Law on Copyright and Neighboring Rights (2006)

Law No. 8 of March 14, 1996 on Copyright and Neighboring Rights

TITLE I

PART I

General Provisions

CHAPTER I

Introductory Provisions

Art. 1.—(1) The copyright in a literary, artistic or scientific work and in any similar work of intellectual creation shall be recognized and guaranteed as provided in this Law. That right vests in the author and embodies attributes of moral and economic character.

(2) A work of intellectual creation shall be acknowledged and protected, independently of its disclosure to the public, simply by virtue of its creation, even though in an unfinished form.

Art. 2. — Recognition of the rights provided for in this Law shall not prejudice or exclude protection granted under other statutory provisions.

CHAPTER II

Ownership of Copyright

Art. 3.—(1) The natural person or persons who created the work shall be the author thereof.

(2) In cases expressly provided for by law, legal entities and natural persons other than the author may benefit from the protection granted to the author.

(3) Ownership of copyright may be transferred as provided by law.

Art. 4.—(1) Unless proved otherwise, the person under whose name the work was first disclosed to the public shall be presumed to be the author thereof.

(2) Where the work was disclosed to the public anonymously or under a pseudonym that does not identify the author, the copyright shall be exercised by the person whether natural person or legal entity who discloses it to the public with the author’s consent, as long as the latter does not disclose his identity.

Art. 5.—(1) A work of joint authorship shall be a work created by several co-authors in collaboration.

(2) The copyright in a work of joint authorship shall belong to the co-authors thereof, one of whom may be the main author as provided in this Law.

(3) Unless otherwise agreed, co-authors may only exploit the work by common consent. Refusal of consent by any one of the co-authors must be fully justified.

(4) Where each co-author’s contribution is distinct, that contribution may be exploited separately, provided that it does not prejudice the exploitation of the joint work or the rights of the other co-authors.

(5) In the case of the utilization of a work of joint authorship, the remuneration shall accrue to the co-authors in the proportions they shall have agreed upon. Failing such agreement, the remuneration shall be divided in proportion to the share contributed by each author, or equally if such shares cannot be determined.

Art 6.—(1) A collective work shall be a work in which the personal contributions of the co-authors form a whole, without it being possible, in view of the nature of the work, to ascribe a distinct right to any one of the co-authors in the whole work so created.

(2) Unless otherwise agreed, the copyright in a collective work shall belong to the person, whether natural person or legal entity, on whose initiative and responsibility and under whose name the work was created.

CHAPTER III

Subject Matter of Copyright

Art. 7.— The subject matter of copyright shall be original works of intellectual creation in the literary, artistic, or scientific field, regardless of their manner of creation, specific form or mode of expression and independently of their merit and purpose, such as:

(a) literary and journalistic writings, lectures, sermons, pleadings, addresses and any other written or oral works, and also computer programs;

(b) scientific works, written or oral, such as presentations, studies, university textbooks, school textbooks and scientific projects and documentation;

(d) dramatic and dramatico-musical works, choreographic and mimed works;

(e) cinematographic works and any other audiovisual works;

(f) photographic works and any other works expressed by a process analogous to photography;

(g) works of three-dimensional art such as: works of sculpture, painting, drawing, engraving, lithography, monumental art, stage design, tapestry, ceramics, glass and metal shaping, and also works of art applied to products intended for practical use;

(h) works of architecture, including sketches, scale models and the graphic work that constitutes an architectural project;

(i) three-dimensional works, maps and drawings in the field of topography, geography and science in general.

Art. 8.— Without prejudice to the rights of the authors of the original work, copyright shall likewise subsist in derived works created on the basis of one or more pre-existing works, namely:

(a) translations, adaptations, annotations, documentary works, arrangements of music and any other transformation of a literary, artistic or scientific work that themselves entail creative intellectual work;

(b) collections of literary, artistic or scientific works, such as encyclopaedias, anthologies and collections and compilations of protected or unprotected material or data, including databases, which, by reason of the selection or arrangement of their subject matter constitute intellectual creations.

Art. 9.— The following shall not benefit from the legal protection accorded to copyright:

a) the ideas, theories, concepts, scientific discoveries, proceedings, functioning methods or mathematical concepts as such and inventions, contained in a work, whatever the manner of the adoption, writing, explanation or expression thereof;

(b) official texts of a political, legislative, administrative or judicial nature, and official translations thereof;

(c) official symbols of the State, public authorities and organizations, such as armorial bearings, seals, flags, emblems, shields, badges and medals;

(d) means of payment;

(e) news and press information;

(f) simple facts and data.

CHAPTER IV

Content of Copyright

Art. 10.— The author of a work shall have the following moral rights:

(a) to decide whether, how and when the work will be disclosed to the public;

(b) to demand recognition of his authorship of the work;

(d) to demand respect for the integrity of the work and to oppose any modification or any distortion of the work if it is prejudicial to his honor or reputation;

(e) to withdraw the work, subject to indemnification of any owners of exploitation rights who might be prejudiced by the exercise of the said withdrawal right.

Art. 11.—(1) The moral rights may not be renounced or disposed of.

(2) After the author’s death, the exercise of the rights provided for in Article 10 (a), (b) and (d) shall be transferred by inheritance, in keeping with civil legislation, for an unlimited period of time. If there are no heirs, the exercise of the said rights shall revert to the collective management organization that has managed the author’s rights or, as the case may be, to the organization having the largest membership, in the field of creation concerned.

Art. 12.— The author of a work shall have the exclusive economic right to decide whether, how, and when his work is to be used or exploited, including the right to authorize the use of the work by others.

Art. 13.— The use of a work gives rise to distinct and exclusive economic rights of the author to authorize or to prohibit:

(a) reproduction of the work;

(b) distribution of the work;

(d) rental of the work;

(e) lending of the work;

(f) communication to the public, directly or indirectly, of the work, by any means, including by making the work available to the public, in such a way that members of the public may access them from a place and at a time individually chosen by them;

g) broadcasting of the work;

h) cable retransmission of the work;

(i) making of derivative works.

Art. 14.— For the purposes of this Law, reproduction means the making, in whole or in part, of one or more copies of a work, directly or indirectly, temporarily or permanently, by any means and under any form, including the making of any sound or audiovisual recording of a work, as well as its permanent or temporary storage by electronic means.

Art. 141.— (1) For the purposes of the present law, distribution means the sale or any other manner of transmittal, for a consideration or free of charge, of the original or of copies of a work, as well as their offering to the public.

(2) Distribution right is subject to exhaustion upon first sale or with the first transfer of ownership of the original or of the copies of a work, on domestic market, by the rightholder or with his consent.

Art. 142.— For the purposes of the present law, import means the introduction on the domestic market, for trading, of the original or of the legally made copies of a work fixed on any kind of physical medium.

Art. 143.— For the purposes of the present law, rental means making available for use, for a limited period and for a direct or indirect economic or commercial advantage, of a work.

Art. 144.— (1) For the purposes of the present law, lending means making available for use, for a limited period and without a direct or indirect economic or commercial advantage, of a work through the agency of an institution allowing access of the public for this purpose.

(2) Lending through the agency of libraries does not require author’s authorization and entitles him to an equitable remuneration. This right cannot be waived.

