Copyright 2019 Comparisons

Last Updated February 12, 2019

Law and Practice

Authors



MILCEV BURBEA Intellectual Property & Law Office is an IP boutique whose primary practice also encompasses related sectors such as company and technology law. Its team of nine lawyers has substantial experience within the copyright sector, focusing on the protection of less conventional objects such as applied arts, elements of software (source code, code architecture and graphic interfaces), elements of architecture such as architectural renderings and educational materials (text, audio and video), elements of decoration for the beauty industry and elements of interior design. The team regularly assists clients including natural persons and legal entities with the drafting of assignment agreements and the exploitation of the value of their works. It acts before the courts of justice and the Romanian Patent and Trademark Office on behalf of clients including composers, authors and arrangers in matters such as litigation arising from the infringement of copyright, as well as in the prosecution process for obtaining protection.

Copyright was first regulated in Romania by the Press Law of 13 April 1862, which had a separate chapter concerning copyright. Writers, composers and creators of artistic works were granted the right to reproduce, sell or assign their works. After death, their inheritors enjoyed the right for a period of ten years.

On 23 June 1923 Law no 126 on literary and artistic property entered into force by which authors were granted copyright without any formalities of registration of their work. Furthermore, the law also laid down the moral right of the author to prevent the alteration of his work, a right that was inalienable. The inheritors’ right was extended to 30 years.

Law no 126 was further completed by Law no 596 of 14 July 1946, on editing contract and copyright over literary works and other decrees. In 1956, Law no 126 was abolished and replaced with Decree no 321, which regulated literary, artistic or scientific works and any other intellectual creation works. This decree was in accordance with the Bern Convention.

On 14 March 1996, Law no 8/1996 on copyright and related rights was adopted, further amended by Law no 329 of 14 July 2006 and by Law no 78 of 22 March 2018 (the Romanian Copyright Law is Law no 8/1996 on Copyright and Neighbouring Rights, hereafter referred to as the Romanian Copyright Law).

The principal source of law regulating copyright in Romania is Law no 8/1996 on copyright and related rights.

Romania is party to:

  • the Bern Convention for the Protection of Literary and Artistic Works;
  • the WIPO Copyright Treaty;
  • the WIPO Performances and Phonograms Treaty;
  • the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
  • the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms; and
  • the World Trade Organization – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

There is no difference between foreign copyright-holders and domestic copyright-holders.

Under Romanian legislation, in order for a work to benefit from copyright protection it has to be (a) an intellectual creation and (b) an original work. These criteria apply to all works, irrespective of the category they pertain to.

In order for a work to be protected, there is no need for it to be registered, protection being granted from creation, provided that the work is original.

It is possible to register the work at the Romanian Office for Copyright. The office does not perform an assessment of the quality of work against the requirements of the Romanian Copyright Law but merely registers it.

According to Romanian legislation, in order for a work to benefit from copyright protection it has to be an original work in the literary, artistic or scientific domain, whatever may be the modality of its creation or expression, its value and destination, including:

  • literary and public writings, conferences, sermons, pleadings, lectures and any other written or oral works, and computer programs;
  • scientific works, written or oral, such as communications, studies, university lectures, school books, scientific projects and documentation;
  • musical arrangements with or without text;
  • dramatic works, dramatic-musical works, choreographic works and pantomime;
  • cinematographic works and any other audio-visual works;
  • photography works and any other works expressed by a process analogous to photography;
  • works of graphic or plastic art such as sculpture, painting, lithography, monumental art, scenography, tapestry, ceramic, bottle and metal physique, drawings, design and any other art works applied to products designed for practical usage;
  • architecture works including sketches, layouts and graphic works that form architecture projects;
  • plastic works, maps and drawings in topography, geography and science in general domains.

This list is a guideline, all works complying with the copyrightable criterion being protected.

Software enjoys copyright protection, the Romanian Copyright Law having a special chapter dedicated to its protection. Under these provisions, the protection granted to software includes any expression of a software, application programs and operating systems, expressed in any language, either source code or object code, preparatory design material, and textbooks. Another form of protection is through patent, provided that the invention is a computer implemented invention. However, Romanian legislation does not provide patent protection over software alone.

Under national legislation, databases benefit from a sui generis protection right distinct from copyright. A database is defined as a collection of works, data or other independent elements, whether or not protected by copyright or related, arranged in a systematic or methodical manner and individually accessible by electronic means or by other means. The rights over the database begin once the database is complete. Duration of protection is for 15 years starting from January 1st of the year immediately following the completion of the database.

Industrial designs can benefit from copyright protection, national legislation allowing for cumulative protection through copyright with that laid down in Law no 129/1992 on the protection of designs and models. The protection based on copyright follows the general guidelines for the protection of works; namely protection starts from the moment of creation, provided that the work is an intellectual creation and complies with the originality criterion.

