Basic concepts

What is Copyright ?

Copyright law is a type of proprietary protection of a specific
category of intangible assets: the works of mind. In other words, the
subject matter of this “property” is incorporeal.

Copyright law has limited duration and is subject to various
restrictions which are justified by the public interest, such as the
right of information, the freedom of expression, educational purposes
etc or by practical or technical reasons.

There isn’t any uniform European intellectual property law system.

For about two centuries, in Europe and all over the world, two
different and concurrent intellectual property law systems set the basic
principles of each national intellectual property legislation.

On the one hand, we can find the author’s right’s or « continental »
copyright system which inspires the national legislations of many
European countries, such as Germany, France, Italy, Greece, Belgium or
Spain.

On the other hand, we can find the common law’s copyright system which
can be found in the United Kingdom, in Ireland, Cyprus, the United States, the
South Africa or Australia. In Europe the most significant representative
of the common law copyright system is the Anglo-Saxon copyright.

These systems are inspired by a different philosophy regarding the
social function of copyright, the place and the prerogatives of the
author.

In the author’s right’s system, the human author is the centre of the
legislation. The work is considered as a part of the personality of the
author. Between the author and the work there is a strong connexion
which could be compared to the relationship between the parent and his
child.

On the contrary, in the common law’s copyright system, the importance is
given to the work as an independent creation. The place of the author is
less significant and the emphasis is given to the commercialisation of
the work and the prevention of the manufacture of unauthorised copies of
the work.

The different philosophical basis of these systems is expressed in
concreto by the different legal approach on important copyright issues
such as authorship, originality or the moral right of the author.

For example, the threshold for protection is
traditionally higher in the continental system than in the Anglo-Saxon
copyright. According to the Anglo-Saxon jurisprudence, the work can be
protected if it is the result of a substantial degree of skill, labour
or experience and on the condition that it hasn’t been copied.

As far as it concerns the term copyright itself, it stems from this
basic preventive function of the legal protection. The right has been
called copyright, because it initially consisted of the right to prevent
others from copying the work. Nowadays the term is apt to be a little
misleading. The owner of copyright has further privileges, such as the
right to stop others from performing some version of it in public,
broadcasting it etc .

European copyright law harmonisation

European Community works on the harmonisation of these divergent
legal systems. The harmonisation of national copyright laws is a great
challenge for the European authorities. There are two principal reasons
for this motivation.

Firstly, the significant market value of the copyright law. The
achievement of European internal market demands the highest possible
level of harmonisation of national laws which is going to permit the
free movement of the copyrighted valuable assets all over Europe.

Secondly, the adoption of common copyright rules is a powerful means
of European integration as copyright law is firmly connected to the
culture and the national identity of each country. Intellectual property
law is the mirror of the present cultural status but also determines the
cultural future of the society.

The harmonisation of national Copyright rules is made by the adoption
of European Community Directives, which are transposed by the member
states in their national copyright legislation. Until now, 8 European
Directives have been adopted concerning either specific or more general
copyright issues. A significant number of the initiatives of the
European authorities for the purpose of the harmonisation of copyright
deal with issues which occurred by the digital revolution.

Effects of the award of Copyright

Copyright law grants to the author rights of pecuniar and moral
nature. The principle objectives of copyright are:

  • Tp allocate a fair remuneration to the author
  • To give to the author an exclusive right, a monopoly, on the
    commercial exploitation of his creation.
  • To protect the work against degradations or alterations which harm
    the personal relationship of thr author whith the work

 Moral rights in Cypriot law

There is no strong protection of moral rights in the law of Cyprus. Law 59/1976  recognises only two prerogatives of moral rights, as in article 6bis of the Berne Convention. According to article 7 of Law 59/1976, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Moral rights and Economic Rights in Greek law

In the continental law (author’s rights) tradition there is a strong protection for moral rights. The author cannot completely abandon or transfer moral rights. However,
according to article 16 of Law 2121/1993 (Greek Copyright Act), the
author can consent by contract to the exercise of acts which otherwise
would constitute a violation of the moral right. More precisely, the
granting of consent by an author for an action or an omission which
would otherwise constitute an infringement of his moral right shall be
deemed to be a form of exercise of his moral right and shall be binding
upon him.

Another possible restriction of the moral right is the application of
the legal concept of abuse of right in the context of the moral right.

For example, The District Court of Athens ruled
that the co-rightholder of the moral and economic rights over a work of
joint-authorship (a song ) abuses his moral right when he refuses the
economic exploitation of the work without contesting the artistic or
aesthetic quality of the exploitation (District Court of Athens, no
36247/1999)

The moral right shall not be transferable between living persons.
After the death of an author the moral right shall pass to his heirs,
who shall exercise the right in compliance with the author’s will,
provided that such will has been explicitly expressed

At the opposite, economic rights can be subject to exclusive or not
exclusive contracts. Moral rights correspond at the idea that the work
is a cultural good which reflects the mark of the personality of the
author. Economic rights are the financial compensation that the society
provides in order to remunerate the author.The moral right is
independent from the economic right and remain with the author even
after the transfer of the economic right

In Greek Copyright law, moral right gives to the author five specific
rights (powers) :

  • The right of publication : The author exclusively determines the
    time, place and manner in which the work shall be made accessible to
    the public
  • The right to be named as the author : The author has the right to
    demand that his position as the author of the work be acknowledged and,
    in particular, to the extent that it is possible, that his name be
    indicated on the copies of his work and noted whenever his work is used
    publicly, or, oppositely, if he so wishes, that his work be presented
    anonymously or under a pseudonym
  • The right of prohibition of Changes on the Work. Any kind of
    change, deterioration, modification of the work is prohibited without
    the permission of the author.) The author can prevent any distortion,
    mutilation or other modification of his work and any offence of the
    author due to the circumstances of the presentation of the work in
    public. It covers material changes and also changes which offend the
    honor or the prestige of the author or the meaning (“spirit”) of the
    work
  • The right of “having access” to the work : The author has the right
    to have access to his work, even when the economic right in the work or
    the physical entity of the work belongs to another person: in those
    latter cases, the access shall be effected with minimum possible
    nuisance to the rightholder
  • The right of rescission : In the case of a literary or scientific
    work, the autor has the right to rescind a contract transferring the
    economic right or an exploitation contract or licence of which his work
    is the object, subject to payment of material damages to the other
    contracted party, for the pecuniary loss he has sustained, when the
    author considers such action be necessary to the protection of his
    personality because of changes in his beliefs or in the circumstances.

