GREEK REPORT for the ALAI Congress 2012 in KYOTO(Answers to the Questionnaire)by Prof. Dionysia Kallinikou / Dr. Pierrina Koriatopoulou

Session 1－Developments of New Platforms
1) How would you define “The Cloud” in your country?
It refers to performing computer tasks using services delivered over the Internet(http://mobileoffice.aboutcom). According to the definition by NIST (National Institutefor Standards and Technology) cloud computing is a model for enabling ubiquitous,
convenient, on demand network access to a shared pool of configurable computing
resources (ie. networks, servers, storage, applications and services) that can beprovisioned and released with minimal management effort or service provider ininteraction.
2) Is exploitation of works, performances, sound recordings and so on generally considered
to relate to the Cloud?
The exploitation of cultural objects is related to the cloud, If cloud content involves
works protected by copyright, such as musical compositions, texts, drawings, films,
images, software applications, databases and compilations, or objects protected byrelated rights, such as performances, sound recordings and broadcasts.
3) Are there already commercial platforms established specifically designated for the Cloudor to some extent related to Cloud uses? Can you foresee such new platforms to beestablished in the near future?
Policy makers have already understood the benefits of cloud computing. The system isvery important for public and private sector and the conditions of adoption in Greece
are more than encouraging (www.iobe.gr www.iocenter.eu).
4)

How would you evaluate the Cloud’s importance to copyright for the next few years to
come?
There will be new possibilities for dissemination and use of works and other culturalobjects.

Sessions 2 and 3－ Can the Internet Treaties of 1996 play an important role in legal issues raised by “Cloud”
Business?
1) Is there any case law to be found in your country and/or examples of (good) practices
concerning:
1.1) the right of making available to the public with reference to “Cloud” storage, retrieval
and dissemination?
11.2) cloud providers that may be relevant to determine liability for the making available ofunauthorized content in the cloud environment?
There is no case law concerning “clouds» and copyright.
2) Is there case law on the technological protection measures and Electronic rights
management information in the “Cloud” environment?
There is no case law on the technological protection measures and electronic
management information in the cloud environment.
3) How can we re-examine or re-evaluate the role of the WIPO Treaties with reference to“cloud» developments?
The cloud developments are a real challenge for copyright regulation. However theInternet Treaties are flexible to adapt to new technologies.

Session 4– New Business Models for effective Protection of Copyright and Related rights in the “Cloud”:
Role of electronic rights management in new business models
Note: In general, services offered on the basis of cloud computing technologies are classified as“Software as a Service“ (SaaS), “Platform as a Service” (PaaS) and “Infrastructure as a Service”(IaaS). Under the heading of “New Business Models for effective Protection of Copyright andRelated rights in the ‘Cloud’”, the main focus is on PaaS, whereas both IaaS and SaaS are ofminor importance, since they generally do not involve the use of copyrighted works of literatureand the arts (issues of copyright in software are not discussed at this congress).
Note: This subsection focuses on successful business models of authors and rightholders whomarket their copyrighted subject matter in the cloud either themselves or via a service provider(such as, e.g. Apple’s “iTunes in the Cloud“), presumably by employing digital rights
management (DRM) and perhaps also technical protection measures (TPM).
1)

In your country, what types of cloud services are offered and/or made available byauthors and rightholders offering their copyrighted content?
In Greece only I-cloud (i-tunes) services are offered.

2)What kinds of works are being offered in this way (e.g., musical works, literary works,
photographic works, audiovisual works, performances etc.)?
For the moment only musical works are being offered.

3) What rights do rightholders usually transfer to the providers of cloud services?
The right or digital exploitation of works and the right of making them available.
4)

What uses of copyrighted material are the users of such cloud services permitted?
Only private uses.

5)

Can you give any figures regarding both royalty rates and total revenue authors andrightholders receive when their works are being offered in the cloud?
Unfortunately not.

6)

What kind of TPM and DRM is used by these services?
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The TPM and DRM used from the big industries as Apple, EMI, etc.
7)

Under the legislation of your country, to what extent are TPM protected against theirunauthorized circumvention?
Technical measures and rights management information are protected against
unauthorized circumvention. Article 66A of Greek Copyright Law implements article 6of the InfoSoc Directive. It provides protection against circumvention of effective
technological measures and against provision of devices and products or services tothis effect. Circumvention is punished by imprisonment of at least one year and a fineof 2900-15000 Euro and entails the civil sanctions of article 65 of Greek Copyright Law.
Injunctions may be ordered in accordance with the Code of civil Procedure, as well as
provisional measures inaudita altera parte.
Article 66B implements article 7 of the InfoSoc Directive. It provides protection against
illegal activities carried out in order to remove or alter the electronic rightsmanagement information and against distribution, Importation for distribution,broadcasting, communication or making available to the public of works or otherprotected subject matter from which such information has been removed or alteredwithout authority. The violation of these provisions is punished by imprisonment of atleast one year and a fine of 2900-15000 Euro and entails the civil sanctions of article
65 of Greek Copyright Law. Injunctions may be ordered in accordance with the Codeof Civil Procedure. Provisional measures inaudita altera parte can also be ordered.

