Christina Koliatou, LL.M, PgCert
Summary: According to the latest survey by the international organization Business Software Alliance (BSA), which represents the global software industry, the percentage of software installed on computers that was not legally licensed in Greece in 2018 was 61%, putting the country in first place among European countries. Given the rapid evolution of technology, the multiple possibilities that the latter offers in terms of the use of available electronic media, and the rapid increase in the rate of illegal copying of computer programs, many questions arise regarding the penalties - civil, criminal and administrative - in the case of illegal copying of a computer program, and the ways in which its creator can be protected. This article will set out the basic concepts for a more effective understanding of the issue at stake, and in the light of the legal framework of intellectual property, the weapons available to the author in order to remove the infringement in question and claim the relevant compensation and satisfaction of moral damages.
A computer program is a series of instructions to the computer, expressed initially in the form of source (or object) code, written by the programmer in a special programming language understood by the programmer, which is then automatically translated into machine code that is understood by the computer. More specifically, under Law 2121/1993, a program is defined as 'a set of instructions, i.e. algorithms, capable, when incorporated into a machine-readable medium, of leading an information-processing machine to perform, indicate or achieve a specific function, task or result'. It is divided into source code, i.e. the original high-level language in which a program is written and can be run on a computer after the necessary translation - decoding (with the help of special translation programs - compilers, assemblers - so that it is directly readable by the computer) and object code, which is the result of this translation into machine language, i.e. the directly understandable form of the program by the computer.
The law of intellectual property (Law 2121/1993) protects all original intellectual works. The concept of intellectual work includes, among other things, any "creation of speech, art or science, expressed in any form". Works of speech protected under the provisions on intellectual property are, if they are personal intellectual creations of their creator, also computer programs (source and object code), the preparatory material for their design, the machine code and the flow chart. However, the ideas and principles underlying any element of a computer program, including those underlying its interface systems, programming languages, the functional capabilities of the computer program, and the principal look and feel of the computer program are not protected.
Although the legislator, in considering originality (and thus the protection of the work under the provisions of Art. 2121/1993) requires an expression of the author's personality on the work, individuality, static uniqueness and creative height, with regard to computer programs, it uses a particularly broad concept of originality, since in this respect, the scope for development and deviation in computer programs is limited, at least with regard to creative height, compared to classical literary or musical works, where feasibility does not limit the content.
Law 2121/1993 grants the author of the computer program the moral right (recognition of paternity, power to maintain the integrity of the work, etc.), as well as the so-called property right, i.e. the right to exploit his work in any way. In this context, the author has the right to authorise or prohibit third parties from, inter alia, using, reproducing, distributing, exploiting his work, etc. It is noted that the above rights are acquired by the author as of right at the time of creation of his work. It is important, however, that the work is also time-stamped (electronically through the Intellectual Property Organisation or through a notary), in order to be able to prove the time of creation and the form it was in at the time, in the event of a dispute. In the case of copying a computer program, penalties are provided for against the person who made the illegal copy, and the author can be protected in civil, criminal and administrative matters.
2. Urban protection
At the urban level, the creator of the PC program has the following possibilities: a) to file an application for injunctive relief, claiming entry into the premises of the person who made the illegal copy of the program, access to the computer program in question, the imposition of a conservative seizure of those objects held by the opposing party which constitute the means of commission or product or proof of the infringement, the temporary removal of the infringement in question and the temporary restraint of the infringement in the future, as well as the conservative seizure of his/her assets (including the freezing of his bank accounts where the infringement in question is committed on a commercial scale, that is to say, in the context of acts intended to obtain direct or indirect economic or commercial advantage) b) to file a lawsuit requesting the recognition of his right to his creation - computer program, the payment of compensation by the person who made the copy, for the total damage suffered by him from this illegal copying and exploitation of the computer program, the satisfaction of his moral damage, the removal of the infringement and its omission in the future (through withdrawal, permanent removal from commerce, destruction, etc.).
