m***@yahoo.com
2005-01-14 19:57:50 UTC
http://www.iipa.com/rbc/1999/rbc_greece_301_99.html
GREECE
Greece's enforcement system fails to provide effective remedies against
copyright theft and is therefore not in compliance with its TRIPS
obligations. The TV piracy problem has been acute for years and finally
led the U.S. to commence a WTO/TRIPS enforcement case against Greece in
May 1998 following IIPA's recommendation that Greece be made a Priority
Foreign Country and that a TRIPS case be commenced. While TV piracy
rates have crept down to around 20% in 1998 under the threat that the
Greek government might actually begin to enforce the law, the Motion
Picture Association (MPA) has no doubt that if effective enforcement
coupled with a sound regulatory structure is not implemented, we will
see a return to previous high levels of TV piracy as soon as the
international political pressure abates.
History and experience show that the Greek government will attempt to
find something to mollify the U.S. and indeed its EU partners. The 1993
Copyright law, 1995 amendments to the Broadcast law and the 1997 Action
Plan were each held up as a resolution to the TV piracy issue. Each
time the international community has accepted the promised action and
each time there has been no change in the status quo. The licensing
process, which took years to be put into place, continues to move at a
snail's pace and was not completed last summer as promised. The fact of
the matter is that the Greek government lacks the political will to
take on entrenched interests and put in place an effective and
transparent TV regulatory structure which is the best means to ensure
against TV piracy.
Greece's latest attempt to ward off international political pressure
took place in October 1998, when the Greek government passed a new
Digital TV law which provided all applicants for broadcast licenses
with temporary licenses. This Law also purportedly gave the Minister of
the Press and Mass Media the power to shut down TV stations that
continue to engage in TV piracy. The Greek government claimed this law
would enable them to deal with TV piracy. EPOE, the local Greek
anti-piracy organization which also represents MPA, immediately moved
to test the new provisions of this law.
On December 7, 1998, EPOE hand-delivered a "memo-complaint" to the
Minister of the Press and Mass Media requesting that Junior's TV, Ermis
TV and Vergina TV be closed down pursuant to Article 17(2) of the new
law. The complaint gives a detailed account of the judicial and
administrative histories of these habitual offenders. The complaint
alleges that all of the stations continue their unauthorized
broadcasting of EPOE member company titles despite judicial and
administrative actions taken against them. EPOE has also provided
documentary evidence (tapes) of infringements that occurred after the
entry into force of the new law. The Greek Government has to date only
moved to shut down Vergina TV, a company apparently without political
muscle. It has failed to apply the law, which was portrayed as the
solution, to Ermis TV and Junior's TV. Reports indicate that Junior's
TV continues to air pirate broadcasts, although most are independent
titles as it seeks to steer clear of MPA titles. The issue here is
whether the Greek government is willing to undertake the structural
reform necessary to resolve its TV piracy problem. Because the Greek
government is unwilling to apply the law against two habitual
offenders, it is clear that the Greek government intends more of the
same. Consequently, the MPA believes that USTR should request that this
dispute be brought before a WTO panel.
For the copyright industries as a whole, piracy rates remain among the
highest in Europe. The high statutory penalties provided by the law are
almost never imposed. If there is any cause for optimism, it is that at
the end of 1998, Greece's most notorious pirate, after 24 postponements
and an appeal of a conviction in a 1994 case, finally was forced to pay
the first criminal fine for TV piracy in Greece's history. Total trade
losses due to piracy in Greece were $97.8 million in 1998.
IIPA recommends that Greece be maintained on the Priority Watch List.
ESTIMATED TRADE LOSSES DUE TO PIRACY
(in millions of U.S. dollars)
and LEVELS OF PIRACY : 1995 - 1998
INDUSTRY
1998 1997 1996 1995
Loss Level Loss Level Loss Level Loss Level
Motion Pictures 20.0 20% 50.0 25% 60.0 25%
59.8 25%
Sound Recordings/
Musical Compositions 8.0 25% 8.0 25% 7.5 25%
6.0 25%
Computer Programs:
Business Applications 40.5 73% 30.6 73% 32.7 82%
28.6 86%
Computer Programs:
Entertainment SW(1) 22.3 73% 21.3 74% 22.0 75%
20.8 79%
Books 7.0 NA 6.5 NA 5.0 NA
6.0 NA
TOTALS 97.8 116.4 127.2
121.2
--------------------------------------------------------------------------------
HISTORY
Greece was on the Watch List from 1989-1994 and was elevated to the
Priority Watch List in November 1994. Despite passage of a modern
copyright law in March 1993 and a Broadcast Law in July 1995, there has
been little change in levels of piracy and trade losses to U.S.
copyright owners have continued to increase. While the 1993 Copyright
Law contains modern levels of protection and stiff minimum and maximum
penalties and the creation of the Office of Intellectual Property (OPI)
has benefitted from aggressive and committed leadership, only isolated
and sporadic progress has been achieved. Greece's enforcement system
remains the worst in the European Union.
Despite the threat at that time of the commencement of a TRIPS case on
July 1, 1997, announced in USTR's April 30 1997 Special 301 decision
keeping Greece on the Priority Watch List for the fourth year, the
Greek government made for the most part only procedural progress -- the
TV licensing system had been moving forward -- at a snail's pace and
without a decisive effect on TV piracy -- and circulars have been
issued urging prosecutors to take copyright piracy more seriously,
which has also been without measurable result. With piracy levels at or
above 25% in all copyright areas, Greece remained in blatant violation
of its TRIPS enforcement obligations.
In February 1995, IIPA recommended that Greece be made a Priority
Foreign Country for its failure to deal with the TV piracy problem.
USTR announced the commencement of the WTO case in May 1998.
Consultations, without much progress, continued from that time to the
present.
