Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Paragraph 1 of Article 21410
of the Republic of Lithuania Code of
Administrative Violations of Law with the
Constitution of the Republic of Lithuania
Vilnius, 5 July 2000
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Dr. Pranas Petkevičius, a senior
consultant to the Law Department of the Office of the Seimas,
and Assoc. Prof. Dr. Alfonsas Vileita,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on
30 June 2000 in its public hearing conducted the investigation
of Case No. 28/98 subsequent to the petition submitted to the
Court by the petitioner-the Vilnius City District Court of the
Third District-requesting to investigate if Paragraph 1 of
Article 21410 of the Republic of Lithuania Code of
Administrative Violations of Law was in conformity with Article
23 of the Constitution of the Republic of Lithuania and the
Republic of Lithuania Civil Code.
The Constitutional Court
has established:
I
On 14 August 1998, the Vilnius City District Court of the
Third District was investigating a case regarding an
administrative violation of law where a person had been brought
to responsibility on a charge of illegal trade in video
recordings, i.e., the violation provided for in Paragraph 1 of
Article 21410 of the Republic of Lithuania Code of
Administrative Violations of Law (hereinafter also referred to
as the CAVL).
By its ruling the court suspended the investigation of the
case and appealed to the Constitutional Court with a petition
requesting to investigate whether Article 21410 of the CAVL was
in compliance with Article 23 of the Constitution of the
Republic of Lithuania and the Republic of Lithuania Civil Code
(hereinafter also referred to as the CC).
II
The request of the petitioner is based on the following
motives.
1. Article 21410 of the CAVL provides that illegal
reproduction, circulation, public performance, other use by any
means for commercial purposes of works of literature, science
or art (including computer software and data bases) and/or
video recordings (i.e. without permission of the author, or
producer of audio and/or video recording, or that of a
successor of their rights) as well as their storage for the
said purposes shall incur a fine together with seizure of the
items illegally produced, reproduced, circulated or used in
other way or stored.
In the opinion of the petitioner, video recordings, as
things, are regular items of the right of ownership. Laws do
not provide for special rules of or restrictions on acquisition
or sale of video or audio recordings, therefore they may be
freely disposed of as one's property.
2. Paragraph 1 of Article 23 of the Constitution provides
that property shall be inviolable. The petitioner maintains
that this is an imperative provision with which other laws and
practice of their application must be coordinated. Article
21410 of the CAVL conflicts with the said norms of the
Constitution and groundlessly restricts the rights of persons
to property.
In the opinion of the petitioner, under Paragraph 3 of
Article 23 of the Constitution, items belonging by the right of
ownership may only be seized for the needs of society according
to the procedure established by law and must be adequately
compensated for. Article 21410 of the CAVL does not provide for
compensation for the owners for seized audio and video
recordings. The legislator is entitled to change the legal
treatment of respective items of property but he may not seize
items from the owner which belong to him by the right of
ownership, nor may he punish the owner for storage, use and
sale of lawfully acquired items.
3. The disposition of the disputed article means that the
legislator strives to protect the copyright of authors and
producers when their works are recorded into audio or video
data retention items. Paragraph 2 of Article 515 of the CC
provides: "The copyright to a work shall not be associated with
ownership to a substantive item wherein this work is
manifested." From this the petitioner draws a conclusion that
the items wherein works are recorded belong by the right of
ownership to persons who have acquired them but not to the
author of the work or the producer of the recording. According
to the petitioner, the author implements his rights, as
provided by the law, by giving his consent to record his work
into data retaining items. The laws do not provide for the
author's consent regarding sale of his recordings, i.e.,
contrary to the disposition of the disputed norm of Article
21410 of the CAVL, the ownership rights of the author to the
recorded work belong to the producer (Article 526 of the CC).
Paragraph 2 of Article 561 of the CC provides that in
cases when a recording is lawfully circulated through trade
system, then it is permitted to use it in public places without
a consent of the producer.
4. In the opinion of the petitioner, at present video
recordings produced in foreign countries are not covered by
legal protection yet, as Lithuania has not ratified the 1961
Rome convention. Article 21410 of the CAVL does not consider
this circumstance and this provides grounds for punishment of
persons and seize their video and audio recordings produced
abroad and legally sold in Lithuania.
The copyright is an institute of private law and such
relations are regulated by norms of civil (Articles 539, 540,
565 of the CC) but not administrative law. By the regulation
established in Article 21410 of the CAVL one of the main
principles of civil law, i.e. that of disposition, is violated.
The said norm denies the right of entities of civil law to
implement the rights granted to them by the law-this is done by
police officers without the knowledge of the said entities.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanation of the
representatives of the party concerned-the Seimas-P.
Petkevičius and A. Vileita, were received.
1. The representatives of the party concerned point out
that the provision "Property shall be inviolable" of Article 23
of the Constitution is applicable to all types of
property-private, public, substantive as well as intellectual.
