Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
| Author | Charis Tsigou |
| Position | Attorney-at-Law, DEA Intellectual Property, DEA Legal Theory, Media Law Expert, Legal Advisor at the National Council of Radio and Television (NCRTV) Greece |
| Pages | 201-207 |
Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
2018
201
2
Notice-and-Takedown Procedure under
Greek Intellectual Property Law 4481/2017
by Charis Tsigou*
© 2018 Charis Tsigou
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Char is Tsigou, Notice-and-Takedown Procedure under Greek Int ellectual Property Law 4 481/2017, 9
(2018) JIPITEC 201 par a 1.
Keywords: Directive 2014/26/EU; eCommerce Directive; copyright management; online copyright infringements;
intermediaries; website owners; notice-and-takedown procedure; Greek Law 4481/2017
rights. Although it is an attempt to swiftly resolve
cases of violation through the internet, the unclear
relation of this sanction system to the system laid
down by the Law 2121/1993 on copyright and re-
lated rights creates several inconsistencies and legal
issues. At the same time, the Committee on Internet
Violations of Intellectual Property (CIVIP) established
to implement the notice-and-takedown procedure
lacks institutional integration in the public adminis-
tration structure, a situation that undermines the ef-
fectiveness of its decisions and may annul the ex-
pected benefits of the new procedure in practice.
Abstract: After two years of negotiations
and several drafts, the provisions of the Directive
2014/26/EU on collective management of copyright
and related rights were introduced into Greek leg-
islation by the Law 4481/2017, which establishes a
strict legal framework for the collective management
organisations and places great emphasis on state
control mechanisms. Additionally, Law 4481/2017
introduces a notice-and-takedown procedure as a
sanction to the intermediaries (access providers or
hosting service providers) and website owners for
online violation of intellectual property and related
A. Introduction
1
The recent Greek Law 4481/2017 transposed
the provisions of the Directive 2014/26/EU on
collective management of copyright and related
rights in a rigorous way, creating a rather strict
legal framework providing various sanctions.1
Additionally, article 52§1 of this Law introduces,
for the rst time in the Greek jurisdiction, a
sanction-imposing mechanism for online copyright
infringements, implementing the provisions of the
Directive 2000/31/EC on electronic commerce (art.
12-14) and the corresponding Presidential Decree PD
131/2003 (art. 11-13).
* Attorney-at-Law, DEA Intellectual Property, DEA Legal
Theory, Media Law Expert, Legal Advisor at the National
Council of Radio and Television (NCRTV) Greece, www.tmk-
law.gr.
1 See D. Kallinikou / P. Koriatopoulou, Chronique de Grèce,
RIDA 254 oct. 2017, pp. 119-120.
2 The sanctions are imposed to specic categories of
internet intermediaries2 (internet access providers3
2 For the different types of internet intermediaries and the
evolution of their concept see P. Baistrocchi, Liability of
Intermediary Service Providers in the EU Directive on Electronic
Commerce, Santa Clara High Technology Law Journal, vol.
19, 1/2003 available at
scu.edu/cgi/viewcontent.cgi?article=1315&context=cht
lj>, P. A. De Miguel Asensio, Internet Intermediaries and the
Law Applicable to Intellectual Property Infringements 3 (2012)
JIPITEC 3, 350 available at <https://www.jipitec.eu/issues/
jipitec-3-3-2012/3522/asensio.pdf>, B. van der Sloot,
Welcome to the Jungle: the Liability of Internet Intermediaries for
Privacy Violations in Europe, (2015) JIPITEC 211, available at
<https://www.jipitec.eu/issues/jipitec-6-3-2015/4318>.
3 For the denition of the internet access providers, on the
one hand Greek legal doctrine follows the framework set by
the articles 12-14 of the Directive 2000/31/EC on electronic
commerce, and, on the other hand, the ECJ jurisprudence.
According to the Order of 19 February 2009 in the case
C-557/07 LSG-Gesellschaft zur Wahrnehmung von
Leistungsschutzrechten GmbH v Tele2 Telecommunication
GmbH (TELE2), “access providers which merely provide
2018
Charis Tsigou
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or hosting service providers
4
) and website owners
(art. 52§1.5(b) of L. 4481/2017). For the imposition
of such sanctions, a three-member administrative
Committee on Internet Violations of Intellectual
Property (CIVIP), formed by Decree of the Minister
of Culture, is foreseen.
