Difference between revisions of "Rumania"

Revision as of 13:13, 16 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.

Exceptions and limitations

Exceptions and limitations to copyright and related rights are implemented in Chapter VI of the Law 8/1996.

According to articles 33 and the following of the Law 8/1996, the following uses of a work are permitted without the consent of the author and without payment of compensatory remuneration, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, under the condition that the uses are in accordance with fair practice, that these uses do not conflict with a normal exploitation of the work and do not prejudice the author or right holder:

a) Reproduction of a work within administrative, parliamentary or judicial proceedings or for purposes of public security;

-this is similar to art. 5, 3, (e) of the Directive which provides a similar text: “use for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings”; however the main difference is that the Romanian provision is limited, as it refers to “reproduction” and not to the more general “use” -we also note that there is no implementation of article 5.4 of the Directive

b) use of short quotations from a work, for purposes of analysis, commentary or criticism or as examples, to the extent required by the specific purpose; in this case unless this turns out to be impossible, the source, including the author's name, must be indicated In the case of plastic art or photographic or architectural works the place where the original is to be found shall be mentioned too

-this is similar to art. 5, 3 (d) of the Directive: “quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;” -we note that “use” permitted by the Romanian law is larger than “reproduction” and other uses permitted by the directive

c) use of isolated articles or short extracts of works in publications, in radio or TV broadcasts, destined exclusively to education, as well as reproduction for education in education institutions or social institutions of isolated articles or short extracts of works to the extent justified by the purpose; in this case unless this turns out to be impossible, the source, including the author's name, must be indicated In the case of plastic art or photographic or architectural works the place where the original is to be found shall be mentioned too -we note that “use” permitted by the Romanian law is larger than “reproduction” and other uses permitted by the directive

d) reproduction for research and information of short excerpts from works in non-profit libraries, museums, film and audio archives, archives of public cultural or scientific institutions; the integral reproduction of a copy of a work copy is allowed for its replacement, in case of destruction, of severe deterioration, or loss of the single copy from the respective archive or library's permanent collection;

e) specific reproductions made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage; in this case unless this turns out to be impossible, the source, including the author's name, must be indicated In the case of plastic art or photographic or architectural works the place where the original is to be found shall be mentioned too

-this is basically identical with article 5, 2, (c) of the Directive: “in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;” f) reproduction, by means excluding any means which come directly in contact with the work, distribution, or communication to the public of the image of a work of architecture, plastic arts, photography or applied arts, permanently located in public places, except the cases where the image of the work is the main subject-matter of such a reproduction, distribution or communication and if used for commercial purposes; in this case unless this turns out to be impossible, the source, including the author's name, must be indicated In the case of plastic art or photographic or architectural works the place where the original is to be found shall be mentioned too -this provision is similar to art. 5, 3, (h) of the Directive: “use of works, such as works of architecture or sculpture, made to be located permanently in public places;”

g) representation and performance of a work in the activities of education institutions, exclusively for specific purposes and under the condition that both the representation and performance and the access of the public be free of charge;

h) use of works during religious celebrations or official celebrations organized by a public authority

-this is basically identical with article 5, 3, (g) of the Directive: “use during religious celebrations or official celebrations organized by a public authority;”

i) use for the purpose of advertising of images of works presented in public exhibition or sale of artistic works, public auctions of works, to the extent necessary to promote the event, excluding any other commercial use; in this case unless this turns out to be impossible, the source, including the author's name, must be indicated In the case of plastic art or photographic or architectural works the place where the original is to be found shall be mentioned too

-this is basically identical with article 5, 3, (j) of the Directive: “use for the purpose of advertising the public exhibition or sale of artistic works, to the extent necessary to promote the event, excluding any other commercial use;”

Paragraph 2 of the same article 33 provides that “In the conditions of paragraph 1 (i.e:without the consent of the author and without payment of compensatory remuneration, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, under the condition that “the uses” are in accordance with fair practice, that these “uses” do not conflict with a normal exploitation of the work and do not prejudice the author or right holder), the reproduction, distribution, broadcasting and communication to the public are permitted, without direct or indirect economic or commercial advantage (Note: in all the cases of paragraph 2 unless this turns out to be impossible, the source, including the author's name, must be indicated):

a) (reproduction, distribution, broadcasting and public communication) of short excerpts of press articles and of radio or TV reports, with the purpose of informing on current issues (reporting of current events), in cases where such use was not expressly reserved.;

-this provision is based on the same idea as the text of art. 5, 3 (c) of the Directive: “reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name, is indicated, or use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author's name, is indicated, unless this turns out to be impossible;” However we note that there are differences between the texts.