In order to benefit from protection under Law no 129/1992, the design has to be new and to have individual character. In addition, protection is dependent upon the registration of the design right in front of the competent authority (Romanian Patent and Trademark Office).

Both types of protection can be invoked together or separately.

The list of works that can benefit from protection through copyright is not limited; therefore any work can be protected, such as a fictional character, TV formats, sporting events, multimedia works, museums and exhibitions, websites, recipes, perfumes and maps, provided that they comply with the requirements laid down by the legislation.

However, the High Court of Cassation and Justice in a case concerning the protection through copyright of a TV format, stated that:

“The idea or concept of a television broadcast – an audiovisual work – on astrological themes or signs of the zodiac cannot be the subject of copyright. […] The form of expression invoked by the appellant is the project / synopsis of a possible broadcast, and therefore a possible written work, which, however […] has only the valence of a preparatory, precursor stage that precedes the scenario of the show.[...] It is therefore not possible to retain in the applicant's patrimony a copyright in the format of an entertainment show based on the idea of zodiac signs, given the general nature of the claim, since the subject of copyright can only constitute a concrete form of expression, which meets the criterion of originality, whatever the mode of creation, mode or form of expression and independent of the value or destination of the original work of intellectual creation.”

(Decision no 340/2015, Ist Civil Section, High Court of Cassation and Justice). 

The Romanian Copyright Law provides that the author is the individual or natural person who created the work. In cases expressly provided by law, legal and natural persons other than the author may benefit from the protection granted to the author.

Under the current provisions, it is not possible for corporate bodies to be the author of a work, given the special character of the copyright, which resembles an artistic vision of the author as well as a special connection between the work and its creator.

However, legal entities (“secondary subjects of copyright”) can become owners of copyright through inheritance and assignment mechanisms, being thus able to benefit from certain prerogatives of the copyright, namely economic rights.

No disposition regarding authorship makes any reference to artificial intelligence. To this end, even if a work is created by an electronic person/computer program/AI in any way (using machine learning algorithms, computer vision, rule-based algorithms or any algorithms), these are not granted with the title of author nor co-author.

See 3.1 Author of Copyrightable work.

An author is generally identified by his/her name; however the legal provisions state that a work can be made public in anonymous form or under a pseudonym. In such instance, copyright can be exercised by the natural or legal person, making it public with the consent of the author, as long as he/she does not disclose his/her identity.

The Romanian provisions establish a presumption on the authorship of a work, stating that, unless proven otherwise, the person under whose name the work was first brought to public knowledge is the author.

Copyright on the work produced by two or more people (“joint work”) belongs to all of them, who are named co-authors. According to the legal provisions, one of the authors may be the principal author. Both the moral and economic components of copyright are included in the object of co-authorship, as provided by the legal provisions.

The legal regime of joint work provides that, unless otherwise agreed, co-authors may only use the work by mutual agreement. Therefore, the use of work requires the mutual agreement of the authors, which actually means the unanimity of decision. This strict rule could, however, restrict the use of the work, if one of the authors opposes it fiercely. Therefore the legal provisions provide that the refusal of consent from any of the co-authors must be duly justified. Although there is no express provision in the Romanian Copyright Law, the refusal of one of the co-authors can be censored by a court of justice, if it proves to be abusive, in which case the court could substitute the consent of the opposing co-author and authorise the others to exploit the work. The co-author opposing the work may also be forced to bear the damages resulted from his/her resistance.

The collective work is that in which the personal contributions of the co-authors form a whole, without it being possible, given the nature of the work, to assign a distinct right to one of the co-authors to the whole of the created work. Unless otherwise agreed, the copyright of the collective work belongs to the natural or legal person on the initiative, under the responsibility and under whose name it was created.

There are two conditions for a work to be qualified as collective. The first is when the work is created from the initiative, under the responsibility and under the name of an initiator who can be either a natural or a legal person (this being the only case when a legal entity can become the owner of a copyright by means other than assignment). The initiator is not the owner of the copyright, despite the fact that the work is made public under his/her name. The name of the authors can be made public also; however the contribution of the initiator is essential, as there is no collective work in the absence of an initiator. The second condition is when the fusion between the contributions of the co-authors makes it impossible for each of them to be granted separate rights over the entire work. Therefore none of the authors can make any claims, based on their contribution, to the overall work.

Collective works may refer to scientific collections, encyclopaedias, dictionaries, or some type of computer programs (such as operating systems). These are usually works that require high costs and imply an important complexity or different contributions of its authors.

Since the legal provision uses the wording “unless otherwise agreed,” it follows that the regime of collective works is subject to the parties’ convention – the initiator and the authors.

