Regulation and enforcement
What statutes, regulations or case law govern copyrights rights in your jurisdiction?
Romanian legislation protects authors' rights through Law 8/1996 (the Copyright Law) as subsequently amended and supplemented, which provides for the protection of both moral and economic rights. The Copyright Law represents the main legal framework applicable in the field of copyrights in Romania. Specific provisions on the special procedures to be followed in Romanian courts when attempting to enforce or protect copyrights are regulated by the Civil Procedure Code. Further, specific acts are applicable in the field of collective management of copyright.
With regard to case law, judicial precedents issued under the Civil Procedure legislation do not represent a source of law, so similar situations may be approached differently by different Romanian courts. However, there are various judicial precedents that constitute a strong point of reference when interpreting the applicable legal provisions in the field. One example would be Decision 1557 (26 June 2018), rendered by the Bucharest Tribunal, which is a landmark case that preceded a European Court of Justice decision (Coöperatieve Vereniging SNB-REACT UA v Deepak Mehta (C‑521/17)). The file concerned a preliminary injunction against a supplier of information society services at the request of an anti-counterfeit agency. The agency had sought, in its own name, the application of the remedies laid down by the Copyright Law for the purpose of defending the rights of copyright owners and to bring legal proceedings, in its own name, for the purpose of enforcing those rights. The defendant supplier had contested the agency's legal standing and the court rejected the argument based on the Copyright Law, which provides that the civil applications and actions which arise from relations regulated thereby can be introduced in the name of the rights owners by collective management bodies, anti-counterfeit agencies or people authorised to use the rights.
Are there restrictions on how copyrights may be enforced, licensed or otherwise transferred?
The Copyright Law and subsequent acts applicable in the field provide means for enforcing copyright.
In principle, in case of copyright and neighbouring rights, the holder of both the moral and patrimonial rights is the author of the work – namely, the natural person or people who created the work – provided that the work fulfils the conditions of originality. No administrative formalities are required to be followed in order for the authorship in a work to be recognised under the law. As the courts have stated, registering a work in the National Register of Works is not constitutive but may be done optionally in exchange for a fee. The courts have held that such registration is only a means of proof of the work and the capacity of an author, with the value of a simple presumption of authorship, susceptible of contrary evidence.
Under the Copyright Law, rights holders may request to the courts or other competent bodies the acknowledgement of their rights and of the establishment of third-party infringement and claim damages for redressing the damage incurred. The same request may be lodged on behalf of and for rights holders by management organisations, associations fighting against piracy or people authorised to use the rights protected by the Copyright Law, according to the mandate given for this purpose.
Unless agreed otherwise by the parties, for works created under joint ownership, the right holders are the co-authors of the work (out of which one can have the role of main author). Further, except where otherwise agreed by the parties, the copyright in a collective work belongs to the natural or legal entity on whose initiative and responsibility and under whose name the work was created.
The moral and patrimonial rights of works created by employees remain with employees unless a specific clause or agreement is concluded with the employer to transfer the ownership of patrimonial rights over such works during the course of their employment. An exception to the above applies to software created by employees, in which case the patrimonial rights belong to the employer.
Transfer of rights relating to copyrighted works is not generally restricted under applicable legislation. However, an assignment of rights must observe specific formal requirements in the sense that the agreement between the parties must include a set of mandatory elements – namely, the duration for which the assignment is granted, the territorial scope of the transfer and the remuneration to which the holder of the rights is entitled. If an assignment agreement lacks any of the mandatory elements, it may be terminated by any of the parties on request.
Which authorities are responsible for granting, administering and/or enforcing copyrights in your jurisdiction?
The Romanian Copyright Office (RCO) is a specialised body of central public administration, subordinated to the government, with a legal personality, being the only regulatory authority in charge of national registers, supervision, authorisation, arbitration and technical-scientific findings in the field of copyright and related rights.