--------------------------------------------------------------------------------
PIRACY AND ENFORCEMENT
MOTION PICTURES
After years and years of frustration in trying to obtain action from
the Greek government to deal with TV piracy in Greece, USTR commenced a
WTO TRIPS case against Greece in May 1998. During this period, MPA
sought both civil and criminal relief without avail and continued to
press the Greek government to move forward its institution of a
licensing system which would be conditional on stations adhering to the
copyright law. The situation today is that the government finally got
around to accepting license applications: during 1998 an estimated 160
unlicensed television stations applied for roughly 100 licenses
(national, regional and local). Despite diplomatic pressure and
repeated use of the courts by MPA, through the local anti-piracy
organization EPOE, some of these stations continue to broadcast
illicitly U.S. and other foreign motion pictures and television
product. EPOE indicates that as a result of the ongoing TRIPS dispute
settlement consultations between the U.S. and the European Union/Greece
as well as the licensing process and other economic factors, the rate
of television piracy in Greece has decreased to about 20%. While the TV
stations are beginning to get the message, the Greek government remains
a great distance away from taking the actions that will be necessary to
reduce to near 0% what is still the highest TV piracy level in Europe.
The rate of video piracy (generally back-to-back copying) is
approximately 15% in the Athens area and up to 25% elsewhere in the
country. EPOE has a large number of pending video cases from past years
when as many as 100 criminal complaints were filed per year. The court
process is slow due to the frequency of adjournments, lawyers' strikes,
few judges sitting on the bench, and the low priority given to IP
infringements (factors which of course also affect the TV cases).
Following initiation of the TRIPS case on May 1, 1998, the Greek
government finally adopted an amendment to the Broadcast Law (Digital
TV Law 2644, October 13, 1998) which, among other new provisions,
allowed 140 unlicensed stations to obtain temporary licenses while the
authorities were processing the applications for the 106 permanent
licenses slots. Most importantly, the amendment also provides for
license revocation/suspension by the Minister of Press and Mass Media
in the event the temporary licensees engage in broadcast piracy.
Article 4 of the Broadcast Law already contained an almost identical
provision but it was never used. MPA and EPOE have been using this
amendment to test the sincerity and willingness of the Greek government
to shut down pirate stations and have so far obtained the closure of
only one TV station (Vergina TV). Complaints against two other stations
(Junior's TV and Ermis TV) are still pending.
MPA, EPOE and U.S. Government pressure had secured a promise from the
Government to conclude the licensing process by the end of the summer
1998, but the process continues to drag on. The National Radio
Television Council (NRTC) is still not operating as intended and
continues to lack the personnel required to do the work. On the
judicial side, the special IPR chambers which were promised also have
never been created.
The second round of consultations in the WTO/TRIPs case between the
United States and the EU/Greece were held on September 28, 1998, in
Geneva, Switzerland. During the first round of consultations, the EU
Commission took a hard line interpretation of the TRIPs enforcement
provisions, arguing that cases brought before January 1, 1996 are not
relevant to the TRIPS case. USTR argued in great detail that Greece had
entirely failed to comply with its enforcement obligations in the TRIPS
Agreement and outlined the failure of prosecutors to comply with no
fewer than three Supreme Court circulars directing improvements in the
processing of intellectual property cases. Chronic assignment of high
docket numbers which lead to frequent hearing postponements, and the
unacceptably long time periods between hearings, remain unchanged. The
MPA believes that if the WTO case fails to resolve the television
piracy issue, there most certainly will be a return to high television
piracy levels.
Under the Greek judicial system, it remains virtually impossible to
secure aggressive prosecutions, convictions and adequate sentencing. In
the early 1990's, MPA brought civil cases against television stations.
These moved at a snail's pace through the judicial system and yielded
minimal results. In 1994, following passage of the 1993 Copyright Law
(Law 2121/93) and its deterrent penalty structure, EPOE commenced
bringing criminal cases against TV stations and video pirates as well
as bringing TV piracy cases before the NRTC to obtain administrative
penalties.
The administrative actions before the NRTC have proceeded at a sluggish
pace. One 1996 complaint, which identified 21 pirate stations, lingered
without action until February 1997. Even then, nineteen of the stations
were merely issued reprimands and warnings, while two stations were
fined US$18,000 each. As part of a separate complaint, Junior's TV, one
of the most notorious pirates in Greece, was fined US$38,000. These
decisions remain on appeal and the fines have not been paid. EPOE
submitted another administrative complaint on March 19, 1997, naming 12
stations, and a further complaint against 8 stations on July 10, 1997.
In December 1997, EPOE filed yet another complaint which repeated the
March and July 1997 filings. On January 28, 1998, NRTC finally held
hearings on these complaints. As in the past, unfortunately, the
results were disappointing. The NRTC reportedly did not deal with 13 of
the stations and of the other 7 stations, four received fines and three
were issued warnings. These decisions were finally officially reported
in November 1998.
On the criminal side, the situation has remained just as grim over the
last two years. The Copyright Law contains some of the highest criminal
penalty provisions in western Europe. Jail terms range from a minimum
term of 1 year up to 5 years and fines of a minimum of 1 million up to
5 million drachmas (US$3,500 to US$18,000). The fines may go up to a
range of 2 million to 10 million drachmas (US$7,000 to US$35,000) if
the profits from the infringement or the damage caused by piracy are
particularly high, and the penalties can go up to 5 to 10 years in jail
and 5 million to 20 million drachmas (US$18,000 to US$70,000) if the
infringer is acting professionally or is particularly dangerous.
However, Greek courts never impose these significant penalties. Indeed,
Greek courts ignore even the statutory minimum penalties.
In the many years that MPA has been involved in antipiracy activities
in Greece, not a single TV or video pirate has ever served a day in
jail, in spite of the purported 1 year minimum jail term.
Unfortunately, under the law, any jail term assessed by a judge that is
less than two years can be commuted to a fine at a rate of 15,000
drachmas or US$53 per day (but with interest, stamp duty and costs, the
total cost is closer to US$112 per day).(2) However, while there have
been a few sentences, in general, this system undermines the deterrent
effect of imprisonment, especially where pirates can afford to pay the
fines as a cost of doing business. In addition, Greek criminal law
provides that persons who have not been previously sentenced to serve
time in jail can, under certain circumstances, be granted a suspended
sentence of any term of three years or less. This device has also been
used to avoid the minimum penalties in the Copyright Law.
The four criminal actions (and two civil injunctions and three NRTC
administrative actions) against the infamous pirate Junior's TV
illustrate these problems. These cases were subject to interminable
delays. The first criminal action was initiated March 29, 1994, for
over 100 unauthorized broadcasts of 37 member company titles between
June 1993 and February 1994. After three years, on June 3, 1997, Mr.
