1 a national approach to the eu enforcement directive: major compliance issues in the hungarian...
TRANSCRIPT
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A National Approach to the EU Enforcement Directive:
Major Compliance Issues in the Hungarian Legislation
Eszter Kabai
ProArt Hungarian Copyright Alliance
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1. Scope of the Directive and Capacity applying for remedies
Wide interpretation, unrestricted application of remedies
Exclusive rights and rights of remuneration
Legal standing of successors of the rightholders, licensees and collective management organizations
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2. Presumption of authorship and ownership
Need for implementation of Article 5
Some questions of practical application
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3. Claims3.1. Non-pecuniary claims (1)
1) „declaration by the Court of an infringement of right having occurred”
2) „termination of the infringement of right and the injunction to continue such action”
Article 11
recurring penalty payment
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3. Claims3.1. Non-pecuniary claims (2)
3) „the infringer should give satisfaction for his action - by declaration or in other appropriate manner - and in case of need such satisfaction should be given due publicity on the part and at the cost of the infringer”
broader possibilities for the rightholders
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3. Claims3.1. Non-pecuniary claims (3)
4) „the infringer should provide particulars about those participating in the production and distribution of the objects and the supply of the services affected by the infringement of rights as well as about the business relations established for the unlawful uses”
i)information on the quantities produced, manufactured,
delivered, received or ordered, and the price obtained for the infringing goods or services
extension to persons other than the infringer
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3. Claims3.1. Non-pecuniary claims (4)
ii) Transposing to copyright legislation the notion of commercial scale?
iii) Right of information and ISPs
limitation of liability not non-liability
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3. Claims3.1. Non-pecuniary claims (5)
iii) Right of information and ISPs
A website offering works without authorization in downloadable manner for monthly subscription fee. Only a nick name and a post office box is indicated on it.
1st step - domain name registry?
2nd step - IP address of the server?
3rd step - mere conduit service provider?
hosting service provider?
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3. Claims3.1. Non-pecuniary claims (6)
5) „termination of the injurious situation and the restoration on the part or at the cost of the infringer of the state of things as it existed prior to the infringement of right as well as the destruction or deprival of infringing character of infringing goods, or destruction of the device or material exclusively or primarily used for the infringement of right or making the device or material unsuitable therefor”
recall, removal, seizureagainst third persons at the expense of the infringer
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3. Claims3.2. Pecuniary claims
6. recovery of profit on an objective basis
7. damages according to civil law liability
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4. Procedural measures
Code of Civil Procedure
Act on Judicial Execution Procedure
Copyright Act
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4. Procedural measures
Evidences (Article 6)
Measures for preserving the evidence (Article 7)
Interlocutory injunction against the alleged infringer [Article 9 (1) a.)], and injunction against the infringer and third parties – ordering the seizure or delivery up of the goods [Article 9 (1) b.)]
Precautionary seizure of the movable and immovable property of the alleged infringer [Article 9 (2)]