The Romanian Copyright Law provides a general rule as to what concerns the labour contract and the relations between the employee and the employer, but it does not embrace the work-for-hire doctrine, by which the employer, not the employee, is considered the legal author, for the work created by the employee as part of their job,. However, there are few provisions for specific types of works that grant the title of author to the employer, in the absence of a contrary clause.

The general rule for works created in the performance of one’s duties specified in the labour contract states that, in the absence of a contrary contractual clause, the economic rights belong to the author of the created work. Therefore, apart from the moral rights that belong to the employee, he also benefits from the economic rights. However, the employer can use the work created by the employee within the scope of the activity without any authorisation on his behalf.

If no assignment agreement is signed between the employee and employer, the author may authorise the use of the work by third parties only with the consent of the employer and with the proper reward for his/her contribution to the costs of creation. On the other hand, the author of a work created under an individual employment contract retains the exclusive right to use the work as part of his/her entire creation.

A special provision is found in the chapter dedicated to computer programs. According to this, unless otherwise stipulated, the economic rights to authorise computer programs created by one or more employees in the performance of their duties or under the instructions of the hiring officer belong to the latter. This rule is an application of the work-for-hire doctrine. However, this disposition is not mandatory, the parties being able to provide within their agreement that the author of the program is also the author of the economic rights. Mutatis mutandis, if the computer program is created outside one’s duties, the author can claim complete protection (both on moral and economic rights).

The Romanian Copyright Law provides that the economic rights for photographic works created in the execution of a labour contract are presumed to belong to the person who ordered them or to the employer for a period of three years, unless the contract provides otherwise. In this case, as an application of the work-for-hire doctrine, the economic rights belong to the employer ex legibus, but for a limited period of time. After this period, the economic rights return to the author.

Finally, in the case of an interpretation or execution performed by an artist under a labour contract, the economic rights granted to the performers (neighbouring rights), which are transmitted to the employer, must be expressly provided for in the individual employment contract.

Orphan works benefit from a detailed regime in the Romanian Copyright Law. These are usually used by public institutions such as libraries, educational institutions and schools, museums, archives, heritage institutions, public broadcasting and television broadcasters, only for the purpose of achieving their objectives related to the missions of public interest, in particular the preservation of works and phonograms in their collections, restoring them and providing cultural and educational access to them. These organisms can earn revenue from the use of orphan works for the sole purpose of covering the costs of digitisation and making them publicly available.

As for anonymous works, the legal provisions expressly state that the regime on orphan works does not apply to anonymous or pseudonymous works. The common regime will apply to these types of works, as with any other type of work protected under the Romanian Copyright Law. As for the duration of the economic rights for anonymous works, this is 70 years from the date these were made public. If the identity of the author is made public before the expiration of this term or the pseudonym adopted by the author leaves no doubt about the identity of the author, the economic rights will last throughout the author's life, and after his/her death will be transmitted by inheritance, according to civil law, for a period of 70 years.

The Romanian Copyright Law states the rule that the author has the exclusive economic right to decide whether, how, and when his/her work is to be used or exploited, including the right to authorise the use of the work by others. Further, the legislator lists the ways of using the work that must be authorised (or, if the case be, forbidden) by the author, namely:

  • reproduction of the work;
  • distribution of the work;
  • import for trading on the domestic market of copies of the work made with the author’s consent;
  • rental of the work;
  • lending of the work;
  • borrowing of the work;
  • communication to the public, directly or indirectly, of the work, by any means, including by making the work available to the public, in such a way that members of the public may access them from a place and at a time individually chosen by them;
  • broadcasting of the work;
  • cable retransmission of the work; and
  • making of derivative works.

Economic rights are protected for the author’s lifetime and for a period of 70 years after the author’s death. However, this general rule concerning the duration of economic rights has some exceptions. For example, in case of unpublished works for which the duration of protection has expired, the person who firstly discloses the work enjoys a protection equivalent to that of the author’s economic rights for 25 years from the time of the first legal disclosure to the public.

Economic rights may be transferred inter vivos by assignment (sale) contract to third persons only by contract; the Romanian Copyright Law states that in the absence of a written agreement, it is impossible to prove the existence and content of the transfer. However, contracts relating to works used in the press are excepted from the requirement of written form for proving their existence and content.

There are also specific aspects expressly provided by law that must be regulated within the provisions of the assignment contract; the lack of such provisions raises the possibility for the other party to seek for the cancellation of the assignment contract.

A transfer to third parties of the right to use the work may also be expressed by way of a licence agreement; there are no specific requirements provided by the Romanian Copyright Law for the validity of a licence agreement and therefore the relevant general rules of civil law shall be applicable.