Halaris, the owner of Junior's TV, was convicted and sentenced to 17
months' imprisonment and a fine of US$5,500. This conviction was
appealed, and the appeal hearing has already been postponed twice. The
next hearing was set for December 1998 and fortunately the appellate
court upheld his conviction and he was finally forced to serve his
sentence of 10 months in jail and $5,500 fine. While this is certainly
a good ending, EPOE had to live through 24 postponements in this 1994
case. Mr. Halaris was remitted to jail at the time but ended up paying
the full "buy-out" of the jail term ($29,000) and the fine was not
imposed due to mitigating circumstances. To cap everything off, Mr.
Halaris has now sold his interest in Junior's. However, the transfer of
ownership of any TV station in Greece is subject to the approval of the
NRTC. Moreover, these criminal actions name Mr. Halaris personally as
the defendant and thus the cases are still pending, as described below.
The second criminal action against Junior's was filed February 27, 1995
for copyright infringement and breach of injunction. This case was
postponed six times and finally on January 25, 1999, Mr. Halaris was
acquitted. The third criminal action was filed May 23, 1995, for over
200 unauthorized broadcasts of 80 member company titles. Mr. Halaris
was convicted in this case on January 9, 1997 and sentenced to 2 years
imprisonment and a fine of US$12,000. He immediately appealed this
conviction and the appeal hearing was postponed for the sixth time on
January 18,1999. Finally, the fourth criminal action was filed June 9,
1995, for unauthorized broadcasts of six titles, and resulted in a June
13, 1996 sentence of two years imprisonment and a fine of US$8,000.
This conviction was also appealed and the appeal hearing has been
postponed six times. The next hearing was set for February 10, 1999 and
was postponed again to March.
Since Greek law permits jail sentences of under two years to be bought
out, Mr. Halaris will have to pay only around US$200,000 for all of
these prison terms and fines, even if they are all upheld on appeal.
With the exception of the $29,000 paid in December, the remainder
remains unpaid until all Mr. Halaris' appeals are exhausted.
Convictions in other television piracy cases have resulted in similarly
insignificant penalties and have not led to a reduction in piracy
levels. On November 3, 1998, the Rhodes appeals court sentenced the
owner of TV Mike to a 14-month jail term and a fine of 1 million
drachma ($3,500) for television piracy. Reportedly, TV Mike is now shut
down and the fine has been paid.
In video piracy cases, the maximum penalty imposed has been below the
minimum penalty under the law. Courts have issued penalties of 4 to 12
months imprisonment and fines of 500,000 to 1 million drachmas
(US$1,750 to US$3,500), where the minimum penalties are one year and 1
million drachmas. Prosecutors, especially at the local level, often are
reluctant to pursue intellectual property cases and have ignored the
Supreme Court circulars directing them to give intellectual property
cases high priority. These deficiencies in copyright enforcement have
led EPOE to use the "All-Day Court" system established for urgent
criminal matters. EPOE has had some success in these courts in video
and television piracy cases, but penalties have continued to be too low
to deter piracy. Moreover, this system can be invoked only where the
defendant is taken into custody within 24 hours of the issuance of the
complaint; otherwise the case is assigned to the normal criminal
courts.
The continuing television piracy problem places Greece in direct
violation of its international obligations, pursuant to Articles 41 and
61 of TRIPS, to provide effective copyright protection. Trade losses
due to TV and video piracy are estimated at $20.0 million in 1998, most
of which is still due to TV piracy.
COMPUTER PROGRAMS: BUSINESS APPLICATIONS
The Business Software Alliance (BSA) experience in Greece has been
disappointing. The BSA obtained its first permanent injunction and
civil penalty in Greece against a hard-disk loader and counterfeit
CD-ROM reseller in 1997. The defendant in that case paid a civil
penalty equivalent to twice the retail value of each pirated software
product it had copied and sold. Unfortunately, this is only the minimum
civil penalty under Article 65 of the Copyright Law. To date, there has
been only one criminal conviction for software piracy in Greece. In the
Software Library case, decided in January 1998, the defendant was fined
one million drachmas ($3,600) and sentenced to one year in prison, but
the prison sentence was suspended. This case dated from a July 1997
raid and was decided more quickly than any other of BSA's criminal
cases in part because the police caught the accused in the actual act
of copying software and not just with an inventory of pirate product as
in other cases.
In sharp contrast to the Software Library case, however, other criminal
cases have been subject to inordinate delays and other procedural
hurdles. Two of these cases are 24 and 40 months old respectively and
are still under investigation. In one case, the defendant was raided in
May 1996. Following the raid and the during the long delays, the
defendant continued to flagrantly pirate BSA member product,
necessitating a second raid in November 1997. The complaint on the
second case has also now been postponed four times. The most recent
adjournment was due to mistakes in the charges filed by the prosecutor;
at this point, no new hearing date has been set. In yet another case
against a reseller, a December 1997 hearing date (which was set
following a November 1996 raid) has been postponed twice. BSA's oldest
criminal case dates from a raid in June 1995. The first hearing was not
set until three years later -- in June 1998. This hearing has been
postponed twice; again, no new hearing date has been set. These cases
demonstrate conclusively the almost nonexistent deterrent threat to
software pirates in the Greek criminal enforcement system.
On the civil side, there appears to be an improving trend in 1998, with
the issuance of four civil ex parte search orders and the subsequent
imposition of preliminary injunctions in a number of cases. However,
what is necessary now is clear and prompt resolution of pending civil
cases and the imposition of deterrent civil damages. Although civil
cases appear to proceed somewhat more efficiently than criminal ones,
there have still been instances of inexcusable delay. For example, the
hearing date for a Greek end-user raided in May 1997 was set for
February 1999, nearly two years later. The BSA's past experience
indicates that this delayed hearing will likely be postponed several
times.
