COPYRIGHT NEWS FROM CYPRUS

TATIANA ELENI SYNODINOU

Associate Professor, Department of Law, University of Cyprus

Due to its geopolitical situation, Cyprus has always been a crossroads of civilisation. Private law here is derived from British common law. But at the same time, common law rules are codified into a set of laws that strongly resembles a civil code. Language is also an important factor in the foundation of a legal philosophy and it must be noted that after independence, English, although not an official language of the Republic, was the language used in drafting legislation and in the courts until 1990, when it was replaced by Greek.1 From that point on, the influence of Greek authors increased.

1. Law 67/1988, Gazette, Section I, Appendix 2327, 27 May 1988, p. 2275 and Law 146/1989, Gazette, Section I, Appendix 2433, 11 August 1989 p. 3481.

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The legal framework for copyright protection in Cyprus is based on the law. Through this prism, the second section will look at the consequences of principles of the Anglo-Saxon model. In this respect, characteristically, UK European integration, at how the as yet embryonic development of European law, more specifically the UK Copyright Act 1911, applied in Cyprus up to copyright law has prompted Cyprus to update its legal arsenal. 1978. Law 59/1976, as amended by Law 63/1977, came into force in 1978 and can also be considered as inspired and influenced by Anglo-Saxon law. I. CYPRIOT COPYRIGHT LAW: BETWEEN ARCHAISM AND The prospect of Brexit therefore places Cyprus in a relatively isolated position, INACTION inasmuch as the country remains one of the rare models of copyright left in the European Union. Copyright law has been amended many times since 1976.5

However, the considerable influence of international law and EU law The amendments have always been partial, their aim being either to in drafting the legal framework for Cypriot intellectual property law should establish a particular legal framework or to harmonise domestic law with not be overlooked. Cyprus has ratified the Berne Convention,2 the TRIPS the acquis communautaire. In this context, Cypriot legislation has not been agreements3 and the World Intellectual Property Organization (WIPO) codified to the same extent as British legislation.6 The development of Copyright Treaty and the Performances and Phonograms Treaty.4 copyright in Cyprus is characterised by the absence of substantive discussions regarding its nature and the directions it needs to take. In parallel, tracing As this article is the first of its kind dedicated to Cypriot law, it deviates this development on a jurisprudential basis using the Anglo-Saxon system of somewhat from established rules regarding such articles and, rather than 5. This was done by means of the following laws: Copyright Law (as amended) 63/1977 detailing current events in Cypriot law, it aims to offer the reader an overall E.E, par. I (I), no.1397, 29/10/1977; Copyright Law (as amended) 18(I)/1993 E.E., Par. I (I), Ar.2795, 7/5/1993; Copyright Law 1999 (as amended) 54(I)/1999 E.E., Par. I (I), view of the current situation in Cypriot copyright law. The article seeks to Ar.3329, 4/6/1999; Law on Copyright and Related Rights (as amended) 12(I)/2001 E.E., Par. I (I), Ar.3475, 16/2/2001; Law on Copyright and Related Rights (as amended) 2002 shine a light on the somewhat anachronistic nature of Cypriot legislation, its (128(I)/2002) E.E., Par. I (I), Ar.3623, 19/7/2002; Law on Copyright and Related Rights (as amended) 128(I)/2004) E.E., Par. I (I), Ar.3850, 30/4/2004; Law on Copyright and failure to take a strategic interest – its inaction – in the sphere of copyright Related Rights (as amended) 123(I)/2006 E.E., Par. I (I), Ar.3329, 28/07/2006; Law on Copyright and Related Rights (as amended) 181(I)/2007 E.E., Par. I (I), Ar.4154, 2. See Law 86/1979 ratifying the Berne Convention for the protection of literary and artistic 31/12/2007; Law on Copyright and Related Rights (as amended) 207(I)/2012 E.E., Par. I works. Before independence, Cyprus was party to the Berne Convention in its capacity as (I), Ar.4373, 28/12/2012; Law on Copyright and Related Rights (as amended) 196(I)/2014 a British colony. After its declaration of independence on 24 February 1964, the country E.E., Par. I (I), Ar.4481, 19/12/2014; 123(I)/2015 E.E., Par. I (I), Ar.4524, 17/07/2015; solemnly declared that it would continue to apply the convention, the text of which – as Law on Copyright and Related Rights (as amended) 66(I)/2017 E.E., Par. I (I), Ar.4604, amended by the 1971 Paris protocol – was formally ratified by parliament in Law 86 of 1979. 16/6/2017; Law on Copyright and Related Rights (as amended) 77(I)/2019) E.E., Par. I (I), See https://www.wipo.int/treaties/en/remarks.jsp?cnty_id=937C. Ar.4706, 24/5/2019. 3. See Law 16(III)/1995 ratifying the TRIPS agreements. 6. The Copyright Act 1911 was replaced by the Copyright Act 1956, which was considerably 4. See Law 37(III)/2004 ratifying the Convention establishing the World Intellectual Property amended in 1988 by the Copyright Act 1988. See Bently, Sherman, Gangjee & Johnson, Organization (WIPO). Intellectual Property Law, OUP, 2018, p. 37-38.

60 61 revue internationale du droit d’auteur Copyright news from Cyprus precedent was not possible, due to the low number of court decisions. The In line with the Anglo-Saxon conception of originality, copyright covers complex history of Cyprus (the “Cypriot problem” which often monopolises all work results involving a certain degree of craftsmanship, judgement or public life) and its low population have assuredly contributed to the lack of choice, or a judgement and an experience, an investment of some type8 or, interest in copyright issues. more simply, something created autonomously that is not a copy of something else. In fact, as rightly stated in the ruling on University of London Press v Later in this article we will analyse the general principles underlying University Tutorial Press regarding the concept of the criterion of protecting Cypriot copyright law and specifically the conditions for protection and intellectual property in Anglo-Saxon law: “The word ‘original’ does not [...] ownership of rights (A) and the regime of exceptions (B). mean that the work must be the expression of original or inventive thought. [...] The Act does not require that the expression must be in an original or novel form, A. Conditions for protection and ownership of rights under Cypriot law but that the work must not be copied from another work – that it should originate from the author.”9 The issue of the creation of intellectual property rights is indivisible from the general problem of how to define an author. The conceptual delimitation The Anglo-Saxon criterion of originality was adopted in Cypriot Law of author is one of the points of conflict between competing systems inspired 59/1976, article 3(2)(b) of which states that “a work is understood to be original by continental or Anglo-Saxon philosophies of copyright. if it is the personal intellectual creation of its author and not a copy of a pre- existing work or draft work.” Characteristically, and specifically in relation to According to copyright philosophy, the author and consequently photographs, Cypriot legislation conjugates the nature of a photograph as an the initial holder of the intellectual property rights – is the person whose artistic work with the criterion that there is no copy. Specifically, article 2 of c­­­­­raftsmanship, capacities and labour led to the work. The notion of creator is the Cypriot Copyright Law states that “a photograph is understood as an artistic closely linked to the criterion of protection granted by intellectual property, work under the sole condition that it is the personal creation of the photographer which is defined in countries following the copyright model as the objective and not a copy of a pre-existing photograph.” Recognition of protection does not approach that no copy exists.7 (2005) EWCA Civ 565: “The policy of copyright protection and its limited scope explain why the threshold requirement of an ‘original’ work has been interpreted as not imposing objective standards of novelty, usefulness, inventiveness, aesthetic merit, quality or value. A work may 7. On this, see also: Sokratous v Gruppo Editoriale Fabbri – Bompiani and “Gnosi” be complete rubbish and utterly worthless, literature, art and music. A work need only be publications (1997), referring to the criterion of originality as defined by British case law in ‘original’ in the limited sense that the author originated it by his efforts rather than slavishly the case of University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601. copying it from the work produced by the efforts of another person.” See also: Famagusta district court, Leisure Exports Medias Ltd et al. v Cyprus Mail Ltd, no 202/03, 11 May 2007, where the court held that a photograph taken from behind of a man in 8. “Labour, skill and capital” see Lord Atkinson Macmillan v Cooper (1993) 93 LJPC 113 a swimsuit looking out to sea was original because it was the expression of the photographer’s at 117. thought, thus referencing the ruling in the British case Sawkins v Hyperion Records Ltd 9. See University of London Press v University Tutorial Press (1916) 2 Ch. 601.

