International Comparative Legal Guide – Copyright Laws and Regulations, Greece for 2023 – An ICLG publication contributed by Marios Sioufas
rights and avoidance of possible conflicts with existing rights has become an integral part of the Intellectual Property Practice.
The team has also developed with the addition to its clientele of a major Technology Transfer Office of one of the biggest universities in Greece. The variety of the IP matters in this regard has expanded tremendously, including patents, trade secret protection, agreements with inventors and other institutions and companies with respect to research and development.
In this regard, the in-depth knowledge and expertise in the field of IP has set the practice apart from other firms.
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Contributor
Marios Sioufas
Sioufas & Associates Law Firm is one of the biggest Greek law firms, with a wide portfolio of clients. The law firm was founded in 1999 and operates in Greece, Romania. The offices are based in Athens, Thessaloniki, Patras and Bucharest. The firm’s Intellectual Property practice has skyrocketed in the last few years, with trademarks, designs and patents at the core of both advising and litigation. Numerous trademarks and designs filings have taken place over the last few years, both on a national and European level. Advising on availability issues of IP
1. Copyright Subsistence
1.1 What are the requirements for copyright to subsist in a work?
According to articles 1, 4 and 12 of L. 2121/1993, protection is granted to works that are original.
“Originality”, a concept not defined by the law, is the conclusion that, under similar circumstances and with the same objectives, no other creator/author would reasonably be able to create a work of a similar nature, or alternatively that the work exhibits an individual peculiarity or a minimum threshold of “creative height”, i.e. some distance from what is already known. Therefore, the individuality of each work plays a vital role and reflects the specificity of the creative process of its creator, thus that the work possesses a “statistical uniqueness”.
1.2 Does your jurisdiction operate an open or closed list of works that can qualify for copyright protection?
Greece operates under an open list of works according to article 2 of L. 2121/1993.
1.3 In what works can copyright subsist?
Copyright can subsist in any literary work or work of art or science, expressed in any form, in particular written or spoken texts, musical compositions, with or without text, theatrical works, with or without music, choreographies and pantomimes, audio-visual works, works of visual arts, including drawings, paintings and sculptures, engravings and lithographs, architectural works, paintings, photographs, works of applied alterations of works or expressions of folk tradition; and collections of works or collections of expressions of folk tradition or of simple facts and figures, such as encyclopedias and anthologies. Protection is also afforded to databases, software and preparatory material of their design, along with the C.A.D. file if source code is included.
1.4 Are there any works which are excluded from copyright protection?
Apart from the well-known idea-expression dichotomy, the following works are excluded from protection: official texts by which the State exercises its powers, i.e. legislative, administrative or judicial texts; expressions of folk tradition; news; and simple facts and data.
1.5 Is there a system for registration of copyright and, if so, what is the effect of registration?
Copyright subsists at the moment of the creation/authorship of a work and it is not subject to any formalities. To obtain a certain date as regards the existence of the work, one could either submit it at a notary public or utilise a timestamp service, such as the one provided by the Hellenic Copyright Organization (OPI) at (Hyperlink).
1.6 What is the duration of copyright protection? Does this vary depending on the type of work?
Intellectual property lasts for the life of the creator and 70 years after his/her death, calculated from the first day of January of the year following the author’s death. For anonymous or pseudonymous works, copyright lasts 70 years from the first day of January of the year following the one in which the work was made available to the public.
For neighbouring rights, the duration of protection is 50 years from the creation, material incorporation, publication or performance of the work (depending on the type of work), subject to certain conditions and deviations.
1.7 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?
As far as trademarks are concerned, the distinctive character required by law is not identical to the originality requirement of L. 2121/1993. However, a mark could in principle be protected by copyright, should the originality (for the design of the mark) requirement be met. However, there is a closer link with design rights, since the criteria of novelty and individual character could overlap with or meet the originality pre-requisite of copyright. Presidential Decree 259/1997 for design rights provides for the “double protection” of works that also fulfil the copyright criteria. The same applies for database rights that can either be protected by copyright or by the sui generis right of article 45 A of L. 2121/1993.
1.8 Are there any restrictions on the protection for copyright works which are made by an industrial process?
No, all works benefit from copyright protection regardless of whether or not they were made by an industrial process.
2 Ownership
2.1 Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?
The creator/author of a work is the initial beneficiary of the economic and moral rights in the work. Also, the director is presumed to be the creator of an audio-visual work.
2.2 Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?
The initial creator/author of the work and the owner of such intellectual property rights is the natural person who accepted and executed the order, and not the person who placed the order.
The commissioner becomes the owner of the copyright in the work in the case where, in the commission agreement, the parties agreed in writing for the transfer of the intellectual property rights in the work or the exploitation of such rights, pursuant to article 14 of L. 2121/1993.