In spring 1997, the BSA first approached the SDOE, a newly formed
enforcement unit in the Ministry of Finance, to join the fight against
software piracy. Like the Guardia di Finanza in Italy, the SDOE has
broad jurisdiction to investigate tax offenses, including losses due to
software piracy. The BSA has seen some positive signs of cooperation
from the SDOE: in 1998, the SDOE conducted one reseller raid (seizing
approximately 950 pirated CD-ROMs) and one end-user raid. Such raids
will be of no deterrent value, however, until the Greek courts are
willing to complete subsequent proceedings quickly and impose
significant fines and penalties on pirates.
At present, the enforcement system simply does not work effectively to
combat the high levels of software piracy in Greece, Greece now has by
far the highest piracy rate in all of Western Europe: 73%. Trade losses
for 1998 are estimated at $40.5 million.
COMPUTER PROGRAMS: ENTERTAINMENT SOFTWARE
The Interactive Digital Software Association (IDSA) reports both piracy
of games on mass-produced CD-ROMs as well as a growing trade in gold
CDs made from both industrial and consumer CD-R "burners." The legal
market for entertainment software in all formats is very small with a
piracy rate of 73%.
The industry has brought many criminal actions and has been successful
in getting raids as have the other copyright industries. But cases take
years to come to a verdict, the fines are well below the mandatory
minimums in the law, and jail terms are bought down to a small fine.
The All Day court system has been only minimally effective for the game
industry. In short, there is little deterrence in the Greek enforcement
system.
The IDSA reports that estimated losses due to piracy of entertainment
software (including videogame CDs and cartridges, personal computer
CDs, and multimedia entertainment products) amounted to $22.3 million
in 1998.
SOUND RECORDINGS AND MUSICAL COMPOSITIONS
The main audio and music problem in Greece, until April 1998, was the
massive incursion of pirate CDs from Bulgaria into the Greek market.
Although Bulgarian piracy has been reduced to a trickle following the
closures of Bulgaria's pirate plants, a new problem has now surfaced.
Increasingly, pirates are using industrial and consumer CD-R burners to
produce pirate copies of both domestic and international repertoire.
These pirate copies are sold in street markets, retail stores, and even
"door to door."
While the police have often (but not always) been cooperative and they
and the industry have combined to make more than 250 raids on street
vendors (more than in 1997), the court system still fails to issue
deterrent sentences.
Another problem that had surfaced in 1997 was the sale of illegal
copies on University campuses, particularly in the Northern city of
Thessaloniki. There students sell pirate product amounting to an
estimated $3,600 per day. Due to a law enacted in 1973, police cannot
enter university campuses without the faculty's permission, which is
rarely given. The size of this piracy is illustrated by a raid run in
January 1998 when the police got rare permission to enter the
university. They seized over 19,000 audiocassettes, 13,000 music CDs
and 782 CD-Rs. After this raid, the illegal trade reportedly resumed as
before.
Audiocassette piracy is widespread, with copies made in store and at
larger pirate operations. Fines still remain very low and the vast
majority of raids are against street vendors. While the recording
industry is able to close more criminal cases than other industries,
the lack of deterrent penalties and court delays still hamper
enforcement activities. The industry also reports that jail terms
continue to be bought out at the old rate of 1500 drachmas per day ($5)
not at the 15,000 drachma level that has been used against a few TV
pirates. However, there have been some exceptions to this rule for the
recording industry as well.
Trade losses due to piracy in 1998 for the recording industry were $8
million. The piracy rate remains at 25%
BOOKS
The principal problem in Greece is unauthorized commercial photocopying
of particularly English language training materials, college and
medical textbooks. Trade losses in 1998 were an estimated $7 million.
--------------------------------------------------------------------------------
COPYRIGHT LAW AND RELATED ISSUES
The 1993 copyright law contains some of the highest penalties in Europe
for copyright infringement, tempered as noted above with the ability to
buy-out jail terms of less than two years, or to have the sentence
suspended in certain cases. This makes the failure to enforce the law
all the more disappointing.
As noted in previous IIPA submissions, significant defects in the 1993
law should be resolved in implementing regulations or corrected by
amendment if necessary. IIPA recommends the following amendments to
correct some of the key problems in the law:
eliminating the levy on computer hardware, or at least ensuring that
its provisions do not immunize the unauthorized downloading of online
databases and other protected works (Article 18);
eliminating the public performance and broadcasting compulsory license
of the neighboring right in a videogram (Article 49);
clarifying that U.S. performers and record and film producers will
receive their share of rental and private copying levies and proceeds
under the Article 49 compulsory license. Denial of this right would
violate Greece's national treatment obligations under both the Berne
Convention and the TRIPS Agreement;
providing that the term of protection for sound recordings runs from
fixation and not from publication, in order to be consistent with the
EC Duration Directive.
clarifying retroactive protection for performers and record producers;
and
restoring the mandatory minimum 15,000 drachma amount to buy-out a
less-than-two year jail term.
In addition, Greece should vigorously enforce the new Broadcast Law to
stop widespread TV piracy (as discussed above).
WIPO TREATIES
Along with other EU member states, Greece should implement the
treaties' provisions into domestic law as soon as possible and ratify
the treaties along with the other member states and the EU.
--------------------------------------------------------------------------------
Greece has appeared four times on the Priority Watch List and has had
three out-of-cycle reviews. U.S. government and industry frustration
has led to the commencement of a WTO/TRIPS enforcement case against
Greece for TV piracy. The two countries, joined by the EU, have been in
consultations since May, 1998 and there has been little progress.
Moreover, there is a good chance that the TV licensing process will be
further delayed. The key issue now is whether the NRTC will suspend
temporary licenses against applicants who continue to pirate TV
programs. The jury is out, but based on past experience, one could be
no more than cautiously optimistic that Greece will take some action to
avoid the case going to a dispute settlement panel. In the meantime,
IIPA recommends that Greece be maintained on the Priority Watch List.
--------------------------------------------------------------------------------
FOOTNOTES
1. 1998 business applications figures are preliminary.
2. Unfortunately, Greece has repealed, in Law 2207/94, the former
mandatory character of this "buy-out" amount and again permits the
judge discretion to set the fine as low as the amount formerly set
before the 1993 Copyright law, namely, 1500 drachmas per day or a mere
$5.25 per day. In a few of the criminal TV piracy cases, the 15,000
drachma amount was imposed, but these cases remain on appeal and have
not yet been paid. In a vast number of other cases, including in the
audio piracy area, only the lower 1500 drachma amount was imposed,
which is virtually worthless as a deterrent.