(3) Equitable remuneration provided for under paragraph (2) shall not be owed, if the lending is made through the libraries of educational establishments as well through public libraries with free access.

(4) Lending of particular works incorporated in sound or audiovisual recordings shall only take place after six months after the first distribution of the work.

(5) The lending right shall not be exhausted with the first sale or first assignment of ownership over the original or copies of a work on the market, made or agreed by the right holder or with his consent.

Art. 145.— The provisions of this law on rental and lending shall not be applied to:

a) constructions resulting from architectural projects;

b) originals or copies of design works or artworks applied to products intended for practical use;

c) originals or copies of works, realized with a communication to the public purpose or to which use exist a contract;

d) reference works designated for immediate consultation or for lending between institutions;

e) works created by the author inside the individual labour contract, if those are used by the author’s employer, during common activity

Art. 15.— (1) Communication to the public means any communication of a work, directly or by any technical means, made in a place opened for public or in any other place where a number of persons exceeding the normal circle of the members of a family and of its acquaintances assemble, including stage performance, recitation or any other public form of performance or direct presentation of the work, public display of works of plastic art, of applied art, of photographic art and of architecture, public projection of cinematographic and of other audiovisual works, including of works of digital art, presentation in a public place, by means of sound or audiovisual recordings, as well as presentation in a public place, by any means, of a broadcast work. Any communication of a work by wire or wireless means, including by making the works available to the public, via Internet or other computer networks, so that any member of the public to have access, from anywhere or at any moment individually chosen, shall also be considered as communication to the public.

(2) The right to authorize or prohibit communication to the public or making available to the public of the works is not subject to exhaustion by any act of communication to the public or of making available to the public.

Art. 151.— For the purposes of the present law, broadcasting means:

a) broadcasting of a work by a radio or television broadcasting organization, by any means servicing for the wireless transmission of the signals, sounds or images, or of digital representation thereof, including the public communication by satellite, for the purpose of reception by the public;

b) transmission of a work or its representation thereof, by wire, cable, optic fiber or any other similar procedures, with the exception of the computer networks, for the purpose of reception by the public.

Art. 152.— For the purposes of the present law, cable retransmission means simultaneous, unaltered and total retransmission by an operator, by the means provided for under the Art. 151 letter b) or by a system of broadcasting by ultrasounds, for the reception by the public, of an initial transmission, by wire or wireless, including by satellite, of services of radio or television broadcasting programs, for the purpose of reception by the public.

Art. 16.— For the purposes of the present law, making of derivative works means translation, publication in collections, adaptation as well as any other transformation of a preexistent work, if it is an intellectual creation.

Art. 17.— Repealed.

Art. 18.— Repealed.

Art. 19.— Repealed.

Art. 20.— Repealed.

Art. 21.—(1) The author of an original work of graphic or plastic art or of a photographic work benefits from a resale right representing the right to collect a share from the net selling price obtained at any resale of the work, after the first alienation by the author, as well as the right to be informed of the work’s whereabouts.

2) The right provided for under the paragraph (1) applies to all acts of resale of an original work of graphic or plastic art or of a photographic work that involves, as sellers, buyers or agents, art exhibitions, art galleries as well as any trader of works of art.

(3) For the purposes of the present law, the copies or the original works of art or photographic works that have been made in a limited number by their author himself or with his consent, are considered to be original works of art.

(4) The amount owed on the grounds of paragraph (1) is computed according to the following shares, without exceeding EUR 12,500or the equivalent in Lei:

a) from EUR 300 to EUR 3,000 – 5%

b) from EUR 3,000.01 to EUR 50,000 – 4%

c) from EUR 50,000.01 to EUR 200,000 – 3%

d) from EUR 200,000.01 to EUR 350,000 – 1%

e) from EUR 350,000.01 to EUR 500,000 – 0.5%

f) over EUR 500,000 – 0.25%.

(5) The seller shall convey the information referred to in paragraph (1) to the author, within two months as of the date of sale and he shall be responsible for withholding from the net selling price, without adding other fees and for paying to the author of the amount owed according to the provisions of paragraph (4)

(6) The beneficiaries of the resale right or the representatives thereof may request, within 3 years as of the date of resale, to the persons provided for under paragraph (2) the necessary information in order to insure the payment of all owed amounts according to the provisions of paragraph (4).

(7) The resale right cannot be waived or alienated.

Art. 22.— The owner or possessor of a work is obliged to allow the author access to it and place it at his disposal where necessary for the exercise of his copyright, provided that the owner or possessor’s legitimate interests are not thereby prejudiced. The owner or possessor may in such a case claim a sufficient guarantee from the author for the security of the work, and also the insurance thereof for an amount representing the market value of the original, as well an adequate remuneration.

Art. 23.—(1) The owner of the original of a work shall not have the right to destroy it before having offered it to the author at the cost price of the material.

(2) Where the return of the original is not possible, the owner shall allow the author to make a copy of the work in an appropriate manner.

(3) In the case of an architectural structure, the author shall have the right only to take photographs of the work and to request the return of reproductions of the projects.

CHAPTER V

Duration of Copyright Protection

Art. 24.—(1) The copyright in a literary, artistic or scientific work shall come into being at the time of the work’s creation, regardless of the specific form or manner of expression thereof.

(2) If the work is created over a period of time in installments, episodes, volumes or any other form of sequence, the term of protection shall be calculated according to paragraph (1) for each such element.

Art. 25.—(1) The economic rights provided for in Articles 13 and 21 shall last for the author’s lifetime, and after his death shall be transferred by inheritance, according to civil legislation, for a period of 70 years, regardless of the date on which the work was legally disclosed to the public. If there are no heirs, the exercise of these rights shall devolve upon the collective administration organization mandated by the author during his lifetime or, failing a mandate, to the collective administration organization with the largest membership in the area of creation concerned.

(2) The person who, after the copyright protection has expired, legally discloses for the first time a previously unpublished work to the public shall enjoy protection equivalent to that of the author’s economic rights. The duration of the protection of those rights shall be 25 years, starting at the time of the first legal disclosure to the public.

Art. 26.—(1) The term of the economic rights in works legally disclosed to the public under a pseudonym or without a mention of the author’s name shall be 70 years from the date on which they were disclosed to the public.

(2) Where the author’s identity is revealed to the public before the term mentioned in paragraph (1) expires, or the pseudonym used by the author leaves no doubt about his identity, the provisions of Article 25 (1) shall apply.

Art. 27.—(1) The term of the economic rights in works of joint authorship shall be 70 years from the death of the last surviving co-author.

(2) Where the contributions of the co-authors are distinct, the term of the economic rights in each such contribution shall be 70 years from the death of the author thereof.

Art. 28.— The term of the economic rights in collective works shall be 70 years from the date of disclosure of the works. Where disclosure does not occur for 70 years following the creation of the works, the term of the economic rights shall expire 70 years after the said creation.

Art. 29.— Repealed.

Art. 30.— The economic rights in computer programs shall last for the lifetime of the author thereof and after his death shall be transferred by inheritance, according to civil legislation, for a period of 70 years.