2.3 Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?
According to article 8 of L. 2121/1993, in cases where works were created by employees during their employment contract, the original beneficiary of the economic and moral rights is the author/creator of such works. In the absence of an agreement to the contrary, only those powers from the economic rights that are necessary for the fulfilment of the purpose of the contract are automatically transferred to the employer. Article 8 has an endotic character and the parties may agree otherwise. With regard to software created by employees, the economic rights are automatically transferred to the employer, except if the parties have agreed otherwise.
2.4 Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?
The law provides for three types of joint ownership, namely collaboration, collective and composite works. Collaboration works are considered to be those created by the co-operation of two or more creators. Such persons are the original co-owners of the economic and moral rights in the work. Unless otherwise agreed, the rights are owned in equal shares. Collective works are those created with the independent contributions of several authors under the intellectual direction and co-ordination of a natural person. That natural person shall be the original owner of the economic and moral rights in the collective work. The collective work, like the collaborative work, is created by a majority of authors, with the difference being that there is no co-creation in the form of direct collaboration, but rather independent and distinct contributions by several creators who merge into a new work, the collective work. The initiative and responsibility for the creation of the collective work lies with a natural person, who takes the coordination and intellectual direction of the work, and that person is recognised as the original owner of the intellectual property right in the collective work. Composite works are made by parts that have been created separately and he authors of these parts shall be the initial co-owners of the rights in the composite work and the exclusive initial owners of the rights in the part created by the each of them, provided that it is capable of being exploited separately.
3 Exploitation
3.1 Are there any formalities which apply to the transfer/assignment of ownership?
Article 14 of L. 2121/1993 foresees that transactions concerning the transfer of rights, the assignment or licence of exploitation and the exercise of moral rights shall be null and void if they are not in writing. Only the creator may invoke the nullity of the contract. This provision establishes the obligation to use a written form for every legal transaction concerning a property right, departing from the principle of the atypical nature of legal transactions introduced by article 158 CC. Such a need for protection does not arise for the secondary beneficiary, i.e. the person who acquired the property rights indirectly from the creator, nor for the presumed author.
For neighbouring rights provided in articles 46-51 of L. 2121/1993, agreements are only valid if they are in writing.
3.2 Are there any formalities required for a copyright licence?
The same provisions as above apply.
3.3 Are there any laws which limit the licence terms parties may agree to (other than as addressed in questions 3.4 to 3.6)?
According to article 13 of L. 2121/1993, the licence granted can never include all of the future works of the creator and cannot be considered to encompass ways of exploitation that were not known at the time of the conclusion of the agreement.
Sub-licences must also have the consent of the creator (for exclusive licences). In general, the exploitation of the work is subject to the moral rights of the creator, which cannot be waived. In addition, there are special provisions with regard to remuneration for licensing, publisher agreements and translations, audiovisual production agreements, radio and TV reproduction, theatrical works, music in cinemas and photography.
3.4 Which types of copyright work have collective licensing bodies (please name the relevant bodies)?
The collective licensing bodies are as follows:
■ Directors/screenwriters – SADA;
■ Composers/lyricists – AUTODIA-EDEM;
■ Playwriters/translators of plays –THESPIS;
■ Directors of photography/set designers/costume designers/sound engineers/editors – ISOKRATIS;
■ Creators of visual works – OSDEETE;
■ Authors/publishers – OSDEL;
■ Photographers – PHOEBUS;
■ Musicians – APPOLON;
■ Producers of audio-visual works – DIAS/IRIDANOS;
■ Actors – DIONYSOS;
■ Singers – ERATO;
■ Producers of cinematography works – ERMIAS;
■ Producers of phonograms – GRAMMO;
■ Organization for Collective Management & Protection of Related Rights – TVRIGHTS; and
■ Organization for Collective Management & Collection of Related Audio Rights – GEA.
3.5 Where there are collective licensing bodies, how are they regulated?
The legal framework for collective management organisations and collective protection organisations and of independent management entities is provided by L. 4481/2017. The relevant licences are issued by the Ministry of Culture and Sports, and the organisations are supervised by the OPI.
3.6 On what grounds can licence terms offered by a collective licensing body be challenged?
Recourse may be made to the competent Single-member Court of First Instance or to mediation, for various matters connected to the licence terms of IP rights. The most common issues related thereto are the existence or not of a payment obligation and the exact amount to be paid, the public or private performance of a work and contractual terms that could be deemed unreasonable or that discriminate unfairly between licensees.
