Download 40293_Software piracy

Countering the facts of
copyright infringement for
computer software (software
piracy)
Dr. Ioannis KIKKIS
IP expert
Introduction
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Software piracy which is a scourge for the
whole territory of the Community, has been a
serious problem for Greece and required
specific action.
In 1994, just after the harmonization of the
Greek Copyright Act with the Computer
Programs Directive, software piracy in Greece
was amounted to 86%. In 2009, the level of
software piracy has been reduced to 58%.
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The Legal Protection of Computer
Programs in Greece
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The Greek Law L.2121/1993 on copyright and related
rights has been harmonized with the EU Directive
91/250/EEC of 14 May 1991 on the legal protection of
computer programs
In article 2 of the Law it is stated that “computer
programs and their preparatory design material shall
be deemed to be literary works”.
Criterium of protection is the originality: “a computer
program shall be protected if it is original in the sense
that it is the author`s personal intellectual creation”.
The level of originality required for the protection of
computer programs is rather low, and the judges
apprehend the individuality of computer programs in
the light of statistical uniqueness.
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Authorship and
ownership
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According to the Greek law the copyright on
computer programs initially vests in the
author, i.e. the person who created the
work. The copyright can then be assigned
to a legal person.
Article 40 provides that “the economic
right in a computer program created
by an employee in the execution of the
employment
contract
or
following
instructions given by his employer, shall be
transferred ipso jure to the employer,
unless otherwise provided by contract
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Economic rights
The Computer Programs Directive confers certain
rights on the owner of copyright in computer
programs, including:
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the
the
the
the
right to control temporary reproduction,
running and storage of the program,
translation or adaptation,
distribution or rental of the programs.
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End user license agreements
Necessary for legal s/w use.
1. The most popular:
- EULA (End User License Agreement): for
end users
- Shrink Wrap Licenses: on the package
2. Types of multiple licenses:
- Open/Volume License
- Select or Εnterprise
3. License for ΟΕΜ product (Original
Equipment Manifacture) :
4. Shareware / freeware/open source
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Forms of software piracy
1. Copy made by the end user (softlifting)
2. Trading of the pirated copy together with the computer
(uploaded in the hard disc drive)
3. Forgery (false copy of the original product)
4. Online
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Sanctions L.2121/1993
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Civil sanctions. Compensation at least equal to
the double market price of the s/w program.
Criminal sanctions. imprisonment of at least one
year and a fine of 2900-15000 euros which may
rise up to 10 years and pecuniary compensation of
58.694 and the company’s operation license may be
suspended.
The people who face prosecution within a company
are the official representative of the company, the
man who is responsible for the department and the
head of the computerization department.
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Right of information
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The directive provides the possibility to trace the origin and
the distribution networks of the goods or services which
infringe an intellectual property right.
In the context of infringement proceedings, on basis of
“justified and proportionate request of the claimant” the
competent judicial authorities may order the infringer or any
other person who, for commercial purposes, is involved in the
infringement (including) the intermediaries to disclose the
network of piracy.
The type of information consists of names, addresses,
quantities and prices
Safeguards are prescribed for the defendant such as the
respect of rules on use of information in civil/criminal
proceedings, the protection of confidentiality of information or
the processing of personal data and the prevention of selfincrimination.
The Greek legislator has associated this provision with a very
severe sanction in article 63A in fine of a monetary fine of9
50000 to 100000 Euros, which shall devolve to the tax office.
Collection of evidence
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1. The claimant will be able to ask from the court, provided that he has presented
reasonable available evidence sufficient to support his claims, and has, in
substantiating those claims, specified evidence which lies in the control of the
opposing party, to order that such evidence be presented by the opposing
party.
2. In the case of an infringement committed on a commercial scale, the claimant
will be able to ask from the court to order the notification of banking,
financing or commercial documents under the control of the other party.
The notion of “commercial scale” is a new one. To judge whether there is an
infringement on a commercial scale, it will be taken into consideration the
number of the illegal copies that the other party holds. Specifically, the
existence of more copies is considered sufficient evidence of infringement on a
commercial scale.
In every case the court has to guarantee the protection of confidential
information.
Of course, in case where the other party is called to submit this evidence and
nevertheless unjustifiable he does not do this, the claims of the claimant10will
be taken as granted and confessed by the other party.