62 63 revue internationale du droit d’auteur Copyright news from Cyprus depend on the application of an additional criterion,10 insofar as protection is Under Cypriot law, legal entities established for purely commercial, offered informally.11 technical or organisational purposes can don the cloak of the creator and benefit from initial intellectual property rights to a work. According to the In this context, any natural or legal person may be recognised as a creator definition of the concept of author provided in article 2 of Law 59/1976, a without the need to establish that the creator’s personality is expressed in the creator in the case of an audio recording or a film is the person in charge of work, as is the case in continental law countries such as France, where the production on a recording medium or the raw film material, or, in the case of criterion of originality is traditionally defined in subjective terms (criterion of a programme broadcast in a country, the person in charge of managing and the mark of the creator’s personality).12 broadcasting the programme in that country, or, in the case of photography, the person who owns the medium on which the photograph is recorded The EU definition of originality, which is based on the CJEU’s at the time the photograph is taken; in all cases, the definition includes interpretations and which requires the expression of creative choices, has writers, composers, painters, sculptors, engravers, software programmers and assuredly raised the level of protection required.13 Nevertheless, this has not producers of databases. as yet been followed by a jurisprudential turning point, due once again to the low number of cases taken to court in copyright disputes. The application of the legislative principle according to which the creator is the owner of the medium on which a photograph is recorded means that the person who made the creative choices when preparing for or even taking the photograph is not recognised as the creator, contrary to the CJEU 10. See Sokratous v Gruppo Editoriale Fabbri – Bompiani and “Gnosi” publications (1997), referring to the criterion of originality as defined by British case law in the case of University findings in the Painer case.14 In this context, in a recent decision by the district of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601. 11. The granting of protection from the moment a work is informally created is a fundamental court of Nicosia,15 the court based its decision solely on the fact that the heir principle in Cypriot intellectual property law. This principle is imposed by article 5(2) of the Berne Convention. It means that in order to protect a work it is not necessary to make of the owner of the underwater camera used to take the photographs owned any filings with an authority, to pay any registration fees or to add a copyright notice to the work, record it in a directory or comply with any other formal procedure. See: P. Goldstein, the negatives before dismissing the application for recognition as author by B. Hugenholtz, International Copyright, Principles, Law and Practice, Oxford University Press, 2010, p. 220. the person who accompanied the owner in their underwater dives and helped 12. André Lucas, Agnès Lucas-Schloetter, Carine Bernault, Traité de la propriété littéraire et artistique, 5th edition, 2017, Lexis Nexis, p. 128 et seq. 13. See: Andreas Rahmatian, “Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure”, IIC - International Review of Intellectual Property and Competition 14. Court ruling (third chamber) 7 March 2013, Eva-Maria Painer v Standard VerlagsGmbH, Law, February 2013, Volume 44, Issue 1, pp 4–34; T. Synodinou, “The Foundations of Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & the Concept of Work in European Copyright Law”, in: T. Synodinou (ed.), Codification of Co. KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co. European Copyright, Challenges and perspectives, Kluwer Law International 2012, p. 93-113, KG, case C‑145/10. at 102,105. 15. Depi Pagati v Gavriela Matsa, no 1716/2011, 25/4/2018.

64 65 revue internationale du droit d’auteur Copyright news from Cyprus them take the photographs (it having been established that the camera owner Finally, Cypriot copyright law, like its British parent, has adopted the could not handle the device due to his state of health). system of an exhaustive list of works. According to article 3(a) of the law, scientific works, literary works – including computer programs, musical In addition to the existence of originality, another necessary condition for works, artistic works (including photographs of any nature) – films, databases, the granting of protection is that a work be represented in material form (the sound recordings, broadcast programmes and unpublished works in the public “fixing” criterion).16 This criterion presupposes that the work has been fixed domain are all protected by copyright. in some way on a medium and has thus taken on a specific form in order to be granted protection. Thus, protecting oral works presents major difficulties. As with the originality issue, EU case law could well influence the This condition, which is found in countries with the copyright tradition, is situation. Specifically, the Levola ruling,20 along with previous CJEU case law,21 authorised by article 2 of the Berne Convention, which leaves up to Member shows that the EU courts are more focused on a European copyright model States the question of whether to apply the criterion in their national legal geared towards the open catalogue model. As Professor Bently has remarked, systems.17 This fixation criterion is also linked to the fundamental principle this could mean that the system of an exhaustive list of works is obsolete. in Cypriot intellectual property law which limits the granting of protection Indeed, the CJEU seems to be saying that Directive 2001/29 requires that all to the form of a work, and which therefore excludes the underlying idea.18 intellectual creations in whatever form be protected.22 Consequently, EU law, According to the provisions of article 3(3)(a) of Law 59/1976, protection which by virtue of Cypriot law takes precedence even over the constitution, does not extend, under any circumstances, to ideas, procedures, systems, methods, including operating methods, principles and concepts expressed in et copyright, Divergences et convergences, Etude de droit comparé, Bruylant, Brussels, the protected intellectual work. This result was inspired by the principle that L.G.D.J., Paris, 1993, no. 202, p. 261. Protecting the form of a work rather than the idea is the fundamental rule for distinguishing between elements protected by intellectual property ideas are free to be used and belong by definition to an inviolable domain that law and those outside the scope of protection. What is protected is the form of the work, not the idea included in the work and underlying its form. Regarding the distinction between cannot be the subject of a monopoly.19 idea and form in Cypriot law, see article 3(3)(a) of Law 59/1976 and for case law, Sokratous v Gruppo Editoriale Fabbri – Bompiani and “Gnosi” publications, 1997. 20. Levola Hengelo BV v Smilde Foods BV, case C-310/17, judgment of the Court (Grand 16. According to this rule, “an object which has not been printed out, recorded or fixed in Chamber) of 13 November 2018. any other way on a medium or electronically or does not take shape on any material medium is not protected.” 21. One argument in favour of the open list model can be found in CJEU case C-393/09 involving BSA (Bezpenostní softwarová asociace), where the court held that the graphic user nd 17. Th. Dreier, in: Dreier, Hugenholtz, Concise European Copyright Law, 2 ed. Kluwer Law interface of a computer program could be protected under general copyright law even though International, 2016, p. 16. this type of work is not listed in the Berne Convention. Moreover, in the Nintendo v PC 18. Cornish & Llewelyn, Intellectual Property: patents, copyright, trademarks and allied rights, Box case (Case C-355/12), the CJEU acknowledged that a video game, including software, 6th edition, 2007, Thomson, Sweet& Maxwell, no. 11-3, p. 437. audiovisual elements and sound, could be protected as a work of the mind even though it did 19. The expression of a work via a form that customises the idea is a fundamental condition not belong to any category of recognised works. to the granting of intellectual property protection, both in continental law countries and 22. “The Lionel, the Bezpecnostní softwarová asociace and the Wandering Court of Justice”, in countries that have adopted the legal copyright system. See A. Strowel, Droit d’auteur .

66 67 revue internationale du droit d’auteur Copyright news from Cyprus must be interpreted as imposing the protection of all intellectual creations, would be prejudicial to his honour or reputation. If an author authorises use of the even those not included in the closed list in article 3.23 work in a film or television broadcast, he cannot prohibit modifications thereto insofar as these are absolutely necessary for technical reasons or for the commercial If the conditions for protection are met, the creator of the work has the exploitation of the work.” right to prohibit or authorise a range of acts corresponding to his economic or moral rights. The rights that come under his economic rights protect the It is important to underline that the duration of moral rights is lower author from unauthorised use of his work.24 In Cypriot intellectual property than economic rights. Cypriot law implies that moral rights disappear when law, as in Anglo-Saxon law, protection via moral rights is less developed than the author dies and cannot be transferred to his heirs. However, Cyprus has in continental law countries. Similarly, the legal framework for moral rights in also ratified the Berne Convention, which specifies that moral rights must last Cyprus is more circumspect than in British law or other common law countries at least as long as economic rights. Moreover, the scope of the right to respect such as Australia, which has more extensive and detailed legislation on the for the integrity of the work is also diminished, in the sense that, contrary to topic.25 Thus, Cypriot copyright law recognises only the two moral rights the Berne Convention, the law does not mention “other derogatory action in enshrined in article 6bis of the Berne Convention.26 There is no reference relation to the said work.” It would appear that intervention is necessary to anywhere in Cypriot law to the term “moral rights” as such. The privileges of establish infringement of the integrity of the work and any derogatory action moral rights have been shoehorned into the article of the law on economic that does not intervene in the work itself falls outside the scope of the law. rights and exceptions. Article 7(4) of Law 59/1976 states that “copyright in a The deafening silence of Cypriot case law on moral rights assuredly does not scientific, literary, musical or artistic work (including photography) or in a film help in the construction, interpretation and strengthening of this right, while includes the right of the author, during his lifetime, to claim authorship of the article 7(4) goes unheeded in practice. work and to object to any distortion, mutilation or other alteration thereof that It should be remembered that in countries with the copyright model, the 23. Bently, Sherman, Gangjee & Johnson, Intellectual Property Law, Oxford University Press, emphasis is placed on the commercial exploitation of the work and protecting 5th ed., p. 60. 24. See article 7(1) of Law 59/1976. the personal link between the author and his work is often represented as an

25. Adrian Sterling, “The Copyright Act of 1968: Its Passing and Achievements”, in: Brian 27 Fitzgerald and Benedict Atkinson (eds.), Copyright Future, Copyright Freedom, Marking the obstacle to the proper use of the work. 40 Year Anniversary of the Commencement of Australia’s Copyright Act 1968, Sydney University Press, 2011. 26. According to this provision, “regardless of the author’s economic rights, and even after the transfer of said rights, the author retains the right to claim authorship of work and to object to any distortion, mutilation or other alteration of the work or any other violation of the work affecting 27. See: Preston v Raphael Tuck (1926) Ch 667, 664: moral rights characteristically limit the his honour or reputation.” general privileges of the rightholder.