Economic rights  in Greek law

The economic rights granted to the author according to the Greek
Copyright Act are the following :

a)the right to authorise or prevent the fixation and the direct or
indirect reproduction of the work by any means, in a whole or a part

b) the right to authorise or prevent the translation of the work

c)the right to authorise or prevent the arrangement, adaptation or other
alterations of the work

d) the right to authorise or prevent concerning the original or copies
of their works, the distribution to the public in any form by sale or
otherwise. The distribution right shall be exhausted within the
Community only where the first sale or other transfer of ownership in
the Community of the original or copies is made by the rightholder or
with his consent

(e) the right to authorise or prevent the rental or public lending
concerning the original or copies of their works. Such rights are not
exhausted by any sale or other act of distribution of the original or
copies. Such rights are not applicable to architectural works and works
of applied arts. The rental and public lending have the meaning provided
by the Counsil Directive 92/100 of 19 November 1992 (Official Journal of
the European Communities No. L 346/61-27.11.1992).

(f) the right to authorise or prevent the public performance of their
works

(g) the right to authorise or prevent the broadcasting or rebroadcasting
of their works to the public by radio and television, by wireless means
or by cable or by any kind of wire or by any other means, in parallel to
the surface of the earth or by satellite

(h) the right to authorise or prevent the communication to the public of
their works, by wire or wireless means or by any other means, including
the making available to the public of their works in such a way that
members of the public may access these works from a place and at a time
individually chosen by them. These rights shall not be exhausted by any
act of communication to the public as set out in this provision

(i) the right to authorise or prevent the import of copies of their
works produced abroad without the creator’s consent or the import of
copies from a country outside the European Community, when the right
over such import in Greece had been retained by the author through
contract”the distribution of the original or copies of the work via a
transfer of ownership e) the communication of the work to the public: f)
the public performance of the work: g) the broadcasting or
rebroadcasting of the work to the public by radio and television, by
wireless waves or by cables or by other material wires or by any other
means, in parallel to the surface of the earth or by satellite: h) the
import of copies of the work produced abroad without the creator’s
consent or the import of copies from a country outside the European
Community when the right over such imports had been retained in contract
by the author j) the resale right : an inalianable right to receive a
royalty based on the sale price obtained for any resale of the work,
subsequent to the first tranfer of the work by the author. This right is
aplied only to acts of resale involving as sellers, buyers or
intermediaries art market professinals, such as salesrooms, art
galleries and in general dealers in works of art. The royalty shall be
paid by the seller. This royalty is set at the following rates :

5% for the portion of the sale price up to EUR 50000

3% for the portion of the sale price from EUR 50000,01 to EUR 200000

1% for the portion of the sale price from EUR 200000,01 to EUR 350000

0,5% for the portion of the sale price from EUR 350000,01 to EUR 500000

0,25% for the portion of the sale price exceeding EUR 500000

The total amount of the royalty may not exceed EUR 12500

Principles concerning the exploitation of economic rights

Greek Copyright Act contains some special provisions about the
contracts concluded by the author with other parties for the
exploitation of economic rights

The author of the work may conclude contracts of transfer of one or more
powers of the economic right, exploitation contracts, by which he
entrusts to the other party to the contract powers deriving from the
economic right and the other party undertakes the obligation to exercise
the powers thus entrusted, exploitation licences by which the author may
authorize some other person to exercise power deriving from the economic
right

The first important principle is the obligation to conclude the contract
in writting. If a contract of transfer of econoimic rights or a
exploitation contarct hasn’t been concluded in writting it is considered
to be null and void. In that case, nullity may be invoked only by the
author and not by the other party

Exploitation contracts and licences may be exclusive or non-exclusive.
Each power of the economic right is independent from the other, so for
example, if a license gives just the right to perform an act, it’s not
possible to show and adapted version. This is the so called principle of
speciality of the powers of thw economic right

The transfer of the economic right and the exploitation contracts or the
contracts licencing the exploitation of that right may be restrictive as
regards the powers they confer, their scope and duration, the place of
their validity and the extent or the means of exploitation

Another important principle is the interpretation of the contract in the
light of the purpose of it (principle of the purpose of the contract).
This is necessary when the extent of the contract hasn’t been determined
by the parties.

If the extent and the means of exploitation for which the transfer takes
place or for which the exploitation or the exploitation licence is
agreed are unspecified, it shall be deemed that the said acts refer to
the extent and the means, which are necessary to the fulfilment of the
purpose of the contract or licence

Another principle which reinforces the protection of the author is the
interdiction to conclude a contract or a licence over all the future
works of the author and over forms of exploitation which were unknown at
the time the relative legal acts were concluded

Article 1 of the law 2121/1993 : Copyright1. Authors shall have, with the creation of the work, the right of
copyright in that work, which includes, as exclusive and absolute
rights, the right to exploit the work (economic right) and the right to
protect their personal connection with the work (moral right).