This occurs because the purpose of the provision is to ensure or preserve directly the right of the person in whose favour it was issued and to prevent the possible disappearance of the evidence in question. Great care must be taken with regard to the specific request for an inventory and the precise determination of the 'place' where that request is to be executed and the manner in which it is to be executed, given that in this case we are not dealing with tangible but with intangible property. Consequently, account must be taken of the possibility that the program in question may be located either on the computer (stand-alone or networked, portable or fixed) - most probably locked - or on other media (e.g. CD, DVD, USB STICK, hard disk, etc.). At the same time, it is crucial that the copy of the offending program be extracted and recorded on non-rewritable material (DVD, etc.) to prevent tampering with the relevant data.
In any event, however, the person against whom the application is directed shall have the right to apply for the content of the interim order granted to be withdrawn or reformed. It should be noted that, if it is found that no copying has taken place, the person concerned may claim compensation.
However, where copying of a computer program has actually taken place, the compensation awarded in favour of the author may not be less than twice the remuneration normally or legally payable for the type of unauthorised exploitation carried out by the person liable. In fact, if the rightholder has difficulty in proving the amount of his loss, it is sufficient to prove the amount of the remuneration he would have received for a similar exploitation of his right for the court to award him twice that remuneration. The decisive time for the calculation of the damage is the time when the damage was suffered. The amount of the royalty normally payable, as a baseline, should either be agreed or set by law, in which case no proof of it is required, or be capable of being proven by the rightholder and/or inferred from evidence such as the royalties that would have been due had a licence been sought. Such fees may be derived, for example, from receipts, invoices or other similar evidence. In any event, the introduction of the threshold does not prevent the beneficiary from proving even greater damage. In any event, however, the beneficiary may, without proving the fault of the debtor, claim either payment of the amount by which the debtor became richer from the exploitation of the project or payment of the profit made by the debtor from such exploitation. In this context, the beneficiary may request copies of the invoices issued in the context of the illegal exploitation, as well as other extracts from the commercial books of the opposing party, either by means of an application for interim measures - if there is an urgent and imminent danger - or before the court hearing the action, in his or her submissions, and at any stage of the proceedings.
It is worth mentioning that in the context of comparing the two contested programs, in order to check whether one of them is indeed a copy of the other, two methods of comparison are offered: the quantitative method, in the context of which the number of lines of the two programs are identical, while it is worth commenting on the fact that the few court decisions that have been issued in the international arena accept for the affirmation of substantial similarity, an identity of programs ranging from 18-25% to 89-97%. However, this method is not satisfactory, as there is uncertainty as to the percentage of similarity and there is a risk of circumvention, e.g. the same source code using a different translation program produces completely different object code. For this reason, the qualitative method is also used, in the context of which the content of the similarity is examined, i.e. in which parts of the offending program, which involve individuality, the case of identity occurs.
In the context of all of the above, it is worth mentioning, by way of example, Case No. 3092/2020 of the Thessaloniki Single Judgment of the Court of First Instance of Thessaloniki, which judged both the novelty and originality of the applicants' computer program (acknowledging the complex nature of the software designed, but also the fact that the data extracted from the database - from which the contested program extracted data - were formatted and systematized according to criteria selected by the applicants) and the - quantitative and qualitative - similarity of the programs compared, taking into account, inter alia, both the similarity of the software and the similarity of the data extracted from the database.
"[...] it was presumed that the second and third defendants had previously worked as programmers at the second of the applicants, and once they had left their jobs they set up, together with a third partner, the first of the defendants, whose business was the production of software applications, which in turn created and operated the website-synchronous platform "...", which appeared on the internet in May of the year .... and by faithfully copying the applicants' know-how, which has the same subject matter as the applicants' platform, operates in almost the same graphical environment, applies faithful copying of the applicants' software and uses the same database. In particular, the abovementioned platform has the program '....', which is very similar to the applicants' similar program both in terms of the application of the '....' method and in the order of the commands as well as at the design level. [... ] It was further suggested that it took only a few months for the defendants to implement the above-mentioned programs, and that, according to the lessons of common experience and the corresponding time period that the applicants worked on their own program, this work is laborious and time-consuming, with tests and iterations, the fact that the Defendants set up their website with their respective computer programs in such a short period of time reinforces the view that the Defendants, through the second and third Defendants, with the intention of competing with and harming the Applicants, transferred the know-how and data developed by the Applicants to the first Defendant in order to create their own product. It is also worth noting that the defendants' claim that they use a different programming language in their own programmes from those of the applicants is not legally relevant since it is technologically and scientifically easy to transfer a programme from one programming language to another. A review of the evidence in the file makes it clear that the programs are similar [...] the injunctive measures referred to in the operative part of the order for reference and considered to be the most appropriate in the circumstances [...] the defendants should be provisionally prohibited from using, operating and making available on the internet or in any other way the pay-TV platform [...]. ] and the programmes, applications and database made available through the platform under the name [...] or any other name, as well as any website or programme that constitutes a copy of the applicants' websites or programmes [...]'.
