- What is protected by copyright law. The main legislative instrument on copyright and related rights in Greece is Law 2121/1993 “on Copyright, Related Rights and Cultural Matters” as currently in force (thereafter referred to as “Greek Copyright Law”) and the very recent Law 4481/2017 on the Collective Management of IP Rights and Related Rights and Collecting Organizations. Greek Copyright Law grants copyright protection to “original literary, artistic or scientific works of authorship expressed in any form”. The Law provides an indicative and non-exhaustive list of copyright protectable works, including “written or oral texts, musical compositions with or without words, theatrical works, choreographies and pantomimes, audiovisual works, works of fine art, drawings, painting and sculpture, engravings and lithographs, architectural works, photographs, works of applied art, maps, three-dimensional works referring to geography, topography, architecture or science etc.” (Article 2 of Greek Copyright Law). Furthermore, databases are protected with copyright provided they constitute the author's intellectual creation due to the selection or arrangement of their contents. Computer programs and their preparatory design are also deemed to fall within the protective category of literary works. With regard to the concept of “originality”, Greek jurisprudence and legal theory require that the specific work has the element of the “personal intellectual creation” and that the author's personality reflects therein. A work is original as a way of expression of the individual mind, when it is the result of the personal contribution and represents some individuality. Another criterion applied also by Greek Courts is the criterion of statistical uniqueness according to which a work is original when, under the same circumstances, no other author would create the same work (decisions of Supreme Court No 415/2018, 509/2015). According to paragraph 5 of Article 2 of Greek Copyright Law the protection afforded under said Law does not apply among others to news information or simple facts and data. This means that mere facts and simple information on current news do not fall under the protective provisions of Greek Copyright Law provided they are limited in the reporting of the events and do not contain any element of personal contribution (such as evaluations, criticism, interpretations etc.). Therefore, a journalist work that presents some individuality/ personal contribution, particularly concerning the selection, composition, elaboration and adaptation of the particular elements of its content constitutes an original intellectual property work, protectable under Greek Copyright Law. Depending on the particular form the journalist work is presented to the public (indicatively, as a text, video, image) it falls under the protective category of literary works, audiovisual works, photographs etc.
- Is there a defense analogous to fair use or fair dealing? Greek Copyright Law does not provide for a fair use or fair dealing defense. Nevertheless, and in compliance with EU Directive 2001/29, Greek Copyright Law contains an exhaustive list of specific statutory exceptions and limitations on author's economic rights, referred below. A copyright protectable work can be legally used without prior authorization and without any payment, in case said use is covered by a specific exception/ limitation stipulated by Greek Copyright Law and all legal requirements provided therein are met. The exceptions/limitations provided in Section IV of Greek Copyright Law (namely, Articles from 18 to 28B of Greek Copyright Law) are the following: Reproduction for private use (Art. 18), quotation of extracts (Art. 20), school text books and anthologies (Art.20), reproduction for teaching purposes (Art.21), reproduction by libraries and archives (Art. 22), reproduction of cinematographic works for the purpose of preserving them in the National Film Archive (Art. 23), reproduction for judicial or administrative purposes (Art. 24), reproduction for information purposes (Art. 25), use of images of works sited in public places (Art. 26), public performance or presentation on special occasions (Art. 27), certain acts concerning orphan works (Art.27A), reproduction for the benefit of blinds and deaf- mute (Art. 28A), exception from the reproduction right being essential part to the transmission in a network (Art. 28B). The above limitations may only apply in certain cases and always be interpreted in compliance with the three - step test provided in article 28C of Greek copyright Law (as set out in article 9 par. 2 of Berne Convention). Briefly, this test requires that the exceptions are strictly linked to a special purpose, they do not conflict with the normal exploitation of the work and they do not unreasonably prejudice the legitimate interests of the rightholder (decision of Supreme Court 1328/2018).
- Other defenses and exceptions to copyright claims. Defense strategies in copyright cases are, in principle, based on the following grounds: - Objection as to whether the particular work falls under the protective provisions of Copyright Law. For example, if a journalist sues a third person for copyright infringement, the defendant might claim that a journalist work does not meet the criterion of originality if it contains only mere/ actual information without any element of author's personal contribution. - Objection as to the authority of the claimant to file the claim and/ or the claimant's ownership of the respective rights (we note that under Greek law the claimant must establish a complete and uninterrupted chain of titles starting from the author in order to prove ownership of his rights, namely “chain of title requirement”). - Objection that the particular use is legitimate, if the defendant has obtained the necessary license. In this context, it is necessary for the defendant to submit a written license since according to Article 14 of Greek Copyright Law any acts dealing with the transfer, assignment and/ or licensing of exploitation rights, are null if not made in writing. - Objection that the use is legitimate, based on the argument that the acts fall under the exceptions/ limitations provided in Chapter IV of Greek Copyright Law, referred in reply (c) above. - Objection that the exercise of claimant's rights is abusive and in contrast to good faith and moral practices. - Objection as to the prescription of rights and/ or the expiration of the term of protection of a work. - Objection as to the actual extent of plaintiff's damages.
- Range of damages' awards for successful copyright claims. In copyright infringement cases, rightholders are entitled to claim both pecuniary and moral damages. According to Article 65 paragraph 2 of Greek Copyright Law, in case the infringement was intentional or the result of negligence, the amount of damages (compensation) cannot be lower than twice the remuneration that the infringer should have, in normal circumstances, paid for the legitimate acquisition of the relevant exploitation rights. This is a presumption of law in favor of the plaintiff since, in many cases it is extremely difficult for the copyright owner to prove the exact amount of his “actual damages” which are due to the particular infringement. Instead of the above compensation and regardless of whether the infringement was intentional or the result of negligence, the claimant may demand either the payment of the sum accrued by the infringing party from the unlicensed exploitation of a work or the object of a related right, or the profit gained by the infringing party from such exploitation. The exact amount of pecuniary damages due is estimated by the Greek courts based on the evidence produced by the claimant and it mainly depends on the price that would be required by the claimant under normal circumstances. Therefore, we cannot give a specific range of damages since their estimation would vary depending on the particular circumstances of each case. For example, if the remuneration payable to the claimant for the legitimate use of a copyrighted work amounts to 10.000 Euro, the amount adjudicated by Greek courts would be – provided that the infringement was intentional or the result of negligence and according to Article 65 par. of Greek Copyright Law – double the amount of said remuneration, i.e. 20.000 Euro. With respect to moral damages due in copyright cases, these are freely assessed by the courts depending on the kind and seriousness of the violation, the right offended, the duration of the violation, the moral harm caused to the claimant, etc. Moral damages adjudicated by Greek courts in copyright infringement cases are in principle relatively low, particularly compared to other jurisdictions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.