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In Cypriot law, the principle that intellectual property rights B. Multiple authors in Cypriot law are acquired ab initio by the author is predominant. According to this principle, which is set out in article 11(1) of Law 59/1976, the author’s Cypriot copyright law contains a number of provisions on collaborative right established by Law 59/1976 belongs initially to the author; the works, subordinate works and commissioned works. Here the Anglo-Saxon rights arise in the author’s patrimony even if the work was commissioned model is followed, with preference given to the investor as a general rule. or created as part of a work relationship. However, we should avoid the hasty conclusion that this entails adopting an author-centred view of this Joint authorship model. Taking into account the fact that the contribution could be solely organisational, financial or industrial, with the exception of the related The case of creation by a single, solitary author has been adopted as rights of a performer, the author under Cypriot law can be a legal entity. the classic default model of creation, and while the reality of this could be Moreover, recognising the ‘author’ as the original rightholder in the case disputed, even during the golden age of literary creation, this representation of subordinate works and commissioned works is above all symbolic, assuredly no longer expresses the current reality of creation and can no longer since the rest of the article provides for the transfer of moral rights to the be considered as the only means of expression of creative activity. A work can employer or commissioning party without any restriction as to the scope be the culmination of collaboration between several persons, with each being of the transfer. involved in a different way and intervening at a specific stage in the creative process. The distinction, however, between author-creators and author-investors remains an interesting one in the context of moral rights. Article 7(4) of The most characteristic type of collaborative creation is that of a work Law 59/1976 only recognises moral rights in respect of scientific, literary, of joint authorship. The definition of a work of joint authorship is provided musical, cultural works (which include photographs) and audiovisual under article 2 of Law 59/1976, and is based on the rules in force in British works, i.e. works usually considered to represent “creative” copyright, and legislation.28 Thus, works produced through the collaboration of two or more not in respect of works protected via the objective criterion of protection, authors and for which the participation of each author is indivisible from the recordings, databases and broadcast programmes, which come under contribution of the others are classified as works of joint authorship. “investment” copyright and for which the investor’s related rights apply under continental law. 28. Section 10(01) of the Copyright, Designs and Patent Act (CDPA) 1988 defines a work of joint authorship as: “a work produced by the collaboration of two or more authors in which the contribution of each is not distinct from the contribution of the other author or authors.”

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As we can see, there are two conditions for applying the concept work is considered to be a work of joint authorship, the prerogatives of of joint creation. Firstly, the work must be fruit of collaboration between copyright are owned and managed jointly by the various co-authors of the several persons. In the absence of Cypriot case law on this subject, British work. jurisprudential principles are applied by default. In this context, collaboration does not presuppose participation in the creative process with the intention Creation in a relationship of subordination of creating a work of joint authorship, i.e. the initial intention of creating a work of joint authorship. Rather it is sufficient that the creative activity is Creation in a relationship of subordination is a particular case of creation harmonised in a joint plan.29 where the creative process is integrated in a vertical work relationship. Whether or not there is a subordinate employment relationship is determined The second condition necessary to classify a work as the fruit of joint according to the specific circumstances of the particular work relationship, and authorship is expressed by the requirement that various contributions the determining criterion is the existence of reciprocal obligations between be incorporated and merged in a creative whole which is indivisible the parties, the existence of a relationship of dependence between employee and in which the contributions cannot be separated, a creative whole, and employer and the concomitant fact that the employee is subject to the therefore, seen as an indivisible entity. The condition of the indivisibility employer’s right to issue instructions. of a work of joint authorship means that the individual contributions must be merged in a creative entity in such a way that it is impossible to The regime of the creation of a work in the context of a work relationship distinguish one from the other. Consequently, if a work is made up of is governed by article 11(1)(b) of Law 59/1976. According to this article, separate and distinctive parts with a degree of conceptual autonomy, it when a work is created during the creator’s activities and as part of their cannot be classified as a work of joint authorship but rather the authors work duties under the employment contract, copyright is considered to be making the different contributions will each have separate rights over transferred automatically and in full from employee to employer (with the their own creative contribution. For example, a song is not considered exception of moral rights), unless otherwise stipulated in the employment a work of collaboration under Cypriot law, but as the juxtaposition of contract limiting or excluding such transfer. two separate works, one comprising the music and the other the lyrics. The same reasoning applies to comic strips and graphic novels. When a Taking into account the fundamental principle in Cypriot law that the initial holder of the intellectual property rights is the author (“the creator 29. See Beckingham v Hodgens (2003) EMLR 18: What is required is “a common design to principle”), the employer cannot acquire copyright ab initio. produce the work, not an intention to joint ownership.”

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Despite the Anglo-Saxon influence in Cypriot legislation on protection “during” the work relationship. This is the case where a work is created by an via intellectual property law, article 11 of Law 59/1976, as we have seen, employee solely on his own initiative and bears no relation to the purpose of establishes a system where intellectual property rights are automatically his duties. Once a work is deemed not to come under a contract of service, the transferred whereas the system in Britain entails ab initio acquisition of question of whether article 11 of Law 59/1976 applies is irrelevant. copyright by the employer.30 On this point, therefore, the Cypriot mechanism is more like the rule established by article 8 of the Greek law on protection via Commissioned work intellectual property rights, which contains a similar mechanism for transfer to the employer.31 However, as regards the scope of the transfer, it must be Article 11 of Law 59/1976 also governs cases where a work is created highlighted that transfer concerns all the economic rights conferred on the pursuant to a works contract. Contrary to a contract of service, the purpose of initial author, contrary to Greek law, which establishes the principle of “the a works contract is the achievement of a specific result rather than the provision purpose of the transfer.” of a service. An independent creator takes on the obligation to produce a specific result, i.e. to create a specific type of work with predetermined The conditions for applying this rule are as follows: the work must be characteristics. In this scenario, intellectual property rights arise at the time created pursuant to a contract of employment and not just “during” a work of creation, as they do for any intellectual work, but again, these rights are relationship and, outside the creator’s circle of responsibility, there must be no automatically transferred to the commissioner of the work. stipulations to the contrary. For the rule to be applied, the work must have been created as part of a contractual relationship of subordination and the Automatic transfer concerns only economic rights, while moral rights work must constitute the expected counterpart described in the employment are retained in full by the initial creator, according to the principle whereby contract or must be performed during working hours and must be closely moral rights cannot be transferred inter vivos. linked to the employee’s contractual duties. The question of a work created by an employee and that of a work created Automatic transfer to the employer is excluded when a work is created pursuant to a works contract have not been examined in depth in Cypriot law. outside the work relationship or where it is presumed to have been created Case law mentions the initial transfer of intellectual property rights pursuant to article 11 of Law 59/1976 in the case involving “Rolandos Katsiaounis v 30. See section 11(2) of the Copyright Act 1988: “Where a literary, dramatic, musical or artistic work, or a film is made by an employee in the course of his employment, his employer the Republic of Cyprus, which looked at the issue of the ownership of rights is the first owner of any copyright in the work subject to any agreement to the contrary.” to a thesis written by a researcher employed by the Centre for Scientific 31. Article 8 of Law 2121/1993.

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Research. In this case, however, there was no analysis of precedents applicable applies equally to legislators and the courts. Consequently, even in Member to the principle of transfer given that the case was heard through the prism of States such as Cyprus that have not transposed the three-step test into their administrative law.32 legal systems, the courts must determine not only whether the defendant’s acts were in line with a certain exception or limitation but also whether these C. Exceptions acts comply with the cumulative conditions of the three-step test.34

A critical analysis of the full extent of Cypriot copyright law would not Later in this article we will analyse the fair dealing clause and the specific be possible without a reference, even circumspect, to the regime of exceptions. exceptions provided for under Cypriot copyright law. The purpose of this section is to outline the general regime of exceptions, focusing mainly on the problems of compatibility with EU law. Cypriot The “fair dealing” rule copyright law adopts a mixed stance regarding exceptions, incorporating both Anglo-Saxon-type legislative provisions and exceptions inspired from The “fair dealing” exception is one of the most important limits in continental law. In this context, the law contains a full catalogue of specific copyright law. Cypriot law, in line with the legal tradition of copyright, lays exceptions, accompanied by a general clause on fair use along the lines of down this exception in article 7(2)(1) of Law 59/1976. the British “fair dealing” clause. Cypriot legislators have not transposed into national law the reference to the three-step test made in article 5(5) of Directive By virtue of this article, intellectual property law does not include the 2001/29,33 and there is no reference in case law to this test either. This is not right to control the execution of acts coming under the exclusive remit of the unique to Cyprus. The directive is unclear as to whether article 5(5) is aimed author when these acts are performed in good faith and for research purposes, solely at national legislators or the courts. In this context, different conceptual individual use, critical examination or in order to cite current events, provided approaches have been adopted. that this use is accompanied, if published, by the title of the work and the author’s name, with the exception of cases where the work is included in a Although the CJEU has taken no stand on this topic, the manner in broadcast on an incidental basis. which it has used and interpreted the test could lead us to think that the test

32. Supreme Court, Rolandos Katsiaounis v Republic of Cyprus, 28 November 2002, (Appeal no. 3055). 33. The test has also not been transposed in Austria, Belgium, Germany, Denmark or Great 34. Richard Arnold Eleonora Rosati: “Are national courts the addressees of the InfoSoc three- Britain. (M Hart – S Holmes, ‘Implementation of the Copyright Directive in the United step test?” Journal of Intellectual Property Law & Practice, Volume 10, Issue 10, October Kingdom’ (2004) 26(6) EIPR 254, 255.). 2015, Pages 741–749, https://doi.org/10.1093/jiplp/jpv138.