B. Brief overview of notice-
and-takedown mechanisms
in the USA and EU
3
The existing mechanisms for combating online
copyright infringements are usually hinged on two
different axes, either as self-regulation systems
ensuring an out-of-court resolution of the dispute
or as systems based on judicial or administrative
sanctions.
4
Following the self-regulation approach, in 1998
the USA released internet service providers of
any liability due to the transmission of illicit
content under the condition that they warned
users in advance that their connection would be
suspended in the case of unauthorised exchange of
protected works.
5
After a standard-format written
complaint, the provider commences the notice-and-
takedown procedure, removing the illicit content
or prohibiting access to it, without any prior
judicial or administrative act.6 In Europe, analogous
users with Internet access, without offering other services
such as email, FTP or lesharing services or exercising any
control, whether de iure or de facto, over the services which
users make use of, must be regarded as ‘intermediaries’
within the meaning of Article 8(3) of Directive 2001/29”
(para. 46).
4 For the integration of the concept of “hosting service
providers” to the broad notion of internet intermediaries
see the denition proposed by OECD according to which
“internet intermediaries bring together or facilitate
transactions between third parties on the Internet. They
give access to, host, transmit and index content, products
and services originated by third parties on the Internet or
provide Internet-based services to third parties”. See OECD,
Report on the Economic and Social Role of Internet Intermediaries
(2010), available at
ieconomy/44949023.pdf>. See also Prof. Dr G. Sartor, EU In-
Depth Analysis. Providers Liability: From the eCommerce Directive
to the Future (2017), available at
europa.eu/RegData/etudes/IDAN/2017/614179/IPOL_
IDA(2017)614179_EN.pdf>.
5 See Digital Millennium Copyright Act (DMCA), Sec. 512 (C)
(3)-Limitations on liability relating to material online.
6 For the functioning and the impact of the US notice-and-
takedown procedure see M. Peguera, The DMCA Safe Harbors
and Their European Counterparts: A Comparative Analysis of
Some Common Problems, Columbia Journal of Law Arts, vol.
32, 4/2009, L. Trapman, American and European safe harbours,
Kluwer Copyright Blog December 14, 2016 available at
<http://copyrightblog.kluweriplaw.com/2016/12/14/
american-european-safe-harbours/?print=pdf>, E. M.
procedures were adopted in Ireland7 and Hungary,
while in Finland a notice-and-takedown procedure
was established for intellectual property violations.
Similarly, the British Digital Economy Act 2010/2017
contains a procedure of notice of the users by the
provider, following a complaint by the rightholder.8
5 Contrary to the above, other jurisdictions consider
it necessary to interject an administrative act or a
court judgment afrming that an online copyright
infringement has occurred, in order to ensure that
the rule of law principle is observed. In its Law
on digital economy9 and as early as 2004, France
introduced the three-strike mechanism, which is
activated following the complaint of the rightholder
by the competent independent authority (HADOPI)
itself established in 2009.10 The authority warns
the user about the complaint and simultaneously
noties the provider; if there is a second violation,
it sends a registered letter and, in case of non-
compliance by the user, it obliges the provider (by
means of a resolution of a special judicial board) to
terminate the internet connection. The provision
about a judicial resolution was included in the law
following the reaction of the French Constitutional
Court to the police powers of the independent
authority HADOPI. It was found that the power to
terminate a particular internet connection limits
the right to information to an excessive degree and,
as such, may not be yielded by an administrative
authority, but must be subject to the safeguards of
the judicial process.11
Asp, Section 512 of the Digital Millennium Copyright Act: User
Experience and User Frustration, 103 ioWa l. rev. 751 (2018).
7 Art. 40(4) of the Copyright and Related Rights Act 2000
provides for a notication and take down procedure to the
ISP, which informs the user requesting retraction of the
content.
8 A. Giannopoulou, Copyright enforcement measures: the role
of the ISPs and the respect of the principle of proportionality,
European Journal of Law and Technology (EJLT), Vol. 3,
1/2012, available at .
