Troubled Waters for Online Pirates in Greece

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On November 6, 2018 a remarkable blow was delivered to online piracy in Greece. On that day, the newly-formed “Committee for Online Copyright Infringement” – informally and more descriptively also known as the Greek “Anti-Piracy Committee” – published its first decisions, ordering, by one of those (Decision No. 3/2018), all Internet Service Providers (ISPs) in Greece to block the access to 38 domains names that corresponded to websites with copyright infringing content. The decision was most welcomed by copyright holders in Greece and was also widely shared among Internet users, many of whom were taken by surprise by the new development as the Committee’s establishment had not, until then, become known to most people not associated with the intellectual property field.

The new “notice and takedown” procedure

To start from the beginning, in July 2017, Greek Law 4481/2017 added a new provision to Greek Copyright Law 2121/1993 (article 66E) establishing a new, fast, extrajudicial process against online copyright infringement. The new mechanism is a kind of an administrative “notice and takedown procedure” that falls under the scope of articles 12-14 of E-Commerce Directive 2000/31/EC (transposed into Greek law with articles 11-13 of Presidential Decree 131/2003), the last paragraphs of which allow for the creation of legal mechanisms obliging information society service providers to terminate online infringements.

The newly founded procedure is carried out before the three-member administrative Committee set up for that purpose  (consisting of the President of the Hellenic Copyright Organization, a representative of the Hellenic Telecommunications and Post Commission and a representative of the Hellenic Data Protection Authority) – namely, the “Committee for the Notification of Copyright and Related Rights Infringement on the Internet” or more simply the “Committee for Online Copyright Infringement” (Greek acronym: “ΕDPPI”).

This out-of-court mechanism can be initiated with the filing of an application to the Committee by a copyright holder, a related rights holder or a Collective Management or Collective Protection Organization on behalf of their members, requesting the cessation of the infringement of their intellectual property rights on the Internet, with reference to specific domain names or IP addresses where the infringement is committed. If the application meets all procedural requirements, the Committee notifies all Internet Access Providers operating in Greece and, where possible, the Hosting Providers and the administrators or owners of the website or websites where the copyright infringement is allegedly taking place, and urges them to voluntarily comply to the right holder’s application by removing or disabling access to the infringing content, or by getting a license from the right holder for the use of the copyright protected work. In case the receivers of the Committee’s notification choose not to comply, they have a short deadline of 5 working days to submit their objections and evidence that no infringement is taking place on the websites. The Committee may then request additional material from any party involved in the procedure, and, finally, it shall issue its decision within 2 to 3 months after the filing of the right holder’s application.

With its decision on the case, if the Committee finds that copyright infringement is indeed taking place on specific websites, it shall order all receivers of the above notification (i.e. the Internet Access Providers and, possibly, the Hosting Provider and the administrators or owners of the website) either to permanently remove the illegal content, in case the website’s server is located in Greece, or, in case the website’s server is located abroad or if there is a case of large-scale infringement, to disable the access to the content. Depending on the initial application, the disabling of access would refer either to specific domain names (DNS blocking), in which case it shall last for at least 3 years, or to IP addresses used for data streaming (IP blocking), in which case the blocking may last for up to 6 months. The Committee also sets an administrative penalty in case of non-compliance to the decision, ranging from 500 € to 1.000 € per day of non-compliance.

As can be seen from the above, the new extrajudicial mechanism does not concern claims for damages for the right holders, but it solely aims to stop ongoing copyright infringements on the Internet in a relatively quick and effective way, by obliging not only the infringers, who are rarely easy to find, but also the ISPs to remove or disable access to the illicit content. It should be noted, however, that the Committee is not competent against end-users for infringements committed by them through downloading, online streaming, peer-to-peer filesharing, or cloud computing.

Lastly, it is important to note that the initiation as well as the outcome of the above procedure do not at all affect the copyright holder’s rights to take legal action before the Courts regarding the same dispute. However, the procedure before the Committee cannot proceed if the same case has already been brought before the Courts.

The Committee’s Decision No. 3/2018

As previously mentioned, Law 4481/2017, under which the new procedure was established, entered into force in July 2017. However, the necessary Ministerial Decisions for the formation of the Committee and the regulation of the procedural details were published in February 2018, and, finally, in September 2018, the Hellenic Copyright Organization announced that the Committee would commence its operations and start to accept applications from right holders as of September 3, 2018.