4 Owners’ Rights
4.1 What acts involving a copyright work are capable of being restricted by the rights holder?
Rightsholders can allow or restrict the following acts: a) the registration and the direct or indirect, temporary or permanent reproduction of their works by any means and in any form, in whole or in part; b) the translation of their works; c) the revision, adaptation and other modification of their work; d) as regards the original or copies of their works, their distribution to the public in any form by sale or otherwise; e) rental and public lending, as regards the original or copies of their works; f) the performance in public of their work; g) the transmission or retransmission of their works to the public by radio and television, by electromagnetic waves or by cable or other physical means or by any other means parallel to the earth’s surface or by satellite; h) to communicate their works to the public, by wire or wireless or any other means, and to make their works accessible to the public in such a way that anyone can access them wherever and whenever they choose; and i) the importation of copies of their works produced abroad without the consent of the author.
4.2 Are there any ancillary rights related to copyright, such as moral rights, and, if so, what do they protect, and can they be waived or assigned?
Moral rights are foreseen in article 4 of L. 2121/1993. Such provisions grant the rightsholder the following: a) the right to decide when, where and how the work is to be made available to the public (publication); b) the right of recognition of the origin of the work (paternity), in particular, the right to request, as far as possible, the inclusion of his/her name in the copies of the work and in any public use of his/her work, or, on the contrary, to reserve the right to claim anonymity or to use a pseudonym; c) the right of prohibition to distort, abridge or otherwise modify his/her work and any infringement of the author due to the circumstances in which the work is presented or communicated to the public; d) the right to access to his/her work, even if the economic right in the work or ownership of the material carrier of the work belongs to another person, in which case the access must be
carried out in a way that causes the least possible disturbance to the rightsholder; and e) in the case of literary or scientific works, the withdrawal from the transfer of the economic right or of its exploitation or licence, where this is necessary for the protection of his/her personality because of a change in his/her beliefs or circumstances and with the payment of compensation to the counter-party concerned for the consequential damage suffered.
Τhe moral right is non-transferable between living persons, and only after the death of the author does the moral right pass to his/her heirs (articles 4 § 3 and 12 of L. 2121/1993). However, the consent of the author to acts or omissions that would otherwise constitute an infringement of the moral right is, according to article 16, a lawful exercise of that right, and the author/creator is thus bound by it.
4.3 Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?
According to the doctrine of exhaustion of rights (articles 3 and 41 of L. 2121/1993), the right of distribution within the Community is exhausted only if the first sale or in any other way the first transfer of ownership of the original or copies of the work within the Community is effected by the rightsholder or with his consent. In such cases, the owner cannot object to the distribution of his/her work within the Union. Moreover, the first sale of a copy of a computer program within the European Union by the author or with consent exhausts his/her distribution right of this copy within the Union, with the exception of the right of control of subsequent leases of the program or of copies thereof. As a general rule, for digital works, the rightsholders’ rights are not exhausted by acts of communication to the public according to article 3 of L. 2121/1993.
5 Copyright Enforcement
5.1 Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?
Yes, there are – in particular: 1) the Authority of Special Inspections (ΥΠ.Ε.Ε) of the Ministry of Finance; 2) local Customs duty authorities; and 3) police departments. These agencies perform inspections of compliance with L. 2121/1993 and notify the rightsholders through the OPI (Ministerial Decision 101/2007).
5.2 Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work?
On a general note, for civil actions, collecting societies can bring a claim for infringement. The same applies to heirs of the copyright owner, licensees (if such was agreed) and owners of economic rights and rightsholders.
5.3 Can an action be brought against ‘secondary’ infringers as well as primary infringers and, if so, on what basis can someone be liable for secondary infringement?
Action can be also brought against secondary infringers. The basis is common with the primary infringers, i.e the violation of the intellectual property rights of the rightsholder. The secondary infringers could also be obliged by court to provide detailed information about anything related to the infringing article, product or service. Action could also be initiated against intermediaries whose services are used by a third party to infringe a copyright or related right according to Directive 2001/29. This provision gives rightsholders the right to take action not only against persons who directly infringe the intellectual property rights, but also against third parties who mediate or facilitate the infringement.
5.4 Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?
The main defences for such claims are abusive exercise of the right, claim of no damage suffered, private use, reproduction of short parts for expression of opinions or critics or for teaching, reproduction of works in schoolbooks, reproduction of works for informative purposes and certain uses in museums and libraries. There are also exceptions for software products, including reverse engineering.
5.5 Are interim or permanent injunctions available?
Yes. If an infringement of a right is suspected, the Single Member Court of First Instance shall order the conservative seizure of the objects held by the defendant as a precautionary measure. Instead of this measure, the court may order a detailed inventory of the illegal objects, including a photograph of them. The court may also order the conservative seizure or judicial sequestration of goods suspected of infringing rights under the law in order to prevent their entry or circulation in the trade. In cases of infringements committed on a commercial scale, the court may order as a protective measure the conservative seizure of the assets of the alleged infringer, including the freezing of bank accounts.