Intellectual property is inviolable too. It must enjoy
protection to the same extent as substantive property. Thus the
persons who have infringed intellectual property must be
subjected to measures as strict as those applied to persons who
have infringed substantive property. Besides, while applying
sanctions to offenders against intellectual property, one has
to take account of the specific character of intellectual
property. The owner either himself manages substantive items
that belong to him by the right of private ownership or he can
exert control over their management after he has transferred
these items to other persons to manage. The author cannot
control the use of his published works by himself. The
published works become accessible not only on the territory of
one state but also on the international level. Therefore there
exist international agreements on protection of intellectual
property. The provisions of agreements which Lithuania has
joined become mandatory.
2. A person may acquire the right of ownership only by
lawful ways. Everything that is acquired unlawfully by
infringing the rights of other persons or in violation of legal
norms may not enjoy protection. Violation of law may not be
protected. Depending on its character, degree of danger, the
content of legal norms establishing liability for it, a
violation of law may incur civil, administrative or criminal
liability. The institute of the right of ownership is an
institute of civil law, therefore it is reasonable that
infringement of private property incurs not only civil but also
criminal and administrative liability.
Legal protection of intellectual property is of no less
importance than that of substantive property, therefore such
protection must be ensured by norms of penal and administrative
law alike. Safeguarding of such protection is not only
safeguarding of the interests of authors and those of entities
of related rights but also safeguarding of law and order in
Lithuania along with international obligations of this country.
This is a public interest.
3. The provisions of Article 21410 of the CAVL are
applicable to unlawful use of works or their recordings only.
Persons who reproduce illegally and/or those who acquire copies
or recordings of works that have been reproduced illegally do
not acquire nor may acquire any right of ownership to the
recordings. Such recordings must be seized and destroyed. In
such a way actions violating law are terminated (Paragraph 1 of
Article 6 of the CC).
In the opinion of the representatives of the party
concerned, the statement of the petitioner that the ownership
right of the author to the recorded work belongs to the
producer conflicts with the imperative provision of Paragraph 1
of Article 558 of the CC whereby the rights of producers of
audio and video recordings are protected in as much as this
does not violate the rights of the authors (copyright) of the
performed works. Therefore, in case producers of recordings
infringe the rights of the authors (copyright) of performed
works, such producers of recordings acquire no rights,
including the right of ownership to produced recordings, thus
their rights do not enjoy protection. The works under
protection of copyright may be recorded only under agreement
with the author or successor of his rights. It is not permitted
to reproduce lawfully produced recordings where works under
protection of copyright are employed without consent of the
author or successors of his rights or the producers of the
recording. In any case of a commercial use of the recording
remuneration must be paid to the authors of the recorded works.
The recordings (cassettes, discs) produced in violation of
these requirements are illegal (pirate) and are liable to
seizure and destruction.
4. The representatives of the party concerned point out
that under the Berne Convention Lithuania must ensure
protection of copyright for the works of authors until
expiration of application of copyright. Under Paragraph 6 of
Article 519 of the CC as well as Articles 11 bis and 13 of the
Berne Convention, authors enjoy the right to remuneration for
their works. Paragraph 3 of Article 13 of the Berne Convention
provides that recordings made in accordance with the provisions
of this article and imported without permission from the
parties concerned into a country where they are treated as
infringing recordings shall be liable to seizure.
5. On the grounds of the motives set forth the
representatives of the party concerned draw a conclusion that
Article 21410 of the CAVL is in conformity with the
Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, explanations were received from
N. Matulevičienė, Head of the Copyright Division of the
Ministry of Culture, Chairperson of the Lithuanian Council of
Copyright and Related Rights, and E. Vaitekūnas, Director
General of the Lithuanian Association for Protection of Authors
Rights.
V
In the Constitutional Court hearing the representatives of
the party concerned virtually reiterated their arguments set
down in writing.
The representatives noted that the related rights to
authors' rights (copyright), special legal protection of
databases, enforcement of copyright and related rights, their
collective administration and protection are regulated by the
Republic of Lithuania Law on Copyright and Related Rights
passed on 18 May 1999. After the said law had gone into effect,
Chapter Four of the CC entitled "Copyright" and its Chapter
Five entitled "The Rights of Directors of Plays, Actors,
Producers of Audio and Video Recordings (Related Rights to
Copyright)" became null and void.
The Constitutional Court
holds that:
I
Article 21410 of the CAVL entitled "Infringement of
Copyright and Related Rights" provides:
"Illegal reproduction, circulation, public performance,
other use by any means for commercial purposes of works of
literature, science or art (including computer software and
data bases) and/or a video recording (i.e. without permission
of the author, or producer of audio and/or video recording, or
that of a successor of their rights) as well as their storage
for the said purposes
shall incur a fine from 1000 to 3000 Lt together with
seizure of the items illegally manufactured, reproduced,
circulated or used in other way or stored.
The same actions performed by a person who has been given
an administrative punishment for violations provided for in
Paragraph 1 of this Article
shall incur a fine from 2000 to 3000 Lt together with the
seizure of the items illegally produced, reproduced, circulated
or used in other way or stored as well as that of the equipment
of the illegal reproduction."