Administrative Penalties
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An administrative fine of 1.000 Euros per program will be
imposed on any person who illegally reproduces or
distributes a computer program. The fee doubles, if the
same person proceeds in these actions repeatedly within the
same fiscal year.
Competent authorities for the control of enforcement of
these fines are the Tax Police (YPEE), the Police and the
Customs, which inform the rightholders via the Hellenic
Copyright Organization after the finding of the infringement.
If an infringer pays the administrative fee and the illegal act
concerns a quantity up to 50 programs, then the culpable
character of the action is raised and no criminal sanctions
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can be imposed.
Expected results
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This new regulation expands considerably the frame of
protection of software programs and brings the
following changes:
Policemen are disengaged, because of the raising of
the culpable character; thus the long lasting criminal
hearing will not take place any more.
The government obtains prompt and important
revenue, which is a clear public income.
It discourages people to infringe rights of s/w
programs, because it establishes a direct way of
punishment.
It motivates state authorities to take action, thus 12the
piracy rates will be reduced.
Enforcement of copyright on
computer programs in Greece
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The IT sector in Greece supports 4500
companies with 28000 employees. It
provides 1.6 billion Euros in revenues.
The local software industry is valued
191 million Euros
IDC in estimates that decreasing by 10%
software piracy will bring the following results:
- The national GDP increased by 261 million
Euros.
- More than 1.000 new employment positions.
- 88 million Euros revenue added to the
government’s fund from taxes
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Enforcement activity of BSA
• Lead received
(members, hotline, web, anonymous letters)
• Evaluation of the lead
(corporate research)
• Warning letter / YPEE Referral / BSA Raid
(civil procedure always preferable)
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CIVIL PROCEDURE BEFORE THE
GREEK COURT OF INTERIM MEASURES
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Filing of interim measures, asking for
c)
interdiction to use the programs,
injunction to conduct a detailed inventory,
attachment of illegal copies,
d)
threat of detention against the representative of the company
a)
b)
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Court’s ruling on the provisional order demand (ex parte)
the judge is obliged to order the bailiff to conduct a detailed inventory of the programs
used and of the licenses bought. [article 64 L. 2121/1993, article 50 para 2 (TRIPS),
article 7 EU directive 2004/48]
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Bailiff’s detailed inventory technical experts appointed = 1expert/10PCs
[programs used – licenses bought = illegal programs]
pirated programs = s/n: 12345678…, xxxxx xx xxxx, 777 77 77, etc.
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Court hearing of interim measures and Court’s ruling
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CIVIL PROCEDURE BEFORE
THE
GREEK COURT OF FIRST INSTANCE
Filing of civil action asking for compensation
evidence of proof for the infringement = the bailiff’s detailed
inventory
 Court hearing on the civil action -15months after the filing.
Intellectual property cases are enlisted together with all commercial
law casesMinistry of Justice Decision no. 50726/19.05.2006 re:
the establishment of a new department of the courts that will judge
on cases concerning intellectual property and European trademarks.
•
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Court’s ruling on the civil action
After the service of the document of the decision to the defendant,
he has a 30day time limit to file an appeal against it.
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CIVIL PROCEDURE BEFORE
THE COURT OF APPEALS
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Filing of an appeal
Court hearing for the appeal
-4 months after the filing,
since the special courts for the appeals of intellectual property cases
were established. Before the establishment of these courts, the court
hearing was planned for 12 months or more after the filing-
Court of Appeals’ ruling on the appeal
After the service of the document of the
decision to the defendant, he has a 60day time
limit to file a claim before the High court.
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CIVIL PROCEDURE
BEFORE THE HIGH COURT
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Filing of the claim before the High Court
Court hearing for the claim
High Court’s ruling on the claim
__________
Instead, most common procedure:
settlement.
BSA LOBBYING ACTIVITY
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Necessity for co-ordinated effort:
→ BSA
→ Law enforcement Authorities (YPEE)
→ OPI & other services of Ministries
• YPEE: the tax police in duty of protection of IP rights on s/w
BSA-YPEE project a. training YPEE auditors in tracing s/w
b. provide YPEE with any technical info
on s/w programs required to evaluate s/w
licenses
c. provide YPEE auditors with technical experts
to be appointed during their audits
The specific role of YPEE
STRUCTURE:
CENTRAL SERVICE WITH
THREE [3] DIRECTORATES
 REGIONAL SERVICES WITH
THIRTEEN[13] REGIONAL DIRECTORATE
AND
TWO [2] OPERATIONAL DIRECTORATES
FOR SPECIAL CASES.
