Romania 2011

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? No
In principle, all works (including computer programs) copyrights are in force for the life of the author + 70 years after its death (transferred by inheritance, according to civil legislation). Other works - 70 years from the publication date (collective works, anonymous or pseudonymous authors' works)
Law 8 - Chapter V Duration of Copyright Protection
Are works that are not fixed in some material form excluded from copyright? No
Definition of copyright does not include the notion of "material form"
Law 8 Article 7
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
However, the European Court of Justice decisions in this domain are applicable in Romania.
Has a court or tribunal ever limited the exercise of copyright pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
Are databases of non-original material excluded from copyright? In part
Databases can be protected by copyright, if "by reason of the selection or arrangement of their subject matter constitute intellectual creations." Also databases can be protected by a "sui generis" right, based on the EU Database directive.
Law 8 Article 8b and Title II Chapter VI (for sui generis right)
Are rights holders prohibited from excluding user rights under copyright law? In part
As regard to computer programs, creating a backup copy or to observe or test the operation of the programme is specifically allowed. As regards the other limitations of the copyright law, there is not an express prohibition. (in fact the law uses the wording "limitations on the exercise of copyright" and not user rights).
Law 8 Art 77-79 and Chapter VI Limitations on the Exercise of Copyright
Is computer software excluded from the scope of patentable subject matter? Yes
Law 64 Article 8(1)c

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? No
There isn't a general user right, but rather a set of limitations specifically foreseen by law.
Law 8 Chapter VI Limitations on the Exercise of Copyright
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? Yes
This would fall under the category of private copy, if it is made by a home user.
Law 8 - article 34
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? Yes
For computer programs, this is specifically forseen in the law, as long as the copy is "necessary for the use of the program". As regards other works, this would probably fall under private copy exception.
Law 8 - article 77 and article 34
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? Yes
As long as it fits what the law calls "normal family circle" and that "the work has already been disclosed to the public, while the reproduction does not contravene to the normal use of the work or prejudice the author or the owner of the utilization rights."
Law 8 - article 34
For EducationMay students copy works for private research or study? In part
Only if it fits under the limitation "specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage" or reproducing or using "works, for the sole purpose of illustration for teaching or scientific research"
Law 8 Article 33 (1) e and Article 33 (2) d
Does any such research and study provision cover distance and online education? Yes
The law does not make this distinction, therefore if the education takes place at distance, it should be covered by the above mentioned articles.
Law 8 Article 33 (1) e and Article 33 (2) d
May translations of works be made for educational purposes? No
Because it is not included in the exceptions. However pats of the work might de translated, if it falls under "the alteration is a short review of the works by didactic purpose, mentioning the author."
Law 8 Article 35 d
May educators copy works for use in the classroom? In part
Only if it falls under the limitation "The reproduction, distribution, broadcasting or communication to the public, with neither direct nor indirect commercial or economic advantage, are allowed (...)of works, for the sole purpose of illustration for teaching or scientific research"
Law 8 Article 33 (1) e
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
Law 8 Article 33 (3)
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
The E-commerce law provide such a generic liability (not only for copyright purposes)for ISPs and hosting companies, if they were not informed about the infringement
Law 365 Chapter IV Service providers liability
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
Only in the case when they would not make the work public. Than it might be considered a private copy.
May computer software be copied for the purpose of reverse-engineering interoperable software? In part
Only if it is necessary for interoperability, under a set of strict conditions
Law8 Art 78-80
Is the incidental inclusion of a work in other material permitted? In part
Only if it falls under the citation exception (the use of brief quotations from a work for the purpose of an analysis, commentary or criticism, or for illustration, to the extent justified by use thereof) or other exceptions (educational, information, legal proceedings, etc.)
Law8 Chapter VI Limitations on the Exercise of Copyright
Is there are copyright exception for parody or satire? Yes
In cases of alteration, there is allowed if the result of the alteration is a parody or caricature, provided that the said result does not cause confusion with the original work and the author thereof.
Law8 Article 35 b
By the pressIs there a copyright exception for the news of the day? Yes
But they need to fall under one of the exceptions for thus purpose: -the use of isolated articles or brief excerpts from works in publications, television or radio broadcasts or sound or audiovisual recordings exclusively intended for teaching purposes and also the reproduction for teaching purposes, within the framework of public education or social welfare institutions, of isolated articles or brief extracts from works, to the extent justified by the intended purpose; - use of brief excerpts from press articles and radio or televised reportages, for informatory purposes on current events, except those for which such a use is expressly reserved;
Law 8 Art. 33
May copyright material be reproduced for the purposes of review and criticism? In part
Yes, but only in brief quotations "to the extent justified by use thereof"
Law8 Art 33 b
May quotations be used for any purpose? Yes
The text of the law covers quite an extensive area of uses: "for the purpose of an analysis, commentary or criticism, or for illustration"
Law8 Art 33 b
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? No
The only exception is the "the complete reproduction of a copy of a work shall be allowed for the replacement of the sole copy in such an archive or library’s permanent collection in the event of the destruction, serious deterioration or loss thereof"
Law8 art 33 (1) d
May librarians copy works for users for the purpose of research or study? No
This is limited to their own use/activites.
Law8 art 33
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
Law8 art 33 (1) d +e
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? Yes
But only if they directly related to that disability and to the extent required by the specific disability
Law8 Art 33 (2) e
In public affairsAre laws excluded from copyright? Yes
Law 8 Art9 b
Are other governmental works excluded from copyright? In part
Only "official texts of a political, legislative, administrative or judicial nature, and official translations thereof"
Law 8 Art9 b
Are the results of publicly funded research required to be published under an open access license? No