9 Loi n° 2004-575 du 21 juin 2004 pour la conance dans
l’économie numérique available at
wipolex/en/details.jsp?id=12761>.
10 HADOPI was established by the French Law 2009-669 on
Dissemination and Protection of Intellectual Property on
the Internet (Loi n° 2009-669 du 12 juin 2009 favorisant la
diffusion et la protection de la création sur internet), which
was later amended by the Law HADOPI II on the Criminal
Protection of Intellectual Property on the Internet (Loi
n°2009-1311 du 28 octobre 2009 relative à la protection
pénale de la propriété littéraire et artistique sur internet).
Both texts available at
jsp?id=5615>.
11 Décision n° 2009-580 DC du 10 juin 2009, considérant 16:
“les pouvoirs de sanction institués par les dispositions critiquées
habilitent la commission de protection des droits, qui n’est pas
une juridiction, à restreindre ou à empêcher l’accès à internet
de titulaires d’abonnement ainsi que des personnes qu’ils en
font bénécier; que la compétence reconnue à cette autorité
administrative n’est pas limitée à une catégorie particulière
Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
2018
203
2
6
Similarly, on 12 December 2013 the independent
authority for communication industries (AGCOM)
in Italy issued a Regulation containing a detailed
notice-and-takedown procedure for the sanctioning
of online copyright infringements. Such procedure
targets only the internet service providers (ISPs),
while excluding peer-to-peer networks and end
users. The extended powers of AGCOM on the basis
of this Regulation were strongly criticized; the
Regulation’s validity was challenged before the
Italian Courts, but it was nally ratied by a TAR
Lazio decision on 30 March 2017.12
7
In Spain, the competence for proceeding to a
notice-and-takedown sanctioning mechanism for
online copyright infringements was given to the
Spanish Copyright Commission (SCC), which is
formed as an administrative commission subject
to the oversight of the Ministry of Culture.13 The
notice-and-takedown procedure was established
by the Royal Decree 1889/2011, implementing the
provisions of the Spanish Sustainable Economy Act
2/2011 of 4 March 2011 (the “Sinde Act”, as amended
by Law 2/2010 of 29 June 2012). According to the
Royal Decree, the role of the Spanish Copyright
Commission (SCC) was enhanced by the attribution
of a notice-and-takedown competence.14 In the
de personnes mais s’étend à la totalité de la population ; que ses
pouvoirs peuvent conduire à restreindre l’exercice, par toute
personne, de son droit de s’exprimer et de communiquer librement,
notamment depuis son domicile ; que, dans ces conditions, eu
égard à la nature de la liberté garantie par l’article 11 de la
Déclaration de 1789, le législateur ne pouvait, quelles que soient
les garanties encadrant le prononcé des sanctions, coner de tels
pouvoirs à une autorité administrative dans le but de protéger
les droits des titulaires du droit d’auteur et de droits voisins”
available at
decision/2009/2009-580-dc/decision-n-2009-580-dc-du-
10-juin-2009.42666.html>. See also E. Derieux, France: la loi
«création et internet» dite Hadopi 2, La Revue Européenne des
Médias et du Numérique, 12/2009, available at
la-rem.eu/2009/09/22/france-la-loi-creation-et-internet-
dite-hadopi-2>; E. Derieux, La loi française création et Internet,
La Revue Européenne des Médias et du Numérique, 10-
11/2009, available at
franc%CC%A7aise-creation-et-internet>. For the criticism
towards HADOPI see J-A Fines-Schlumberger, La Hadopi: totem
et tabou, La Revue Européenne des Médias et du Numérique,
36/2015, available at
hadopi-totem-et-tabou>; N. Lucchi, Regulation and Control of
Communication: The French Online Copyright Infringement Law
(HADOPI), Cardozo Journal of International and Comparative
Law (JICL), Vol. 19 2011, at
papers.cfm?abstract_id=1816287>.
12 G. Campus, Italian public enforcement on online
copyright infringements: AGCOM Regulation held valid
by the Regional Administrative Court of Lazio, Kluwer
Copyright Blog, June 16 2017, available at
copyrightblog.kluweriplaw.com/2017/06/16>.