Art. 31.— Non-essential modifications, additions, cuttings or adaptations made with a view to selection or arrangement, and also corrections to the content of a work or collection, that are necessary for the continuation of the collection in the manner intended by the author of the work shall not extend the term of protection of the said work or collection.

Art. 32.— The terms established in the present Chapter shall be calculated from the first of January of the year following the author’s death or the date on which the work was disclosed to the public, as the case may be.

CHAPTER VI

Limitations on the Exercise of Copyright

Art. 33.—(1) The following uses of a work already disclosed to the public shall be permitted without the author’s consent and without payment of remuneration, provided that such uses conform to proper practice, are not at variance with the normal exploitation of the work and are not prejudicial to the author or to the owners of the exploitation rights:

(a) the reproduction of a work in connection with judicial or administrative proceedings, to the extent justified by the purpose thereof;

(b) 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;

(c) 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;

(d) the reproduction of brief excerpts from works for information or research within the framework of libraries, museums, film archives, sound archives, archives of non-profit cultural or scientific public institutions; 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;

e) 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;

f) the reproduction, to the exclusion of any means involving direct contact with the work, distribution or communication to the public of the image of an architectural work, work of plastic art, photographic work or work of applied art permanently located in a public place, except where the image of the work is the main subject of such reproduction, distribution or communication, and if it is used for commercial purposes;

g) the representation and execution of a work as part of the activities of educational establishments, exclusively for specific purposes and provided that both the representation or execution and the public’s access are free of charge;

h) use of works during religious celebrations or official celebrations organized by a public authority;

i) use for the purpose of advertising, of the images of the works presented within exhibitions with public access or sale, of fairs, public auctions of works of art, to the extent necessary to promote the event, excluding any other commercial use.

(2) Subject to conditions provided for in paragraph (1), the reproduction, distribution, broadcasting or communication to the public, with neither direct nor indirect commercial or economic advantage, are allowed:

a) 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;

b) of brief excerpts of lectures, addresses, pleadings and other similar works that have been orally expressed in public, provided that these uses to have the sole purpose of informing on the present;

c) of brief excerpts of the works, within information on current events, to the extent justified by the informatory purpose;

(3) Temporary acts of reproduction that are transient or incidental forming an integral and essential part of a technical process and the sole purpose of which is to enable transfer, in a network between third parties, by an intermediary or the lawful use of another protected object and that should have no separate economic value on their own, are excepted from the reproduction right.

(4) In all cases provided for in paragraph (1) letters b), c), e), f), i) and paragraph (2) the source, including the author’s name, has to be indicated, unless this turns out to be impossible; in case of works of plastic art, photographic or architecture works the place in which the original is to be found has to be indicated

Art. 34.—(1) It shall not be a violation of copyright, for the purposes of this law, the reproduction of a work, without the author’s consent for personal use or for use by a normal family circle, provided 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.

(2) For the media on which sound or audio-visual recordings can be made or on which reproductions of the works graphically expressed can be made, as well as for apparata dedicated for copying, in the situation provided for in paragraph (1), a compensatory remuneration established by negotiation, according to the provisions of this law, shall be paid.

Art. 35.— The alteration of a work shall be permissible without the author’s consent and without payment of remuneration in the following cases:

(a) if the alteration is made privately and is neither intended for nor made available to the public;

(b) 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;

(d) if the alteration is a short review of the works by didactic purpose, mentioning the author.

Art. 36.— Repealed.

Art. 37.—(1) For the purpose of testing the operation of their products at the time of manufacture or sale, trading companies engaged in the production or sale of sound or audiovisual recordings, equipment for the reproduction or communication to the public thereof and also equipment for receiving radio and television broadcasts may reproduce and present extracts from works, provided that such acts are performed only to the extent required for testing.

(2) In order to supervise the utilization of their own repertoire by third parties, the collective management societies can monitor, by any means, the activity of the users, with no authorization from them and no payment, being allowed to request, for this purpose and public interest information held, according to the law, by the competent public institutions.

Art. 38.— (1) The assignment of the broadcasting right of a work to a radio or television broadcasting organization shall entitle it to record the work for the needs of its own broadcasts with a view to a single authorized broadcast to the public. A new authorization from the authors shall be required in case of any new broadcast of the work so recorded, against remuneration that cannot be waived. If no such authorization is requested within 6 months as from the first broadcast, the recording must be destroyed.

(2) In the case of ephemeral recording of particular works made by means of their own facilities by the radio or television broadcasting organizations for their own broadcasts, the preservation of these recordings in official archives may, on the grounds of their exceptional documentary character, be permitted.

CHAPTER VII

Transfer of the Author’s Economic Rights

SECTION I

Common Provisions

Art. 39.—(1) The author or the owner of the copyright may transfer only his economic rights by contract to other persons.

(2) That transfer of the author’s economic rights may be limited to certain rights, to a certain territory, and to a certain period of time.

(3) The economic rights of the author or the owner of the copyright may be passed on by exclusive or non-exclusive transfer.

(4) In the case of exclusive transfer, not even the owner of the copyright shall be allowed to use the work in the manner, on the territory and for the term agreed with the transferee, or to transfer the rights concerned to another person. The exclusive character of the transfer shall be expressly stated in the contract.

(5) In the case of a non-exclusive transfer, the owner of the copyright may use the work himself, and may also transfer the non-exclusive right to other persons.

(6) The non-exclusive transferee may not transfer his rights to another person without the express consent of the transferor.

(7) The transfer of one of the economic rights of the owner of the copyright shall have no effect on his other rights, unless otherwise agreed.

(8) The consent mentioned in paragraph (6) shall not be required where the transferee is a legal entity and is transformed by one of the processes provided for by law.

Art. 40.— In the case of transfer of the right of reproduction of a work, it shall be presumed that the right of distribution of copies of that work has also been assigned, with the exception of the right of importation, unless otherwise provided by contract.

Art. 41.—(1) The contract for the transfer of the economic rights shall specify the economic rights transferred and to mention for each of them the forms of exploitation, the duration and scope of the transferr as well as the remuneration payable to the copyright owner. The absence of any of these elements shall entitle the interested party to apply for cancellation of the contract.

(2) Any transfer of the economic rights in all of the author’s future works, whether designated or not, shall be null and void.

Art. 42.—The existence and content of the contract of transfer of the economic rights may be proved only by the written form thereof, except in the case of contracts relating to works used in the press.

Art. 43.—(1) The remuneration payable under a contract for the transfer of economic rights shall be established by agreement between the parties. The amount of the remuneration shall be calculated either in proportion to the sums collected from the exploitation of the work, or as a lump sum, or in any other way.

(2) Where the remuneration has not been fixed by contract, the author may request the competent jurisdictional bodies to do so, as provided by law. The remuneration shall be fixed according to the amounts usually paid for the same class of work, the purpose and duration of exploitation and other circumstances relevant to the case.

(3) Where there is an obvious disproportion between the remuneration of the author of the work and the profits of the person who has secured the transfer of the economic rights, the author may request the competent jurisdictional bodies to revise the contract or increase the remuneration accordingly.

(4) The author may not beforehand waive the exercise of his right under paragraph (3).