According to the national legislation, economic rights are inheritable and shall be transferred by inheritance in accordance with civil legislation. Therefore, economic rights may be inherited either by legal succession rules, or in execution of a testamentary disposition, for a period of 70 years, regardless of the date on which the work was legally disclosed to the public.

The Romanian Copyright Law lists in a comprehensive manner five moral rights for the author of an work, as follows:

  • 1. The right to decide whether, how and when the work will be disclosed to the public (known as the right to        disclose the work);
  • 2. The right to demand recognition of his/her authorship of the work (known as the right to paternity);
  • 3. The right to decide under what name the work will be disclosed to the public (known as the right to the name);
  • 4. The right to demand respect for the integrity of the work and to oppose any modification or any distortion of the work if it is prejudicial to his/her honour or reputation (known as the right to respect the integrity of the work or to inviolability of work); and
  • 5. The right to withdraw the work, subject to indemnification of any owners of exploitation rights who might be prejudiced by the exercise of the said right (known as the right of withdrawal).

The national legislation does not comprise provisions regarding the duration of moral rights. Within the specialised literature this aspect is a debatable one, but the majority opinion considers that moral rights have perpetual, continuous character, based on the necessity to ensure the protection of the author’s personality even after the author’s death. It is also stated that such perpetuity shall not be interpreted in the sense that all prerogatives deriving from moral rights continuously exist, but should be understood in contrary to the temporally limited period of protection in the case of economic rights.

Moral rights are inalienable, for being considered indissolubly linked to the author and considering that a work protected by copyright is the expression of the author’s personality; the Romanian Copyright Law expressly provides that moral rights cannot be the object of any renunciation or transfer.

According to Romanian legislation, part of moral rights are transmissible upon death.

The exercise of the rights to decide whether, how and when the work will be disclosed to the public, to demand recognition of his/her authorship of the work and to demand respect for the integrity of the work and to oppose any modification or any distortion of the work if it is prejudicial to his/her honour or reputation is transferred by inheritance for an unlimited period of time.

In order to assure the protection of the above mentioned moral rights, the Romanian Copyright Law provides, similarly to the case of economic rights, that if there are no heirs, the exercise of the three said rights shall revert to the collective management organisation that has managed the author’s rights or, as the case may be, to the organisation having the largest membership in the field of creation concerned.

Copyrights are recognised for the author of a work irrespective of his/her age. For the exercise of the rights or for the validity of a transfer contract (assignment or licence) the general rules in the Civil Code shall apply, given the lack of any specific provisions in this regard.

This means that the minimum age to enter into transfer contracts without being represented or necessitating the consent from legal representatives, is 18 years. When speaking of the exercise of the rights by minors (under age of 18) in other manner than the transfer of such, it should be analysed on a case-by-case basis whether each form of exercising the rights might be qualified as a preservation deed, act of management or act of disposition and, further, depending on the qualification, the rules provided within the Civil Code shall apply.

The Romanian Copyright Law does not provide for specific types of contracts in order to transfer/license/sale copyrights; for the specific requirements regarding the validity of assignment (sale) contracts and licence contracts of economic rights please see point D3 above.

For certain categories of works, the legislation provides for additional provisions in connection to contracts concerning such works. For example, the Romanian Copyright Law comprises additional provisions regarding publishing contracts, in the matter of literary and scientific works, or theatrical or musical performance contracts, in the matter of literary, dramatic, musical, dramatico-musical, choreographic or mimed works.

With respect to copyright, there is no general exhaustion doctrine. Instead, the national legislation provides a series of rights that may be subject to exhaustion, such as the right to disclose the work or the distribution right.

The right to disclose is exhausted when the work has been disclosed to the public. This does not affect the right to authorise or prohibit communication to the public, or making available to the public of the works, which is not subject to exhaustion by any act of communication to the public or of making available to the public.

Distribution rights are subject to exhaustion upon first sale or with the first transfer of ownership of the original or of the copies of a work, on the domestic market, by the rights-holder or with his/her consent. It is also expressly provided in the matter of computer programs that the first sale of a computer program copy, on the domestic market, by the owner of the rights or the one made with his/her consent, shall exhaust the exclusive right for the authorisation of the distribution of such copy on the domestic market.

The magnitude of changes in the field of information technology implies appeasement of the interests of copyright holders, other economic agents (such as online service providers or providers of technological equipment) and consumers.

For example, in the matter of private copy, the Romanian system provides for compensatory remuneration to remunerate the author for possible losses arising from copying their work, collected only from those who will acquire apparatus that allows reproduction or assure support in making the private copies. When analysing private copy in connection to cloud storage, it has been questioned as to whether this solution is appropriate; it has been deemed that the legislative solution is sufficient, covering also the case of cloud storage, mainly because cloud storage uses a server farm that contains hard-disks (included within the apparatus mentioned above). However, in the case that the storage service is provided from abroad, the collective management organisations do not collect any remuneration nor from selling hard-disks, neither from the existence of this service.