13 G. Gallego, New procedure against Internet copyright
infringement in Spain, available at <http://ehoganlovells.
com/cv/d225836c375411d30c0b90695b966cfda822f0d8>.
14 On notice-and-takedown procedure in Spain and
the SCC competences see G. Gallego, New procedure
case that SCC issues a resolution conrming online
copyright infringement, the information society
service provider (ISSP) in question has to remove
the illicit content, otherwise ISPs may be required by
the SCC to suspend their service. It is worthy to note
that the SCC’s request for suspension of the service
or blocking of access has to be previously authorized
by a judge.
8 In Germany, where the three-strike French system
is viewed with reservation, art. 101§9 of the Law
on Intellectual Property (1965/2017)15 requires a
court order in the case where the information on
the violation of an intellectual property right may
be accessed only though the transfer data of a
particular IP address.
C. The notice-and-takedown
procedure under Greek
Law 4481/2017
9
Greek Law eschews the self-regulation approach
and seems inspired by the abovementioned
procedures already adopted in other EU member
states, which require the intervention of a judicial
or administrative body.
10
The recent Greek L. 4481/2017 chose to establish
a voluntary out-of-court procedure for the
resolution of disputes concerning online copyright
infringements, initiated by a complaint of the right
holder before a special administrative Committee on
Internet Violations of Intellectual Property (CIVIP).
The Committee has a three-year term of ofce and
consists of the Chairman of the Hellenic Copyright
Organisation (OPI), a representative of the Hellenic
Telecommunications and Post Commission and
a representative of the Hellenic Data Protection
Authority (art. 52§1.2).
11
This arrangement aims to reduce court workload
and to facilitate rightholders by inaugurating a
notice-and-takedown procedure. According to
against Internet copyright infringement in Spain,
available at <http://ehoganlovells.com/cv/
d225836c375411d30c0b90695b966cfda822f0d8>; also Hogan
Lovells Global Media and Communications Quarterly 2015,
Is 2015 the year of the website-blocking injunction?,<http://
www.hoganlovells.com/les/upload/Is%202015%20the%20
year%20of%20the%20website-blocking%20injunction.%20
pdf.pdf>. For ISPs liability in Spain under eCommerce
Directive see M. Peguera, Internet Service Providers’ Liability
in Spain: Recent Case Law and Future Perspectives, 1 (2010)
JIPITEC 151, available at <https://www.jipitec.eu/issues/
jipitec-1-3-2010/2823/peguera-isp-liablility-spain.pdf>.
15 Act on Copyright and Related Rights 1965/2017
(Urheberrechtsgesetz) available at
im-internet.de/englisch_urhg/englisch_urhg.html>.
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Charis Tsigou
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article 52§§1.1 and 1.5(b) of L. 4481/2017 this
procedure includes only specic categories of
internet intermediaries (internet access providers or
hosting service providers) and website owners while
excluding the end users (i.e. the persons who perform
acts of reproduction, uploading, downloading, peer-
to-peer, streaming or cloud computing). Moreover,
it is provided that the initiation of this procedure or
even the adoption of a decision by the Committee on
Internet Violations of Intellectual Property (CIVIP);
it does not preclude the rightholder from ling a
lawsuit (art. 52§1.8). In addition to the rightholder,
the collective management organisations and the
collective protection organisations
16
are expressly
allowed to bring a request before the Committee
(art. 52§1.1). The lack of any reference to the
independent management entities is not explained
in the explanatory memorandum of the Law;
consequently, this gap must be lled by means of a
mutatis mutandis interpretation, so that all groups of
secondary rightholders may enjoy equal protection.
I. Legal nature of the Committee
on Internet Violations of
Intellectual Property
12
The explanatory memorandum of the Law clearly
demonstrates the administrative nature of the
Committee on Internet Violations of Intellectual
Property (CIVIP). Nevertheless, article 52§1 of the
L. 4481/2017 and its implementing Ministerial
Decree 196/201817 form a fragile regime, which
does not guarantee the institutional integrity of the
Committee, as it does not achieve its organic and
functional integration within the body of public
administration, due to formal and substantive
reasons.