Art. 44.—(1) Unless otherwise provided by contract, the economic rights in a work created for the fulfillment of job duties specified in an individual employment contract, shall belong to the author of the work so created. In such case, the author may authorize the use of the work by third parties, only subject to employer’s consent and to his rewarding for the contribution to the costs of creation. The use of the work by employer, within the framework of the object of activity is not subject to authorization from the author employee.

(2) If such a clause does exist, it shall specify the period for which the author’s economic rights have been assigned. Failing the specification of the period, it shall be three years from the date on which the work is handed over.

(3) After the expiration of the periods from paragraph (2), unless otherwise provided, the employer is entitled to claim from the author the payment of a reasonable share from the incomes obtained as a result of the use of his work, in order to compensate for the costs borne by the employer for the creation of the work by the employee, within his job duties.

(4) On expiration of the period specified under paragraph (1) the economic rights shall revert to the author.

(5) The author of a work created under an individual employment contract shall retain the exclusive right to use the work as part of the whole of his creation.

Art. 45.—(1) Unless otherwise agreed, the owner of the copyright in a work appearing in a periodical publication shall retain the right to use it in any form, provided that the publication in which the work appears is not thereby prejudiced.

(2) Unless otherwise agreed, the owner of the copyright may dispose freely of the work if it has not been published within a month of its acceptance in the case of a daily paper, or within six months in the case of other publications.

Art. 46.—(1) In case of the contract of commissioning future works, unless otherwise provided, the economic rights belong to the author.

(2) The contract commissioning a future work shall specify both the time limit for delivery of the work and the time limit for acceptance of the work.

(3) The person commissioning the work shall have the right to terminate the contract if the work does not meet the conditions set. Where the contract is terminated, any sums collected by the author shall not be refundable. Where preparatory work has been done with a view to the creation of a work under a commission, the author shall be entitled to repayment of any expenses incurred.

Art. 47.—(1) The author may request the cancellation of a contract assigning his economic rights where the assignee fails to exploit them or exploits them to an insufficient extent, thereby seriously affecting the author’s legitimate interests.

(2) The author may not request the cancellation of the contract if the grounds for non-exploitation or insufficient exploitation are attributable to him, to a third party, to an accident or to force major.

(3) Cancellation of a contract of assignment under paragraph (1) may not be requested before two years have expired following the assignment of the economic rights in a work. That period shall be three months in the case of works assigned for daily publications, and a year in the case of periodical publications.

(4) The owner of the original of a work of three-dimensional or photographic art shall have the right to exhibit it in public, even if it has not been disclosed to the public, except where the author has expressly excluded that right in the instrument of disposal of the original.

(5) The author may not waive in advance the exercise of his right to request cancellation of the transfer contract mentioned under paragraph (1).

(6) Acquisition of ownership of the material in which the work is embodied shall not in itself confer the right to exploit the work.

SECTION II

Publishing Contract

Art. 48.—(1) The publishing contract is an instrument by which the owner of the copyright assigns to the publisher, in exchange for remuneration, the right to reproduce and distribute the work.

(2) An agreement by which the owner of the copyright in a work empowers a publisher to reproduce and possibly also to distribute the work at the former’s expense shall not constitute a publishing contract.

(3) In the situation referred to in paragraph (2) the provisions of ordinary legislation on corporate contracts shall apply.

Art. 49.— The owner of the copyright may also assign to the publisher the right to authorize the translation and adaptation of the work.

Art. 50.— The assignment to the publisher of the right to authorize other persons to adapt the work or use it in any other way shall should be the object of an express contractual provision.

Art. 51.—(1) The publishing contract shall include clauses specifying:

(a) the duration of the assignment;

(b) the exclusive or non-exclusive character and the territorial scope of the assignment;

(d) the author’s remuneration, determined in accordance with this Law;

(e) the number of copies reserved for the author free of charge;

(f) the time limit for the publication and distribution of the copies of each edition or of each printing, as the case may be;

(g) the time limit for the delivery of the original of the work by the author;

(h) the procedure for the verification of the number of copies produced by the publisher.

(2) The absence of any of the clauses mentioned in subparagraphs (a), (b) and (d) shall entitle the interested party to request cancellation of the contract.

Art. 52.— (1) The publisher who has acquired the copyright in a work in book form shall have precedence over other similar bidders offering the same price for the publication of the work in electronic form. The publisher shall submit his bid in writing no later than 30 days after having received the author’s written offer.

(2) The right mentioned in paragraph (1) shall be valid for a period of three years following the publication date of the work.

Art. 53.— The publisher shall be obliged to allow the author to make improvements or other alterations to the work in a new edition, provided that the improvements or alterations do not substantially increase the publisher’s costs, or change the character of the work, unless otherwise provided in the contract.

Art. 54.— The publisher may assign the publishing contract only with the author’s consent.

Art. 55.— The publisher shall be obliged to return to the author the original of the work, the originals of artistic works and illustrations and any other material received for publication, unless otherwise agreed.

Art. 56.—(1) Unless otherwise agreed, the publishing contract shall end when the set term thereof expires or when the last agreed edition is exhausted.

(2) An edition or printing shall be considered exhausted if the number of unsold copies is smaller than five per cent of the total number of copies, and in any event if it falls below 100.

(3) Where the publisher fails to publish the work within the agreed period, the author may, in accordance with ordinary legislation, request cancellation of the contract and damages for non-fulfillment. In that case the author shall retain any remuneration received, or, as the case may be, may request payment of the full amount of the remuneration provided for in the contract.

(4) If the time limit for the publication of the work is not specified in the contract, the publisher shall be obliged to publish it within a period of not more than one year following the date of its acceptance.

(5) Where the publisher intends to destroy the copies remaining in stock after a period of two years from the publishing date, and if no other period is specified in the contract, the publisher shall be obliged to offer them first to the author.

Art. 57.—(1) Where the work is destroyed for reasons of force majeure, the author shall be entitled to remuneration, which shall be paid to him only if the work was published.

(2) Where a prepared edition is totally destroyed for reasons of force majeure before it is distributed, the publisher shall be entitled to prepare a new edition, and the author shall be entitled to remuneration for only one of those editions.

(3) Where a prepared edition is partly destroyed for reasons of force majeure before it is distributed, the publisher shall be entitled to reproduce only as many copies as were destroyed without paying remuneration to the author.

SECTION III

Theatrical Or Musical Performance Contract

Art. 58.— (1) Under a theatrical or musical performance contract the owner of the copyright assigns to a natural person or legal entity the right to perform or execute in public a present or future literary, dramatic, musical, dramatico-musical, choreographic or mimed work in exchange for remuneration, and the transferee is obliged to execute or to perform it under the agreed conditions.

(2) General theatrical or musical performance contracts can also be concluded through the agency of collective management organizations, subject to conditions provided for in the Art.130 paragraph (1) letter c).

Art. 59.—(1) The theatrical or musical performance contract shall be concluded in writing for a specified period of time or for a specified number of communications to the public.

(2) The contract shall stipulate the time limit by which the first performance or sole communication of the work shall take place, as the case may be, the exclusive or non-exclusive character of the transfer, the area or territory covered and the remuneration payable to the author.

(3) Any interruption of performances for two consecutive years, if no other term has been provided for in the contract, shall entitle the author to request cancellation of the contract and damages for non-fulfillment, as provided in ordinary legislation.