In the matter of electronic commerce, the national legislation provides as a rule that online service providers are liable for the information provided by themselves or on their own behalf; online service providers are not liable for the information transmitted, stored or the information to which they facilitate access. On this matter, the national courts of justice (first instance) made a decision in November 2018 in the sense that, after finding that certain websites violated the copyrights owned by the claimants, they ordered the permanent blocking by the DNS blocking method of the access of the defendants customers' for fixed-line internet services to the websites currently accessible at the online locations listed above.

If this decision remains final, online service providers will be obliged to block the access of their clients to the infringing websites. The above mentioned new-approachable solution within the national case law represents also the application of jurisprudential principles made by the ECJ in connection to copyright and related rights in the information society.

The national legislation does not regulate a synchronisation right; synchronisation (generally understood as the synchronisation of a musical work with images, resulting in an audio-visual work) may be considered a category of derivative work, in connection to which the national legislation only provides an exemplificative list, stating that derivative work comprises, among others, the adaptation as well as any other transformation of a pre-existent work, if it is an intellectual creation.

Owners of copyright may exercise their rights in connection to the work individually or through collective management organisations. As a rule, collective management of rights is optional. The mandate of collective management shall be given directly by written contract, by the owners of rights.

However, the collective management of certain rights provided by law is mandatory; therefore, individual management of the following rights is not permitted:

  • right to compensatory remuneration for private copy;
  • right to equitable remuneration for public lending through libraries;
  • resale right;
  • right to broadcast musical works;
  • right to communication to the public of musical works, except the public projection of cinematographic works;
  • right to equitable remuneration recognised to performers and producers of phonograms for communication to the public and broadcasting of phonograms of commerce or of the reproductions thereof;
  • right to retransmission by cable.

In the case of mandatory collective management, if an owner is not associated with any organisation, the competence lies with the organisation from the field having the greatest membership.

Before March 2018, the Romanian Copyright Law only acknowledged the collective management organisations created directly by the owners of copyright or neighbouring rights, natural or legal persons, which shall operate according to regulations on non-profit associations, having as the main object of their activity the collection and distribution of the royalties whose administration has been entrusted to them by the owners thereof.

Several such collective management organisations exist and deal with different types of rights (around 18 at this moment). These include UCMR-ADA (musical authors), VISARTA (copyrights in the visual arts field), ADPFR and UPFR (producers of phonograms), CREDIDAM (performers), DACIN-SARA and SOPFIA (cinematographic and audiovisual works).

Under the recent amendment of Law no 84/1996 from March 2018, it is now expressly provided the possibility for authors and holders of copyrights to grant by contract the management of their rights to independent management entities. Independent management entities are profit-making corporate bodies having the sole or main object of activity the management of copyrights or neighbouring rights. Such entities might not be owned or controlled, entirely or in part, by authors or holders of rights and they do not become owners of such rights.

Collective management organisations deliver in fact a specific type of service to the benefit of authors, on the one hand, but also for users, on the other.

In relation to authors, it is essential that in execution of the mandate from the author/holder (conventional or legal, in the case of mandatory collective management), the collective management organisations shall authorise the use of a work or take the necessary measures to make such authorisation possible, to monitor and identify the users, to collect the remunerations due from the users and further allocate these remunerations among the holders of rights. In relation to users, the collective management organisations issue exploitation authorisations in connection to works on the basis of the mandate from the author/holder and receive the correspondent remunerations.

The Romanian Copyright Law specifically states that collective management organisations are required to ensure the transparency of management activity in relation to its members, to public authorities and to users, and to ensure that authorities having control and supervision duties have access to information regarding the activity of collecting and allocating remunerations.

As for the antitrust laws, there are no specific provisions within the national legislation concerning collective management organisations, so the general rules shall apply; although in practice it is often meet the case of monopoly or dominant position within the national collective management organisations, the specialized literature emphasises also the benefits arising for both rights-holders and users, relating to the effectiveness of collective management, as long as the collective management organisations do not take advantage of their positions.

No response provided.

The Romanian Copyright Law provides a list of situations in which the use of copyrighted works is allowed without the consent of the author and without the payment of any remuneration, while regulating at the same time some general principles for this use to be considered “fair.” The list of situations when the use of copyrighted works is allowed without the consent of the author is fully comprehensive. The regulated permitted situations concern mainly the use of copyrighted works in the educational field, in the public sector (for public ceremonies, administrative procedures etc) or for general informational purposes.

