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When must public performances of musical works be reported to CMOs?

The introduction of Law 4481/2017 into the Greek legislation aimed to regulate the collective management of IP and relative rights, thus amending the EU Collective Rights Management Directive. (1) Specifically, in its regulation of the public performance of musical works incorporated in legitimately released sound carriers, stores, and undertakings, article 24 of Law 4481/2017 introduced a reporting obligation for users.

What is the reporting obligation?

The reporting obligation entails the delivery of lists of works used by the user to the collective management organisations (CMOs) representing the rights of the specific works. This derives not only from the teleological interpretation of article 24 of Law 4481/2017 (article 17 of the EU Collective Rights Management Directive) but also from the specific grammatical wording of the provision of article 24 itself:

1. Users must provide the collective management organization within the first fortnight of every semester, unless otherwise agreed, lists of works that they have used or produced or sold or leased or lent or performed to the public or broadcast or presented to the public the previous semester or the mutually agreed period of time, mentioning the exact number of copies produced or available, as well as the frequency of presentations to the public, as well as, all the relevant information at their disposal concerning the use of rights that the collective management organization represents and which is necessary for the application of the tariffs, the collection of the rights revenue and the distribution and payment of the amounts due to the rightsholders. All the above information shall be submitted in accordance to a certain format provided to them by the collective management organization, which takes under consideration the current industry standards. There shall be a single format for each category of use for all collective management organizations, which are required to send a model format to HCO. The user’s obligation to submit a report based on such format shall be included in the license agreement concluded with the collective management organization.

2. In case a user breaches the above obligation, the collective management organization may impose a ten per cent (10%) surcharge on the remuneration due. If the user violates this obligation more than twice, the organization may impose a fifteen per cent (15%) surcharge on the amount due or terminate the agreement. (Emphasis added.)

When does the reporting obligation apply?

Any type of reporting on the user’s part towards a specific CMO may only concern the use of rights that the specific CMO represents. Article 24 does not introduce a general reporting obligation towards each CMO regardless of the works used and the users’ relationship therewith. On the contrary, it is legally indisputable that this reporting obligation comes into play only:

when the user is contractually connected to a specific CMO and has thus obtained a licence to use its works (repertoire); and
according to the correct and prevailing opinion in the Greek legal theory, when the user made use of the works of a specific CMO without its permission.

There is no reporting obligation if the user has no contractual relationship with the CMO applying for information and has only used works of a different CMO or of, for example, an independent management entity. The CMOs’ right to request information should be interpreted narrowly: a CMO is entitled to request information only if the use concerns works that it represents and not if the rights of the works used belong to another CMO and/or are being managed individually by the right holders or their licensee. Moreover, as is clearly stated in the law, the use of the works for which the reporting is requested on the CMO’s part must have produced income for the user, which in turn must be distributed to the beneficiaries. This is logically not possible if the works used are not controlled or managed by the CMO requesting information.

In order for a CMO’s application for information to be valid, certain legal procedural conditions must also be met. Most importantly, CMOs must provide the users with the specific format required for the provision of information, which is expressly stipulated in Article 24. The law, in full compliance with Article 17 of the EU Collective Rights Management Directive, even provides for the approval of this format by the Hellenic Copyright Organisation, thus setting the requirements for the activation of the CMOs’ right to information. In confirmation of the aforementioned need for a contractual link to exist between the CMO and the user and/or for the occurrence of (unlicensed) use by the latter of the CMO’s works, article 24 stipulates explicitly that “the licence must include the format”. Therefore, the format must be known to the user in advance and be handed over by the requesting CMO.

For further information on this topic please contact Kriton Metaxopoulos or Katerina Nikolatou at A & K Metaxopoulos & Partners Law Firm by telephone (+30 210 725 7614) or email (k.metaxopoulos@metaxopouloslaw.gr or knikolatou@metaxopouloslaw.gr). The A & K Metaxopoulos & Partners Law Firm website can be accessed at www.metaxopouloslaw.gr.

Endnotes

(1) Directive 2014/26 of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market.

This article was originally edited by, and first published on, www.lexology.com . Please click here to view the original publication.