5.6 On what basis are damages or an account of profits calculated?
Infringers are generally liable to compensation/indemnification and payment of moral damages. This compensation may not be less than twice the amount of the remuneration normally or lawfully payable for the type of exploitation that the offender has carried out without authorisation. Alternatively, without requiring fault of the infringer, the rightsholder may request the payment of the amount by which the former became enriched by the exploitation of the work or the payment of the profit that the debtor has derived from such exploitation.
5.7 What are the typical costs of infringement proceedings and how long do they take?
For interim measures, the minimum attorney fees and costs of the proceedings are approximately €500, excluding costs of witnesses, experts and other related amounts, e.g. bailiffs. Civil action costs are categorised depending on the amount claimed.
Court decisions with regard to interim measures are issued within approximately two months from the hearing of the case, while for civil actions the relevant period is approximately one-and-ahalf years from filing the lawsuit.
5.8 Is there a right of appeal from a first instance judgment and, if so, what are the grounds on which an appeal may be brought?
If the appellant resides in Greece, the time limit for appeal is 30 days. If he resides abroad or his residence is unknown, then 60 days. In both cases the time limit begins from the service of the judgment closing the proceedings. If the judgment has not been served, the time limit for appeal is two years, beginning from the publication of the judgment closing the proceedings.
An appeal may be filed for numerous reasons, such as errors of law, errors of facts, contradicting reasonings and for not taking into account particular evidence. Descriptions of such grounds must be specific.
5.9 What is the period in which an action must be commenced?
Claims for unjust enrichment and return of profits are subject to a 20-year-period time-bar. The main compensatory claims due to illegal acts of IP rights are subject to a time-bar period of five years beginning from the knowledge of the damage, according to article 937 of the Greek Civil Code.
6 Criminal Offences
6.1 Are there any criminal offences relating to copyright infringement?
On a general note, for violations of provisions regarding the rightsholders’ economic rights, the law foresees the sentence of imprisonment of up to one year and a financial penalty of between €2,900 and €15,000. If the benefit from such illegal acts is especially large, then the sentence of imprisonment is up to two years and the financial penalty between €6,000 and €30,000. If the offender performs the above acts as a profession “or on a commercial scale” or if the circumstances under which the act was carried out indicate that the offender is particularly dangerous for the protection of intellectual property or related rights, then imprisonment of up to 10 years is imposed along with a monetary penalty of €15,000 and €60,000, as well as removal of the operating licence of the business in the context of which the act was carried out.
The initial sentences of up to one year’s imprisonment and a financial penalty of between €2,900 and €15,000 also apply to violations of the database right and to offenders that illegally use specific technology and systems that surpass IP technological protection measures.
6.2 What is the threshold for criminal liability and what are the potential sanctions?
For the abovementioned sanctions to be imposed, the threshold of criminal liability of article 66 par.1 of L. 2121/1993 is wilful misconduct according to the Greek Penal Code, even dolus eventualis.
7 Current Developments
7.1 Have there been, or are there anticipated, any significant legislative changes or case law developments?
One significant legislative change (L. 4961/2022) is the inclusion of 3D printed works in the definition of works protected by intellectual property (L. 2121/1993). In particular, computer-aided design files (CAD files) are also now protected, provided they contain a source code. Moreover, L. 4947/2022
has been issued with regard to the lifting of confidentiality/secrecy of communications, in order to discern violations of IP rights on the internet for serious crimes/felonies.
7.2 Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, in NFTs or the metaverse, etc.)?
EDDPI is a committee recently founded (2018) for the notification of violations of IP rights on the internet. It consists of an out-of-court mechanism to which rightsholders may resort in order to achieve the prompt and effective termination and prevention of the infringement of their rights in the digital environment. The aim and the role of EDPPI is to promptly provide for specific orders on a case-by-case basis regarding copyright-protected works and other subjects and matters of protection, while special procedures (live blocking injunctions) are provided for sport and cultural events.
So far, there is no legislative framework on a national level regulating the nature and market of NFTs. Most platforms usually give unclear information on the terms of service, making users’ rights vague and creators vulnerable to potential infringements.
Purchasing an NFT work does not automatically transfer the rights of the copyright holder. The copyright in the underlying asset is transferred if this is explicitly agreed (usually through a smart contract).
7.3 Have there been any decisions or changes of law regarding the role of copyright in relation to artificial intelligence systems, including the use of copyright in those systems and/or any work generated by those systems?
Νο. Greece has recently legislated (L. 4961/2022) on AI systems, although the scope of such framework remains on arrangements to establish appropriate safeguards to ensure the rights of natural and legal persons, to enhance accountability and transparency in the use of AI systems, and to complement the existing institutional framework for cybersecurity