The principles/factors established by the Romanian Copyright Law in determining whether the use of a work in a particular case is fair and thus allowed without the copyright holder’s consent, are the following:

  • the usage of the work to be according to the best practices;
  • the usage of the work should not contravene to a normal exploitation of the work; and
  • the usage should not prejudice the author or the holders of rights of use.

The Romanian Copyright Law regulates that the reproduction of a work without the author's consent for personal use, or for a family unit, does not constitute a copyright infringement, provided that the work has been previously made public and the reproduction is not in conflict with the normal use of the work and does not prejudice the author or the holders of rights of use. However, for storage mediums on which audio or audio-visual records can be carried out or which can reproduce graphic works, as well as for the devices specially created for executing duplicates, a compensatory remuneration shall be paid.

The Romanian Copyright Law permits the reproduction, broadcasting or communication to the public of the image of a work of architecture, fine art, photographic art or applied art, which is permanently located in public places. However, there are some limitations of this freedom of use:

  • the means of reproduction or communication should not come in direct contact with the work in discussion;
  • the main subject of such reproduction, broadcasting or communication should not be the image of the work itself; and
  • the use is not for commercial purposes.

The Romanian Copyright Law does not establish an express exception to copyright for activities carried out by intermediaries such as internet service providers. Internet service providers can, however, benefit from the general regulations on “fair” use if they use short extracts of copyrighted works for general informational purpose on current events/issues/debates. Some particular provisions regarding the intermediaries can, however, be found in Law no 365/2002 regarding electronic commerce, namely the intermediaries are not held responsible regarding the information transmitted if the following conditions are cumulatively met:

  • the transmission was not initiated by the service provider;
  • the service provider did not choose the persons who receive the information; and
  • the content of the information was not influenced in any manner by the service provider, which does not make any modification or selection of the information.

This means that the intermediaries are not automatically liable for copyright infringement if they are merely transmitting third-party material. However, the Romanian jurisprudence has established that the liability starts for the internet service provider at the moment they become aware of the illegal character of the information/material transmitted for a third-party and they do not rapidly act for its removal or blocking (see, for instance, Decisions no 542/ 2015 and 1610/2015 of the Romanian High Court of Justice).

The Romanian Copyright Law establishes an exception to copyright for satire and/or parody. The transformation of a work without the author’s consent and without the payment of any remuneration is allowed if the result of the transformation is a parody or a caricature and as long as the result does not create any confusion regarding the original work and its author.

Freedom of speech and the right of information are indirectly protected also by the Romanian Copyright Law, as each accusation of infringement of copyright will be assessed by the competent court of law by evaluating if that situation comes under the legal provisions that allow some types of use of a copyrighted work. Ţhe use of short extracts of copyrighted works is permitted for general informational purposes on current events/issues/debates, and it has to be adjusted to the informational purpose. A condition of using works without the copyright-holder’s consent in cases of general information is mentioning the source and the name of the author, unless it is impossible to determine the source or the name of the author. In addition, for fine art, photographic art and architectural art, one should mention also the place where the original work can be found.

The Romanian Copyright Law devotes an entire Title (Title II from Law no 8/1996 regarding Copyright) to neighbouring rights and to sui generis rights. The law acknowledges and protects the neighbouring rights  of:

  • the performers, for their own acting/playing or performances;
  • the producers of sound recordings and audio-visual recordings for their own recordings; and
  • the radio and television entities for their own broadcasts and shows.

The Romanian Copyright Law also recognises a special category of rights, named the sui generis rights of the creators of databases, namely collections of works, data or other elements, systematically arranged. Databases can also be protected by copyright, if the arrangement of the database implies a creative activity. 

Neighbouring rights are protected as regular copyrights, so their protection covers both moral and economic rights. The performers enjoy moral rights that cannot be alienated or transmitted as long as the performer is alive. After the death of the performer, the moral rights are transmitted to his/her heirs over an unlimited period of time. The economic rights of the performers are alienable (can be contractually assigned on an exclusive or non-exclusive basis) and are also transmissible on death as regular civil rights.

The protection period for economic neighbouring rights is:

  • 70 years from the first public release of the work of the performers recorded on phonograms and 50 years in the case of works recorded on other media than phonograms;
  • 70 years from the first public release of the works for the producers of sound recordings; and
  • 50 years from the first public release of the works for the producers of audio-visual recordings, as well as for the radio and television entities for their own broadcasts and shows.

The Romanian Office for Copyright is the institution that authorises the functioning of the collecting societies specifically managing neighbouring rights, such as CREDIDAM, ARAIEX and UNART for the administration of performers’ rights, UPFR for the administration of the rights of phonograms producers, and SOPFIA and UPFAR-ARGOA for the administration of the rights of cinematographic and audio-visual recordings.