(4) The beneficiary of a theatrical or musical performance contract may not assign it to a third party who is an entertainment organizer without the written consent of the author, or that of his representative where applicable, except in conjunction with the total or partial transfer of his activity.

Art. 60.—(1) The assignee shall be obliged to permit the author to oversee the performance of the work and provide adequate support to ensure that the technical conditions for the performance are fulfilled. The assignee shall likewise send to the author the program, posters and other printed material and also reviews published on the performance, unless otherwise provided in the contract.

(2) The assignee shall be obliged to ensure the public performance of the work under adequate technical conditions and also the observance of the author’s rights.

Art. 61.—(1) The assignee shall be obliged periodically to communicate to the owner of the copyright the number of theatrical or musical performances and also the state of the takings. To that end, the theatrical or musical performance contract shall also specify the intervals between such communications, which shall not however be fewer than one a year.

(2) The assignee shall pay the author, by the time limits specified in the contract, the prescribed sums in the agreed amounts.

Art. 62.— If the assignee fails to perform the work within the period stipulated, the author may request cancellation of the contract and damages for non-fulfillment under the provisions of ordinary legislation. In that case the author shall retain any remuneration received or, as the case may be, may request payment of the full amount of the remuneration provided for in the contract.

SECTION IV

Rental Contract

Art. 63.—(1) Under a contract for the rental of a work, the author undertakes to allow the use, for a specified period of time, of at least one copy of his work, whether the original or a reproduction thereof, in the case especially of computer programs or works embodied in sound or audiovisual recordings. The assignee of the rental right undertakes to pay remuneration to the author for as long as he uses the copy of the work.

(2) The contract for the rental of a work shall be governed by the provisions of the ordinary legislation on rental contracts.

(3) The author shall retain the copyright in the work rented, with the exception of the right of distribution, unless otherwise agreed.

PART II

Special Provisions

CHAPTER VIII

Cinematographic Works and Other Audiovisual Works

Art. 64.— An audiovisual work is a cinematographic work, a work expressed by a procedure similar to cinematography, or any other work which makes use of moving images, accompanied or not by sounds.

Art. 65.—(1) The director or maker of an audiovisual work is the natural person which within the contract with the producer oversees the creation and production of the audiovisual work in the capacity of main author.

(2) The producer of an audiovisual work is the person, whether natural person or legal entity, who takes responsibility for the production of the work and in that capacity organizes the making of the work and provides the necessary technical and financial resources.

(3) The written form of a contract between the producer and the main author is compulsory for the performance of an audiovisual work.

Art. 66.— The authors of an audiovisual work, as provided in Article 5 of this Law, are the director or maker, the author of the adaptation, the author of the screenplay, the author of the dialogue, the author of the musical score specially composed for the audiovisual work and the author of the graphic material of animated works or animated sequences, where these represent a substantial part of the work. In the contract between the producer and the director or maker of the audiovisual work, the parties may agree to include other creators who have contributed substantially to the creation of the work as authors thereof.

Art. 67.—(1) Where one of the authors within the meaning of the foregoing Article refuses to complete his contribution to the audiovisual work, or is prevented from doing so, he may not object to its use for the completion of the said work. He shall have the right to be remunerated for the completed portion of his contribution.

(2) The audiovisual work shall be considered completed when the final version has been established by common consent between the main author and the producer.

(3) The destruction of the original medium embodying the final version of the audiovisual work and constituting the standard copy shall be prohibited.

(4) The authors of the audiovisual work other than the main author may not object to its disclosure to the public or to the exploitation in any way of the final version thereof.

Art. 68.—(1) The right of audiovisual adaptation is the exclusive right of the owner of the copyright in a pre-existing work to transform it into or include it in an audiovisual work.

(2) Assignment of the right provided for in paragraph (1) may take place only on the basis of a written contract, distinct from the publishing contract for the work, between the owner of the copyright and the producer of the audiovisual work.

(3) Under the adaptation contract, the owner of the copyright in a pre-existing work transfers to a producer the exclusive right of transformation of the said work and its inclusion in an audiovisual work.

(4) The authorization granted by the owner of the copyright in the pre-existing work shall expressly state the conditions governing the production, distribution and projection of the audiovisual work.

Art. 69.— The moral rights in a finished work shall be recognized only to the authors thereof as provided in Article 66 of this Law.

Art. 70.—(1) By the contracts concluded between the authors of the audiovisual work and the producer, unless otherwise provided, it shall be presumed that they assign to the producer, with the exception of the authors of the specially composed music, the exclusive rights with respect to the use of the work as a whole, provided for in Art. 13, as well as the right to authorize dubbing and subtitling, against an equitable remuneration.

(2) Unless otherwise provided, the authors of the audiovisual work as well as other authors of certain contributions to it shall retain all rights in the separate utilization of their own contributions, as well as the right to authorize and/or to prohibit utilizations other than that specific of the work, in whole or in part, like the use of excerpts from the cinematographic work for advertising, other than for the promotion of the work, subject to conditions of the present law.

Art. 71.—(1) Unless otherwise agreed, the remuneration for each mode of exploitation of the audiovisual work shall be proportional to the gross earnings deriving from that exploitation.

(2) The producer shall be obliged periodically to submit to the authors an account of the takings according to each mode of exploitation. The authors shall receive their due remuneration either through the producer or directly from the users, or again through the organizations for the collective administration of copyright on the basis of the general contracts that the latter have concluded with the users.

(3) Where the producer fails to complete the audiovisual work within a period of five years after the conclusion of the contract, or fails to distribute the said work within a year of its completion, the co-authors may request cancellation of the contract, unless otherwise agreed.

CHAPTER IX

Computer Programs

Art. 72.—(1) Under this Law, the protection of computer programs includes any expression of a program, application programs and operating systems expressed in any kind of language, whether in source code or object code, the preparatory design material and the manuals.

(2) The procedures, operating methods, mathematical concepts and principles underlying any element in a computer program, including those underlying its interfaces, are not protected.

Art. 73.— The author of a computer program shall enjoy by analogy the rights provided for in Part I of the present Title of this Law, and especially the exclusive right to do and authorize the following:

(a) temporary or permanent reproduction of a program in its entirety or in part, by any means and in any form, including where the reproduction is necessitated by the loading, display, transmission or storage of the program;

(b) translation, adaptation, arrangement and any other transformation of a computer program, including the reproduction of the result of those operations, without prejudice to the rights of the person who transforms the program;

(2) The first sale of a computer program copy, on the domestic market, by the owner of the rights or the one made with his consent, shall exhaust the exclusive right for the authorization of the distribution of such copy on the domestic market.

Art. 74.—Unless otherwise agreed, the economic rights in computer programs created by one or more employees in the course of their duties or on instructions from their employer shall belong to the latter.

Art. 75.—(1) Unless otherwise agreed, a contract for the use of a computer program shall assume that:

(a) the user has been granted the non-exclusive right to use the program;

(b) the user may not transfer the right to use the program to another person.

(2) Transfer of the right to use a computer program shall not imply transfer also of the copyright in it.

