License Contracts, Free Software and Creative Commons in Greece

Chapter
Part of the Ius Comparatum - Global Studies in Comparative Law book series (GSCL, volume 12)

Abstract

Greece has not enacted special provisions on FOSS or other alternative licences. These licences may be included in the category of non-exclusive exploitation licenses regulated by Article 13 of Greek Law 2121/1993. As such, they are considered to be contracts. There can be a tacit or implied acceptance of FOSS licences through the mere use of a program. The writing requirement is applicable to FOSS licenses; however, nullity due to absence of the writing is invoked only by the author according to Article 14 of Greek Law 2121/1993. Alternative licenses may be considered as standard terms and conditions. Accordingly, they are subject to judicial control. The rules of consumer protection may also be applied in the sense that standard terms and conditions must be fair. For the protection and contractual exploitation of computer programs, the respective provisions of Greek copyright law are applied. The freedom to use that is granted by FOSS licenses is much broader than what is allowed under copyright law. Copyleft provisions may raise competitive issues if FOSS and alternative developments begin to dominate the market and right holders cannot find commercial options to exploit their IP. This is not the case in Greece.

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The applicable legislation on copyright and related rights in Greece is based on Law 2121/1993, as amended mainly by the following provisions: (a) Article 81 of Law 3057/2002, implementing the Information Society Directive, (b) Law 3524/2007 implementing the Directive on Resale Right and the Enforcement Directive, (c) Article 46 of Law 3905/2010 concerning collective management and other copyright issues and (d) Law 4212/2013 implementing the Directive concerning the extension of term protection for performers and sound recordings, as well as the Directive on orphan works.

The aim of the Greek Law 2121/1993 is the full and effective protection of intellectual authors, a principle manifested in many provisions, such as the broad protection of moral rights, the rule that only individuals may be considered as authors, the establishment of the percentage fee for authors,1 the written form of legal acts, the non-entitlement to conclude contracts which cover the whole of the future works or concerning future method of exploitation, the equitable remuneration for reproduction of works for private use, the interpretative rules concerning the term, purpose, extent and means of exploitation, the provisions concerning the enforcement of rights and, in particular, the civil sanctions which inter alia facilitates the computation and restoration of damages, as well as the strict penal sanctions.

Open access is promoted in Greece by academic and research communities aiming to support the free exchange of scientific information, the open access to scientific material, and the public dissemination and preservation of digital content.2 A series of legislative initiatives have taken place setting up the legal framework for opening up scientific data, such as the Re-use of Public Information Law, the Transparency (Diaygeia) Law, the eGov Law and the Geodata Law.3 The Greek Free/Open Source Software Society (GFOSS) was founded in 2008 by Universities, Technological Institutes and Research Centers with the goal of promoting open technologies for Education, Public Administration and Business. The CC licenses were ported in Greece in 2007 and they have also been implemented by the Greek Administration.4 The Greek branch of the international Open Knowledge Foundation has been recently enlisted to create useful applications of open data in different areas, i.e. energy, environment and research, for the benefit of the Hellenic society.

General Information on FOSS and Alternative Licensing

  1. 1.

    Rules applicable to license contracts in general

     
Greece has enacted special provisions on license contracts. Article 13 of Greek Law 2121/1993 distinguishes between contracts and licenses of exploitation. Under an exploitation contract, the author of the work concludes a contract by which he entrusts economic rights to the other contracting party. The other party to the contract undertakes the obligation to exercise the rights thus entrusted. Under an exploitation license, the author of the work authorizes another person to exercise economic rights. The difference is that the exploitation contract imposes an obligation of exploitation, whereas the exploitation license does not impose such an obligation (Art. 13 par. 1 and 2 of Greek Law 2121/1993). Exploitation contracts and licenses may be exclusive or non-exclusive. Exclusive exploitation contracts and licenses empower the other contracting party to exercise the rights conferred by the contract or license excluding any third person. Non-exclusive exploitation contracts and licenses give the right to the other contracting party to exercise the rights conferred by the contract or license in parallel to the author or other contracting parties (Art. 13 par. 3 of Greek Law 2121/1993). Where doubt exists as to the exclusivity of an exploitation contract or license, the contract or license is deemed to be non-exclusive (Art. 13 par. 4 of Greek Law 2121/1993). The contract or license may in no circumstance confer any total right over the future works of the author and shall never be deemed to refer to forms of exploitation which were unknown on the date of the contract (Art. 13 par. 5 of Greek Law 2121/1993). The rights of a person who undertakes to carry out the exploitation of the work or who acquires the possibility of exploitation may not be transferred between living persons without the consent of the author.
  1. 2.