The types of contracts used in order to transfer/license applicable to copyrights are also applicable to neighbouring rights (eg, assignment contract, publishing contract, theatre or musical performance contract, rental contract).

The situations of “fair use” (the use allowed without the consent of the author or the payment of a remuneration) of copyrighted works are not applicable to neighbouring rights, as there is no provision in the Romanian Copyright Law in this sense. Instead, the Romanian Copyright Law mentions that the exercise of the recognition of the neighbouring rights does not have to be interpreted as a limitation of the copyright of the authors of the respective works.

The infringement of a copyrighted work should always be established by the Court, or, where an arbitration clause is chosen by the parties, by a competent arbitrator. Generally, the infringement is established when the work, or part of the work, is used by a third party without the author’s consent. The law does not provide restricted criteria by which the infringement should be established and the extent of the infringement is analysed on a case-by-case basis, considering the type of work and the type of unauthorised use.

Methods of defence depend on the type of infringed work and of the type of use claimed to represent an infringement. For example, if an infringement of a work of applied arts is claimed, the contestation of the work as being protected through copyright represents one of the principal methods of defence used. Most often is contested the originality of such a work on which the infringement action is based. In addition, if the type of use claimed to represent an infringement is made in some particular conditions, a usual method of defence is to claim for some of the exceptions of copyright infringement provided by the law.

The Romanian Copyright Law expressly provides that, in a copyright infringement action, upon the request of the plaintiff, the Court has the right to ask for information regarding the origin of the networks of distribution from the infringer itself or from any other third party that detained or used for a commercial purpose goods/services claimed to infringe the copyright of a work. Privacy is to be taken into consideration, and, in certain conditions, the court may also order the taking of precautionary measures on the movable and immovable property of the person alleged to be in violation of copyright, including the blocking of its bank accounts and other assets. To that end, the competent authorities may order the communication of banking, financial or commercial documents or appropriate access to the relevant information.

The law provides various methods of action against infringement. Breach of rights protected by copyright entails civil, contravention or criminal liability, as the case may be, according to the law. In addition, interim injunction proceedings are available for the plaintiff for urgent and necessary measures and, of course, are available for the proceedings on the merits of the case that concern the retaining of the infringement and the granting of damages for the infringement.

Generally, the same remedies are provided for neighbouring rights. Criminal liability is not provided for all types of neighbouring rights.

Moral rights are protected and can be enforced by the holder using the same procedural measures (interim injunction if the admissibility conditions are fulfilled and action on the merits of the case).

Under general procedural law principles, an alleged infringer can sue for a negative declaratory proceeding (negatory action) if he/she succeeds in proving an interest in such an action. Such an interest can be proved by a copyright user, for example after receiving a cease-and-desist letter from the rights-holder.

Copyright proceedings are handled by civil courts. There are few specialist copyright courts with judges that solve such cases but otherwise the general territorial competence rules from the general procedural law applies (for example will be competent to solve a copyright infringement case the court from the defendant jurisdiction as a general rule).

The necessary parties are the owner of the copyright (as plaintiff) and the potential infringer (as defendant). Some other interested parties (as licensees) can interfere in the file as principal party or as accessory party for sustaining the interests of the plaintiff or infringer. The exclusive licensees can file independently an infringement action if the owner of the right gives his consent or, if the exclusive licensees notify the owner and no measure is taken in order to stop the infringement.

Usually the effects of a decision is inter-parties, meaning that you cannot sanction a third party that was not involved in the proceeding. There are specific situations when the remedies disposed by the court further to a copyright owner action are also in the benefit of the licensees, for example.

The copyright infringement action benefits from a special provision by which the court fees are reduced and unique, no matter the amount of claimed damages.

The copyright infringement action benefits from a special provision by which the court fees are reduced and unique, no matter the amount of claimed damages.

Urgent measures are available before initiating a court action on the merits of the case. After the definitive admission of such an interim injunction, the plaintiff (owner of the copyright) has 30 days in order to file an action on the merits of the case.

If the copyright owner has credible evidence that copyright is the subject of an unlawful act, whether current or impending, and that the action is liable to cause him/her harm that is difficult to repair, he/she may require the court to take interim measures. The court may in particular:

  • prohibit or terminate the infringement, taking the necessary measures to ensure the preservation of evidence, and the necessary measures to ensure the repair of the damage; and
  • withdraw or surrender to the competent authorities the goods suspected of violating a copyright in order to prevent their introduction into the commercial circuit.

As mentioned above, relevant information and evidence from the alleged infringer can be obtained through urgent procedures as a measure of preserving proof.