13
According to Greek Administrative Law, the
inclusion of a specic body in the public sector
requires the fullment of either the formal or the
functional criterion. The formal criterion18 is met if
the body is hierarchically subject to the control of
another, higher administrative organ. The functional
16 L. 4481/2017 provides more categories of collective
management organisations than Directive 2014/26/EE, as
for instance the collective protection organisations. On this
subject see P. Koriatopoulou / Ch. Tsigou, The Law 4481/2017
on collective management organisations and the relevant
amendments in Greek copyright law (in Greek), Synigoros,
122/2017, p. 28.
17 The Committee on Internet Violations of Intellectual
Property (CIVIP) was established by the Ministerial Decision
196/2018.
18 See P. Dagtoglou, Administrative Law (in Greek), 1992 (3rd ed.),
p. 33.
criterion
19
is satised if the body is exercising public
powers in pursuit of a direct public interest.
14
First of all, the formal requirement of Greek
administrative law for the inclusion of the
Committee in the public administration corpus is
not met. The Committee may be formed as a body
of administrative nature, but it is not organically
integrated to the public administration structure
since it is subject neither to a hierarchical higher
authority, nor to the oversight of the Ministry of
Culture. On the contrary, the apparatus of the
Committee is blatantly absorbed by a private legal
entity: the Committee meets at the ofces of the
Hellenic Copyright Organisation (OPI), it uses the
website of the OPI to publish its resolutions, and the
fee for the review of requests by the Committee is
payable to the OPI (art. 11§2 of MD 196/2018).
15 It should be mentioned that, according to art. 69§4
of the Greek L. 2121/1993 on copyright and related
rights, the Hellenic Copyright Organisation (OPI),
is a state-controlled
20
legal entity which does not
belong to the public sector but “works in the public
interest under the rules of the private economy and
is governed by private law”. Furthermore, both legal
theory and jurisprudence accept that the OPI’s main
duty consists “in assisting the Minister of Culture,
in order for the latter to exercise administrative
control”21 on collective management societies
and does not extend to administrative decision-
making. Hence, the functioning of the CIVIP under
the structure of a private legal entity, such as the
OPI, clearly prevents its integration into the public
administration hierarchy.
16
Such a setup, far from incorporating CIVIP in the
administrative mechanism structure, places it
instead under the purview of a private legal entity
whose stated mission is to assist the Minister of
Culture in his exercising administrative control over
collective management societies.
17
Furthermore, the substantive test of the de facto
exercise of public dominion similarly fails, as the
Committee does not regulate administrative law
issues, nor does it pursue a public objective in service
of public interest. On the contrary, it addresses
19 See P. Dagtoglou, Administrative Law (in Greek), 1992 (3rd ed.),
pp. 34 and 230-231.
20 See T. Synodinou, The adventures and misadventures of the
implementation of the Directive on collective management of
copyright in Greece and Cyprus (Part I), March 27 2018, available
at
adventures-misadventures-implementation-directive-
collective-management-copyright-greece-cyprus-part/>.
21 See the decisions Council of State 949/2000 (in Greek),
NOMOS Database, Council of State 1058/2010 (in Greek),
NOMOS Database. Also D. Kallinikou, Copyright and Related
Rights (in Greek), 2005 (2nd ed.), pp. 274-275.
Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
2018
205
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disputes of a purely private nature between
rightholders and intermediaries (internet access
providers, hosting service providers) or website
owners.
18 The legal paradox of establishing an administrative
committee without formal or substantive relation
to the administrative structure of the state may
undermine the legal validity and enforceability of
CIVIP’s decisions, by making them vulnerable to
annulment by the administrative courts. For that
reason, it would have been preferable either to have
CIVIP integrated into the public administration
corpus and the subsequent oversight by the
Ministry of Culture, or to have established it as
an independent regulatory authority with larger
stafng and institutional safeguards similar to
the other regulatory authorities. Independent
regulatory authorities are integrated in the public
administration structure whilst retaining their
functional independence vis-à-vis the executive
branch, since they are subject neither to hierarchical
control nor to oversight by a superior state organ.22
They are only subject to the legislature, since their
members are obliged to observe the law, and to the
judiciary, since their decisions may be reviewed by
the courts.23 The parliamentary control exercised
by the Institutions and Transparency Commission
of the Parliament is not a form of administrative
control, because it does not aim to control the
legality of their activities, but to safeguard
transparency and administrative unity within
22 On the status and role of independent regulatory
authorities in Europe see OECD, Designing Independent and
Accountable Regulatory Authorities for High Quality Regulation,
London, 10-11 January 2005, available at <https://www.