GREECE
Greece's enforcement system fails to provide effective remedies against
copyright theft and is therefore not in compliance with its TRIPS
obligations. The TV piracy problem has been acute for years and finally
led the U.S. to commence a WTO/TRIPS enforcement case against Greece in
May 1998 following IIPA's recommendation that Greece be made a Priority
Foreign Country and that a TRIPS case be commenced. While TV piracy
rates have crept down to around 20% in 1998 under the threat that the
Greek government might actually begin to enforce the law, the Motion
Picture Association (MPA) has no doubt that if effective enforcement
coupled with a sound regulatory structure is not implemented, we will
see a return to previous high levels of TV piracy as soon as the
international political pressure abates.
History and experience show that the Greek government will attempt to
find something to mollify the U.S. and indeed its EU partners. The 1993
Copyright law, 1995 amendments to the Broadcast law and the 1997 Action
Plan were each held up as a resolution to the TV piracy issue. Each
time the international community has accepted the promised action and
each time there has been no change in the status quo. The licensing
process, which took years to be put into place, continues to move at a
snail's pace and was not completed last summer as promised. The fact of
the matter is that the Greek government lacks the political will to
take on entrenched interests and put in place an effective and
transparent TV regulatory structure which is the best means to ensure
against TV piracy.
Greece's latest attempt to ward off international political pressure
took place in October 1998, when the Greek government passed a new
Digital TV law which provided all applicants for broadcast licenses
with temporary licenses. This Law also purportedly gave the Minister of
the Press and Mass Media the power to shut down TV stations that
continue to engage in TV piracy. The Greek government claimed this law
would enable them to deal with TV piracy. EPOE, the local Greek
anti-piracy organization which also represents MPA, immediately moved
to test the new provisions of this law.
On December 7, 1998, EPOE hand-delivered a "memo-complaint" to the
Minister of the Press and Mass Media requesting that Junior's TV, Ermis
TV and Vergina TV be closed down pursuant to Article 17(2) of the new
law. The complaint gives a detailed account of the judicial and
administrative histories of these habitual offenders. The complaint
alleges that all of the stations continue their unauthorized
broadcasting of EPOE member company titles despite judicial and
administrative actions taken against them. EPOE has also provided
documentary evidence (tapes) of infringements that occurred after the
entry into force of the new law. The Greek Government has to date only
moved to shut down Vergina TV, a company apparently without political
muscle. It has failed to apply the law, which was portrayed as the
solution, to Ermis TV and Junior's TV. Reports indicate that Junior's
TV continues to air pirate broadcasts, although most are independent
titles as it seeks to steer clear of MPA titles. The issue here is
whether the Greek government is willing to undertake the structural
reform necessary to resolve its TV piracy problem. Because the Greek
government is unwilling to apply the law against two habitual
offenders, it is clear that the Greek government intends more of the
same. Consequently, the MPA believes that USTR should request that this
dispute be brought before a WTO panel.
For the copyright industries as a whole, piracy rates remain among the
highest in Europe. The high statutory penalties provided by the law are
almost never imposed. If there is any cause for optimism, it is that at
the end of 1998, Greece's most notorious pirate, after 24 postponements
and an appeal of a conviction in a 1994 case, finally was forced to pay
the first criminal fine for TV piracy in Greece's history. Total trade
losses due to piracy in Greece were $97.8 million in 1998.
IIPA recommends that Greece be maintained on the Priority Watch List.
ESTIMATED TRADE LOSSES DUE TO PIRACY
(in millions of U.S. dollars)
and LEVELS OF PIRACY : 1995 - 1998
INDUSTRY
1998 1997 1996 1995
Loss Level Loss Level Loss Level Loss Level
Motion Pictures 20.0 20% 50.0 25% 60.0 25%
59.8 25%
Sound Recordings/
Musical Compositions 8.0 25% 8.0 25% 7.5 25%
6.0 25%
Computer Programs:
Business Applications 40.5 73% 30.6 73% 32.7 82%
28.6 86%
Computer Programs:
Entertainment SW(1) 22.3 73% 21.3 74% 22.0 75%
20.8 79%
Books 7.0 NA 6.5 NA 5.0 NA
6.0 NA
TOTALS 97.8 116.4 127.2
121.2
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HISTORY
Greece was on the Watch List from 1989-1994 and was elevated to the
Priority Watch List in November 1994. Despite passage of a modern
copyright law in March 1993 and a Broadcast Law in July 1995, there has
been little change in levels of piracy and trade losses to U.S.
copyright owners have continued to increase. While the 1993 Copyright
Law contains modern levels of protection and stiff minimum and maximum
penalties and the creation of the Office of Intellectual Property (OPI)
has benefitted from aggressive and committed leadership, only isolated
and sporadic progress has been achieved. Greece's enforcement system
remains the worst in the European Union.
Despite the threat at that time of the commencement of a TRIPS case on
July 1, 1997, announced in USTR's April 30 1997 Special 301 decision
keeping Greece on the Priority Watch List for the fourth year, the
Greek government made for the most part only procedural progress -- the
TV licensing system had been moving forward -- at a snail's pace and
without a decisive effect on TV piracy -- and circulars have been
issued urging prosecutors to take copyright piracy more seriously,
which has also been without measurable result. With piracy levels at or
above 25% in all copyright areas, Greece remained in blatant violation
of its TRIPS enforcement obligations.
In February 1995, IIPA recommended that Greece be made a Priority
Foreign Country for its failure to deal with the TV piracy problem.
USTR announced the commencement of the WTO case in May 1998.
Consultations, without much progress, continued from that time to the
present.