    Special provisions on FOSS or other alternative licenses

     
Greece has not enacted special provisions on FOSS or other alternative licenses.
  1. 3.

    Reported case law on FOSS or other alternative licenses

     
There is no case law on FOSS or other alternative licenses.
  1. 4.

    Jurisdiction-specific standard licenses for FOSS or other content

     

Greece has no jurisdiction-specific standard licenses for FOSS or other alternative licenses.5

Contract Law

  1. 1.

    Contracts or unilateral instruments (e.g. waiver)

     
FOSS and alternative licenses may be included in the category of non-exclusive exploitation licenses regulated by Article 13 of Greek Law 2121/1993. As such, they are considered as contracts.
  1. 2.
    FOSS and alternative licenses as contracts:
    1. (a)

      Offer and acceptance

      In Greece the legal effect of license contracts is assessed in accordance with the applicable national copyright rules or civil law. The manner in which a contract may be concluded is regulated in the chapter of juridical acts in the first Book (General Principles) of the Civil Code. The contract is an important category of juridical act. The legislator has divided the contract into two declarations of will: the offer and the acceptance of the offer.6 The offer is made to a specific person, but it is also valid if made to a person undefined or to a larger group of persons or to the public. Acceptance by the offeree must reach the offeror. Acceptance may also take place tacitly.7 Thus, there can be a tacit or implied acceptance by the mere use of program under FOSS licenses.

       
    2. (b)

      Consideration requirement

      According to Greek civil law, the binding nature of consensus is the rule, despite some restrictions. Consideration is not required according to Greek civil law.8

       
     
  1. 3.

    Formal requirements

     
According to Greek copyright law the requirement of writing is demanded for acts dealing with the transfer of economic rights, with assignment or licensing of the right of exploitation and with the exercise of the moral right (Article 14 of Greek Law 2121/1993). There are no specific requirements for alternative licenses. Therefore the writing requirement is applicable to FOSS licenses; however, nullity due to absence of the writing is invoked only by the author according to Article 14 of Greek Law 2121/1993.
  1. 4.

    Alternative licenses as standard terms and conditions

     
Alternative licenses may be considered as standard terms and conditions. Accordingly, they are subject to judicial control. The rules of consumer protection may be also applied in the sense that standard terms and conditions must be fair. Law 2251/1994 on the protection of consumers renders as unfair and null any terms that have as their result the disturbance of the balance of the rights and obligations of the contracting parties to the detriment of the consumer.9 There are no specific provisions for FOSS licenses.
  1. 5.

    FOSS licenses drafted in English only

     
FOSS licenses are always translated into Greek. A contract may be drafted in English when the parties have reached mutual agreement and if it is not provided otherwise by the consumer protection legislation. According to consumer legislation, the general terms of a contract which are compiled in Greece have to be written in the Greek language, in clear, precise and transparent manner to enable the consumer to fully understand their meaning. The general conditions of international trade which are implemented in Greece also have to be written in Greek language. There are no specific provisions for FOSS licenses.
  1. 6.

    Special rules of interpretation for license contracts

     
Greek Copyright Law follows the interpretative rule of the purpose of the contract or license. According to Article 15 par. 4 of Greek Law 2121/1993, if the extent and the means of exploitation which the transfer concerns, or for which the exploitation or the exploitation license is agreed, are unspecified, the said acts refer to the extent and the means that are necessary for the fulfillment of the purpose of the contract or license. This is the so-called “theory of the purpose of the transfer”.10 Owing to its intangible nature, the work may be used in many different or similar ways which do not affect each other. Intellectual property is different from ownership of movable assets, where multiple simultaneous use is excluded as a rule, since each use presupposes possession of the asset. Any possibilities of exploitation after the transfer of the movable asset belong to the person who acquired the asset. On the contrary, the transfer of the economic right does not radically cut off the bonds between the author and his work. Even if total transfer has been agreed, the agreement concerns only the rights that are known at the time of transfer, namely the ways of exploitation being then known to the contracting parties. This position is based on the above mentioned theory of purpose that had already been developed by scholarship11 and case law12 under the previously applicable law on copyright as a response to the question of ownership of rights corresponding to new ways of exploitation of the work; the theory holding that the economic right is transferred for a specific purpose and only to the extent necessary for implementation of the purpose pursued. In other words, it is considered that transfer is made only of the rights necessary for the counterpart in order to fulfill the purpose of the contract. These principles are provided expressly in legislation, specifically in Articles 13 par. 5,13 15 par. 4 and 34 par. 1 of Greek Law 2121/1993. According to Article 34 par. 1, the audiovisual contract should clearly define the economic rights which are to be transferred to the producer of audiovisual works while, in the opposite case, the contract shall be deemed to transfer to the producer the economic rights which are necessary for the exploitation of the audiovisual work, pursuant to the purpose of the contract. The Greek case law14 in favor of principal directors and script-writers of old Greek films is based on the above rules and may also be applied to the digital use of works.
  1. 7.