b) (reproduction, distribution, broadcasting and public communication) of short fragments of conferences, lectures, pleadings and other similar works which were orally expressed in public, under the condition that such uses have the unique purpose of informing concerning current issues (to the extent justified by the informatory purpose);

-this is similar to art. 5, 3 (f) of the Directive: “use of political speeches as well as extracts of public lectures or similar works or subject-matter to the extent justified by the informatory purpose and provided that the source, including the author's name, is indicated, except where this turns out to be impossible”;

c) (reproduction, distribution, broadcasting and public communication) of short fragments of works, in the information concerning current events, to the extent justified by the informatory purpose;

d) (reproduction, distribution, broadcasting and public communication) of works in the case of exclusive use for illustration for teaching or scientific research;

-this is similar to art. 5, 3 (a) of the Directive: “use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;”

e) (reproduction, distribution, broadcasting and public communication) of works for the benefit of people with a disability, which are directly related to the disability to the extent required by the specific disability.”

-this is similar to art. 5, 3 (b) of the Directive: “uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;”

Paragraph (3) of article 33 provides that temporary acts of reproduction which are transient or incidental and are an integral and essential part of a technological process and whose whole sole purpose is to enable the transmission in a network between third parties by an intermediary or the lawful use of a work or other subject matter and which have no independent economic significance are exempt from the reproduction right (sic!) in the conditions of paragraph 1 (i.e:without the consent of the author and without payment of compensation, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, under the condition that “the uses” are in accordance with fair practice, that these “uses” do not conflict with a normal exploitation of the work and do not prejudice the author or right holder) -this paragraph implements article 5, 1 of the Directive

Article 34, paragraph (1) of the Law 8/1996 provides that in the meaning of the Law 8/1996, the reproduction without the consent of the author, for personal use or for the normal circle of a family, does not constitute infringement, under the condition that the work has already been lawfully made available to the public and the reproduction does not conflict with the normal exploitation of the work and does not prejudice the author or right holder. -this is similar to art. 5, 2 (b) of the Directive: “in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;” This last part of the text of the directive is covered by the provisions related to (i) article 34 (2): “For the material supports on which audio or audiovisual recordings may be made or on which reproductions of graphic works may be made as well as for equipment designed for copying, in the situation mentioned in paragraph 1 (see above) a compensatory remuneration set out by negotiation shall be paid, according to the provisions of this law”, and related to (ii) article 107 of the Law 8/1996: “The authors of works susceptible to be reproduced by audio or audiovisual recordings on any kind of support, as well as of works susceptible to be reproduced on paper, directly or indirectly, in the conditions provided by article 34 (1), have the right, together with the editors, producers and performers, as the case may be, to a compensation for the private copy, according to article 34 (2). The right to compensatory remuneration may not be object of a waiver by the beneficiaries.”

According to article 35, the transformation of a work, without the consent of the author and without payment of remuneration, is permitted in the following cases:

  a)   if it is a private transformation, which is not destined to and not made available to the public; 

b) if the result of the transformation is a parody or a caricature, under the condition that the result does not create confusion concerning the original work and its author; -we note that this paragraph b) is similar to art. 5, 3 (k) of the Directive: “use for the purpose of caricature, parody or pastiche;”.

  c) if the transformation is imposed by the purpose of the use permitted by the author; 
  d) if the result of the transformation is a resume of the work for educational purposes, with mention of the author. 

According to article 37 paragraph 1: “The companies which produce or sell audio or audio-video recordings, or equipment for reproduction or making available to the public of the audio or audio-video recordings, as well as equipment for receiving radio or TV broadcasts may reproduce and present excerpts from works with the purpose of testing the functioning of the products at the moment of manufacturing or sale, under the condition that such operations be reduced to the dimensions necessary for testing.”

-this provision is similar to art. 5, 3 (l) of the Directive: “use in connection with the demonstration or repair of equipment;”

Paragraph (2) of same article 37 provides: “With the purpose of supervising the use of their repertoires by third parties, the collective management bodies may monitor by any means the activity of the users, without any authorization being necessary and without payment, and they may demand, for this purpose, public interest information held, according to the law, by competent public institutions.“

Article 38 of the Law 8/1996 provides that “the transfer (Romanian: “cesiune”, French: “cession”) of the right to broadcast a work to a radio or TV broadcasting organization, gives the right to this organization to record the work for its own broadcasts, with the purpose of performing once the authorized broadcast. In the case of a new broadcast of the work so recorded, a new authorization is necessary from the authors, in the exchange of a remuneration which may not be subject-matter of a waiver. If, within 6 months from the first broadcast, a new authorization is not demanded (by the broadcasting organization from the author), the recording must be destroyed.”