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PIRACY AND ENFORCEMENT
MOTION PICTURES
After years and years of frustration in trying to obtain action from
the Greek government to deal with TV piracy in Greece, USTR commenced a
WTO TRIPS case against Greece in May 1998. During this period, MPA
sought both civil and criminal relief without avail and continued to
press the Greek government to move forward its institution of a
licensing system which would be conditional on stations adhering to the
copyright law. The situation today is that the government finally got
around to accepting license applications: during 1998 an estimated 160
unlicensed television stations applied for roughly 100 licenses
(national, regional and local). Despite diplomatic pressure and
repeated use of the courts by MPA, through the local anti-piracy
organization EPOE, some of these stations continue to broadcast
illicitly U.S. and other foreign motion pictures and television
product. EPOE indicates that as a result of the ongoing TRIPS dispute
settlement consultations between the U.S. and the European Union/Greece
as well as the licensing process and other economic factors, the rate
of television piracy in Greece has decreased to about 20%. While the TV
stations are beginning to get the message, the Greek government remains
a great distance away from taking the actions that will be necessary to
reduce to near 0% what is still the highest TV piracy level in Europe.
The rate of video piracy (generally back-to-back copying) is
approximately 15% in the Athens area and up to 25% elsewhere in the
country. EPOE has a large number of pending video cases from past years
when as many as 100 criminal complaints were filed per year. The court
process is slow due to the frequency of adjournments, lawyers' strikes,
few judges sitting on the bench, and the low priority given to IP
infringements (factors which of course also affect the TV cases).
Following initiation of the TRIPS case on May 1, 1998, the Greek
government finally adopted an amendment to the Broadcast Law (Digital
TV Law 2644, October 13, 1998) which, among other new provisions,
allowed 140 unlicensed stations to obtain temporary licenses while the
authorities were processing the applications for the 106 permanent
licenses slots. Most importantly, the amendment also provides for
license revocation/suspension by the Minister of Press and Mass Media
in the event the temporary licensees engage in broadcast piracy.
Article 4 of the Broadcast Law already contained an almost identical
provision but it was never used. MPA and EPOE have been using this
amendment to test the sincerity and willingness of the Greek government
to shut down pirate stations and have so far obtained the closure of
only one TV station (Vergina TV). Complaints against two other stations
(Junior's TV and Ermis TV) are still pending.
MPA, EPOE and U.S. Government pressure had secured a promise from the
Government to conclude the licensing process by the end of the summer
1998, but the process continues to drag on. The National Radio
Television Council (NRTC) is still not operating as intended and
continues to lack the personnel required to do the work. On the
judicial side, the special IPR chambers which were promised also have
never been created.
The second round of consultations in the WTO/TRIPs case between the
United States and the EU/Greece were held on September 28, 1998, in
Geneva, Switzerland. During the first round of consultations, the EU
Commission took a hard line interpretation of the TRIPs enforcement
provisions, arguing that cases brought before January 1, 1996 are not
relevant to the TRIPS case. USTR argued in great detail that Greece had
entirely failed to comply with its enforcement obligations in the TRIPS
Agreement and outlined the failure of prosecutors to comply with no
fewer than three Supreme Court circulars directing improvements in the
processing of intellectual property cases. Chronic assignment of high
docket numbers which lead to frequent hearing postponements, and the
unacceptably long time periods between hearings, remain unchanged. The
MPA believes that if the WTO case fails to resolve the television
piracy issue, there most certainly will be a return to high television
piracy levels.
Under the Greek judicial system, it remains virtually impossible to
secure aggressive prosecutions, convictions and adequate sentencing. In
the early 1990's, MPA brought civil cases against television stations.
These moved at a snail's pace through the judicial system and yielded
minimal results. In 1994, following passage of the 1993 Copyright Law
(Law 2121/93) and its deterrent penalty structure, EPOE commenced
bringing criminal cases against TV stations and video pirates as well
as bringing TV piracy cases before the NRTC to obtain administrative
penalties.
The administrative actions before the NRTC have proceeded at a sluggish
pace. One 1996 complaint, which identified 21 pirate stations, lingered
without action until February 1997. Even then, nineteen of the stations
were merely issued reprimands and warnings, while two stations were
fined US$18,000 each. As part of a separate complaint, Junior's TV, one
of the most notorious pirates in Greece, was fined US$38,000. These
decisions remain on appeal and the fines have not been paid. EPOE
submitted another administrative complaint on March 19, 1997, naming 12
stations, and a further complaint against 8 stations on July 10, 1997.
In December 1997, EPOE filed yet another complaint which repeated the
March and July 1997 filings. On January 28, 1998, NRTC finally held
hearings on these complaints. As in the past, unfortunately, the
results were disappointing. The NRTC reportedly did not deal with 13 of
the stations and of the other 7 stations, four received fines and three
were issued warnings. These decisions were finally officially reported
in November 1998.
On the criminal side, the situation has remained just as grim over the
last two years. The Copyright Law contains some of the highest criminal
penalty provisions in western Europe. Jail terms range from a minimum
term of 1 year up to 5 years and fines of a minimum of 1 million up to
5 million drachmas (US$3,500 to US$18,000). The fines may go up to a
range of 2 million to 10 million drachmas (US$7,000 to US$35,000) if
the profits from the infringement or the damage caused by piracy are
particularly high, and the penalties can go up to 5 to 10 years in jail
and 5 million to 20 million drachmas (US$18,000 to US$70,000) if the
infringer is acting professionally or is particularly dangerous.
However, Greek courts never impose these significant penalties. Indeed,
Greek courts ignore even the statutory minimum penalties.
In the many years that MPA has been involved in antipiracy activities
in Greece, not a single TV or video pirate has ever served a day in
jail, in spite of the purported 1 year minimum jail term.
Unfortunately, under the law, any jail term assessed by a judge that is
less than two years can be commuted to a fine at a rate of 15,000
drachmas or US$53 per day (but with interest, stamp duty and costs, the
total cost is closer to US$112 per day).(2) However, while there have
been a few sentences, in general, this system undermines the deterrent
effect of imprisonment, especially where pirates can afford to pay the
fines as a cost of doing business. In addition, Greek criminal law
provides that persons who have not been previously sentenced to serve
time in jail can, under certain circumstances, be granted a suspended
sentence of any term of three years or less. This device has also been
used to avoid the minimum penalties in the Copyright Law.
The four criminal actions (and two civil injunctions and three NRTC
administrative actions) against the infamous pirate Junior's TV
illustrate these problems. These cases were subject to interminable
delays. The first criminal action was initiated March 29, 1994, for
over 100 unauthorized broadcasts of 37 member company titles between
June 1993 and February 1994. After three years, on June 3, 1997, Mr.