oecd.org/unitedkingdom/35028836.pdf>; see also ERGA,
Report on the Independence of NRAs, 15 December 2015,
available at <https://ec.europa.eu/digital-single-market/
en/news/erga-report-independence-national-regulatory-
authorities>.
23 On the questions of legitimacy and accountability of
independent regulatory authorities see G. Majone, The
Regulatory State and its Legitimacy Problems, Archive of
European Integration, Political Science Series, 56/1998,
at <http://aei.pitt.edu/32416/1/1208943461_pw_56.
pdf>; M. Thatcher, Regulation after delegation: independent
regulatory agencies in Europe, Journal of European Public
Policy, December 2002, at <https://eclass.uoa.gr/modules/
document/le.php/PSPA113/THATCHER%201.pdf>;
F. Gilardi, Policy credibility and delegation to independent
regulatory agencies: a comparative empirical analysis, Journal
of European Public Policy (JEPP), December 2002, available
at <https://www.fabriziogilardi.org/resources/papers/
Gilardi-JEPP-2002.pdf>; M. Maggetti, Legitimacy and
Accountability of Independent Regulatory Agencies: A Critical
Review, Living Reviews in Democracy, November 2010
at <https://www.ethz.ch/content/dam/ethz/special-
interest/gess/cis/cis-am/CIS_DAM_2015/WorkingPapers/
Living_Reviews_Democracy/Maggetti.pdf>; M. Maggetti/K.
Ingold/F. Varone, Having Your Cake and Eating It, Too: Can
Regulatory Agencies Be Both Independent and Accountable?, Swiss
Political Science Review, 19(1)/2013, available at <https://
onlinelibrary.wiley.com/doi/pdf/10.1111/spsr.12015>.
the framework of the rule of law.24 The ECJ in the
case C-518/07 concerning state oversight on the
authorities monitoring personal data processing,
found that the principle of democracy, which
imposes the subjugation of the public administration
to the instructions of the government “does not
preclude the existence of public authorities outside
the classic hierarchical administration and more or
less independent of the government”.25 It afrmed,
therefore, the functional independence26 of such
authorities, noting, however, that “the absence of
any parliamentary inuence over those authorities
is inconceivable” and that they may be subject to
reporting obligations towards the parliament.27
19 In any case, it would be for the legislator to decide
the appropriate mechanism for the inclusion of the
Committee on Internet Violations of Intellectual
Property (CIVIP) in the public administration corpus
once it becomes clear that the current structure
could undermine the validity of the Committee’s
decisions.
II. Formal requirements
of the application and
resolution procedure
20
According to express provisions of the L. 4481/2017,
before ling an application, a previous unsuccessful
attempt at an out-of-court settlement through
a procedure offered by the provider (art. 52§1.4,
al. c) and the payment of a review charge to the
OPI28 (art. 52§1.3, al. d) must have taken place.
Additional implicit formal requirements are the
use by the claimant of the standard application
form (art. 52§1.4, al. b), as well as the statement of
non-existence of a pending court case or nal court
judgment over the same issue (art. 52§1.5, al. a). If
a pending court case or nal court judgment exist,
the case le is mandatorily closed by the Committee.
21
A serious issue is the requirement of payment of
the review fee to the OPI. First, the OPI does not
participate as such in the Committee (its Chairman
24 Article 2§1 of Greek L. 3051/2002 on Independent Regulatory
Authorities.
25 CJEU Case C-518/07 of 9 March 2010, European Commission v
Federal Republic of Germany, ECLI:EU:C:2010:125, paras. 40-42.
26 For the tendency to strengthen the role of independent
authorities in the public sphere see article 30 of the Proposal
for the Amendment of Directive 2010/13/ΕU [COM(2016)
287nal], available at
content/EN/TXT/PDF/?uri=CELEX:52016PC0287&from=
EN>.
