Difference between revisions of "Rumania"

Revision as of 12:30, 12 September 2006

Implementation

The field of copyright is regulated in Romania by Law no. 8 of 1996 concerning the author’s right (copyright) and neighboring rights.

Subsequently the Law 8/1996 was modified by Law no. 285/2004 and Emergency Governmental Ordinance No. 123/2005 (which was modified and approved by the Parliament as Law no. 329/2006). Both Law no. 285/2004 and Ordinance No. 123/2005 implemented the provisions of the Directive in the Romanian system of law.

Upload/Download

Aside from the basic dichotomy upload/download, the Romanian law treats significantly different the software as opposed to other works subject-matter of copyright.

Copyright subject-matter other than software

Pure download (without upload at the same time) would be covered by art. 140 of Law 8/1996 - "(1) It is a crime punishable by prison from one month to 2 years or by a fine any of the following action if peformed without the authorization or consent of the holder of the rights recognized by the present law:

  a) reproduction of works or products bearing related rights; 
  b) distribution, rental or import on the internal market of works or products bearing related rights, other than pirate-works; 
  c) public communication of works or products bearing related rights; 
  d) radio broadcasting of works of works or products bearing related rights; 
  e) cable transmission of works or products bearing related rights; 
  f) perform derivative works; 
  g) fixation, for commercial purposes, of artistic performances or of radio or tv programming; 
  ... 
  (2) Products bearing related rights are artistic performances fixed, phonograms, videograms and shows and programming owned by radio or tv stations."

However, there is a competing article 34 (a fair use article) which states that "(1) There is no breach of copyright, in the meaning of this law, in the reproduction of a work without the consent of the author, for personal use or for the use of the normal circle of a family, under the condition that the work was previously brought to the public knowledge, and the reproduction would not contravene to the normal use of the work and does not prejudice the author or the holder of the use rights."

So, on the one hand it is a crime to reproduce works in any way (which would seem to make unauthorized download a crime), but on the other hand article 34 seems to grant an exception. Still, we have no knowledge of judicial interpretation of this conflict yet, so it is only theory that we have got now.

We note now that art. 15.(1) defines as public communication "any communication of a work ....performed by making available to the public, including by internet or other computer networks, so that any of the members of the public may acces it from any place and at any time individually chosen". This would normally cover upload.

Though article 140 would seem to cover pretty all situations (we noted above that article 15 covers uploading too), the Romanian law includes yet another article (139.8) which specifies that "it is a crime punishable by prison from 1 to 4 years or with a fine, making available to the public, including by Internet or other computer networks, without the consent of the holders of rights, of works or products bearing related rights or database sui-generis rights or of their copies, regardless of the support, so that the public may acces them from any place and at any time individually chosen."

Our conclusion is that simple download is criminal as long as it is not covered by article 34 (fair use) while upload is always criminal.

Criminal Code: lack of social danger

However, there is a further provision in the Criminal Code of Romania, which was apparently actually used by the courts, which specifies that an action regarded by the law as crime will not be actually considered by the judge as crime if that action lacks the "social danger" of a crime (the best example to understand this is that of the poor man stealing a bread to feed his kids: while the act is regarded as criminal by the law, the judge, based on the mentioned provision of the Criminal Code, will not impose a punishment). (NOTE: this applies to every crime: either download or upload related or software or other subject matter.)

The effect of this provision of the Criminal code is that even in the case of uploading, actions of uploading may go unpunished if the judge decides to use this provision.

   __________

Software

In the case of software it is forbidden to upload or download without permission. Article 139.9 of the Law 8/1996 provides that "It is a crime punishable with prison from 1 to 4 years or with a fine, the unauthorized reproduction of software on computer systems in any of the following ways: installation, storage, execution, display or internal network transmission"

Software as subject-matter of copyright is different than other copyright subject matters because the fair use exceptions do not apply at all to software. The law expressly provides that fair use exceptions do not apply to software.

As such, in the case of software, it is clear that it is criminal to upload or download without permission or consent and there are no exceptions to it.

Access to copyright works by disabled persons

According to article 33 of Law 8/1996, the reproduction, distribution, radio broadcasting or public communication of works to the benefit of disabled persons is permitted without the consent of the author and without the payment of a compensation fee being necessary, under the following conditions: a) there should be a direct relation to the disability and to the extent required by the disability; b) there should be no direct or indirect commercial benefit c) the uses do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the author or right holder

As the provisions concerning disabled persons were just simply translated from the Directive it is very difficult to assess their impact. We are not aware of any implementing tool for the text.