Halaris, the owner of Junior's TV, was convicted and sentenced to 17
months' imprisonment and a fine of US$5,500. This conviction was
appealed, and the appeal hearing has already been postponed twice. The
next hearing was set for December 1998 and fortunately the appellate
court upheld his conviction and he was finally forced to serve his
sentence of 10 months in jail and $5,500 fine. While this is certainly
a good ending, EPOE had to live through 24 postponements in this 1994
case. Mr. Halaris was remitted to jail at the time but ended up paying
the full "buy-out" of the jail term ($29,000) and the fine was not
imposed due to mitigating circumstances. To cap everything off, Mr.
Halaris has now sold his interest in Junior's. However, the transfer of
ownership of any TV station in Greece is subject to the approval of the
NRTC. Moreover, these criminal actions name Mr. Halaris personally as
the defendant and thus the cases are still pending, as described below.
The second criminal action against Junior's was filed February 27, 1995
for copyright infringement and breach of injunction. This case was
postponed six times and finally on January 25, 1999, Mr. Halaris was
acquitted. The third criminal action was filed May 23, 1995, for over
200 unauthorized broadcasts of 80 member company titles. Mr. Halaris
was convicted in this case on January 9, 1997 and sentenced to 2 years
imprisonment and a fine of US$12,000. He immediately appealed this
conviction and the appeal hearing was postponed for the sixth time on
January 18,1999. Finally, the fourth criminal action was filed June 9,
1995, for unauthorized broadcasts of six titles, and resulted in a June
13, 1996 sentence of two years imprisonment and a fine of US$8,000.
This conviction was also appealed and the appeal hearing has been
postponed six times. The next hearing was set for February 10, 1999 and
was postponed again to March.
Since Greek law permits jail sentences of under two years to be bought
out, Mr. Halaris will have to pay only around US$200,000 for all of
these prison terms and fines, even if they are all upheld on appeal.
With the exception of the $29,000 paid in December, the remainder
remains unpaid until all Mr. Halaris' appeals are exhausted.
Convictions in other television piracy cases have resulted in similarly
insignificant penalties and have not led to a reduction in piracy
levels. On November 3, 1998, the Rhodes appeals court sentenced the
owner of TV Mike to a 14-month jail term and a fine of 1 million
drachma ($3,500) for television piracy. Reportedly, TV Mike is now shut
down and the fine has been paid.
In video piracy cases, the maximum penalty imposed has been below the
minimum penalty under the law. Courts have issued penalties of 4 to 12
months imprisonment and fines of 500,000 to 1 million drachmas
(US$1,750 to US$3,500), where the minimum penalties are one year and 1
million drachmas. Prosecutors, especially at the local level, often are
reluctant to pursue intellectual property cases and have ignored the
Supreme Court circulars directing them to give intellectual property
cases high priority. These deficiencies in copyright enforcement have
led EPOE to use the "All-Day Court" system established for urgent
criminal matters. EPOE has had some success in these courts in video
and television piracy cases, but penalties have continued to be too low
to deter piracy. Moreover, this system can be invoked only where the
defendant is taken into custody within 24 hours of the issuance of the
complaint; otherwise the case is assigned to the normal criminal
courts.
The continuing television piracy problem places Greece in direct
violation of its international obligations, pursuant to Articles 41 and
61 of TRIPS, to provide effective copyright protection. Trade losses
due to TV and video piracy are estimated at $20.0 million in 1998, most
of which is still due to TV piracy.
COMPUTER PROGRAMS: BUSINESS APPLICATIONS
The Business Software Alliance (BSA) experience in Greece has been
disappointing. The BSA obtained its first permanent injunction and
civil penalty in Greece against a hard-disk loader and counterfeit
CD-ROM reseller in 1997. The defendant in that case paid a civil
penalty equivalent to twice the retail value of each pirated software
product it had copied and sold. Unfortunately, this is only the minimum
civil penalty under Article 65 of the Copyright Law. To date, there has
been only one criminal conviction for software piracy in Greece. In the
Software Library case, decided in January 1998, the defendant was fined
one million drachmas ($3,600) and sentenced to one year in prison, but
the prison sentence was suspended. This case dated from a July 1997
raid and was decided more quickly than any other of BSA's criminal
cases in part because the police caught the accused in the actual act
of copying software and not just with an inventory of pirate product as
in other cases.
In sharp contrast to the Software Library case, however, other criminal
cases have been subject to inordinate delays and other procedural
hurdles. Two of these cases are 24 and 40 months old respectively and
are still under investigation. In one case, the defendant was raided in
May 1996. Following the raid and the during the long delays, the
defendant continued to flagrantly pirate BSA member product,
necessitating a second raid in November 1997. The complaint on the
second case has also now been postponed four times. The most recent
adjournment was due to mistakes in the charges filed by the prosecutor;
at this point, no new hearing date has been set. In yet another case
against a reseller, a December 1997 hearing date (which was set
following a November 1996 raid) has been postponed twice. BSA's oldest
criminal case dates from a raid in June 1995. The first hearing was not
set until three years later -- in June 1998. This hearing has been
postponed twice; again, no new hearing date has been set. These cases
demonstrate conclusively the almost nonexistent deterrent threat to
software pirates in the Greek criminal enforcement system.
On the civil side, there appears to be an improving trend in 1998, with
the issuance of four civil ex parte search orders and the subsequent
imposition of preliminary injunctions in a number of cases. However,
what is necessary now is clear and prompt resolution of pending civil
cases and the imposition of deterrent civil damages. Although civil
cases appear to proceed somewhat more efficiently than criminal ones,
there have still been instances of inexcusable delay. For example, the
hearing date for a Greek end-user raided in May 1997 was set for
February 1999, nearly two years later. The BSA's past experience
indicates that this delayed hearing will likely be postponed several
times.
In spring 1997, the BSA first approached the SDOE, a newly formed
enforcement unit in the Ministry of Finance, to join the fight against
software piracy. Like the Guardia di Finanza in Italy, the SDOE has
broad jurisdiction to investigate tax offenses, including losses due to
software piracy. The BSA has seen some positive signs of cooperation
from the SDOE: in 1998, the SDOE conducted one reseller raid (seizing
approximately 950 pirated CD-ROMs) and one end-user raid. Such raids
will be of no deterrent value, however, until the Greek courts are
willing to complete subsequent proceedings quickly and impose
significant fines and penalties on pirates.