The court may order the taking of precautionary measures on the movable and immovable property of the person alleged to have infringed the rights recognised by this law, including the blocking of its bank accounts and other assets. To that end, the competent authorities may order the communication of banking, financial or commercial documents or appropriate access to the relevant information;

Pursuant to Enforcement Directive 2004/48/EC, the intermediaries can be liable for taking urgent measures in order to stop the infringement of the copyright. The Romanian courts usually follow the ECJ guidance with respect to the criteria that should be followed by the courts when establishing the intermediary’s liability.

Involvement of experts in copyright infringement actions depends on the type of concerned work. As a general rule, when it is a matter of law interpretation only, without technical issues to be analysed, the judge itself will appreciate the originality of the work and infringement. For specific types of work (such as software) that requires technical analysis, the opinion of an expert can be requested by the court.

With respect to the burden of proof, the general procedural law principles apply. Copyright ownership can be made by any type of proof that demonstrates that the work was created by the owner at a specific moment. Registration of the work in the public registers (National Register of the Works, National Register of Private Copy, National Register of Phonograms, National Register of Computer Programs, etc) owned by the Romanian Copyright Office can be good proof of the registration date and ownership but is not compulsory or the only permitted type of proof. 

Using a civil infringement action the plaintiff can usually obtain the stopping of the infringement act, material and moral damages, information regarding the illegal distribution network, and sometimes the publication of the decision in a widely circulated newspaper. 

The losing party must reimburse the prevailing parties the attorney fees, court fees and other expenses incurred. If the action is not admitted entirely (but only in part) the Court will proportionately oblige the involved parties to support the fees and costs of the action.

The response depends upon the difficulty of the case and administrated proofs. For example, if an expertise (technical or accounting for establishing the damages) proof is administrated, the length of the proceeding is longer. On average, the duration of a proceeding for the first instance of a copyright infringement action could last between nine and 18 months. For the second stage (Court of Appeal) proceedings are usually shorter (four to ten months) and if a last appeal is filed, the proceeding with the Supreme Court lasts an average of 12 months.

There are no particular rules as regards the enforcement of the copyright court decision. The general rules of enforcement measures will apply in the field.

The Romanian Copyright Law provides that there are considered criminal offenses punishable by imprisonment from six months to three years, or by fine for the intentional infringement copyright or most neighbouring rights. If the infringement is made on a commercial scale, imprisonment is up to seven years. Criminal proceedings start with the copyright owner’s complaint or public interest in the prosecution.

The national system of custom measures for the protection of intellectual property is harmonised and in compliance with the EU 608/2013 (Regulation concerning custom enforcement intellectual property rights) and provides the copyright owners with the possibility to file for a national intervention custom application based on the copyright. Further to such an application, the national authorities will seize the copies of works that are obviously infringing the copyright or neighbouring rights. The owner is notified through a simplified procedure to confirm the counterfeited character of the seized products and, in the case that such a confirmation is made and the importer of the goods does not contest this confirmation, within ten days the products will be confiscated and destroyed.

There are no specific rules for appeal procedures except for the rules provided by the general procedural law principles. In some jurisdictions there are specialist copyright courts, and the Supreme Court that solves final appeals has specialist intellectual property sections with specialist judges.

The first appeal is an appeal on the merits of the case and presumes a factual review of the proceedings (a res judicata). The last appeal (solved by the Supreme Court) is limited only to a legal analysis and is considered an extraordinary appeal that can be filed only for illegality reasons.

If new proofs (documents, cross-examination or witness statements) are considered useful and conclusive, they will be admitted by the court in the second stage.

Alternative dispute resolution is not the common way of settling copyright cases. The common way is direct negotiation between the parties, further to which a copyright court case. Alternative dispute resolution is generally used in licence agreements governing long-term relationships.

Milcev Burbea

14 Dr. Nicolae Staicovici Street
1st Floor, Sector 5
Bucharest
Romania

+4021 320 54 60

+4031 801 50 23

office@milcevburbea.ro www.milcevburbea.ro
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Law and Practice

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MILCEV BURBEA Intellectual Property & Law Office is an IP boutique whose primary practice also encompasses related sectors such as company and technology law. Its team of nine lawyers has substantial experience within the copyright sector, focusing on the protection of less conventional objects such as applied arts, elements of software (source code, code architecture and graphic interfaces), elements of architecture such as architectural renderings and educational materials (text, audio and video), elements of decoration for the beauty industry and elements of interior design. The team regularly assists clients including natural persons and legal entities with the drafting of assignment agreements and the exploitation of the value of their works. It acts before the courts of justice and the Romanian Patent and Trademark Office on behalf of clients including composers, authors and arrangers in matters such as litigation arising from the infringement of copyright, as well as in the prosecution process for obtaining protection.

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