27 CJEU Case C-518/07 of 9 March 2010, paras. 43-45.
28 See article 52§1, al. 3 of L. 4481/2017 and article 11§2 of
MD 196/2018.
2018
Charis Tsigou
206
2
does, but in a personal capacity), and second, it is
possible that objections of incompatibility may be
raised because the private legal entity to which
the fee is payable is concurrently receiving income
from the activities of the claimant, in the case where
the latter is a collective management organisation,
according to article 69§2 of L. 2121/1993 on copyright
and related rights.
22
The review procedure is exible and swift,
responding to the requirements of the online
environment. The Committee, within ten working
days from the receipt of the application, may decide
either to close the case on the grounds of formal
or substantive reasons enumerated in the Law (art.
52§1.5) or to continue the proceedings. The CIVIP
informs intermediary (internet access provider or
hosting service provider) and, if possible, other
involved parties (website owner) about the ling of
the application (summary of the facts, the contested
rights and the Committee’s ndings). The Committee
also noties the abovementioned parties of their
option either to comply with the rightholder’s
request (usually to withdraw the protected work
from the internet) or obtain a license for the use
of the work in question within a short deadline of
ten working days. At this stage, the case closes with
a Committee’s decision in the event of voluntary
removal of the illicit content or is terminated if a
license is authorized by the beneciary.
23
If the review continues, the Committee, by a reasoned
and justied resolution, issued within forty working
days from the submission of the application, either
closes the case if no violation is found or invites the
respondent to comply within three working days
from the service of the resolution (art. 52§1.6, al. b).
The provision in article 8, al. a, of the MD 196/2018,
which reduces the aforementioned compliance
deadline to two working days is contrary to the
Law and subsequently voidable.
29
Considering that
all the aforementioned deadlines may be doubled
by means of a Committee decision, the maximum
total duration of the review procedure is around
four months.
24
With its resolution30 the Committee orders either
the hosting providers to proceed to the permanent
removal (takedown) of the illicit content (art. 9 of
MD 196/2018) or the access providers to suspend
access to said content for a specic time (art. 10§3
of MD 196/2018). When the violation is committed
through a server located outside the territory of
Greece, the suspension of access is obligatory by
29 P. Dagtoglou, Administrative Law (in Greek), 1992 (3rd ed.), p. 98
and p. 296.
30 As mentioned, in Spain SCC’s request towards an ISP for
the suspension of the service or blocking of access imposed
as a sanction to an ISSP because of online copyright
infringement has to be previously authorized by a judge.
the Law (art. 52§1.6, al. g). Furthermore, if a large-
scale violation is found, particularly violation of a
large number of works or violation of a commercial
scale,31 the Committee has the discretionary power
to immediately impose the suspension of access
to specic content “in the most appropriate and
technically efcient manner” (art. 10§1 of MD
196/2018).
25 The allowance of such a degree of discretion must
be offset by the requirement of sufcient and
adequate justication of such a decision in relation
to the severity of the violation, in order to maintain
the proportionality of the sanction, as dictated by
article 36§3 of Directive 2014/26/ΕU.32 In any case,
the Committee’s resolution needs to reect an ad
hoc balance between the protection of intellectual
property, the protection of the personal data of the
users, and the right to information, in accordance
with EU law33 and jurisprudence.34
26
After the service of the resolution to impose such
administrative sanctions, a ne of 500 to 1,000 Euros
per day of non-compliance may be imposed on the
offender following a new decision of the Committee.35
The Law indicatively provides several criteria for the
determination of the ne, such as the severity of the
violation and repeated offenses. Article 8, al. d of
MD 196/2018 adds to these criteria the duration of
the violation, but such addition lies beyond the legal
mandate provided to the issuing Minister. The legal
service of the Committee’s resolution, which impose
the sanctions of content removal or suspension of
access, is provided by article 7 of MD 196/2018,
whereas, according to art. 5§5, their publication lies
at the discretion of the Committee.
31 See Εxplanatory Memorandum, 24; article 10§2 MD
196/2018.