Just two days later, on September 5, 2018, the Greek Collective Protection Organization for Audiovisual Works (Greek acronym: “EPOE”), representing film production and distribution companies, filed the first application to the Committee regarding copyright infringing content found on 38 different domain names. It is worth noting that these 38 domains corresponded to “pirate websites” that were rather popular among a number of Greek Internet users, also including known international websites such as “The Pirate Bay”.

Two months later, on November 6, 2018, the Committee issued its first three decisions, all of them concerning EPOE’s application.

The first two decisions (No. 1/2018 and 2/2018) are of relatively small importance as they only confirmed the voluntary compliance of two ISPs with EPOE’s application, and ceased the procedure regarding these ISPs.

However, the Committee’s Decision No. 3/2018 had a significant and substantial content, as it examined EPOE’s application on the merits and found that the 38 domain names mentioned by EPOE corresponded to websites where copyright infringement was committed on a large scale. More specifically, it was found that the websites’ content was infringing to intellectual property and related rights to several hundreds of films. Out of the 38 domain names (which in fact corresponded to 16 different websites, as multiple domain names may redirect the user to the same website), 21 domains (corresponding to 8 different websites) contained links to watch copyright protected films through online streaming, 11 domain names (corresponding to 4 websites) contained torrent files in order to download copyright protected films with the method of peer-to-peer filesharing, and 6 domain names (corresponding to 4 websites) contained self-made subtitles, which could be used in order to watch films that would be downloaded without subtitles through other websites. All websites were hosted on servers located outside Greece.

As a result, having concluded that large-scale copyright infringement was being committed on all websites, the Committee ordered, by its Decision No. 3/2018, all Greek ISPs to block the access to these 38 domain names for a period of 3 years, and under the penalty of an 850 € fine for each day of an ISP’s non-compliance with the decision.

A supplementary request by EPOE for the blocking of 3 additional domain names was rejected for procedural reasons, as these domains had not been included in the initial application form. The Committee also rejected EPOE’s request to additionally order the blocking of any other domain name used in the future for the same websites. According to the procedure set out by the law, the Committee can only order the blocking of domain names which are specifically, and not just generally, mentioned, in a right holder’s application. In other words, in order to block new domain names linked to websites with copyright infringing content, the right holder has to file a new application so that the Committee issues a specific decision on the case.

Effectiveness of the new mechanism

The first decisions of the Committee show that the establishment of the new mechanism can, in fact, offer an efficient tool in the Greek legal order against online copyright infringements, which had long been very tough to tackle with due to legal and practical reasons. However, the effectiveness of the procedure has yet to be seen in practice, mostly because of the capabilities of modern Internet technology.

Firstly, infringers may create new domain names under which they could distribute the illicit content. This would inevitably lead right holders to a cat-and-mouse game, having to file new applications to the Committee in order to block each new domain. New domain names were, in fact, very soon created, for some of the websites blocked by virtue of Decision No. 3/2018.

In addition, the use of VPN or DNS services can allow end users to access all blocked domain names, as these technologies would allow to bypass the services of Greek ISPs. That is because the Committee would not be able to order the removal of a website’s content if it is hosted abroad. In that case, the Committee may order the ISPs that operate in Greece to disable access to certain domain names, but the blocked websites will of course continue to exist on the worldwide web and could still be accessed if the end user is equipped with certain software. In fact, no later than the day after the issuance of the Committee’s Decision No. 3/2018 many Internet users shared online instructions for the use of such services.

However, realistically, a small percentage of users would probably opt for such technologies and not all users would find the illicit websites on their new domain names. It seems therefore that the Committee’s work may in fact have an important impact against large-scale, but also smaller scale, online piracy.

Finally, even though the effectiveness of the new mechanism has yet to be proven in more cases and although some legal issues, which have not been touched upon in the present article, have to be more closely examined (such as the Committee’s exact legal status or the guarantees for its independence, impartiality and proportionality), the decisions of November 6, 2018 certainly “rocked the boat” for online pirates in Greece and might have opened a new chapter for the online protection of intellectual property in the country.


 

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