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It must be noted that the condition for applying this exception is not Because there is no Cypriot case law on the conditions for applying just fair dealing as is the case in American copyright law35 but, in line with exceptions, it is current court practice to refer to British case law on this the Anglo-Saxon copyright model, a work must be used for one of the four issue. A prerequisite for the application of this exception, the fair nature of purposes narrowly defined in article 7(2)(1) . the use, must be assessed using a range of criteria such as the type, purpose and consequences of such use, or again the user’s intentions, with particular The condition that such use be for private, non-commercial purposes attention paid to the extent of the use. In other words, the question to be or for research purposes is not explicitly stated in article 7(2)(1), but can be asked is whether the use concerns a substantial part of the protected work.39 inferred from EU Directive 2001/29.36 According to article 5(2)(b) of this directive, Member States may provide for exceptions to the reproduction right Specific exceptions of the rightholder in respect of any type of reproduction made by a natural person for private use and for ends that are neither directly nor indirectly The general fair use exception is supplemented by a long list of commercial. Article 5(3)(a) of Directive 2001/29 lays down the condition of exceptions and limitations. Cypriot copyright law can thus be characterised disinterested use for the sole purpose of scientific research,37 while recital 42 of as particularly generous regarding the freedom that legitimate users have the directive provides clarifications on the concept of commercial activity.38 In over protected works. It must also be noted that some uses can be based on this context, both hypotheses (private use and use for research purposes) rule either the general fair use clause or on specific exceptions. The law provides out use for commercial purposes. a detailed description of specific exceptions, with a number of redundancies, such as the insertion of an exception for information purposes in both articles, article 7(2)(z) and article 7(2)(id).

35. T. Aplin, J. Davis, Intellectual Property Law, Texts, cases and materials, Oxford University Press, 2009, p. 147. The most significant limitation to the reproduction right is the ability 36. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, to make a reproduction of a protected intellectual work for private use. Official Journal L 167, 22/06/2001 P. 0010–0019. 37. This rule provides for an exception or limitation to the reproduction right and the right of This exception comes on top of the general exception mentioned above on public representation for illustrative purposes in teaching or scientific research, provided that the source, including the author’s name, is indicated, unless this proves impossible and to the private fair use of a work. It is specifically defined by article 7(2)(ie) of Law extent warranted by the non-commercial purpose to be achieved. 59/1976, which faithfully transposes the provisions of Directive 2001/29 in 38. According to the recital in the directive, when applying the exception or limitation for non-commercial educational and scientific research purposes, including distance learning, the non-commercial nature of the activity must be established according to the activity itself. The organisational structure and the means of funding of the establishment concerned are not decisive factors in this respect. 39. See Bently, Sherman, Gangjee & Johnson, op.cit., p. 229–235.

78 79 revue internationale du droit d’auteur Copyright news from Cyprus this regard.40 According to this article, a work may legitimately be reproduced and it seems to be the only current means of ensuring that the exception is in any form by an individual for his private, non-commercial use, provided compatible with the three-step test. The problem is, Cypriot legislators have that the rightholders receive fair compensation. never enacted any legislation on this subject. Therefore, the validity of the exception is debatable. More likely, the exception will continue to favour Given also that the reproduction exception relates to private rather than users, but in parallel, the Cypriot State could be held civilly liable for this personal use, in this case, contrary to the rules on personal use of a work loophole by rightholders. under the fair dealing mechanism of article 7(2)(a), it must be accepted that reproduction can take place not only for personal purposes but also for use Moreover, article 7(2) of Law 59/1976 also provides an exception for within the family circle or circle of friends, i.e. for use in the private sphere. photocopying purposes. The article is copied verbatim from article 5(2) (a) of the directive. In this case, reproduction does not have to be done for The limitation on reproduction for private purposes does not apply to personal reasons. Once again, Cypriot law requires fair compensation but no software copying under Cypriot law, as provided for under Directive 2009/24 administrative measure was introduced after the law was amended. (formerly Directive 91/250).41 Conversely, contrary to Directive 96/9,42 reproduction of an electronic database for private purposes is not prohibited The exception of temporary acts of reproduction – the only mandatory under Cypriot law, which provides an exception to the related right of the exception in Directive 2001/29 – has also been incorporated in Cypriot law. producer of an electronic database in the case of private use.43 It should be noted that the Cypriot legislators transposed the definition of lawful use as contained in recital 33 of the directive. In this context, use should One particular point on this topic merits particular attention. The be considered lawful where it is authorised by the rightholder or by law. definition of exception is indeed accompanied in Cypriot copyright law by a parallel obligation to pay fair compensation to the rightholders for The quotation exception is the only mandatory exception provided reproductions for private purposes, as is the case in many EU Member States for in the Berne Convention.44 It is also defined in Directive 2001/29.45 In Cypriot law, the exception is provided for in article 7(2)(st) of Law 59/1976. 40. See article 5(2)(b) of the directive. According to article 7(2)(st) of Law 59/1976, published works may be 41. Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, EE L 111 of 5.5.2009, p.16–22. quoted unless contrary to current practices and provided the quotations are 42. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, Official Journal L 77 of 27.3.1996 p. 0020–0028. More specifically, see article 6(2)(a) of the directive. 44. Article 10(1) of the Berne Convention. 43. Article 7G(3)(a)(iii)(a) of Law 59/1976. 45. Article 5(3)(d) of the directive.

80 81 revue internationale du droit d’auteur Copyright news from Cyprus not longer than is necessary to accomplish the research aim pursued by the The Cypriot courts examined whether the exception of brief quotation quotation. Quotation also includes the quotation of press reviews in journals applied to private press review services in the Blade Enterprises Ltd case.47 and reviews, provided reference is made to the origin of the article and its The Supreme Court held that this service did not qualify as an exception author. because rather than quotations, entire extracts from journals and periodicals were reproduced. The acts were also performed by third parties acting on a The concept of quotation is broad and includes any type of quotation of commercial basis. a work in another work, whether by reproduction, reading, television or radio broadcast,46 as well as uses in a digital environment. The freedom to make a However, the law does not impose any condition as to the brevity of brief quotation relates not just to literary works but to all categories of works, the quotation, but offers greater flexibility by stating that the length of the such as music, audiovisual and artistic works, and it also extends to journal quotation must be warranted by its purpose. In this context, usual practice articles in the form of a press review. and the purpose of a quotation can warrant extensive quotation – or, in exceptional circumstances, the reproduction in full of the work – if deemed The exception does not exclusively relate to published works and its use necessary to better understand the work.48 is only warranted when the quotation does not infringe usual practice and does not exceed the extent necessary to achieving its purpose. Ensuring that copyright-protected works can be used for illustrative purposes in teaching or research is a necessary condition to the substantive Neither Law 59/1976 nor the Berne Convention explicitly clarify the implementation of the right to education and academic freedom, expressed in purpose for which a quotation is authorised, leaving a significant degree of terms of the freedom of teachers and researchers to choose their teaching and freedom as regards uses covered by quotation. A quotation can have various research sources and methods. purposes, such as critical commentary or underscoring the opinion of the person making the quotation. It can also have a scientific, informative, The ability to use works for illustrative purposes in teaching or research educational or artistic purpose. is provided for in article 7(2)(i) of Law 59/1976. According to this article, a work may be used for illustrative purposes in teaching and research provided

47. Blade Enterprises Ltd v Cyprus Agricultural Payments Organization (CAPO), case 46. See S. Ricketson, “WIPO Study on limitations and exceptions of copyright and related 550/2012, 27 March 2015. rights in the digital environment”, WIPO Standing Committee on Copyright and Related 48. Ricketson, “WIPO Study on limitations and exceptions of copyright and related rights in Rights, 9th Session, Geneva, June 23 to 27, 2003, p. 14. the digital environment”, op.cit.

82 83 revue internationale du droit d’auteur Copyright news from Cyprus the source is quoted, including the name of the creator of the work, unless this In Cypriot law, the issue of the use of works by libraries is governed is impossible and use must be for non-commercial purposes. by article 7(2)(e) of Law 59/1976, which authorises any reproduction of a work by a library open to the public, a scientific institution, an education This ability relates to any type of use of the work, i.e. reproduction, centre, museum or archive, provided the reproduction is not for profit, either representation or distribution to the public provided the use is solely for directly or indirectly. This is a transposition of article 5(2)(c) of Directive illustrative purposes in teaching or research and does not serve any other 2001/29 – with one notable difference. While the directive refers to specific interest. A work may be used not only by teachers but also by students, given acts of reproduction, Cypriot legislation provides that the exception relates to the fact that no distinction is made in this regard,49 and can be used before a all acts of reproduction. Pursuant to article 5(2)(c) of Directive 2001/29, this teaching session and outside the classroom for preparation purposes.50 exception can cover reproductions made by a library in special circumstances, for internal or organisational purposes such as conservation or research but Cypriot law provides a specific exception for didactic purposes. This it in no way authorises unconditional reproduction by libraries outside such exception is enshrined in article 7(2)(e) of Law 59/1976 and corresponds to circumstances.51 article 5(3)(a) of Directive 2001/29. According to this exception, a work may be included in a programme, public broadcast, recording, film or collective It should be noted that the current form of this provision comes work without it being necessary to seek the author’s permission and without from a legislative amendment in 2014,52 enacted to incorporate the acquis the requirement for compensation as long as the inclusion is made in the communautaire. Before this, the exception had an even wider remit, form of an explanation provided for didactic purposes. This rule relates to stipulating that any use or presentation of a work in public libraries was an explanation regarding any type of work in a broadcast, film, recording authorised provided that it was in the general interest and did not entail any or collection of works. A work can be quoted for illustrative purposes, for specific payment. This provision introduced a very wide limitation of both example when a lecturer records a work in a sound engineering school or the reproduction right and of other economic rights of rightholders into the when a musical work, a film clip or an extract from a literary work is included legal system of intellectual property, such as the distribution right or the right in a broadcast by lecturers or students in journalism or film school to illustrate of public presentation. a lesson. In this case, the exception must not be contrary to usual practice and both source and author must be mentioned.