Art. 76.— Unless otherwise agreed, the authorization of the copyright owner shall not be required for the acts provided for in Article 73(a) and (b) where they are necessary to permit the acquirer to use the computer program in a manner that corresponds to its purpose, including for the correction of errors.

Art. 77.—(1) The authorized user of a computer program may, without authorization from the author, make an archive or reserve copy where necessary for the use of the program.

(2) The authorized user of a computer program copy may, without authorization from the copyright owner, observe, study or test the operation of the program, to determine the principles and ideas underlying any of its elements at the time of loading the program in the memory or displaying, converting, transmitting or storing it, which operations the authorized user is entitled to carry out.

(3) The provisions of Article 10(e) of this Law do not apply to computer programs.

Art. 78.— The authorization of the copyright owner shall not be mandatory where the reproduction of the code or translation of its form is indispensable to procure information required for the interoperability of a computer program with other computer programs, provided that the following conditions have been fulfilled:

(a) the acts of translation and reproduction are carried out by the person holding the right to use a copy of the program, or by a person who is doing so in the name of that person, having been duly authorized for the purpose;

(b) the information necessary for interoperability is not readily and rapidly accessible to the persons referred to in paragraph (a) of this Article;

(c) the acts referred to in paragraph (a) of this Article are limited to the parts of the program required for the interoperability.

Art. 79.— Information obtained by virtue of Article 78:

(a) may not be used for purposes other than the achievement of interoperability of the independently-created computer program;

(b) may not be communicated to others, except where such communication proves necessary for the interoperability of the independently-created computer program;

(c) may not be used for the development, production or marketing of a computer program that is basically similar in expression or for any other act that might damage the author’s rights.

Art. 80.— The provisions of Articles 78 and 79 shall not apply if they are liable to prejudice either the owner of the copyright or the normal exploitation of the computer program.

Art. 81.— The provisions of Chapter VI of this Title shall not apply to computer programs.

CHAPTER X

Works of Three-Dimensional Art, Architecture, and Photography

Art. 82.— A person, whether natural person or legal entity, who organizes art exhibitions shall be answerable for the integrity of the works exhibited, and shall therefore take the necessary measures for the elimination of any risk.

Art. 83.—(1) The contract for the reproduction of an artistic work shall contain information identifying the work, such as a summary description, a sketch, a drawing, a photograph and references to the author’s signature.

(2) Reproductions shall not be put on sale without the copyright owner’s approval of the copy that shall have been submitted to him for examination.

(3) The author’s name or pseudonym or some other sign identifying the work shall appear on all copies thereof.

(4) The originals and other elements that have served the maker of the reproductions shall be returned to their possessor, whatever his title, unless otherwise agreed.

(5) Instruments specially created for the reproduction of the work must be destroyed or rendered unusable if the owner of the copyright in the work does not acquire them, unless otherwise agreed.

Art. 84.—(1) Architectural and town-planning studies and projects displayed close to the site of the architectural work, and also the corresponding construction work carried out, must bear a written notice in a visible place giving the name of the author, unless otherwise agreed by contract.

(2) The construction of an architectural work based totally or partly on another project may take place only with the agreement of the owner of the copyright in that project.

Art. 85.—(1) Still photographs from cinematographic films shall be considered photographic works.

(2) Photographs of letters, deeds, documents of any kind, technical drawings and other similar material do not qualify for legal protection by copyright.

Art. 86.—(1) The right of the author of a photographic work to exploit his own work shall not prejudice the rights of the author of the artistic work reproduced in the photographic work.

(2) The economic rights in a photographic work created under an individual employment contract or commission contract shall be presumed to belong to the employer or commissioning party for a period of three years, unless otherwise provided in the contract.

(3) Disposal of the negative of a photographic work shall have the effect of transfer of the economic rights of the owner of the copyright in the said work, unless otherwise provided in the contract.

Art. 87.— (1) A photograph of a person, when made to order, may be published or reproduced by the person photographed or his successors without the author’s consent, unless otherwise agreed.

(2) If the name of the author appears on the original photograph, it must also be shown on the reproduction.

CHAPTER XI

Protection of the Portrait, of the Addressee of

Correspondence and of the Secrecy of Information Sources

Art. 88.— (1) The distribution of a work containing a portrait shall require the authorization of the person represented in that portrait. Its author, owner or possessor shall not have the right to reproduce or exploit it without the consent of the person represented, or that of his successors, for a period of 20 years after the death of the said person.

(2) Unless otherwise agreed, authorization shall not be required if the person represented in the portrait is a professional model or has received remuneration for the sitting.

(3) Authorization provided for in para. (1) shall not be necessary for the distribution of a work containing the portrait :

(a)

(b)

Art. 89.— The distribution of correspondence addressed to a person shall require the authorization of the addressee and, after the addressee’s death, for a period of 20 years, that of his successors, unless he has expressed a different wish.

Art. 90.— The person represented in a portrait and the addressee of correspondence may exercise the right provided for in Article 10(d) of this Law in relation to the distribution of the work containing the portrait or correspondence, as the case may be.

Art. 91.— (1) At the author’s request, the publisher or producer shall be obliged to preserve the secrecy of the information sources used in the works and to abstain from publishing documents referring thereto.

(2) The lifting of the secrecy shall be permitted with the consent of the person who has requested it or on the basis of a final and irrevocable judgment.

TITLE II

Neighboring and Sui-Generis Rights

CHAPTER I

Common Provisions

Art. 92.— (1) Neighbouring rights shall not prejudice the rights of authors. No provision of this Title shall be interpreted in such a way as to limit the exercise of copyright.

(2) Economic rights recognized in the present title may be assigned, either in whole or in part, subject to conditions provided for in Art.39-43 that apply by analogy. These rights may be the subject of exclusive or non-exclusive assignment.

Art. 93.— Repealed.

Art. 94.— Recognition and protection as owners of neighboring rights shall be accorded to performers in respect of their own performances, to reproducers of sound recordings in respect of their own recordings and to radio and television broadcasting organizations in respect of their own broadcasts.

CHAPTER II

The Rights of Performers

Art. 95.— For the purposes of this Law, performers are actors, singers, musicians, dancers and other persons who present, sing, dance, recite, declaim, act, interpret, direct, conduct or in any other way execute a literary or artistic work, a performance of any kind, including performances of folklore, variety or circus performances or puppet shows.

Art. 96 – The performer shall have the following moral rights :

a) the right to demand recognition of the authorship of his own performance ;

b) the right to demand that his name or pseudonym be mentioned or communicated at each performance and on each use or a recording thereof ;

c) the right to demand respect for the quality of his rendering and to oppose any distortion, falsification or other substantial modification of his performance or any infringement of his rights that might seriously prejudice his honor or reputation ;

Art. 97.— (1) The rights provided for in Article 96 may not be the subject of renunciation or alienation.

(2) After the performer’s death, the exercise of the rights provided for in Article 96 shall be transferred by inheritance, in accordance with civil legislation, for an unlimited period of time. If there are no heirs, the exercise of the said rights shall revert to the collective management organization that has managed the performer’s rights or, as the case may be, to the organization having the largest membership, in the field concerned.”

