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On the protection of copyright

Case No. 28/98

 

 

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 Code of Administrative Violations of Law of the Republic of Lithuania with the Constitution of the Republic of Lithuania

 

Vilnius, 5 July 2000

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Dr. Pranas Petkevičius, a senior consultant to the Law Department of the Office of the Seimas, and Assoc. Prof. Dr. Alfonsas Vileita, acting as the representatives of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 30 June 2000, in its public hearing, considered case No. 28/98 subsequent to the petition submitted to the Court by the Third Vilnius City Local Court, the petitioner, requesting an investigation into whether Paragraph 1 of Article 21410 of the Code of Administrative Violations of Law of the Republic of Lithuania was in conformity with Article 23 of the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 14 August 1998, the Third Vilnius City Local Court was considering a case regarding an administrative violation of law where a person had been brought to liability on a charge of illegal trade in video recordings, i.e., the violation provided for in Paragraph 1 of Article 21410 of the Code of Administrative Violations of Law of the Republic of Lithuania (hereinafter also referred to as the CAVL).

By means of its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Article 21410 of the CAVL was in compliance with Article 23 of the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania (hereinafter also referred to as the CC).

II

The request of the petitioner is based on the following reasoning.

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 any special rules of or limitations on the 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 imposes limitations on the rights of persons to property.

In the opinion of the petitioner, under Paragraph 3 of Article 23 of the Constitution, items belonging by 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 legislature is entitled to change the legal treatment of respective items of property but it may not seize items from the owner which belong to him by right of ownership, nor may it punish the owner for the storage, use and sale of lawfully acquired items.

3. The disposition of the impugned article means that the legislature strives to protect the copyright of authors and producers when their works are recorded into audio or video storage media. 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 the conclusion that the items wherein works are recorded belong by 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 law, by giving his consent to record his work into storage media. The laws do not provide for the author’s consent regarding the sale of his recordings, i.e., contrary to the disposition of the impugned 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 means of 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 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 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 means of norms of penal and administrative law alike. The safeguarding of such protection is not only the safeguarding of the interests of authors and those of entities of related rights but also the 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 by which 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 reasoning set forth, the representatives of the party concerned draw the 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’s 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 means of norms of Article 23 of the Constitution the protection of the rights of ownership is secured. the 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 act, therefore, while investigating the compliance of the impugned norms with Article 23 of the Constitution, one should also take account of the fact that the 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 before, 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 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. 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 the seizure of either the instrument or direct object of an 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 Organisations done in Rome. Such a stance of the petitioner is groundless. In this ruling of the Constitutional Court it has been held that the protection of the rights of authors (copyright) is entrenched in Articles 23 and Paragraph 3 of Article 42 of the Constitution, thus, even in the absence of the ratification of a corresponding international agreement, the safeguarding and protection of the rights of ownership must be implemented.

6. On the grounds of the arguments set forth, the conclusion should be drawn that Paragraph 1 of Article 21410 of the CAVL is in compliance with Article 23 of the Constitution.

III

The petitioner requests an investigation into 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 Third Vilnius City Local Court requesting an investigation into 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 should 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 Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 1 of Article 21410 of the Code of Administrative Violations of Law of the Republic of Lithuania 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 Code of Administrative Violations of Law of the Republic of Lithuania with the Civil Code of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas       Egidijus Kūris       Zigmas Levickis

 

Augustinas Normantas       Vladas Pavilonis       Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas       Teodora Staugaitienė