49. R. Xalabarder, “Copyright exceptions for teaching purposes in Europe”, UOC, 2004, 51. Bechtold, in: Dreier, Hugenholtz, Concise European Copyright Law, op.cit., p. 462. https://www.uoc.edu/in3/dt/eng/20418/20418.pdf, p. 9. 52. Law on Copyright and Related Rights (as amended) 196(I)/2014 E.E., Par (I), Ar.4481, 50. See also the UK Copyright Act 1988 (s. 32(1)). 19/12/2014.

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Under this exception, any category of work could be used for general archival limitation relates only to newspapers.55 This reproduction, which is interest purposes without authorisation or payment to the author. not limited in terms of time, is performed by the broadcasting organisation or under its direction and control and is kept in the organisation’s archives. Cypriot copyright law also contains specific exceptions based on which The exception relates to a particular category of works – documentaries of a work can be used for artistic, cultural or archival purposes. The first of historical interest. The exception is provided for archival purposes and hence these entails the ability to include an artistic work in a film or broadcast on public release is not included in the scope of application. an incidental basis.53 By virtue of this article, the author’s permission does not have to be sought for the inclusion of an image of the work in a film Cypriot law contains a provision on the possibility of making temporary or broadcast, regardless of whether it is in a public or a private space. The recordings in article 7(2)(ia). The aim here is not to preserve the cultural incidental nature of the inclusion is a condition for the application of the or historical heritage but to facilitate the internal operation of broadcasting exception, which therefore cannot apply if the work is the main subject of the organisations.56 The recording must be made by the organisation and must be film or broadcast.54 Whether the inclusion is incidental or not is assessed in temporary, i.e. up to six months from the recording date, unless an additional concreto. period has been negotiated with the rightholders. Copies of the recording can only be used for the organisation’s internal purposes. Cypriot law provides a range of exceptions to the free use of artistic works installed in a space that is visible to the public. According to article 7(2)(b) an Cypriot copyright law provides two special exceptions for information artistic work can be inserted in a film or broadcast installed in a place that is purposes. Firstly, articles 7(2) (z) and (id), which incorporate article visible to the public. Similarly, article 7(2)(c) authorises the reproduction and 10bis of the Berne Convention, permit the reproduction by the press, the distribution of this type of work. broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious Moreover, article 7(2)(ia)(b) provides for the option of conserving the topics, and of broadcast works of the same character, in cases in which the reproduction of a documentary of extraordinary historical value in the archives reproduction, broadcasting or such communication thereof is not expressly of the radio authority. This exception is recognised in article 11bis(3) of the 55. Thus, article 11bis(3) of the Convention stipulates that “it shall, however, be a matter Berne Convention as an exception to the rule according to which the historical for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its 53. Article 7(2)(d) of Law 59/1976. own broadcasts. The preservation of these recordings in official archives may, on the ground of 54. On the incidental concept, see also the British ruling in Football Association Premier their exceptional documentary character, be authorized by such legislation.” League Ltd and others v Panini UK Ltd [2003] EWCA Civ 995. 56. Bechtold, in Dreier, Hugenholtz, op.cit. p. 463.

86 87 revue internationale du droit d’auteur Copyright news from Cyprus reserved. Nevertheless, the source must always be clearly indicated unless this II. THE EU: A CONSTANT INFLUENCE ON THE is impossible. MODERNISATION OF CYPRIOT COPYRIGHT LAW

Article 7 of Law 59/1976, based on the model of Directive 2001/29, also As already shown above, EU case law has brought significant changes to provides for the free use of protected works for social purposes. Specifically, the general principles of Cypriot copyright law, through the general influence on the basis of article 7(2)(iz), broadcasts can be reproduced by non- it exercises over the Anglo-Saxon copyright model, leading in particular to profit-making institutions such as hospitals or prisons on condition that a review of the concept of originality and the closed list of protected works. the rightholders receive fair compensation.57 This article incorporates the Moreover, the harmonisation of European copyright law has undoubtedly been directive word for word. However, as with the exception for private copy, it a powerful lever in encouraging Cypriot legislators to update the legislation, does not explain what mechanism is set up to ensure compensation. and specifically the collective rights management system, previously largely deregulated. Furthermore, article 7(2)(iq) covers any use of a work on behalf of disabled people, provided that the use of the work is directly linked to the A. European directives: a unique and indispensable source of reform disability, that it is not of a commercial nature and that it is warranted by the disability.58 Ever since the law of 1976, Cypriot legislators have only taken an interest in copyright when they were obliged to do so. All the directives have been Finally, article 7(2)(ig) transposes article 5(3)(e) of Directive 2001/29 transposed, most of the time word for word. Consequently, Cypriot copyright in Cypriot law, which provides for use in administrative, parliamentary or law is unstructured, mixing old and new regulations. judicial proceedings. The first legal reform aimed at incorporating the acquis communautaire concerning copyright came in 2002, following the accession of Cyprus to the European Union. Specifically, Law 128(I) of 200259 transposed Directives

57. The article transposes article 5(2)(h) of Directive 2001/29. 58. The article transposes article 5(3)(b) of Directive 2001/29. 59. Law on Copyright and Related Rights of 2002 (as amended).

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91/250,60 92/100,61 93/8362 and 96/963 into domestic law. Most of these holding the rights to the programmes and the broadcasting companies, which directives were transposed unaltered and greatly increased the economic rights are bound by the requirement to enter into a mutually beneficial agreement. of authors. Article 7 of Law 59/1976 was amended to add rental, lending and Failing agreement, any interested party can ask the competent authority to public representation rights and the right of communication via satellite and act as mediator. cable to existing rights (reproduction, public communication, translation, adaptation and creation of a derivative work), as well as rights not recognised The manner in which article 8(2) of Directive 92/100 was transposed under European law, such as the advertising right64 and the right to sell.65 also merits attention. Under article 10(G)(2), performers can request fair compensation for phonogram recordings undertaken for commercial or The exclusive rights of performers were also introduced,66 the rights reproduction purposes, broadcasting via radio or any other form of public of “authors” (i.e. broadcasting organisations) as regards broadcasts were communication. Where this compensation is received via a collective reinforced67 and the regime of broadcasting via satellite68 and via cable69 were management organisation or an independent management entity, Cypriot regulated. Concerning the latter, it should be noted that the law does not make law provides that only one organisation can receive the compensation explicit reference to an exclusive right but rather refers to licences, which can due to performing artists and to the “authors of the phonograms”, which only be acquired subject to agreement on communication to the public via must then share out the amount among themselves. Failing individual or satellite. Cable broadcasting is defined as the broadcasting of programmes by collective agreement on this issue and in relation to the amounts collected a Member State pursuant to individual or collective contracts between those by the organisation, the competent authority can intervene and impose a distribution rate. Article 10(G)(2) refers to fair compensation overall, in this 60. Council Directive 91/250/EC of 14 May 1991 on the legal protection of databases, Official Journal L 77 of 17.5.1991 p. 0042–0046. respect following Directive 2006/115, article 12 of the Rome Convention and 61. Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, Official Journal article 15 of the WIPO Performances and Phonograms Treaty. The concept of L 346 of 27.11.1992 p. 0061–0066. “overall” compensation should be interpreted as meaning that compensation 62. Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and must be shared out among the different holders of related rights. However, cable retransmission, OJ L 248, 6.10.1993, p. 15–2. 63. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on article 9 of Law 59/1976 provides for an exclusive right for “creators of the legal protection of databases OJ L 77, 27.3.1996, p. 20–28. 64. Article 7(1)(a)(ii) of Law 59/1976. phonograms”, i.e. the producers of radio and television broadcasts and of 65. Article 7(1)(a)(iii) of Law 59/1976. public registrations of sound recordings. This is not a right to reparation 66. Article 10(G) of Law 59/1976. 67. Article 10 of Law 59/1976. but an exclusive right established in Cypriot copyright law. As a result, the 68. Article 10A of Law 59/1976. legislation has a certain particularity: on the one hand, the transposing of 69. Article 10B of Law 59/1976.

