finally, Law 3524/2007 also provides for administrative penalties in case of copyright infringement. In particular,
- anyone who, without the right and in violation of the provisions of this law, reproduces, sells or distributes in any other way to the public a computer program, or possesses it with the intention of distributing it, is subject, regardless of any other penalties, to an administrative penalty of one thousand (1,000) Euro for each illegal copy of computer program, and
- A street vendor or salesman (in a shop) that is caught distributing to the public, by selling or distributing in other ways or possessing with the purpose of distributing, audio media, which incorporate the recording of a work that is copyright protected, is subject to an administrative penalty equal to the number of the illegal sound media constituting the object of the violation multiplied by (20) Euro per each audio media, in accordance with the confiscation report filed at the arrest of the offender. The minimum amount of the administrative penalty is set to one thousand (1,000) Euro.