    Promulgation of revised versions of FOSS and other alternative licenses

     
This provision is valid according to the principle of the freedom of contracts (Article 361 of the Civil Code) including the freedom to conclude or not conclude the contract, as well as the freedom to determine the content of the contract, with reservation of mandatory law.15
  1. 8.

    Disclaimers of warranty and liability

     
The exclusion of liability that encompasses intentional behavior and gross negligence is not valid according to Article 332 par. 1 of the Greek Civil Code
  1. 9.

    Automatic termination of licenses

     

FOSS and other alternative licenses may be considered as agreements in rem with a resolutory condition that provides for an automatic reversal of rights in case a licensee does not abide by his contractual obligations.16

Copyright Law

  1. 1.

    Mere use of a program without a license

     
For the protection and contractual exploitation of computer programs, the respective provisions of Greek copyright law are applied.17 The freedom to use that is granted by FOSS licenses is much broader than what is allowed under copyright law. However, we believe that the conclusion of a license contract is necessary for the use of a program taking into consideration the provisions of the Computer Programs Directive implemented in national law.18
  1. 2.

    Interpretation of broad and unspecific license grants

     
Every manner of use of a work must be expressly provided for in a license contract. According to the theory of the purpose of the transfer stipulated in Article 15 par. 4 of Greek Law 2121/1993, if the extent and the means of exploitation which the transfer concerns or for which the exploitation or the exploitation license is agreed are unspecified, the said acts refer to the extent and the means that are necessary for the fulfillment of the purpose of the contract or license. Every act of transfer is strictly interpreted and when doubt exists it must be accepted that the author transfers or grants the rights only to the extent necessarily required for the realization of the purpose of the contract.19 Accordingly, online dissemination of GPLv2-Code should be expressly mentioned.
  1. 3.

    Modes of using a work unknown at the time of the license grant

     
According to the Greek copyright law, the contract or license shall never be deemed to refer to forms of exploitation which were unknown on the date of the contract (Art. 13 par. 5 of Greek Law 2121/1993). Therefore, manners of using a work that are unknown at the time of the license are not covered by the license.20
  1. 4.

    Direct license or sub-license

     
A sub-license is possible if the licensee (distributor) is entitled to grant these rights.
  1. 5.

    Revocation or rescission rights in copyright legislation

     
The right of rescission is recognized by Article 4 par. 1 (e) of Greek Law 2121/1993 as a right deriving from the moral right. The right of rescission concerns only literary and scientific works. It relates to contracts of transfer of the economic right, or exploitation contracts or licenses, where the author considers that the rescinding action is necessary for the protection of his personality due to changes in his beliefs or in the circumstances. Rescission is subject to payment of positive damages to the other contracting party for the pecuniary loss he has sustained. It takes effect after the payment of the damages. If the author again decides to transfer the economic right or to permit exploitation of the work or of a like work, he must give the former contracting party priority in the opportunity to reconstitute the old contract with the same terms or with terms similar to those which were in force at the time of the rescission. The rescission right may be applied to FOSS or other alternative licenses by way of analogy but the conditions of its exercise are very strict.21
  1. 6.

    Author’s statutory right for equitable remuneration

     
Authors have a statutory right of equitable remuneration in the case of private copying. This right does not contradict the principle of alternative license if these licenses permit the non-commercial use of the work.
  1. 7.

    Participation in the distribution of revenues by collecting societies

     
Collective management in Greece is regulated by Articles 54–58 of Greek Law 2121/1993, as amended. The issue concerning the dual licensing is not regulated. However, it is possible for a collecting society to collect royalties for commercial use, while alternative licenses permit the non-commercial use of works. There is no pilot agreement with collecting societies in Greece.
  1. 8.

    Right to modify and moral rights

     
Greek copyright law in Article 4 provides wide and strong protection of moral rights. The moral right of the author is not transferable between living persons and shall remain with the author even after the transfer of the economic rights. After the death of the author the moral right passes to his heirs. However according to article 16 of Greek Law 2121/1993 the author may consent for an action or omission which otherwise would constitute an infringement of his moral right. In other words this provision recognizes the consent of the author in that case as a mode of exercise of the moral right. The consent must be in writing.
  1. 9.

    Remedies in case of termination of the licensee’s rights

     

In case of non-compliance with the terms of the license we can argue that the licensee infringes the licensor’s copyright. Consequently the enforcement provisions of the Enforcement Directive may be applied when a violation of FOSS or alternative licenses occurs.