Art. 98.— (1) The performer shall have the exclusive economic right to authorise or prohibit the following:

g1) under the situations provided for in letter g) he is entitled to an equitable remuneration only;

(2) For the purposes of the present law, fixation means incorporating of sounds, images or sounds and images or of digital representations thereof, in any kind of physical medium, enabling their perception, reproduction or communication to the public by the help of a device.

(3) The equitable remuneration provided under paragraph (1) letter g) shall be established and collected in accordance with the procedure provided under Art. 131, 1311, 1312 and 133.

(4) The definitions provided under Art. 14, 141, 142, 143, 144, Art. 15 paragraph (1), Art. 151 and 152 apply by analogy to the rights provided for under paragraph (1) too.

Art. 99.— (1) For the purposes of the present law, the performance of a work is collective when the individual performances form a whole, without being possible, given the nature of performance, for a distinct right to be attributed to any of the participating artists on the ensemble of the performance.

(2) With a view to exercising the exclusive rights on the authorization provided for in Art. 98, performers collectively participating in the same performance, such as members of a musical group, choir, orchestra or ballet, or theatre company shall authorize, in writing, a representative from among themselves, subject to approval of the majority of the members.

(3) The director, conductor and soloists shall be excepted from the provisions of the paragraph (2).

Art. 100.— In the case of a performance given by the performer under an individual contract of employment, the economic right provided for in Article 98 may be transferred to the employer on condition that the transfer is expressly mentioned in the individual contract of employment.

Art. 101.— Unless otherwise provided, the performer who has taken part in the making of an audiovisual work, of an audiovisual recording or of a sound recording, shall be presumed to have assigned to the producer thereof, for an equitable remuneration, the exclusive right to use his performance thus fixed, by reproduction, distribution, import, rental and lending.

Art. 102.—(1) Duration of the patrimonial rights of performers shall be of 50 years as from the date of performance. However, if the fixation of the performance throughout such duration makes the object of a lawful publishing or lawful communication to the public, the duration of the rights shall be of 50 years as from the date when whichever of them has taken place for the first time.

(2) Duration provided for under paragraph (1) shall be calculated as from the 1st of January of the year following the fact generating rights.

CHAPTER III

The Rights of Producers of Sound Recordings

Art. 103.—(1) A sound recording or phonogram, for the purposes of the present law, shall be taken to mean any fixation, exclusively of the sounds originating from the interpretation or the performance of a work or from other sounds, or digital representations of such sounds, other than under the form of a fixation incorporated in a cinematographic work or in any other audiovisual work.

(2) The producer of a sound recording shall be the natural or legal person that has the initiative and undertakes the responsibility for the organisation and financing of the first fixation of the sounds, whether or not it constitutes a work in terms of the present law.

Art. 104.— In the case of the reproduction and distribution of sound recordings, the producer shall be entitled to specify on their physical medium including on covers, boxes and other physical packaging material, in addition to the mentions on the author and performer, the titles of the works, the year of the first publication, the trademark as well as the name and denomination of the producer.

Art. 105.— (1) Subject to conditions provided for in Art. 92 paragraph (1), the producer of sound recordings shall have the exclusive economic right to authorize and prohibit:

(2) The definitions from Art. 14, 141, 142, 143, 144, 15 paragraph (1), 151 and 152 apply by analogy to the rights provided for in paragraph (1) too.

(3) The producer of sound recordings shall have the exclusive economic right to prevent the importation of copies of his own sound recordings made without his authorisation.

(4) The provisions of paragraph (1) letter e) shall not apply when the importation is made by a natural person, without commercial purposes, inside the legally allowed personal luggage.

Art. 106.—(1) Duration of the patrimonial rights of producers of sound recordings shall be of 50 years as from the date of the first fixation. However, if the recording throughout such duration makes the object of a lawful publishing or lawful communication to the public, the duration of the rights shall be of 50 years as from the date when whichever of them has taken place for the first time.

(2) Duration provided for under paragraph (1) shall be calculated as from the 1st of January of the year following the fact generating rights.

CHAPTER III1

Rights of the producers of audiovisual recordings

Art. 1061.— (1) The duration of the economic rights of the producers of audiovisual recordings shall be 50 years from the date of the first fixation. However, if the recording during such duration makes the object of a lawful publishing or lawful public communication, the duration of the rights shall be 50 years from the date when whichever of them has taken place for the first time”

(2) The duration provided for under Paragraph (1) shall be calculated from the first of January of the year following the fact generating the rights.

Art. 1062.— In the case of the reproduction and distribution of his own audiovisual recordings, the producer shall be entitled to specify on their physical medium including on covers, boxes and other physical packaging material, in addition to the mentions on the author and performer, the titles of the works, the year of the first publication, the trademark as well as the name and denomination of the producer.

Art. 1063.—(1) The producer of audiovisual recordings shall have the exclusive economic right to authorize and prohibit:

(2) The definitions from Art. 14, 141, 142, 143, 144, 15 paragraph (1), 151 and 152 apply by analogy to the rights provided for in paragraph (1) too.

Art. 1064.— (1) The duration of the economic rights of the producers of audiovisual recordings shall be 50 years as of the first of January of the calendar year following that in which the first fixation took place.

(2) Where the audiovisual recording is disclosed to the public during this period, the duration of the economic rights shall expire after 50 years as of the date on which it was disclosed to the public.

CHAPTER IV

Provisions Common to Authors, Performers and Producers of Sound and Audiovisual Recordings

Art. 1065.—(1) For direct or indirect use of the phonograms published for commercial purpose or of the reproductions thereof by broadcasting or any way of communication to the public, the performers and producers of phonograms are entitled to single equitable remuneration.

(2) The quantum of this remuneration shall be established by methodologies, according to the procedure provided in Art.131, 1311 and 1312.

(3) The collection of single remuneration is made subject to conditions provided for in Art. 133.

(4) The beneficiary collective management organizations establish, by protocol filed with the Romanian Copyright Office, the proportion of remuneration repartition between the two categories of beneficiaries. If the beneficiaries fail to file the protocol with the Romanian Copyright Office within 30 days as of the date of the coming into force of the methodologies, the remuneration shall be equally distributed between the two categories of beneficiaries.

Art. 1066.— Distribution right is subject to exhaustion upon first sale or first transfer of ownership of the original or of the copies of a sound or audiovisual recording, on domestic market, by the rightholder or with his consent.

Art. 107.—(1) The authors of works susceptible for being reproduced through sound or audiovisual recordings, on any kind of physical medium, as well as the ones of the works susceptible for being reproduced on paper, directly or indirectly, under the conditions provided for under Art. 34 paragraph (1) shall be entitled, together with the publishers, producers and with the performers, as the case may be, to compensatory remuneration for the private copy, in accordance with Article 34 paragraph (2). The beneficiaries cannot waive the right to compensatory remuneration for the private copy.

(2) Compensatory remuneration for private copy shall be paid by the manufacturers and importers of physical media or devices provided for in Art. 34 paragraph (2), regardless of whether the procedure is an analogical or digital one.

(3) Importers and manufacturers of physical media and devices, provided for in Art. 34 paragraph (2), are bound to register themselves with the Romanian Copyright Office, with the National Registry of Private Copy and may only carry out the said activities of import and production, subject to prior obtaining of the Registration Certificate from the Romanian Copyright Office. The certificate is issued by the Romanian Copyright Office based on evidences regarding the object of activity legally stated and of the Sole Registration Certificate with the Trade Registry, within five days from their submittal.