 In 2010 establishment of a new IPR
department
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Competence of YPEE
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CONTROLS FOR THE PREVENTION AND
PROSECUTION OF ECONOMIC CRIME ON
MATTERS OF ESPESIAL NATURE OR ECONOMIC
INTEREST, CONCERNING MAINLY:
SUPPLIES, FINANCING, LOANS AND LOTTERIES.
COPYRIGHTS, TRADEMARK LICENCES AND.
RELEVANT COMMERCIAL RIGHTS , SUCH
AS
COUNTERFEIT PRODUCTS
BOOKS, CD’S, AND DVD’S.
CO-OPERATION
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POLICE, COAST QUARD, MILITARY
AND OTHER AUTHORITIES AND
SERVICES, ARE OBLIGED,
WHEN THEY ARE REQUESTED,
TO AID DIRECTLY AND
EFFECTIVELY THE INPECTORS OF
YP.E.E,
AS WELL AS TO GRANT EVERY
RELATED INFORMATION OR ELEMENT
OPERATION
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HOURS
YP.E.E, OPERATES 24 HOURS A
DAY AND ALL DAYS OF THE
WEEK, WITH PROPER
ALTERNATION OF PERSONNEL,
WHO ARE OBLIGED TO WORK
REGULARLY AND OVERTIME AND
DURING HOLIDAYS AND NIGHT
HOURS, DEPENDING ON ITS
NEEDS.
PUBLIC PROCECUTOR OF
MAGISTRATES OF ATHENS
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FOR THE PRELIMINARY EXAMINATIONS
AND INQUIRIES OF CASES UNDER THE
JURISDICTION OF THE YP.E.E, IN WHICH A
SERVICE OF IT, ENGAGES WITH PAN-HELLENIC
JURISDICTION,
THE JURISDICTION IN PLACE OF THE
PUBLIC PROCECUTOR OF MAGISTRATES
OF ATHENS ,
EXTENDS TO THE ENTIRE
TERRITORY
AND
IS PREFERRED IN THE CASE THAT FOR
THE SAME CASES OTHER COMPETENT PUBLIC
PROSECUTORS OR INVESTIGATIVE AUDITORS,
WERE ALSO ENGAGED IN.
ILLEGAL SOFTWARE
INPECTION AND REPRESSION
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IN ALL CASES OF DAILY INSPECTION, AN
ORDER OF INSPECTION HAS TO BE
APPROVED, FROM THE SUPERVISOR.
IT COULD BE A GENERAL ORDER, FOR AN
OVERALL INSPECTION.
OR A SPECIFIC ORDER TO CHECK ONLY THE
SOFTWARE OF A COMPANY.
THE OWNER AND USER OF THE SOFTWARE
PACKAGE, IN ORDER TO PROVE THE
LEGITIMATE USAGE, HAVE TO SUBMIT, THE
END USER LICENSE AGREEMENT, THE
PURCHASE BILLS AND THE ORIGINAL CDs.
ILLEGAL SOFTWARE INSPECTION
AND REPRESSION
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THE INPECTION TEAM, MAKES A LIST, OF
ALL THE INSTALLED SOFTWARE IN THE
HARD-DISKS OF THE PC’S AND IN NETWORK
SERVERS OF THE INSPECTED COMPANY.
THE LIST IS SIGNED, BOTH BY THE
INSPECTION TEAM AND THE LEGAL
REPRESENTATIVES OF THE COMPANY.
THE NEXT STAGE, IS THE CROSSEXAMINATION AND COMPARISON OF THE
END USER LICENCES AGREEMENTS, WITH
THE PURCHASE BILLS, IN ORDER TO
DISCOVER ANY ILLEGAL SOFTWARE.
CONCLUSIONS
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Since 2006, that the software anti-piracy
project was launched YPEE has invited all
companies in the Greek market to prove the
legality of the software used.
As a result of the joint action of BSA Hellas
and YPEE, according to a study conducted
from International Data Corporation (IDC) on
behalf of BSA software piracy in Greece has
been reduced by 6% from 2005 until 2009.
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