32 “Member States shall ensure that the competent
authorities designated for that purpose have the power
to impose appropriate sanctions or to take appropriate
measures where the provisions of national law adopted in
implementation of this Directive have not been complied
with. Those sanctions and measures shall be effective,
proportionate and dissuasive”.
33 According to article 2§4 of General Data Protection
Regulation 679/2016 “This Regulation shall be without prejudice
to the application of Directive 2000/31/EC, in particular of the
liability rules of intermediary service providers in Articles 12 to 15
of that Directive”.
34 See namely Case C160/15, GS Media BV v. Sanoma Media,
ECLI:EU:C:2016:644, para. 31; Case C314/12, UPC Telekabel,
ECLI:EU:C:2014:192, paras. 55-56; Case C70/10, Scarlet
Extended SA, ECLI:EU:C:2011:771, para. 46.
35 See Ministerial Decision 240/2018.
Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
2018
207
2
III. Recourse against the
sanctions by the Committee
and relation to the sanctions
system of Law 2121/1993
27
In view of the silence of the Law regarding recourses
against the sanctions imposed by the CIVIP, it should
be accepted that they can be appealed by means
of a request for annulment before the Council of
the State on the basis of article 95§1 of the Greek
Constitution.36 Alternatively, due to the private
nature of the disputes falling under the purview of
the Committee, it could be argued that the parties
could resort to the civil courts, similarly to the
procedure set out in article 18§11 of L. 2121/1993
on copyright and related rights governing disputes
between collective management organisations
and the Hellenic Copyright Organisation (OPI)
concerning the method of payment of the portion
of the reasonable fees which correspond to each
organisation.37 In any case, it is desirable that a
legislative arrangement of this gap is made, allowing
recourse against the Committee’s decisions before
the administrative courts, as provided in article
69§13 of an earlier draft of L. 4481/2017.
28
The procedure before the Committee and the
issuance of a relevant decision does not preclude
the parties from referring their dispute to the
courts (art. 52§1.8, al. c). Additionally, based on
article 64A of L. 2121/1993 on copyright and
related rights, it is possible to seek injunctive relief
against the intermediaries whose services are used
by a third party to violate the author’s rights and
related rights.38 In these cases, it is obvious that an
opposite judgment by the court would prevail over
the decision of the Committee, thereby annulling in
practice the basic objective of this procedure, which
is the alleviation of the courts’ workload.
D. Conclusion
29
The attempt to resolve cases of online copyright
infringements and of the liability of the providers
quickly by out-of-court procedures is surely a
positive step, following the initiatives of various
other countries on establishing notice-and-takedown
procedures. It is also consistent with the tendency
36 See P. Koriatopoulou / Ch. Tsigou, The Law 4481/2017 on
collective management organisations and the relevant
amendments in Greek copyright law (in Greek), Synigoros,
122/2017, p. 30.
37 D. Kallinikou, Copyright and Related Rights (in Greek), 2005
(2nd ed.), pp. 220-221.
38 The scope of article 64A of L. 2121/1993, that only covers
internet intermediaries, is narrower than that of article
52§1 of L. 4481/2017 that covers also website owners.
of EU law to recognize the pivotal role of internet
access providers and hosting service providers,
which dictates the limitation of the immunity
they have enjoyed to this date.39 However, the lack
of institutional integration of the Committee on
Internet Violations of Intellectual Property (CIVIP)
in the public administration structure undermines
the effectiveness of its decisions and may reverse
the expected benets of the new procedure in
practice. A single contrary court judgment which
would adopt the aforementioned reservations and
observations about the legality and enforceability
of the CIVIP resolutions in general, would bring this
new procedure down, causing signicant insecurity
and further delay in the adoption of a truly effective
and solid system.
39 According to article 10 of the Proposal for a Directive on
Copyright in the Digital Single Market [COM (2016) 593 nal]
the providers of internet access to copyright-protected
content are required to conclude agreements with the
rightholders in order to facilitate the licensing of rights
process. Similarly, in the new article 28a of the Proposal
for amending Directive 2010/13/EU [COM(2016) 287 nal]
Member States are encouraged to take co-regulation
measures with the video-sharing platforms providers in
order to ensure the protection of minors and avoid hate
speech incitement.
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