90 91 revue internationale du droit d’auteur Copyright news from Cyprus article 8(2) of the directive establishes the principle of overall compensation The decision on the distribution rate is based on agreement between the while on the other hand, producers of phonograms are recognised as having interested parties but legislators can also intervene to regulate the issue.73 In an exclusive right. This is due to the fact that Cypriot law, like its British practice, Member States provide that in the event of disagreement, disputes counterpart, considers that the persons making a recording are authors in are settled by a special dispute resolution organisation. As already mentioned, their own right, not holders of related rights. In practice, recognising the Cyprus opted for this solution in article 10G of Law 59/1976. exclusive rights of producers of phonograms makes it impossible to apply the overall compensation rule. The only time the Cypriot courts had the opportunity to explore this issue and the interpretation of article 10(G)(2) was in the case of Athina In order to ensure the effective application of article 12 of the Rome Media Services Ltd v Police, in which the Supreme Court upheld a petition Convention,70 the international organisations representing producers and by performing artists to obtain fair compensation from a user, holding that performing artists drew up a guide on fair compensation for rightholders. In this because they could not derogate from the obligation to obtain authorisation context, the model deemed the most effective is that where producers receive under articles 13 and 14 (3) of the law, the overall compensation system did the compensation and then transfer the relevant portion to the performing not apply and therefore they could legitimately seek reparation against users.74 artists. This is the system in force in Great Britain, where compensation for performing artists during a public representation of the phonogram or its In parallel, the legislators also introduced the definition of originality in broadcast via television is collected by the collective management organisation article 3(2)(b). In doing so, they also inserted the provisions of the directive for phonographic producers (Phonographic Performance Limited, “PPL”) on the term of protection75 and the rights to a work not originally published76 which then passes on the sums due to the artists.71 Section 182D of the and designated as co-authors the producer and principal director of a Copyright, Designs and Patents Act 1988 specifically provides that the cinematographic work for any film produced after 1 July 1994.77 performer is entitled to equitable remuneration from the owners of copyright in sound recordings.72 It should be noted that despite apparently copying the directives word for word, the legislators did not fully incorporate EU copyright law into

73. Sarup & Sons, Principles and Perspectives of Copyrights, 1996, p. 81. 70. Known as the “London Principles” (1969). 74. Athina Media Services Ltd v Police, criminal appeal no 77/2013, 4/7/2014. 71. Bently, Sherman, Gangjee & Johnson, Intellectual Property Law, op. cit., p.360. 75. Article 5 of Law 59/1976. 72. Els Vanheusden, “Performer’s Rights in European Legislation: Situation and Elements for 76. Article 7D of Law 59/1976. Improvement, A study prepared for AEPO-ARTIS”, June 2007, p. 21. 77. Article 11 of Law 59/1976.

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Cypriot law. Thus, article 7G(3)(b)(i) greatly reduces the effect of the right existing exceptions relating to information on current economic, political or of the producer of a non-electronic database, laying down as a basic principle religious affairs81 or for public safety reasons82 were extended. that a database developer could not deny legal users the right to extract and/ or re-use even a substantial portion of the database. Article 2 defines the technical protection measures. The provisions on circumventing technical protection measures are implemented in article 14B Similarly, the scope of the exceptions to copyright is strongly emphasised of the law and correspond to those in the directive. However, even though in Cypriot law, which is also at odds with the directive when it comes to the the heading to article 14B of the law refers generally to “guarding against the ability to extract and re-use a substantial portion of an electronic database circumvention of technical protection measures”, the contents of the article for private purposes78 and the ability not just to extract but also to re-use refer only to the prohibition of acts relating to circumvention tools, not substantial parts of the database for educational purposes.79 The legal user circumvention of the protection measure per se. of software and databases is defined identically in article 2 as a user who has lawfully acquired the program or access to the database. The provisions of article 6(4) of the directive are implemented in the third paragraph of article 14B. However, no administrative procedure was Next, Law 128(I)/2004 transposed the provisions of Directive established to ensure the involvement of the beneficiaries of the exceptions 2001/29. The concept of reproduction was modified to include temporary mentioned. reproduction, the concept of making available to the public was introduced and the exception of temporary reproduction for communication purposes Law 123(I)/2006 incorporated the provisions of Directive 2001/84 on was added.80 The concept was added to the list of definitions in article 2 of resale rights and those of Directive 2004/48 on the protection of intellectual the copyright law and replicates the exact wording of the directive. Exceptions property into Cypriot law. The first directive was transposed verbatim. The in favour of social institutions and disabled persons were added and the pre- legislators imposed the maximum amount of three thousand euro proposed by the directive as the minimum resale price to which the resale right

78. Article 9(a) of Directive 96/9 provides that lawful users of a database which is made applied. The law transposed articles 6, 8, 11 and 15 of Directive 2004/48 available to the public may, without the authorisation of the database producer, extract and/or re-use a substantial part of its contents if this is done for private purposes. 81. Prior to the implementation of the directive, there was a restriction in terms of the press 79. Article 9(b) of Directive 96/9 provides that lawful users of a database which is made (article 7(2)14 (n or id) of the Cypriot law). The provision had a narrower scope of application available to the public may, without the authorisation of the database producer, extract and/ than that of article 5(3)(c) of the directive. It covered only reproduction in the press and public or re-use a substantial part of its contents if this is done for the purposes of illustration for communication of public speeches, conferences and works of the same type. The exception teaching or scientific research, as long as the source is indicated and to the extent warranted by now covers the reproduction right and the right of communication to the public and the the non-commercial purpose to be achieved. source (the author’s name) no longer needs to be cited. 80. Article 7(5). 82. This exception was already in place but covered only legal proceedings (article 7(2)(13(ig).

94 95 revue internationale du droit d’auteur Copyright news from Cyprus on the acquisition of confidential information through judicial channels Directive 2011/77 was transposed by Law 196(I)/2014 and Directive and the offering of commercial services relating to the infringement 2017/1564 by Law 77(I)/2019, word for word in both cases. Article 7 IST of intellectual property rights and injunctions (prohibition on future defines the persons covered by the exceptions provided for in the directive. infringements and fines for non-compliance with a court decision). Note However, it also provides that a certificate should be issued by a specialised that judicial protection and generally speaking the reparation rules in the organisation under a ministerial decree to determine the situation of event of copyright infringement were already enshrined in article 13 of Law rightholders. The definition of “authorised entity” is adopted verbatim but is 59/1976, while, as explained in more detail below, the general principles not accompanied by any explanations as to which entity is authorised under of the law on the administration of justice of 1960 (Law 14/1960) and Cypriot law. consequently the principles of common law also apply. Law 181(I)/2007 subsequently introduced specific amendments to articles 6, H7 and 7Q In parallel, as already mentioned, European law has profoundly of Law 59/1976 on “the Commission declaration regarding copyright influenced the philosophy of Cypriot law. Originating in Anglo-Saxon protection for euro coins.” law, Cypriot copyright law has now adopted the Community concept of originality. Similarly, as explained above, the concept of a closed list has been Directive 2011/77 amending Directive 2006/116 on the term of implicitly abandoned. Finally, in recent years, the transposing of directives protection of copyright and certain related rights was transposed by Law into domestic law gave rise to a discussion on copyright, both inside and 196(I)/2014. Law 123(I)/2015 transposed the directive on orphan works outside parliament. into domestic law. Here again, the directive was copied in its entirety, even on points where the legislators should have explained the text more fully. B. Collective management in Cyprus: a slow awakening In this regard, the law does not define the concept of seeking in good faith. Moreover, although provision is made for author compensation when the One of the most significant contributions of the acquis communautaire regime of orphan works comes to an end on foot of the author’s request, in terms of Cypriot copyright law is the harmonisation of rules governing the method for calculating this is not provided. The law states that Cypriot collective management, as effected by Directive 2014/26.83 Prior to Law law retains all discretionary rights relative to how compensation is organised 65(I)/2017,84 the legal framework for collective management allowed but no reference is made to the manner in which this compensation should 83. Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing be sought. of rights in musical works for online use in the internal market. 84. Law of 2017 on collective management of copyright and related rights and on the transnational licensing of rights in musical works for online use (N. 65(I)/2017).

96 97 revue internationale du droit d’auteur Copyright news from Cyprus the operation of collective management on the sole condition that this be This led to a very confusing situation, with some Greek collective performed by a legal entity, without any specific authorisation or notification management organisations operating directly in Cyprus or represented by a of the existence of the organisation necessary. Collective management local agent with Greek authors in their repertoire. organisations in Cyprus operated in practice as organisations subordinate to British or Greek organisations. The application of intellectual property rights was also problematic, given that Cypriot copyright law did not have any procedural privilege specific Thus, prior to the implementation of the directive, the regulation was very to copyright for cases initiated by entities. As a result, while article 15(3) of liberal. ‘Licensing bodies’ (the term collective management organisation does the copyright law contained a general presumption of legal representation in not exist in Cypriot law) could operate without any administrative formality, favour of entities (deemed competent to manage and protect works for which as long as they had legal personality. These bodies are defined as any company they declared in writing that they had the power to represent), there was no or organisation whose main object is the negotiation or granting of licences provision on informing rightholders or on how an entity was to prove to the relating to protected works. A supervisory mechanism was set up for the sole courts that it had powers of representation. Accordingly, on 29 September situation where an entity refuses to grant a licence or proposes unreasonable 2010, the district court of Nicosia dismissed an application by “Dionysos terms. In this context, a special authority appointed by the Minister for Trade Zagreas” (the collective management organisation that handles actors’ has the power to grant the licence and to set reasonable prices.85 This kind of related rights in Cyprus) seeking remuneration from a Cypriot broadcasting mechanism, such as a copyright tribunal, could in theory have resolved many organisation. The Cypriot court rejected the demand due to lack of sufficient collective management problems in Cyprus but it never worked properly. evidence by the claimant of its capacity as representative. The entity failed to There were long delays in the appointment of members to the authority and prove that it was representing all the actors participating in films broadcast some cases remained pending before the authority for many years. in Cyprus. Individual representation of some Greek actors could not serve as a solid legal basis for their representation in Cyprus, since it was not clear to In conclusion, regulation of collective management was minimal. There the court whether the assignment document had been signed by the actors was also no official register of entities operating in Cyprus. Consequently, users themselves or by their heirs. In the end, according to the district court, the were confronted with requests from legal entities claiming to represent authors entity did not manage to prove the factual basis of the claim, because the or holders of related rights, without any information on the organisation’s evidence submitted did not make clear which actors had taken part in which articles of association, its rates or its actual representation. films.86

85. See article 15 of Law 59/1976 (now abrogated by Law 65(I)/2017). 86. Dionysos Zagreas v Antenna Ltd, no 3160/07, 29 September 2010.