Other Aspects

  1. 1.

    Legal disputes based on patent claims and FOSS

    Legal disputes on this issue have not come to my knowledge.

     
  2. 2.

    Trademark conflicts concerning FOSS

    There are no trademark conflicts concerning FOSS developments.

     
  3. 3.

    Copyleft provisions and competition law

    Copyleft provisions may raise competitive issues if FOSS and alternative developments begin to dominate the market and right holders cannot find commercial options to exploit their IP. This is not the case in Greece.

     
  4. 4.

    Public procurement

    There are no public regulations regarding FOSS.

     

Footnotes

  1. 1.

    The Greek legislator (Art. 32 par. 1 of Greek Law 2121/1993) has imposed the principle of author’s percentage fee with specific exceptions in certain cases, including where there is practical impossibility in establishing the basis for the calculation of a percentage fee, disproportional expenditure for the calculation and the monitoring, when the nature or the conditions of the exploitation make the implementation of a percentage calculation impossible. The percentage fee does not concern works created by employees in the execution of the employment contract, computer programs or advertissement in any form (Article 32 par. 2 of Greek Law 2121/1993). When granting users the facility to make use of works of the collectng societies repertoire, the collecting societies demand a percentage fee from the users according to article 32 par. 1 of Greek Law 2121/1993 (article 56 par. 1 of Greek law 2121/1993).

  2. 2.

    In Greece the National Documentation Centre (EKT) supports the open access movement and the free availability of scientific publications. It was the first Greek Organization to sign the Berlin Declaration on Open Accesss to Knowledge in the Science and Humanities in 2003. For more information see www.epset.gr and www.ekt.gr.

  3. 3.

    See HOMER Harmonizing open data in the Mediterranean through better access and Reuse of Public Sector Information, Socio-economic Impact study, Deloite, March 2013, Greece p. 59 ff.

  4. 4.
  5. 5.

    For FOSS and alternative licenses in Greece see www.ellak.gr and www.creativecommons.gr.

  6. 6.

    M. Stathopoulos, Contract Law in Hellas, (in English language), Kluver/Sakkoulas, 1995, p. 71.

  7. 7.

    M.Stathopoulos, ibid, p. 74.

  8. 8.

    M. Stathopoulos, ibid, p. 75.

  9. 9.

    M.Stathopoulos, ibid. p. 44. V.Saliaris-E.Armata, Consumer Protection Regulations, http://greeklawdigest.gr.

  10. 10.

    L.Kotsiris, Greek Copyright Law, (in English language), IUS 2012, p. 157–160.

  11. 11.

    G.Koumantos, Copyright, A.Sakkoulas 1991, 5th edition, p. 57 and 169.

  12. 12.

    Court of Appeal of Athens 7545/1982 Elliniki Dikaiosyni (Greek Legal Journal) 1982, p. 612–613.

  13. 13.

    See Question 3 of section “Copyright law”.

  14. 14.

    Court of Appeal of Athens 4499/2000 Kritiki Epitheorisi 2001, p. 253–268.

  15. 15.

    M.Stathopoulos, ibid. p. 111.

  16. 16.

    See also District Court of Munich 19 May 2004; Till Jaeger, Enforcement of the GNU GPL in Germany and Europe, 1(2010)JIPITEC 34 ARA. 1 P. 37.

  17. 17.

    See Articles 12–17 and 40–45 of Greek Law 2121/1993.

  18. 18.

    Articles 40–45 of Greek Law 2121/1993.

  19. 19.

    L.Kotsiris, ibid, p. 159.

  20. 20.

    See Question 6 of “Contract law”.

  21. 21.

    Regarding the right of rescission see L.Kotsiris,ibid, p. 111–113. D.Kallinikou-L.Athanassiou-C.Chrissanthis, Intellectual Property in Greece, (in English language), Kluwer Law International,2014, 110–112.

References

  1. D. Kallinikou-L. Athanassiou-C. Chrissanthis, Intellectual Property in Greece, (in English language), Kluwer Law International, 2014. Google Scholar
  2. L. Kotsiris, Greek Copyright Law, (in English language), IUS 2012.Google Scholar
  3. G. Koumantos, Copyright, A.Sakkoulas 1991, 5th edition (in Greek language).Google Scholar
  4. M. Stathopoulos, Contract Law in Hellas, (in English language), Kluver/Sakkoulas, 1995.Google Scholar

Copyright information

© Springer International Publishing Switzerland 2016

Authors and Affiliations

  1. 1.Law SchoolNational and Kapodestrian University of AthensAthensGreece

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