The Copyright Law contains specific provisions regarding the establishment and attributions of collective management bodies in the field of copyright. The legislation also provides a special arbitration procedure in relation to copyright and related rights exercised through collective management bodies. This arbitration procedure must be carried out within the RCO.
The Copyright Law also establishes the parameters under which a negotiation procedure between the collective management bodies and the users of such rights must be conducted with respect to the methods of equitable remuneration.
What types of legal or administrative proceedings are available for enforcing copyrights in your jurisdiction?
Romanian legislation provides several types of legal actions that can be initiated against copyright infringement, expressly stating that the criminal, civil or administrative liability of the infringer can be triggered as a result of the infringement.
Throughout civil proceedings, the copyright holder may obtain the recognition of the copyright and the ascertainment of the infringement as well as monetary remedies for the damages caused by the infringement.
Alongside the civil claim, the legislation also offers the copyright holder the possibility to request the competent courts to order preliminary injunctions measures as to prevent the infringement of the copyright or to stop the unlawful action that affects the copyright. The copyright legislation provides that the special procedural provisions regarding interim measured that can be ordered in IP rights matters are applicable.
Criminal and administrative liability can be triggered only as expressly stipulated in the copyright legislation.
As an alternative to judicial procedures, disputes concerning a collective society granting multi-territorial licences for online rights to musical works may be the subject of mediation.
What remedies are available in your jurisdiction to a party whose copyrights have been infringed?
In addition to the aforementioned remedies, the copyright holder whose rights have been infringed may request the competent civil court to render the following measures:
- the payment to the copyright holder of any profits that the infringer received within the damages limit;
- the removal from the commercial circuit of illegally made copies, through confiscation and destruction;
- the destruction of the equipment and means owned by the infringer being used solely or mainly for the infringing activities; and
- the publishing of the court decision in full or in part in the mass media, at the expense of the infringer.
The last two measures can also be ordered by the prosecutor when closing or waiving the criminal investigation.
The court can order the following preliminary injunction measures:
- restraining the infringer from continuing the infringing activity;
- taking the necessary measures to ensure the preservation of evidence;
- taking the necessary measures to ensure coverage of damages;
- the seizure of goods in respect of which there are suspicions of copyright infringement, or precautionary measures with respect the infringer assets, including the blocking of bank accounts and other seizure of other goods; and
- handing over to the competent authorities the goods in respect of which there are suspicions of copyright infringement, in order to prevent their distribution in the commercial circuit.
What do you consider to be the most significant developments to have taken place in your jurisdiction in the past couple of years in the field of copyrights?
The Copyright Law was modified at the beginning of 2020 with respect to the public reporting obligations incumbent on collective managements bodies.
However, future major changes are expected to be operated in relation to the transposition of EU Directive 2019/789/EU, which establishes rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes and EU Directive 2019/790/EU on copyright and related rights in the digital single market. The two directives are meant to extend existing EU copyright law and to ensure a well-functioning marketplace for copyright. Although the transposition deadline for all member states was 7 June 2021, Romania is yet to adopt or publish the relevant normative acts in this respect.
What are your hopes and expectations for the copyrights landscape in your jurisdiction in the coming years?
In addition to the legislative amendments required under the EU legislation, the dynamic flow of most industry sectors, especially in the context of digitalised services, urges the legislature to come up with valid solutions to respond to market requirements.
One of the hot topics on the market today relates to the protection of IP rights in the context of the developments occurring within the IT sector, where AI tools are to be found at the basis of most computer programs and algorithms.
The challenges start even with the basic elements of IP protection and enforcement, especially in the field of copyright. When discussing copyright, the human factor appears to be an essential element within the creation or development processes that may lead to works subject to protection. This will be a serious challenge to confront by the national legislature, with a significant impact on both the IP domain and the general liability field.
For further information on this topic please contact Ana-Maria Corugă or Geanina Oprița at Simion & Baciu by telephone (+40 31 43 78 013) or email ([email protected] or [email protected]). The Simion & Baciu website can be accessed at simionbaciu.ro.