Athens court rules on moral damages in software infringement case

Introduction

The Single-Member First-Instance Court of Athens recently dealt with three important legal issues:(1)

the principle of exhaustion of rights;
the amount and calculation of damages in copyright infringement cases; and
moral damages suffered by legal entities or persons as a result of the infringement of software and other “products” that enjoy copyright protection according to Greek law.

The Court’s decision arose in the context of injunction proceedings relating to the defendants’ unauthorised use of software programs. The plaintiff, a leading multinational software manufacturer, owned the rights to exploit the programs.

Decision

Exhaustion of rights over software programs
Article 41 of the Greek Copyright Law(2) reads as follows:

The first sale in the European Community of a copy of a program by the author or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or of a copy thereof.

Accordingly, the Court held that the holder of the IP right to a computer program cannot object to the resale of a copy thereof where such a copy is accompanied by a licence for unlimited use, whether material or immaterial. The Court held that this applies regardless of the existence of contractual clauses that prohibit further transfer. The Court made specific reference to certain European Court of Justice decisions in this respect. (3)

According to the Court, the term “sale” used in article 41 of the Copyright Law must be interpreted in a broad sense. The term includes, according to the decision, all forms of marketing of the copy of the computer program that include a right of time-limited use for a price. Such usage aims to provide to the rights holder the possibility of receiving remuneration corresponding to the economic value of the copy in question. (4) The second buyer of the specific copy, like any subsequent buyer, is a “person who legally acquired it” within the meaning of article 42(1) of the Copyright Law, which reads as follows:

In the absence of an agreement to the contrary, the reproduction, translation, adaptation, arrangement or any other alteration of a computer program shall not require authorization by the author or necessitate payment of a fee, where the said acts are necessary for the use of the program by the lawful acquirer in accordance with its intended purpose, including correction of errors.

Of course, the original purchaser of a computer program who resells either the hardware or the immaterial copy of their program – in relation to which the distribution right that the beneficiary had has been exhausted pursuant to article 41 of the Copyright Law – must ensure that it is impossible to use their own copy, at the time of its resale. This prevents the possible infringement of the exclusive right to reproduce a computer program provided for in article 42(2) of the Copyright Law, which belongs to the creator or author of the relevant program.

Damages in cases of copyright infringement
Article 65(2) of the Copyright Law provides as follows:

A person who by intent or negligence infringes copyright or a related right of another person shall be liable for compensation of damages and for restitution of moral damages. The compensation for damages cannot be less than twice the fee that is usually or by law paid for the type of exploitation that the infringer did without license.

Interpreting this provision, the Court held that article 65(2)(2) of the Copyright Law was introduced to address the difficulty of calculating the property damage in case of infringement of rights to intangible goods according to article 298 of the Civil Code. Article 65(2)(2) of the Copyright Law provides: “The compensation for damages cannot be less than twice the fee that is usually or by law paid for the type of exploitation that the infringer did without license.”

Article 65(2)(2) introduces the abstract calculation of damages based on the statutory or usually paid remuneration – that is, exclusively on the basis of objective criteria. (5) Thus, the usual fee is defined as that which a prudent licensor would demand and a prudent licensee would accept to pay if they had entered into a licence agreement knowing all the relevant circumstances. In other words, it is the usual price requested in the specific industry for granting the right to use the specific intangible good. (6)

Any previous contracts with third parties that granted a licence to exploit the intangible asset and that the beneficiary may have concluded in the past – before the act of infringement – are crucial for this calculation. Thus, the consideration that the beneficiary claims indiscriminately from the end user is the fee usually paid to license a computer program (ie, including reproduction, storage, installation, loading, display and execution) that is addressed to:

the general public (eg, an operating system); or
a specific professional public (eg, a design program or a sound and/or image-editing program).

In other words, it is the price of a program that has not been designed to cover the needs of a specific natural or legal person.

Moral damages suffered by legal entities
The Court considered the monetary restitution of moral damages suffered by a legal entity due to an infringement of its IP rights (including those to a software program). The Court rejected the plaintiff’s requests for the award of monetary restitution due to moral damage. It held that they were inadmissible because they were too vague.