At present, the enforcement system simply does not work effectively to
combat the high levels of software piracy in Greece, Greece now has by
far the highest piracy rate in all of Western Europe: 73%. Trade losses
for 1998 are estimated at $40.5 million.
COMPUTER PROGRAMS: ENTERTAINMENT SOFTWARE
The Interactive Digital Software Association (IDSA) reports both piracy
of games on mass-produced CD-ROMs as well as a growing trade in gold
CDs made from both industrial and consumer CD-R "burners." The legal
market for entertainment software in all formats is very small with a
piracy rate of 73%.
The industry has brought many criminal actions and has been successful
in getting raids as have the other copyright industries. But cases take
years to come to a verdict, the fines are well below the mandatory
minimums in the law, and jail terms are bought down to a small fine.
The All Day court system has been only minimally effective for the game
industry. In short, there is little deterrence in the Greek enforcement
system.
The IDSA reports that estimated losses due to piracy of entertainment
software (including videogame CDs and cartridges, personal computer
CDs, and multimedia entertainment products) amounted to $22.3 million
in 1998.
SOUND RECORDINGS AND MUSICAL COMPOSITIONS
The main audio and music problem in Greece, until April 1998, was the
massive incursion of pirate CDs from Bulgaria into the Greek market.
Although Bulgarian piracy has been reduced to a trickle following the
closures of Bulgaria's pirate plants, a new problem has now surfaced.
Increasingly, pirates are using industrial and consumer CD-R burners to
produce pirate copies of both domestic and international repertoire.
These pirate copies are sold in street markets, retail stores, and even
"door to door."
While the police have often (but not always) been cooperative and they
and the industry have combined to make more than 250 raids on street
vendors (more than in 1997), the court system still fails to issue
deterrent sentences.
Another problem that had surfaced in 1997 was the sale of illegal
copies on University campuses, particularly in the Northern city of
Thessaloniki. There students sell pirate product amounting to an
estimated $3,600 per day. Due to a law enacted in 1973, police cannot
enter university campuses without the faculty's permission, which is
rarely given. The size of this piracy is illustrated by a raid run in
January 1998 when the police got rare permission to enter the
university. They seized over 19,000 audiocassettes, 13,000 music CDs
and 782 CD-Rs. After this raid, the illegal trade reportedly resumed as
before.
Audiocassette piracy is widespread, with copies made in store and at
larger pirate operations. Fines still remain very low and the vast
majority of raids are against street vendors. While the recording
industry is able to close more criminal cases than other industries,
the lack of deterrent penalties and court delays still hamper
enforcement activities. The industry also reports that jail terms
continue to be bought out at the old rate of 1500 drachmas per day ($5)
not at the 15,000 drachma level that has been used against a few TV
pirates. However, there have been some exceptions to this rule for the
recording industry as well.
Trade losses due to piracy in 1998 for the recording industry were $8
million. The piracy rate remains at 25%
BOOKS
The principal problem in Greece is unauthorized commercial photocopying
of particularly English language training materials, college and
medical textbooks. Trade losses in 1998 were an estimated $7 million.
--------------------------------------------------------------------------------
COPYRIGHT LAW AND RELATED ISSUES
The 1993 copyright law contains some of the highest penalties in Europe
for copyright infringement, tempered as noted above with the ability to
buy-out jail terms of less than two years, or to have the sentence
suspended in certain cases. This makes the failure to enforce the law
all the more disappointing.
As noted in previous IIPA submissions, significant defects in the 1993
law should be resolved in implementing regulations or corrected by
amendment if necessary. IIPA recommends the following amendments to
correct some of the key problems in the law:
eliminating the levy on computer hardware, or at least ensuring that
its provisions do not immunize the unauthorized downloading of online
databases and other protected works (Article 18);
eliminating the public performance and broadcasting compulsory license
of the neighboring right in a videogram (Article 49);
clarifying that U.S. performers and record and film producers will
receive their share of rental and private copying levies and proceeds
under the Article 49 compulsory license. Denial of this right would
violate Greece's national treatment obligations under both the Berne
Convention and the TRIPS Agreement;
providing that the term of protection for sound recordings runs from
fixation and not from publication, in order to be consistent with the
EC Duration Directive.
clarifying retroactive protection for performers and record producers;
and
restoring the mandatory minimum 15,000 drachma amount to buy-out a
less-than-two year jail term.
In addition, Greece should vigorously enforce the new Broadcast Law to
stop widespread TV piracy (as discussed above).
WIPO TREATIES
Along with other EU member states, Greece should implement the
treaties' provisions into domestic law as soon as possible and ratify
the treaties along with the other member states and the EU.
--------------------------------------------------------------------------------
Greece has appeared four times on the Priority Watch List and has had
three out-of-cycle reviews. U.S. government and industry frustration
has led to the commencement of a WTO/TRIPS enforcement case against
Greece for TV piracy. The two countries, joined by the EU, have been in
consultations since May, 1998 and there has been little progress.
Moreover, there is a good chance that the TV licensing process will be
further delayed. The key issue now is whether the NRTC will suspend
temporary licenses against applicants who continue to pirate TV
programs. The jury is out, but based on past experience, one could be
no more than cautiously optimistic that Greece will take some action to
avoid the case going to a dispute settlement panel. In the meantime,
IIPA recommends that Greece be maintained on the Priority Watch List.
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FOOTNOTES
1. 1998 business applications figures are preliminary.
2. Unfortunately, Greece has repealed, in Law 2207/94, the former
mandatory character of this "buy-out" amount and again permits the
judge discretion to set the fine as low as the amount formerly set
before the 1993 Copyright law, namely, 1500 drachmas per day or a mere
$5.25 per day. In a few of the criminal TV piracy cases, the 15,000
drachma amount was imposed, but these cases remain on appeal and have
not yet been paid. In a vast number of other cases, including in the
audio piracy area, only the lower 1500 drachma amount was imposed,
which is virtually worthless as a deterrent.