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Law 65(I)/2017 transposing Directive 2014/26/EU brought significant but without imposing obligations which would not be compatible with the changes in that a mechanism of control for collective management organisations freedom of providing services in the EU. The law finally opted for compromise. was instigated for the first time in Cyprus. The law provides for the creation Collection management organisations established in another Member State of registers of organisations operating in Cyprus. The registers are to be kept may provide services in Cyprus without the need to register if they are in by a new “competent authority”, whose members are to be appointed by the Cyprus only for the purpose of temporarily and occasionally exercising their Ministry of Trade. Organisations based in Cyprus or intending to set up in services, on the condition that they are established in another Member State Cyprus must be registered. In the case of non-compliance with this formality, and lawfully provide similar services in that state. However, even if they are the competent authority may impose administrative fines. The law does not exempted from the obligation to register, those entities have to inform the specify whether the competent authority can refuse to register an organisation. competent authority in writing about their intention to provide services in It can be deduced, therefore, that registration cannot be refused once all the Cyprus before they start business in Cyprus. The law does not define what necessary documents and information have been provided. The procedure exactly is meant by temporary and occasional provision of services. It is up to presents similarities with the procedure for company registration by the the competent authority to define the concept on a case-by-case basis, and, Registrar of Companies – which in Cyprus is also competent for intellectual in particular, the duration, frequency, periodicity and continuity of services. property issues and must provide the competent authority with logistical Collective management organisations established in another Member State support, where necessary.87 The law does not specify whether the certificate of that meet these criteria must also submit to the competent authority their registration, once granted, is conclusive evidence that the requirements of the certificate of registration or any other evidence of their registration or law have been complied with. Because there is no information on appealing authorisation in their Member State of establishment, a list of their directors, a registration decision, it must be assumed that the general rules relating to the works they represent, the rights they manage, directly or by virtue of administrative decisions apply (article 146 of the Cypriot constitution). reciprocal agreements, and the territories covered. Where not all works can be identified, the organisation must identify the types of work represented.88 The law also addresses the issue of collective management organisations established in another Member State and intending to operate in Cyprus. If the competent authority finds that these provisions have been There was significant discussion on the appropriate degree of control of such infringed, it will set a reasonable deadline for the the organisation to supply entities, which are most often established in Greece. Indeed, there was a need information. The competence of the authority is broad, since it is also to clarify which organisations from other Member States operate in Cyprus, empowered to sanction users. If a collective management organisation or a

87. Article 10 of Law 65(I)2017. 88. Article 13(9) of Law 65(I)2017.

100 101 revue internationale du droit d’auteur Copyright news from Cyprus user infringes the law, or if the organisation neglects or refuses to provide or decide to temporarily suspend the organisation’s operations by removing it additional information within the deadline set, the competent authority is from the relevant register. empowered to impose an administrative fine of up to €20,000 and, in the case of a collective management organisation, it may decide to remove it Finally, Article 51 of Law 65(I)/2017 provides that the Council of from the relevant register, which will entail the cessation of the organisation’s Ministers can issue decrees governing the operation of the competent business in Cyprus. authority, the register and the registration or renewal fee. Entities already operating in Cyprus on the date the law enters into force are automatically Therefore, while non-compliance by an organisation with the obligation entered in the register. to register is sanctioned only by an administrative fine89 without the law further specifying that the organisation cannot lawfully operate in Cyprus, for Paradoxically, those provisions have been a source of confusion, since to an organisation which has already applied for registration, non-compliance date no decrees have been issued. As a result, while collective management with the authority’s request could result in its removal from the register which, organisations were under an obligation to register, no registration fee was set. as the law expressly states, means that the organisation cannot legally operate Negotiations are underway on this topic in the committee of commerce and in Cyprus.90 This is clearly contradictory and provides a weighty argument in industry of the parliament of the Republic of Cyprus. favour of the theory whereby registration in the register is mandatory in order to operate lawfully in Cyprus. It would be ironic if a collective management C. Protecting copyright in Cyprus organisation which is not registered were in a more favourable position than one which has been registered. Cypriot case law on copyright infringement predates Law 59/1976, prior to which the UK 1911 Copyright Act applied. Cases include The The competent authority can also decide to carry out audits of collective Performing Right Society Ltd v Pikis91 and The Performing Right Society management organisations. In this context, organisations can be required Ltd v Kyprianou Ltd,92 which dealt with the unauthorised communication to provide any document or relevant information deemed necessary for the of musical works in night clubs and a cinema. What’s more, the Cypriot audit. If the organisation does not comply, the competent authority may courts use the legal tool of prohibition orders and ‘Anton Piller’ orders to impose an administrative fine of up to ten thousand euros €( 10,000), and/

89. Article 13(3) of Law 65(I)2017. 91. District court of Nicosia, 24 November 1951 (unpublished). 90. Article 46(8) and (9) of Law 65(I)2017. 92. District court of Nicosia, 17 December 1951 (unpublished).

102 103 revue internationale du droit d’auteur Copyright news from Cyprus sanction copyright infringement, based on article 32(2) Law 14/1960 on the merely facilitating infringement does not constitute permission,96 even if the organisation of justice, applying the principles of common law.93 Australian courts have taken a less restrictive approach.97

In legislative terms, the issue of copyright infringement is governed by Given that both the British and Australian approaches can serve as a article 13 of Law 59/1976. The concept of copyright infringement is defined precedent, the Cypriot courts are free to choose the position they believe best as follows: “Copyright is infringed by any person who, without the agreement of fits the circumstances of each case. They can also decide not to follow either the rightholder, performs an act covered by copyright.” This provision, which approach and to apply instead the general principles of common law98 (in follows the model of common law provisions, extends infringement to the addition to the rules codified articles 11, 12 and 13 of the Chapter 148 Law case of persons causing or authorising the contentious act. There is no case on civil offences). Alternatively, they can combine these various elements, law on the concept of secondary liability specific to Law 59/1976 (tort law because in common law, the line between primary liability and secondary makes provision for vicarious liability for directors, representatives, employees liability can be very thin, especially in copyright law.99 and performers). Moreover, article 13 contains privileges on evidence in relation to the UK case law94 and common law in general can be relied on as a precedent capacity of rightholder and to the infringement, and sets out possible remedies. in such cases. To determine whether “permission” has been given, a number of elements including level of control, significance of legitimate uses, the Specifically, paragraph (3)(a) introduces a privilege in favour of intentional promotion of infringement and measures taken to guard against collective management organisations by virtue of which the organisation or infringement must be taken into account. In any event in UK case law, neither the level of control nor the level of preventive methods is explicitly defined and the standard is determined on a case-by-case basis.95 Normally, 96. See CBS Inc v Ames Records and Tapes [1981] 2 All ER 812. 97. University of New South Wales v Moorhouse, [1975] HCA 26; (1975) 133CLR 1 (High Ct. Australia, 1 Aug. 1975), http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/ 93. See district court of Nicosia, (1) Angeliki (alias Tzella), of Athors, (2) Greek City Co. HCA/1975/26.html. Ltd., of London v (1) Video F. Heraclis Limited, (case 1130/85), 14 February 1985; district 98. Although recent UK case law seems to have taken a more flexible approach, this seems court of Limassol, Angeliki (Gela) Philopimenos and Another v Paniccos Solomonides and to depend on the facts of each case and the law is still quite nebulous on this matter. Thus, Another, (case 8290/84), 7 January 1985, which refers to the rulings in Anton Piller KG v for some commentators, UK law has not advanced much in this area since the Amstrad case Manufacturing Processes Ltd. and Others (1976) 1 ALL E.R. 779 and EMI Ltd. and Others and it is difficult to plead authorisation liability in copyright law in the UK, particularly v Pandit (1975) 1 ALL E.R. 418. in comparison with usual practice in the Australian courts. See: Ryan Hocking, Secondary 94. Authorisation liability in copyright law is governed by section 16(2) of the UK Copyright, liability in copyright infringement: still no Newz?, Ent. L.R. 2012, 23(4), p. 87. Designs and Patents Act 1988. 99. T.E. Synodinou, Ph. Jougleux, “The Legal Framework Governing Online Service Providers 95. Min Yan, “The law surrounding the facilitation of online copyright infringement”, in Cyprus, in: Graeme B. Dinwoodie, Secondary Liability of Internet Service Providers”, E.I.P.R. 2012, 34(2) 123. Springer 2017, p. 125.