According to the Court, the plaintiff had provided only a general and abstract invocation of its damage. It had failed to reference specific, materially significant incidents that, due to the infringement of its disputed IP rights, had:

disrupted its business operation and activity;
caused the loss of existing or new clients;
suspended its preparatory business actions; or
led to its financial loss or a reduction in its income. (7)

Comment

The Court’s restrictive approach with respect to assessing the moral damages of a legal person is in line with the case law in most decisions (on the merits) of the Greek appeals courts. Such decisions usually assimilate the moral damages of legal persons to actual financial loss. This differs from cases involving natural persons, where financial damages are totally distinct from moral damages. The latter aims to redress only the psychological harm suffered by a natural person as a result of the infringing behaviour and not their financial losses.

Case law is not unanimous on this matter. The Greek Supreme Court recently held that the moral damages of legal persons need not correspond to specific financial damages suffered. (8) It may be argued that the decision discussed in this article was wrong in this respect as it required the plaintiff to prove the incurrence of specific financial damages. This is against the basic principle of civil law, which is to compensate not only the direct financial damages of the injured person but also:

their direct distress (in the case of natural persons); or
the indirect adverse financial impact of the infringing act (in the case of legal persons).

In the latter case, there should be no need to prove specific financial damages as those are covered by the compensation due for damages and not by the amount of moral damages to be awarded by the court.

For further information on this topic please contact Kriton Metaxopoulos at A & K Metaxopoulos & Partners Law Firm by telephone (+30 210 725 7614) or email (k.metaxopoulos@metaxopouloslaw.gr). The A & K Metaxopoulos & Partners Law Firm website can be accessed at www.metaxopouloslaw.gr.

Endnotes

(1) Decision No. 2916/2022.

(2) L 2121/93.

(3) See:

C-166/15, Ranks and Vasiļevičs, EU:C:2016:762, paragraph 30 (12 October 2016); and
C-128/11, UsedSoft, EU:C:2012:407, paragraph 77 (3 July 2012).

(4) See Ranks and Vasiļevičs, paragraph 28 and UsedSoft, paragraph 49.

(5) See Supreme Court decision No. 438/2018.

(6) Id:

the above-mentioned provisions for the calculation of the compensation payable . . . impose objective comparison criteria (among which are the market conditions prevailing at the time of the damage) for the use of the program in question, in view of a specific business activity).

(7) See:

Supreme Court decision No. 382/2011;
Court of Appeals of Athens decision No. 2790/2021; and
Court of Appeals of Thessaloniki decision No. 626/2014.

(8) See Greek Supreme Court decisions:

No. 766/2021;
No. 1483/2021; and
No. 193/2018.

This article was originally edited by, and first published on, www.lexology.com . Please click here to view the original publication.

Delhi High Court holds that personality rights of deceased persons are not heritable

There has been immense activity surrounding the jurisprudence of celebrity rights in India with numerous judicial pronouncements in recent years. As regards legislation, there is no statute in India that expressly recognises the publicity or personality rights of individuals; therefore, the aspect of inheritance of publicity rights of a deceased person is still not entirely settled.

In a recent development, the High Court of Delhi confirmed that the publicity rights of individuals are not inheritable and extinguished with the death of the individual/celebrity. In March 2021, the Plaintiff (sole survivor in Category 1 of Class 2 legal heirs of the deceased) approached the Court seeking an injunction against the defendant from using Sushant Singh Rajput’s (SSR, a popular film actor in India who died a couple of years ago under mysterious circumstances) name, caricature, lifestyle or likeness in any of the projects or films (including ‘Nyay: The Justice’) which was being produced by the Defendants. Plaintiff contended that his consent was required before using SSR’s personality traits.

The Court watched the entire film and concluded that it is a re-enactment of SSR’s life based on publicly available news reports and observed that there was hardly any inventive input by the defendants in the creation of the film. The Court further observed that SSR’s personality rights weren’t violated since the publicly available news reports were not refuted or challenged at the time of their publication. The Court also observed that even if it is assumed that the film violated SSR’s publicity rights, ‘such rights were personal to SSR and died upon his demise’ and observed that other rights such as the right to privacy, personality rights, etc., vested in SSR (and were not heritable).

This judicial pronouncement has further cemented the legal position in India as regards the non-recognition of inheritance of publicity rights (and extinguishment of the same upon the demise of the individual/celebrity).

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Introduction

Decision

Comment