8)

Is unauthorized circumvention of TPM a practical problem for those offering theircontent in the cloud?
Of course it is, but we do not have yet in Greece a case law concerning thecircumvention of TPM.

5 Copyright-avoiding business models
Note: This subsection focuses on business models of persons other than authors and rightholders,
who build upon someone else’s copyrighted material and who – successfully or not – try not tobe subject to copyright liability. Examples are services that make use of the private copying
exception (such as, e.g., personalized internet video-recorders) or which strive to benefit from an
exception to legal liability as an Internet Service Provider (such as, e.g., under the EU eCommerce Directive). In addition, strategies of authors who market their copyrighted works
outside of copyright (such as, e.g., under an open content or Creative Commons (CC) licence) can
also be regarded as “copyright-avoiding” business models (although technically, they are basedon copyright).
5.1 – Private copying in the Cloud1)
In your country, are there services – and if so, what kind of services are there - thatoffer its users to store private copies in the cloud?
Examples are storage services with limited access (such as Google’s “Picasa”),
platforms with general public access (such as, e.g., FlickR) and mixed-forms (such as,e.g. Facebook) but also so-called internet-video recorders and possible other forms ofprivate storage services.
In Greece storage services, such as FlickR or Facebook, are used.
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2)

In legal terms, to what extent do the operators of such services benefit from its user’s
private copying exception? Are there any other exceptions under copyright law?
(Note that general exceptions of legal liability are discussed under 5.2).
Reproduction for private use is permissible under article 18 of Greek Copyright Law
without the consent of the author or other right-holders. Importers and producers ofspecific items have to pay an equitable remuneration to authors and right-holders ofrelated rights. The term “private use” does not include use by an enterprise, a service
or an organization. The freedom to make a reproduction for private use shall not
apply when the act of reproduction is likely “to conflict with the normal exploitation of
the work or to prejudice the author’s legitimate interests” (article 18 par. 2 of Greek
Copyright Law). The three-step test is considered as a clause of general application
concerning the limitations provided by Greek law (article 28C of Greek Copyright Law).

5.2 – Copyright-avoiding models on the basis of – presumed – exceptions to copyright liability
or limited interpretations of the “making available” right1)

To what extent do the operators of cloud services benefit from a narrow interpretationof the making available (or communication to the public, or public performance)right?
Article 3h of the Greek Law 2121/1993 provides that the author has the right toauthorize or prohibit the communication to the public of his works, by wire or wirelessmeans or by any other means, including the making available to the public of theirworks in such a way that members of the public may access these works from a place
and at a time individually chosen by them. Under this wording, the Greek “making
available” right is granted not only for the stage of making a work passively available
to the public, but also the right owner may exert control over an act of transmitting
the work to a recipient.

2)

According to the law in your country, what is the legal status (primary or secondary
liability - contributory infringement or vicarious liability; aiding and abetting, otherliability such as an inducer, “Störer”) of the provider of cloud services with regard to
copyright infringing content uploaded by its users?
The provider of cloud services is deeming to be an Internet service provider.

3)

In your country, do cloud service providers benefit from an exception to liability (suchas, e.g., under the EU e-Commerce Directive), and if so, to what extent (e.g., total
exemption from liability or exemption only from duty to pay damages)?
Please cite to and briefly describe statutory provisions and relevant case law.
Greek legislation has no provisions concerning the cloud service providers.
Under articles 12, 13 and 14 of EU e-Commerce Directive, implemented in Greece byarticles 11, 12 and 13 of Presidential Decree 131/2003, Internet service providers do
not have responsibility for simple transmission of information, caching and hosting if
they act in conformity with these provisions concerning the exemptions from liability.
Nevertheless, on December 16th, 2009, an ISP responsible for the functioning of a
website allowing the users to access to pirated copies of protected works (music files,
movies and games) has been arrested. The prosecutor of Rhodes considered the ISP
4liable for the copyright infringement, since he knew that through the website
exchange of illegal files was taken place and he refrained from taking any measure toprevent this illegal trafficking. Thus, the ISP is accused for perpetrating the illegal actsby profession and at a commercial scale, so in the form of felony. The case is still
pending.