104 105 revue internationale du droit d’auteur Copyright news from Cyprus independent entity is presumed to have competence to manage the works for to him. In line with article 8 of Directive 2001/29, the article was amended to which it declares it has the power of representation. include the option of granting prohibitory injunctions against intermediaries whose services are used by third parties to infringe intellectual property. Paragraph 10 of article 13 introduces the procedural rule of a sufficient sample regarding evidence of copyright infringement through the introduction The difficult question of calculating the compensation payable for and putting into circulation of illegal media. By virtue of this article, enacted infringement has engaged the attention of the Cypriot courts. Although in 2012,100 regardless of the civil or criminal procedure, a sufficient sample Cypriot legislation does not have any specific provisions on the amount of of protected works is considered to constitute proof covering the nature, compensation payable, referring instead to a multiplier as in Greek law,102 case characteristics and origin of the items at issue. A sufficient sample is defined law has accepted the multiplier as a calculation measure. legally as a proportionate number of items seized compared to all items. For example, if 100 contested items have been seized, evidence of copyright In general, granting compensation for copyright infringement follows the infringement is constituted for all if 10% are shown to be of illegal origin. rules of common law in this area. In the case involving The Performing Right Thanks to this sufficient sample rule, the police and rightholders can take Society Ltd v Mairoza Estates Ltd103 on the unauthorised public representation legal action without having to analyse each item separately in detail. If this of musical works, the court, relying on common law jurisprudence, ruled that rule was not in place, as underlined by the court in a recent ruling, proving nominal reparations were not sufficient when it was not possible to precisely infringement would require an overview of all contentious films, one by one calculate the damages received by the plaintiff. In that case, compensation can (in a case involving the seizure of DVDs) and their comparison with the be determined in two ways: a) in reference to the catalogue of prices generally original, and inspection of external traits such as the sleeve or image would used by the collective management organisation and specifically in relation to not be sufficient.101 the monetary value of authorisations granted in similar circumstances and b) based on the price negotiated in the past between the two parties for similar On the consequences of infringement, article 13(5) of Law 59/1976 authorisations. However, in the case involving The Performing Right Society Ltd states that applicants can use any remedies offered, whether compensation, v DISI on the public representation of musical works at a concert sponsored prohibitory injunction or account confiscation, including the right of the 102. For example, article 65(2) of Greek Law 2121/1993 states that damages and interest legitimate owner to have the work incorporated in a single medium returned cannot be lower than twice the profit that would have accrued to the author if he had given his permission. As regards the compatibility of this system with EU law, see CJEU ruling C‑367/15, Stowarzyszenie “Oławska Telewizja Kablowa” v Stowarzyszenie Filmowców 100. Via Law N.207(I)/2012. Polskich (2017). 101. Patsalidis v Police, criminal appeal., no 81/2016, 16/1/2019. 103. District court of Limassol, no 4092/90, 16/6/1993.

106 107 revue internationale du droit d’auteur Copyright news from Cyprus by a political party and organised without the rightholders’ authorisation, the publication, the purpose of which was to preserve the cultural heritage compensation was calculated at twice the economic value of authorisation of the country (the photographs in question were of monuments located in taking into account the fact that the collective management organisation’s northern Cyprus, which remains under Turkish occupation to this day). price catalogue contained a specific clause providing for a 6% surcharge over the ticket price if authorisation was given but the contractual undertakings The concept of flagrant infringement and the conditions for applying the were breached and a 12% surcharge for unauthorised use.104 special regime of article 13(7) of Law 59/1976 were discussed by the Supreme Court in the case opposing Lacoste et al. v D & L Tourist Enterprises Ltd.107 The case involving Aggelos Kyriakou v Republic of Cyprus (2013)105 on The judges first noted that it was extremely difficult to calculate the right the unauthorised reproduction of photographs in schoolbooks distributed compensation in copyright cases and that consequently the court had extensive by the State of Cyprus is characteristic of the freedom of interpretation of discretionary powers. It then interpreted the relevant provision in UK law, the courts in this area. At first instance, although wholesale infringement of the Copyright and Designs Act 1988108 as interpreted by the British courts, copyright in the photographs was proven, the court held that the plaintiff concluding that flagrancy implied“ the existence of scandalous conduct, deceit had not demonstrated specific damage and therefore awarded only nominal and the like; it includes deliberate and calculated copyright infringements.”109 compensation. On appeal, the Supreme Court held that this approach was The court commented that it was not possible to grant punitive damages incorrect and undertook an overall assessment of how much a licence to use where a criminal case was pending. It concluded that even if the plaintiff these photographs would have cost, pursuant to article 13(1)(a) of Directive had a right to additional compensation under the principle of sufficient and 2004/48.106 The Court took into consideration the cost of acquiring the effective reparation, the amount of this payment could not be such that it photographs, the extent of the use made by the State of Cyprus and the could be construed as punitive compensation. systematic nature of the infringement over many years when determining the compensation payable. Nevertheless, it dismissed the application for punitive Interestingly, Cypriot case law in terms of copyright infringement has damages, common practice in the civil courts in cases where the defendant to date only dealt with “analogue” cases in the real world. As regards online acted with a view to obtaining a financial advantage, remarking that the infringement, it is impossible to track and identify infringers via their IP State of Cyprus had not obtained any particular financial advantage from address because copyright infringement is not listed among the major crimes

104. District court of Nicosia, no 6359/02, 27/1/2005. 107. (1) Lacoste (2) Notos (Cyprus) Ltd v D & L Tourist Enterprises Limited, no 981/2010, 105. Aggelos Kyriakou v Republic of Cyprus, civil appeal no 267/2009, (2013) 1 CHR 1852. 21 February 2014. 106. Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 108. Section 97(2) of the UK Copyright, Designs and Patents Act 1988. on the enforcement of intellectual property rights OJ L 157, 30.4.2004, p. 45-86. 109. Ravenscroft v Herbert and New England Library Ltd (1980) RPC 193.

108 109 revue internationale du droit d’auteur Copyright news from Cyprus warranting the lifting of privacy of communications pursuant to article 17 of set the amount of compensation due by a hotel to a collective management the constitution.110 Because EU law takes precedence over the constitution in organisation (The Performing Society Ltd) for the use of musical works in the Cypriot law,111 a rightholder could in the future potentially rely on the CJEU hotel. The petitioner justified its application to cancel the administrative act interpretation of the privacy of communications in the Promusicae case.112 In by arguing that the dispute was not a fair fight between two private persons that case, the CJEU interpreted the reference to legislation on personal data in private law, because the authority, as a component of the administration, (formerly article 13 of the directive, now article 23 of the Regulation) in the did not have competence to handle the question of the public interest of legislation on privacy of communications on the internet as opening the way collective management and, moreover, that because the decision affected the to lifting the privacy of communications, even in a civil case. position of a number of hotels that were not party to the dispute, the case was undoubtedly public in character. D. Authority for copyright and related rights However, the Supreme Court held that the authority was handling a Finally, the influence of EU law on Cypriot copyright law is particularly dispute under private law because the dispute between the parties involved evident in the operation and competence of the state supervisory body. As we civil law and did not entail protecting the public interest. Consequently, there have seen above on the topic of collective management, this body, set up by was no administrative act. It seems a little curious that the decisions taken Law 59/1976 on the model of the Anglo-Saxon “Copyright Tribunal”, mainly by the competent authority were not considered administrative acts because has competence in dispute resolution between rightholders and users and in of the authority’s structure and given, that according, to article 15 of Law relation to authorisation and the scope thereof. However, as we have seen, the 59/1976 governing the operation of the authority, reference was made to the authority did not work in practice. ability to appeal its decisions.

The only court decision relating to the authority was the case involving Article 15 of Law 65(I)/2017 on collective management dissolved the Sunwing Hotels (Cyprus) Ltd v Copyright Authority,113 where the petitioner in authority and replaced it with the authority for copyright and related rights, administrative law proceedings sought to overturn the authority’s decision to which has more extensive powers. By virtue of article 5 of the law, the new authority is called the “Authority for copyright and related rights” and it is 110. Article 17(2)(B) of the constitution of Cyprus. 111. Article 1A of the constitution. managed by the intellectual property office at the department of the registrar 112. Court ruling (grand chamber) 29 January 2008, Productores de Música de España (Promusicae) v Telefónica de España SAU, case C‑275/06. of companies. The competences of the authority are different to those of 113. Supreme Court, Sunwing Hotels (Cyprus) Ltd v Copyright Authority, (1994) 4 A.A.D. the office, which remains in charge of pre-legislative procedures in the area (567).

110 111 revue internationale du droit d’auteur Copyright news from Cyprus of copyright and which represents the Republic of Cyprus at the European On the other hand, Cypriot copyright law is of what we could call Union and WIPO in this field. Apart from keeping the register of collective “political” interest. The looming prospect of Brexit lessens the dichotomy management organisations and independent management entities,114 the – real or imaginary – between continental law countries and common law authority is responsible for monitoring compliance by these organisations countries which in all cases is presented as an obstacle to the harmonisation with the provisions of Law 65(I)/2017.115 It can also impose fines by virtue of copyright law in the European Union. Cyprus is one of the last countries of articles 13, 46 and 48 of Law 65(I)/2017 and a special dispute resolution to adopt common law philosophy as regards European copyright law and this procedure is initiated if a decision by the authority is contested, with the facility could potentially place it in a situation where its legal system attracts increased of appealing to the Minister for Energy, Trade, Industry and Tourism.116 interest. It would no doubt be interesting to consider what adaptation options are open to the country in the context of ever greater harmonisation in CONCLUSIONS European copyright law.

Copyright does not escape the general rule and analysis of Cypriot copyright law perfectly illustrates this: legal science is not merely made up of a legislative corpus, which would be meaningless without the illumination of practice. It is also not just a combination of this corpus with a set of judicial interpretations because here again, ignorance of the law and the relatively small size of the country mean that decisions are few in number. It is an assemblage of this corpus and of case law and above all of academia, whose role is to explain, criticise and, when needed, support the legislative and interpretative processes. Until recently, Cyprus suffered from a lack of academic culture. The establishment of law schools in Cyprus has opened up dialogue in two directions. On the one hand, it has induced researchers in intellectual property to focus on Cypriot law and invest time in training a new generation of lawyers in the particularities of Cypriot law.

114. Article 11 of Law 65(I)2017. 115. Article 48 of Law 65(I)2017. 116. Article 46 of Law 65(I)2017.

112 113