Greece: new notice and take down administrative mechanism for online copyright cases now in force
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| From Rome ... |
From Katfriend Katfriend, fellow blogger (iprights.gr), attorney and post-doc researcher Dr Theodoros Chíou (Dr. Theodoros Chíou & Partners, Intellectual Property and Internet Law Office) comes the news that the Greek system has now entered into force.
Here’s what Theodoros writes:
“Greece has recently become another European country to opt for the introduction of an out-of-court notice and take down (or access blocking /content removal) legal mechanism for illegal online content, based on a procedure carried out in front of and under the responsibility of an new-founded ad hoc administrative authority, namely the “Commission for the notification of online copyright and related rights infringement” (hereinafter: the Commission) οr, transliterated in brief, ‘EDPPI’.
The enactment of this mechanism occurred last summer by means of Law 4481/2017 and the introduction of a new analytical Article 66 E in the Greek Copyright Act (Law No. 2121/1993). However, its effective operation has just begun, as the necessary ministerial decisions for the implementation of the provision and the establishment of the Commission were adopted in February 2018.
Here is a summary of the main features of the new anti-piracy legal mechanism:
Nature and scope of the legal mechanism
The use of the new mechanism is voluntary and independent from the judicial protection of rights. The law expressly stipulates that bringing the procedure in front of the Commission does not suspend or prejudices the judicial recourse of the right holders for the same case at the courts.
Similarly, the decision of the Commission does not prevent the parties involved from claiming the protection of their interests in front of courts (in other words, the decision of the Commission does not create a binding res judicata for judicial authorities).
The mechanism may be triggered by the submission in front of the Commission of a formal application by any primary and secondary right holder of copyright or related rights, including CMOs, whose rights are assumed to be infringed.
However, the new mechanism is available in respect of online infringements committed essentially on or via websites (by reference to domain names or IP addresses). Indeed, it is clearly stipulated in the law that the procedure is not applicable to (and, thus, the Commission is not competent for) infringements committed by end-users either through downloading or streaming of protected works, P2P file exchange or cloud storing. On the contrary, the new legal mechanism targets mainly internet intermediaries, which will be the “defendants” within the procedure in front of the Commission.
Composition of the Commission
The Commission is a 3-member administrative authority (but not an independent public authority) whose seat is at the Greek Copyright Organisation (OPI). It is composed of the President of OPI (who presides the Commission), a representative from the Greek Data Protection Authority and a representative from the Greek Telecommunications & Post Commission (who is the secretary of the Commission) with a 3-year mandate. The Commission has decisive power to receive complaints and issue decisions and control their implementation within the frame of the new notice and take down procedure, as prescribed by the legal texts.
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| ... to Athens ... |
Requirements of admissibility of the application submitted to the Commission
The Commission proceeds with the examination of the application only if both of the following requirements are fulfilled:
· The applicant (or his representative) fills out and submits (either electronically, by email, by post or in person) the model request form provided by OPI accompanied by all mandatory supplementary documentation (as prescribed in the form or requested by the Commission) and any other relevant evidence for establishing his right (and the infringement in case), which includes litigated URLs, identification of content and copyright ownership of the applicant.
· The applicant pays the relevant fee in favour of OPI. The amount can vary from a minimum of EUR 300 to a maximum of EUR 1,000 (+VAT 24%), depending on the number of litigated domain names and type of illegal exploitation (streaming etc.).
· The applicant has made use of relevant notice and take down procedure (if any) which is made available by intermediary service providers involved for the litigated content, without results.
Stages of the procedure in front of the Commission
After submitting the application, the Commission will make a preliminary assessment of the submitted application, in the course of which it will decide either to set aside the application for the reasons enumerated in the law (such as missed payment of the fee, lack of competence or existence of lis pendens or definite court decision concerning the same parties and the same case) or to admit the application and put forward the procedure, which comprises the following stages:
1. Preliminary proceedings
Upon accepting the application, the Commission notifies, by any appropriate means, including by email, within 10 work days from the application date simultaneously all Greek ISPs and, and wherever possible, the web hosting service provider and administrators and/or owners of the websites mentioned in the application. The notification in question mentions at least the rights infringed, the legal provisions that have been infringed and a summary of the assessment of documentation and evidences submitted along with the application.
The recipient of the notification may either:
· comply voluntarily with the claim of the right holder within 10 days from the reception of the notification (in such case the Commission issues a decision mentioning the voluntary compliance of the recipient);
· receive a licence from the right holder within 10 days from the reception of the notification (in such case the Commission will set aside the application), or
· submit objections to the Commission within 5 days from the receipt of the notification, along with any relevant evidence proving that no infringement is at stake. After the end of the objection period, the Commission may invite any involved party in the procedure (i.e. the right holder or the recipient(s)) to submit additional elements within 5 days.
2. Decision of the Commission
After the end of the preliminary stage, the Commission examines the case and issues a decision which shall be issued and communicated equally to the right holder and the recipients of the notification within 40 to 60 work days from the date of submission of the application at the latest.
By its reasoned decision, the Commission either sets aside the application (because no copyright infringement has been established) or, in case that the infringement has been established, invites the recipients of the notification:
a. Either to remove the illegal content hosted in the litigated website, or
b. Block the access to illegal content described in the application, by using the most appropriate and effective technical means, which may include IP address or domain name server (DNS) blocking.
The choice depends on the features of the infringement at issue.
It appears that the Commission shall opt for content removal if the website containing the litigated content is hosted on a server located in Greece. The removal shall be permanent, unless a licence from the right holders is obtained. However, the Commission may opt for access blocking, instead of content removal, in case of “national” large scale infringements. Moreover, in case that the litigated website is hosted on server outside Greece, the Commission shall invite ISP’s to block the access to the illegal content. In any case, the exact duration of access blocking is decided solely by the Commission, but IP blocking cannot exceed 6 months and DNS blocking (including subdomains) cannot last less than 3 years. Besides, the Commission may ask from ISPs to redirect users who attempt to access the blocked website to a screen with informative message regarding the reasons of the blocking.
It should be noted that the decisional meetings of the Committee are not public and are covered by secrecy while the decisions may be published on the OPI’s website at the Committee’s sole discretion.
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| .... there's a new online enforcement process in place! |
Monitoring and fines in case of non-compliance
The recipients of the decision shall comply with content removal or access blocking obligation within 3 working day from the date of communication of the Commission’s decision. Moreover, the Commission is the competent authority for monitoring the compliance of the recipients with the decisions. In case of non-compliance, the recipients are subject to fines imposed by a separate decision of the Commission which may be between EUR 500 to EUR 1,000 per day of non-compliance, depending on the characteristics of the copyright infringement in question.
Final remarks
This new anti-piracy legal mechanism is undoubtedly a useful tool for right holders who wish to tackle the online infringement of their rights, as it seeks to be not only fast but also practical: it focuses on technical solutions applied by internet intermediary service providers - and especially ISPs – and prescribes quite high fines in case of non-compliance. Of course, its efficiency and success could be assessed only over the months to come and depends on the use made by right holders and the results achieved in practice.
However, there are some legal issues regarding the functioning of the new mechanism that probably should be explored more in depth, such as, for instance, the accountability of the Commission, the procedural means and competent jurisdiction for appealing the Commission’s decisions as well as the interplay between this mechanism and other legal tools of similar purpose, such as the judicial recourse by way of interim measures against online intermediary service providers, according to article 64A of the Greek Copyright Act.”