Taking account of the arguments of the petitioner, the
Constitutional Court will investigate the compliance of
Paragraph 1 of Article 21410 of the CAVL with the Constitution.
II
1. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
By norms of Article 23 of the Constitution protection of
the rights of ownership is secured. Inviolability of property
as established in this article obligates other persons not to
infringe the rights of the owner, while it obligates the state
to safeguard and protect the rights of ownership. Intellectual
property enjoys protection under Article 23 of the Constitution
as well.
2. Intellectual property covers authors rights (copyright)
to works of literature, science and art (books, brochures,
articles, diaries, other pieces of literature, computer
software, speeches, lectures, sermons and other verbal works,
pieces of music either with a text or without it, audiovisual
pieces (cinema films, television films, video films, slide
films, other works made by means of cinematography) etc.
Intellectual property also covers the rights of performers,
producers of phonograms, broadcasting organisations and
producers of the first fixation of an audiovisual work (film)
(related rights).
The Constitution is an integral and directly applicable
statute, therefore, while investigating the compliance of the
disputed norms with Article 23 of the Constitution, one is also
to take account of the fact that safeguarding and protection of
the rights and interests of authors is provided by Paragraph 3
of Article 42 of the Constitution as well, wherein it is
established that the law shall protect and defend the spiritual
and material interests of authors which are related to
scientific, technical, cultural, and artistic work.
3. By the Constitution protection of property is
guaranteed. Property acquired unlawfully does not become
property of the person who has acquired it. Thus such a person
does not acquire the rights of ownership which are protected by
the Constitution.
By illegal reproduction, circulation, public performance,
other use by any means for commercial purposes of works of
literature, science or art (including computer software and
data bases) and/or video recordings (i.e. without permission of
the author, or producer of audio and/or video recording, or
that of a successor of their rights) as well as their storage
for the said purposes the rights of authors (copyright) and
those of subjects of related rights are infringed.
4. The petitioner also doubts whether seizure of the items
pointed out in the sanction of the norm of Paragraph 1 of
Article 21410 of the CAVL is in conformity with the
Constitution.
As mentioned, the actions are pointed out in the
disposition of Paragraph 1 of Article 21410 of the CAVL by
which the rights of authors (copyright) and those of subjects
of related rights are infringed. These infringements incur
seizure of the items illegally produced, reproduced, circulated
or used in other way or stored as well as that of the equipment
of the illegal reproduction. In case the said items are not
seized, the person in question would be able to use them in a
way that damage may be inflicted on other persons and society.
Paragraph 1 of Article 26 of the CAVL provides that the
item which was either an instrument or direct object of
administrative violation of law shall be liable to seizure. In
its ruling of 8 April 1997, while taking account of the
importance of protected public relations, the Constitutional
Court held that seizure of either an instrument or direct
object of administrative violation of law was in conformity
with the Constitution.
5. The petitioner points out that under Paragraph 1 of
Article 21410 of the CAVL video recordings and phonograms do
not enjoy legal protection in Lithuania as at the moment of the
infringement Lithuania had not ratified the International
Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations done in Rome. Such a
stance of the petitioner is groundless. In the present ruling
of the Constitutional Court it has been held that protection of
the rights of authors (copyright) is entrenched in Articles 23
and Paragraph 3 of Article 42 of the Constitution, thus, even
in absence of ratification of a corresponding international
agreement, safeguarding and protection of rights of property
must be implemented.
6. On the grounds of the arguments set forth, one is to
draw a conclusion that Paragraph 1 of Article 21410 of the CAVL
is in compliance with Article 23 of the Constitution.
III
The petitioner requests to investigate the compliance of
Article 21410 of the CAVL with the norms of the Civil Code
establishing copyright.
Under Paragraph 1 of Article 105 of the Constitution and
Item 1 of Paragraph 1 of Article 63 of the Law on the
Constitutional Court, the Constitutional Court shall examine
cases concerning the compliance of laws and other acts of the
Seimas with the Constitution of the Republic of Lithuania. The
Constitutional Court does not consider whether one or other law
is in conformity with another law, therefore the petition of
the Vilnius City District Court of the Third District
requesting to investigate the compliance of Article 21410 of
the CAVL is not under the jurisdiction of the Constitutional
Court. Under Item 2 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, this constitutes grounds to refuse to
investigate the compliance of Article 21410 of the CAVL with
the norms of the CC. The case in this section is to be
dismissed (Paragraph 3 of Article 69 of the Law on the
Constitutional Court).
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55, 56 and Paragraph
3 of Article 63 of the Republic of Lithuania Law on the
Constitutional Court, the Constitutional Court has passed the
following
ruling:
1. To recognise that Paragraph 1 of Article 21410 of the
Republic of Lithuania Code of Administrative Violations of Law
is in compliance with the Constitution of the Republic of
Lithuania.
2. To dismiss the section of the case concerning the
request to investigate the compliance of Article 21410 of the
Republic of Lithuania Code of Administrative Violations of Law
with the Republic of Lithuania Civil Code.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.