In the same context, the decision of the Piraeus Court of Appeal No.679/2015, holding that in the case at issue, the defendants were using, without the required license, the plaintiff's program (which, despite its improvements and upgrades, remained in any case the same in its basic core) and calculating the damages awarded to be equal to twice the fee usually paid for the type of specific exploitation, ruled as follows:
"[...] In this regard, it is further noted that a) the opinion of ..., lawfully cited and produced by ...., according to which the construction of a program such as the program "........" requires an effort of at least 760 man-months, while the calendar time of construction of the program could not be less than 31 months. Therefore, the development of the program (which according to the aforementioned expert opinion of ..... and .. .... is of considerable size and with a labyrinthine path in terms of its separation into files and their interconnection) in the upper minimum time would require the participation of at least 25 people of appropriate specialties allocated to the respective development phases; and b) the filing of ..... , who affirmed "that the application was never changed, [...] In this way, and without the testing and training period for users that would be required for a new prototype program, the above mentioned continued to use the same program without interruption, which was a copy of the prototype and to which they gave the name .... without the consent of the beneficiary [...] The above is also supported by the inventory report of the bailiff at the Athens Court of First Instance (No. ../12-3-2003). ..., according to which when he went on 12-3-2003 to the defendant's offices together with the special technical adviser ...... in accordance with the order of 7.3.2003 of the Athens lawyer ..... under an exact copy of the application of 27.2.2003 addressed to the Piraeus Court of First Instance in order, in accordance with the order of 7.3. 2003, which was granted during the discussion of the application for injunctive relief, to carry out a detailed inventory of the hard disk of the main computer of the aforementioned company, it was found that basic data files of the old application of the disputed program were found to accept new entries, while at the same time it was found that on the computer there were files and programs with the characteristic name ..... with registration (creation) from 1997 and last changes were created in 2002. Furthermore, it was found that reported files of this program were continuously updated up to the day of writing this report. The above is not contradicted by the 22-7-2013 technical expert report of ...... and ...... .According to the latter, the program ....., although it has a very high degree of common functionality with the program...., is neither a copy nor a falsification of the program ........... but has been compiled from the beginning. However, the above experts received material for examination only from the plaintiff and relied on the examination of the source code of the programs in question without the manuals of use, operation or how to communicate with the computer and even after 10 years since the programs ceased to operate, so that they themselves expressed a reservation about the conclusion drawn because it was not possible to establish that the examined codes were the archetypes, i.e. those stored on the computers of the plaintiff. .... at the critical times. Therefore, the plaintiff's claim in the lawsuits No. .... that the company "...." did not develop its own program, but in the period from April 2002 to February 2003 used the program "......" of the company "....." without its permission, was proven. Therefore, it is legally possible for the above defendant company to pay compensation equal to twice the amount of the fee that it normally paid for the type of exploitation in question, the amount of which, as has been proven, was agreed to be equal to 0.5% of its turnover. [...]. Furthermore, with regard to the method of calculating the compensation, it should be noted that the facts established above in the case at issue in this case resulted in [...] (b) the amount of the fee that the defendant company ..... would have paid if it had requested a licence to use the software in question. Therefore, and in conjunction with the aforementioned in her legal opinion, the amount of the damage suffered by the plaintiff [...] Furthermore, the plaintiff is entitled to monetary compensation for the non-material damage suffered by the infringement of her intellectual property rights to the reputation and prestige of her business, in the amount of EUR 10,000, which is considered reasonable in view of the circumstances and the general circumstances, in particular the degree of fault of the defendant company and the damage suffered by the plaintiff. [...]".
