COMMUNICATION OF WORKS TO THE PUBLIC VIA HYPERLINKS (1st APPLICATION OF ECJ’S “GS MEDIA” JURISPRUDENCE IN GREECE)
Court of Appeal of Athens
Decision No 1909/2017 (18th section)
- The provision of art. 3 Law No. 2121/1993 is in line with the acquis communautaire (art. 3 para. 1 Infosoc Directive)
- The provision of hyperlinks towards freely available protected works constitutes act of communication to the public in case that a “new” public is touched, namely a public that has not been taken into account from rightholders, when authorizing the initial communication to the public. The same applies in hyperlinks that use the technical feature of framing.
- In case that the website administrator posts a hyperlink that directs the user to another website, where the protected work is made available to the public without the author’s consent, in order to determine whether this amounts or not to an act of communication to the public in the sense of art. 3 para. 1 [Law 2121/1993], it is to be determined, on a case by case basis, whether the hyperlink provider acted with profit-making intention and he did not know or could not reasonably have known the illegal nature of the publication of this work on that other website or whether, on the contrary, he acted with profit-making intention, a situation in which that knowledge must be presumed.
- The provision of hyperlinks at stake does not amount to an act of communication of protected works to the public since no new public has been touched and the hyperlink provider did not know the unlawful character of the initial transmission and did not had a profit-making purpose.
Keywords: Copyright, communication to the public, hyperlinks, Svensson (C‑466/12), BestWater, (C‑348/13), GS Media (C‑160/15).
Legal provisions: Law 2121/1993 [Greek Copyright Act], art. 3; Directive 2001/29/EC, art. 3 para. 1, Civil Procedure Code, art. 534.
Edited by: Dr Theodoros Chiou, IP lawyer
ACTORS’ RELATED RIGHTS: PROTECTION AGAISNT UNAUTHORISED DUBBING AND EXPLOITATION OF A COMMERCIAL SPOT
The temporal and territorial exceedance of contractually agreed exploitation of an actor’s interpretation corresponds to a violation of the respective related rights
Three-Member Court of Appeal of Athens
Decision No. 761/2016
Related rights protect efforts that are related or similar to copyright [subject matter], but that do not present the characteristics of intellectual creation. These efforts contribute, however, decisively in the dissemination of protected works.
The protection recognized for performers is independent and distinct from copyright protection that enjoy the creators of copyriightable works
The enumeration of prerogatives of performers’ moral rights in the law is exhaustive and by no means indicative
The civil liability provisions contained in the Law No. 2121/1993 [Greek Copyright Act] are applicable equally to violations of both copyright and related rights
In case of related rights violations, a quasi-rebuttable presumption is applicable, according to which every violation act which takes place without the consent or authorization of the rightholder performer is illegal.
The temporal and territorial exceedance of contractually agreed exploitation of an actor’s interpretation corresponds to a violation of the respective related rights
Key-words: Related/Neighboring Rights; performers; actors; commercial spots; exploitation of performances; contractual limitations; illegal violation; financial compensation; moral damages
Legal provisions: art. 40, 50, 65 Law No. 2121/1993 [Greek Copyright Act]
Source: NoV 2016, vol. 64, May 2016, p. 854 ff.
Edited by: Dr Theodoros Chiou, IP lawyer
SATELLITE TV “PIRACY” CASE: ACQUITTAL DUE TO INACTIVE CRIMINAL PROVISION CONTAINED IN THE GREEK COPYRIGHT ACT
The criminal provision of article 66 para. 5 (b) and (c) of the Greek Copyright Act (Law 2121/1993) is a “blank criminal provision”
Greek Supreme Court [Areios Pagos] (7th Criminal Chamber)
Decision No 671/2015
(Unknown parties)
(Published in “Nomos” Law Database)
The criminal provision of article 66 para. 5 (b) and (c) of the Greek Copyright Act (Law 2121/1993) is imprecise and does not meet the required accuracy and certainty that a criminal provision must bear, according to article 7 of the Greek Constitution and article 1 of the Greek Criminal Code (“nullum crimen nulla poena sine lege certa” principle). In fact, the specifications required for the criminal evaluation of the acts of manufacture, importation, distribution or possession with intent to distribute equipment or other materials for the reproduction of a work (in this case: satellite TV decoders), are not described neither in the provision in question, nor by an ad hoc Presidential Decree, which is still not enacted. Therefore, the provision of article 66 par. 5 (b) and (c) of the Greek Copyright Act is a blank criminal provision.