Paragraph 2 of the same article 38 provides that “in respect of ephemeral recordings of works made by broadcasting organizations by means of their own facilities and for their own broadcasts, the preservation of these recordings in official archives is permitted if they have exceptional documentary character.”

-we note that art. 38 paragraph 2 is a translation of art. 5, 2, (d) of the Directive: “in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;” The following exceptions and limitations are not directly covered by Law 8/1996:

Article 5, 2. (a) “in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;” Article 5, 2. (e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation. Article 5, 3. (i) incidental inclusion of a work or other subject-matter in other material; Article 5, 3. (m) use of an artistic work in the form of a building or a drawing or plan of a building for the purposes of reconstructing the building; Article 5, 3. (n) use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections;

Anti-circumvention provisions

Articles 1385 and 1386 of the Law 8/1996 implement the anti-circumvention provisions of the Directive. Articles 1385 and 1386 were introduced by Law no. 285/2004 which modified the basic text Law 8/1996.

According to these articles, the author of a work, the performer, the phonogram or audiovisual recording producer, the radio or TV broadcasting organisations and the database maker (this basically covers “the rightholders of any copyright, rights related to copyright or the sui generis right in databases“) may institute technological measures designed to protect the rights granted by Law 8/1996.

Technological measures are defined as the use of any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, which are not authorised by the right holders of any rights recognized by Law 8/1996. We note that this is basically a transliteration (at least essentially) of the Directive definition.

The technological measures are deemed effective where the use of a protected work or other subject-matter is controlled by the right holders through application of an access code or protection process, such as encryption, coding or “scrambling” or other transformation of the work or other subject-matter or of a copy control mechanism, if the measures achieve the objective of ensuring protection. We note again that the definition of effective is basically a translation (with small mistakes) of the Directive’s text.

The text goes on to specify that the right holders who instituted technological measures have the obligation to make available to the beneficiaries of certain exceptions and limitations provided in the Romanian law, the necessary means for legal access to the work or other subject-matter of protection. The limitations referred to by this provision are:  reproduction in the context of administrative, parliamentary or judicial proceedings or for the purposes of public security;  use of isolated articles or short extracts of works in publications, in radio or TV broadcasts, destined exclusively to education, as well as reproduction for education in education institutions or social institutions of isolated articles or short extracts of works to the extent justified by the purpose;  specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage;  reproduction, distribution, broadcasting or communication to the public, which are not for direct or indirect economic or commercial advantage for the sole purpose of illustration for teaching or scientific research;  reproduction, distribution, broadcasting or communication to the public, which are not for direct or indirect economic or commercial advantage for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;  in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted;

At the same time, the right holders have the right to limit the number of the copies made in the above conditions.

We note again that the limitations covered by the Law 8/1996 are not exactly the same with the limitations covered by art. 6. (4), subparagraphs 1 and 2 of the Directive.

The last paragraph of article 1385 is a translation of subparagraph 4 of art. 6. (4) of the Directive and provides that the provisions of paragraph 4 of article 1385 (the equivalent of art. 6. (4), subparagraphs 1 and 2 of the Directive) do not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

Art 1386 provides that right holders may provide, in electronic format, associated to a work or other subject-matter of protection, or in the context of communication to the public of those, information concerning the regime of rights.

Information concerning the regime of rights (equivalent to the Directive “rights-management information”) is defined as any information provided by right holders which allows the identification of the work or other subject-matter referred to in Law 8/1996, of the author or any other right holder, as well as the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.

The solution chosen by the Romanian law for enforcing articles1385 and 1386 belongs to criminal law. Article 143 of the Law 8/1996 provides that it is criminal and punishable by prison from 6 months to 3 years or a fine, the action of a person who, without right, manufactures, imports, distributes or sells, offers in any way for sale or rental, or possesses with the purpose of marketing devices or components which allow the circumvention of technological measures or who provide services which lead to the circumvention of or circumvent technological measures, including in the digital environment.

  Also it is criminal and  punishable by prison from 6 months to 3 years or a fine the action of a person who, without the consent of the right holders, if this person knows or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of a right provided by the law: 
  a) removes for commercial purposes, from the works or other protected subject-matter, or alterates any electronic rights-management information; 
  b) distributes, imports for distribution, broadcasts, or communicates or makes available to the public so that the public may access them from a place and at a time individually chosen by them, works or other subject-matter protected from which electronic rights-management information has been removed or altered without authority.