3. Criminal protection
At the criminal level, the author of a computer program has the possibility to file a complaint against the perpetrator in order to obtain a conviction under paragraph 1 of article 66 of Law 2121/1993, according to which he is punished with a minimum of one year imprisonment and a fine of 2.900 - 15. 000 euros, whoever, without right and in violation of the provisions of the Copyright Act or provisions of multilateral international conventions ratified by law for the protection of intellectual property, records works or copies, reproduces them directly or indirectly, temporarily or permanently, in any form, in whole or in part, translates, adapts or transforms them, distributes them to the public by sale or other means or possesses them for the purpose of distribution, leases them, performs them publicly, broadcasts by any means, presents works or copies to the public by any means, imports copies of the work illegally produced abroad without the consent of the author, and generally exploits works, copies or copies which are the subject of copyright or infringes the moral right of the author to decide on the publication of the work to the public, as well as to present it unaltered without additions or abridgements.
Paragraphs 2 and 3 of the above article provide for two distinct forms of the above offence and, more specifically, that if the benefit sought or the damage threatened by the above acts is particularly high, a minimum of two years' imprisonment and a fine of 6,000 to 30,000 euros is imposed. If the perpetrator commits the above acts on a professional or commercial scale or if the circumstances under which the act was committed indicate that the perpetrator is particularly dangerous for the protection of intellectual property or related rights, imprisonment of up to 10 years and a fine of EUR 15,000 to 60,000, as well as the withdrawal of the licence of the business in the context of which the act was committed. In addition to the specific provision in the Intellectual Property Act, protection against illegal copying of programmes is also provided by the provisions of the Penal Code. In particular, Article 370 D of the Penal Code provides that anyone who without right copies or uses computer programs is punishable by a fine or community service. It should be noted that the relevant offences, as provided for in Article 66 of Law 2121/1993 and in Article 370D of the Penal Code, are prosecuted ex officio and are subject to a limitation period of 5 years from the time of their commission in the case of their misdemeanour form and 15 years in the case of their felony form.
4. Administrative penalties
At the administrative level and in the context of further suppression of the phenomenon of software piracy, Article 65 A of Law 2121/1993 provides that anyone who, without right and in violation of the provisions of Law 2121/1993, reproduces, sells or otherwise distributes to the public or possesses for distribution a computer program, irrespective of other sanctions, is subject to an administrative fine equal to EUR 1000 for each illegal copy of a computer program. In this context, the author - rightholder may lodge a complaint with the authorities responsible for monitoring the application of the relevant provisions of the Copyright Act, i.e. with the special departments of the CDOE (e.g. Department C - Intellectual Property Protection for Athens), the Police (Sub-Directorate of Economic Police & Directorate of Electronic Crime of the Hellenic Police), Port and Customs Authorities, which, after having established - following an on-site inspection - the infringement, draw up an act establishing the infringement, a seizure report with a detailed description of the illegal computer programs or servers, serve, in each case, a summons for a hearing on the offender and receive his views in writing within the time limit of the automatic procedure. The competent authorities for the collection of administrative penalties are the territorially competent tax offices and customs offices. It should be noted that where the object of the infringement concerns computer programs, the unconditional payment of the administrative fine by the offender, in accordance with the provision of paragraph 1 of Article 65 A and under the conditions laid down, shall result in the non-prosecution of the criminal proceedings and the annulment of any infringement where the infringement concerns a quantity of up to fifty (50) programs.
5. Instead of an epilogue
Despite the high rate of infringements and the extent that the popular phenomenon of illegal software copying has reached today, targeted information, the current legislative framework and the decisions of the Greek courts are slowly laying the basis for the expected crackdown. It is advisable, however, that the creator - owner of the respective computer program, for his own protection, should, in any case, proceed in any case, to time-stamp his work at the time of its creation and, in case he becomes aware of illegal copying and/or exploitation, to immediately take the appropriate legal actions, as detailed in this article, including the immediate submission of an application for the inventory of the copying product, in order to ensure the required evidence, which will prove to be decisive.