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? No
There is no specific procedure for that. Moreover, the moral rights are perpetual or disposed of.
Law8 Art11
Can public domain works be used without the need for any payment or registration of the use? Yes
If a work is in the public domain, the copyright law does not apply to it. (except the moral rights provisions)
Does the law make special provision for the legal use of orphaned works? No
There are discussions to include a future article on orphaned works when the law will be ammended. A draft in this respect has been made available in August 2010 on the Ministry of Culture website. (http://www.cultura-net.ro/DezbateriDetalii.aspx?ID=346)
Is parallel importation of copyright works permitted? In part
Parallel importation is allowed inside the European Union but not from third countries.
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? Maximum penalty is 15 years in prison (for serios commercial-scale copyright infringement). On top of this there might be civil damages to be paid. Law 8 - art 139^6
What is the maximum penalty for copyright infringement for a corporation? The law does not disntiguish between corporations and phisical person. However, the penal crimes can be applied only to phisical persons, in principle (e.g. manager of a company)
Is innocent infringement of copyright treated differently by the law? Yes
All crimes need to be comitted with intent, otherwise they are no punishable.
Penal law doctrine, Law8
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
The law only forsees that copyright owners that have instituted technical measures of protection must make available to the beneficiaries of the exceptions provided by law the necessary means for the legal access to the work or any other object of protection. However, there is no penalty foreseen in the law for not respecting this obligation.
Law8 Art. 138^5 (4)
Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers? No
There is no specific provisions in this respect.
Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? No
However,in practice this is made by court jurisprudance.
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? Yes
As far as we are aware, the ISPs were not too open to copyright owners requests. On the other hand, most cases of this type go to the Prosectors that have the right to ask to the ISPs their user details.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
For example, there is a crime for a person improperly to assume the authorship of a work or to disclose a work to the public under a name other than the one decided upon by the author.
Law8 Art 144
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? In part
The damages for copyright infringement are not established by the copyright law, but they are based on common law (civil law). Therefore the copyright owners can ask only for the damages incurred (that need to proven in court), not just vague estimations. However, in the end, it would be the court decision of how much damages it can award.
Civil law doctrine
Is there provision to penalise the wrongful allegation of copyright infringement? No
No legal provision in this respect. However, in a court a respondant may ask for damages, if he(she) thinks it is a bogus case against them. (but need to prove any damages requested)
Civil law doctrine
Is there provision to penalise the obstruction of consumers' exercise of user rights? No

Conclusions

The Romanian copyright law has changed a lot, following the process of European integration, implementing (most of the times in a rush and without detailed public consultation) the EU aquis in the copyright field.

New changes of the copyright law are envisaged for the next period, as the new possible changes have been made public on the Ministry of Culture website (only in Romanian) in August 2010 , that includes adressing the problems of orphan works. So far there has been no official public consultation on the new text.

Also note that the Romanian legal system is not based on jurisprudence, therefore no cases were mentioned in this analysis.

However, we may note that the practice of the courts has been to decide on small penalities, even in the case of commercial infringement of copyright via the Internet (average: 1-2 years in prison, but with suspension - see for example - Crimes in informatics domain. Jurisprudence collection,  Zainea Mariana, Simion Raluca, C.H. Beck, ISBN: 978-973-115-607-1).

Also, as far as we are aware, in the few cases brought against regular p2p users the prosecutors did not apply any criminal fines or penalities (such as inprisonment), but the maximum awarded were administrative fines. (see personal comments, only in Romanian).

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