4)

Also according to the law in your country, what duty of care is owed by cloud service
providers to monitor and eventually remove copyright infringing content?
Although EU e-Commerce Directive limits the liability of ISP, rightholders have thepossibility of applying for an injunction against them when they transmit in the
network a third party's infringing protected work. Under articles 11§ 3, 12 § 2 and 13§ 3 of Presidential Decree 131/2003, which implement in Greek law the EU eCommerce Directive, courts or administrative authorities have the possibility to takeaction towards intermediaries in order to block access to the sites which facilitate
works protected by copyright or related right without the consent of the rightholder.
In addition according article 64A of the Greek Law 2121/1993, which implements the
InfoSoc Directive, the judicial authorities may issue an injunction against anintermediary whose services are used by a third party to infringe an IP right.
Upon the Athens’ s Court decision no 4658/2012 of the 16th of May, 2012, ISPs are forthe first time obliged to implement copyright filtering technology in order to block
access to the sites which facilitate works protected by copyright or related rightwithout the consent of the rightholders. This injunction is not intended as a penalty
against ISPs, but is based on the fact that in those cases such intermediaries are in thebest position to stop or to prevent a IP infringement.

2.5.2. Permanent injunctions (Article 11)

5)What evidence must a rightholder present in order to have infringing content
removed?
According article 63A of the Greek Law 2121/1993, which implements the InfoSoc
Directive, the rightholder in order to preserve his rights has to present before thecourt reasonably accessible evidence sufficient to support his claims and has, insubstantiating those claims, specified evidence that lies in the control of the opposing
party.

6)

In your country, are there any contracts that have been concluded between cloudservice providers and rightholders concerning the use of copyrighted material by theusers of the cloud services?
No yet.

7)

In your country, what copyright-avoiding cloud services are operating successfully,
and what services that sought to be avoiding copyright have been banned andeventually shut down?
Only the model via Creative Commons licences.

58) In your country, are there any legislative changes under discussion as regards theliability of service providers who provide for cloud services? In particular, do you thinkthat liability of service providers will be reduced or, rather, increased?
There is no such a discussion in Greece. Furthermore for the status of liability of service
providers Greece applies the acquis communautaire.
9)

Do you see any progress regarding filtering technology?

5.3 – “Copyright-avoiding” business models operated by authors for the “Cloud”
1) In your country, is there a noticeable use of “copyright-avoiding” business models, such
as Creative Commons (CC) or comparable open content licenses by rightholders withrespect to cloud-based exploitations of works?
The CC licence is available in Greece but there is no case study concerning the “cloud”.
2)

If so, in what areas (music, literature, audiovisual works, scientific works etc.) are suchlicenses most often used?
In Greece the CC licences are most often used for scientific and literature works.

3)

Are there any figures available as to how the authors of such works generate income
from such cloud-based exploitations, and how much?
Unfortunately not.

4)

Also in your country, what legal obstacles are authors faced with when making use ofopen content and CC-licenses?
Examples might be the unenforceability of such licences; the refusal to award
damages for unauthorized commercial use of works that have been made available
only for non-commercial use; collecting societies refusing to represent authors whowant to market some of their works under a CC-licence; the exclusion of CC-authors
from receiving remuneration under a private copying regime etc.
Collecting societies refuse to represent authors who want to market some of theirworks under a CC-licence.

Session 6－Future Model of One-Stop-On-Line Licensing in the Cloud Environment
1)

Does your country have specific private international law rules for copyright inparticular and for intellectual property in general or are there general rules of privateinternational law that apply in these circumstances? In particular do your country's
rules of judicial competence (personal jurisdiction) make it possible to sue a foreignintermediary who makes it possible for infringements to occur or to impact in theforum? Which law applies in such instances? Would the law applicable to the primaryinfringement apply? Would the law of the intermediary's residence or place ofbusiness apply?

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Article 67 of Greek Copyright Law contains provisions concerning applicable law
provided international conventions that have been ratified by Greece do not provide
otherwise.
Especially art. 67 provides as follows
Applicable Legislation(1) Copyright in a published work shall be governed by the legislation of the State inwhich the work is first made lawfully accessible to the public. Copyright in an
unpublished work shall be governed by the legislation of the State in which the author
is a national.
(2) Related rights shall be governed by the legislation of the State in which theperformance is realized, or in which the sound or visual or sound and visual recording
is produced, or in which the radio or television broadcast is transmitted or in which
the printed publication is effected.
(3) In all cases, the determination of the subject, object, content, duration andlimitations of the right shall be governed by the legislation applicable pursuant toparagraphs (1) and (2), above, with the exception of any exploitation license
arrangement. The protection of a right shall be subject to the legislation of the Statein which the protection is sought.
(4) Paragraphs (1), (2) and (3), above, shall apply except where they run contrary to
any international convention ratified by Greece. In the case of States not conjoint with
Greece through the ratification of an international convention, paragraphs (1), (2) and(3), above, shall be applicable as regards the protection of copyright or of any
particular object of copyright or of any particular related right, provided that thelegislation of the relevant state offers adequate copyright protection to works firstmade accessible to the public in Greece and to related rights stemming from acts
effected in Greece.
2)

Does your national collective rights management organisation grant multi-territorial
licences and are there cloud-specific licence models when it comes to collective
licensing? If so, does this include rules on cross-border contracts (including jurisdiction
and choice of law aspects)?
The collective management organizations in Greece grant territorial licenses. In the
new contracts they
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