Key-words: Intellectual Property in Greece; Greek Copyright Law; Specifications; Reproduction means; Blank criminal provision; Nullum crimen nulla poena sine lege; Greek Criminal Law; Criminal Sanctions; Normal exploitation of a work or related rights.
Legal provisions: art. 59 and 66 par. 5 of the L. 2121/1993; art. 1 and 14 of the Greek Criminal Code; art. 7 par. 1 of the ECHR; art. 15 of the ICCPR of the UN.
Theodoros Chiou Lawyer Attorney Athens Greece Copyright Intellectual property
CONFLICT BETWEEN TRADEMARK AND OTHER DISTINCTIVE SIGNS (COMPANY NAME, TRADE NAME, DOMAIN NAME) – TEMPORAL PRIORITY
Priority on the internet does not override the temporal priority principle which governs industrial property law
Multi-member Court of First Instance of Athens (Polimeles Protodikio Athinon) (Special Commercial Section)
Decision No 2923/2015
First Published at IPrigths.GR
- The rule “prior in tempore potior in iure” is applicable in conflicts between trademarks and distinctive signs
- A distinctive sign defeats a trademark if its use in trade is prior to the trademark registration.
- The domain name of a company is legally qualified as a distinctive sign in the sense of article 14, sect. 1, para. 1 of Law No 146/1914. It may be qualified as company name, in case that the company has operated first on the internet.
- The registration of a distinctive sign on the internet does not offer any precedence against distinctive signs of the “offline world” and vice versa.
- The use of a distinctive sign made by a licensee does not establish any priority right opposable the licensor.
Key-words: Trade Mark, Community Trade Mark, Community Trade Mark Court, Trade Mark infringement, identity of Trade Marks, similarity of Trade Marks, similarity of goods and services, risk of confusion, distinctive sign, company name, distinctive sign licence, domain name repeal, domain name erasure, distinctive signs conflict
Legal provisions: Community Trade Mark Regulation No 207/2009, art. 1, 4, 9, 14; Law No 2943/2001 [Law establishing Greek Community Trade Mark Courts], art. 6-11; Law No 146/1914 [Greek Unfair Competition Act], art 1, 13; Law No. 213/1975 [Ratification of Madrid Protocol], art. 8
COPYRIGHT BONA FIDE ACQUISITION AND USUCAPIO ARE LEGALLY IMPOSSIBLE
Greek Supreme Court [Areios Pagos] (A1 Civil Chamber)
Decision No 1065/2014
(Unknown parties)
Published in “Isocratis” Law Database
- The inter vivos contractual transfer is governed by the relevant provisions 2121/1993 [Greek Copyright Act] and – by analogy and in a complementary manner – by the provisions related to the transfer of claims (Articles 455 et seq. and 470 ).
- The provisions of the Greek Civil Code on bona fide acquisition of movable goods (article 1034 et seq.) and usucapio (article 1041 et seq.) are not applicable on economic rights of copyright.
- The application by analogy of the above mentioned provisions of the Civil Code in copyright law could not be maintained. In fact, the principles of bona fide acquisition, the legal fiction which derives from the fact of possession of an object and the principle of protection of the transactions –valid in the field of tangible property law– are not pertinent in copyright law. Assuming that these principles were applicable, they would not grant sufficient protection to the author, especially under the actual circumstances of dynamic and complex technological evolution in the customs and practice of copyright law.
Key-words: Intellectual Property in Greece; Greek Copyright Law; Audiovisual works; Movies; Usucapio; Transfer of economic rights; Copyright transfer/assignment; Bona fide acquisition; transitional law
Legal provisions: art. 3, 9, 12, 13, 17, 34 and 68 L. 2121/1993, art. 455 et seq., art. 1034 et seq. of the Greek Civil Code.