(4) The list of physical media and devices for which compensatory remuneration for private copy is owed, as well as the quantum of such remuneration is negotiated every 2 years, within a committee consisting of:

a) one representative of each main collective management organizations, which activate for a category of rights each, on the one hand;

b) one representative for each of the main associative structures mandated by manufacturers and importers of physical media and devices, appointed from them, and one representative each of the first 3 manufacturers and importers of physical media and devices, established on the basis of the turnover and market-share in the respective field, provided that they are stated with Romanian Copyright Office on the own responsibility, on the other hand.

(5) In view of initiating the negotiation in accordance with the procedures provided under Article 131 paragraph (2)-(4), the collective management organizations and associations of manufacturers and importers of physical media and devices shall file with the Romanian Copyright Office an application containing the list of the physical media and devices, application that will be published in the Official Gazette of Romania, Part I. according to the Romanian Copyright Office general manager’s decision, as well as the quanta of the remunerations that are to be negotiated. The list will be prepared separately for the devices and physical media from the sound and audiovisual fields and for the devices and physical media from the graphical field and they shall be negotiated in two committees.

(6) The remunerations are in percentages and calculated at the value in custom for importers, respectively to the invoiced value without VAT, with the occasion of putting into circulation of products by the producers, and it shall be paid in the following month of import or date of invoicing.

(7) The remunerations negotiated by the parties are in percentages and owed for the devices and physical media provided under Art. 34 paragraph (2), as well for A4 paper sheets for photocopier and digital supports.

(8) The compensatory remuneration for private copy is a procentual quota from the value provided for in paragraph (6), as follows:

a) A4 paper sheets for photocopier: 0.1%;

b) other physical media: 3%;

c) devices: 0.5%.

(9) The negotiations for the establishment of the the list of physical media and devices for which such remuneration is owed, are convened by the Romanian Copyright Office within 15 days from the publishing date of the negation request in the Official Gazette of Romania, Part I and are carried out according to the proceedings provided for in Art. 1312.

Art. 1071.—(1) Compensatory remuneration for private copy is collected by a management organization sole collector for the works reproduced after sound and audiovisual recording and by another sole collector management organization for the works reproduced from paper, in accordance with the conditions provided for under Art. 133 paragraph (6)-(8). The two collective management organizations, having duties of sole collector, are designated through the majority vote of the beneficiary collective management organizations, at the first summoning, or majority vote of those present, at the second summoning. The collective management organizations designated by voting will file with the Romanian Copyright Office the minutes of the proceedings in accordance with which they have been designated. Within 5 workdays as from the filing, the Romanian Copyright Office shall appoint the sole collector by the general manager’s decision which shall be published in the Official Gazette of Romania, Part I.

Art. 1072.—(1) Compensatory remuneration for private copy collected by the sole collector management organizations is distributed to the beneficiaries as follows:

a) in the case of physical media and devices for sound recorded copies, by analogical proceeding, 40 per cent from the remuneration shall be payable, in negotiable shares, to the authors and publishers of the recorded works, 30 per cent shall be payable to performers and the remaining 30 per cent shall be payable to the producers of sound recordings;

b) in the case of physical media and devices for audiovisual recorded copies, by analogical proceeding, the remuneration shall be divided in equal shares between the following categories: authors, performers and producers;

c) Repealed;

d) in the case of copies recorded by analogical proceeding, on any type of physical medium, the remuneration shall be divided in equal shares between the beneficiaries corresponding to each of the three categories provided for in letters a), b) and c) and, within each category, according to those established at the aforementioned letters.

11) In the case of paper recorded copies, by analogical proceeding, the remuneration shall be devided in equal shares between authors and publishers. The due sums for publishers are distributed only through publishers associations, based on a protocol established between them which include the criteria for distribution as well the shares owed to each association. At distribution protocol negotions shall take part only publishers associations fulfilling the conditions established Romanian Copyright Office general manager’s decision.

(2) Repealed.

Art. 108.— Compensatory remuneration for private copy shall not be paid where unrecorded video, audio or digital physical media manufactured within the country or imported are traded wholesale to the producers of audiovisual and sound recordings or to television and radio broadcasting organizations for their own broadcasts.

Art. 109.— Repealed.

Art. 110.— The provisions of Article 107 shall not apply to the import of physical media and devices that serve for the making of copies, made with no commercial purposes, in the inside the legally allowed personal luggage.

Art. 1111.—(1) In the case in which an author or performer has transferred or assigned his rental or lending right, regarding a phonogram or a videogram, to a producer of phonograms or audiovisual recordings, he shall retain the right to an equitable remuneration.

(2) The right to obtain an equitable remuneration for rental cannot be waived by the authors or performers, as beneficiaries.

(3) The authors and performers shall receive their due remunerations either directly from the producers, according to the contracts concluded with them, or from the users, only through the collective management organizations, according to the contracts between the beneficiaries of the remuneration and producers.

Art. 112.— Provisions regarding the limits of exercising the rights provided for in Art. 33-38 shall be applied accordingly also for the owners of rights related to copyright.

Art. 1121.— In the case in which the owner of rights benefit, by effect of the law, by a compulsory remuneration, they cannot object to the utilizations that generate it.

CHAPTER V

Television and Radio Broadcasting Organizations

SECTION I

The Rights of Television and Radio Broadcasting Organizations

Art. 113.—Radio and television broadcasting organizations shall have the exclusive economic right to authorize or to prohibit the following, subject to the authorized person’s obligation to mention the name of the organizations:

(a) the fixing of their own broadcasts and services of radio or television programs;

(b) reproduction, in whole or in part, direct or indirect, temporary or permanent, by any means and under any form, of their own broadcasts and services of radio or television programs fixed on any kind of physical medium, regardless whether transmitted by wire or wireless, including by cable or satellite;

(c) the distribution of their own broadcasts and services of radio or television programs fixed on any kind of physical medium;

(d) the import for trading on domestic market of their own broadcasts and services of radio or television programs fixed on any kind of physical medium;

(e) the retransmission or reemission of their own broadcasts and services of radio or television programs by wireless means, by wire, by cable, by satellite or by any other similar proceeding, as well as by any other mode of communication to the public, including retransmission through Internet;

(f) the communication to the public of their own broadcasts and services of radio or television programs in places accessible to the public, against payment of an admission charge;

(g) the rental of their own broadcasts and services of radio or television programs, fixed on any kind of physical medium;

(h) the lending of their own broadcasts and services of radio or television programs, fixed on any kind of physical medium;

(i) the making available to the public of their own broadcasts and services of radio or television programs, fixed on any kind of physical medium, regardless whether emitted by wire or wireless, including by cable or satellite, so that members of the public may access them from a place and at a time individually chosen by them.

Art. 1131.—(1) For the purposes of the present law, reemission, means the simultaneous emission, by a broadcasting organization, of a program of another broadcasting organization.

(2) The definitions from Art. 14, 141, 142, 143, 144, 15 paragraph (1), 151 and 152 and Art. 98 paragraph (2) apply by analogy to the rights provided for in Art. 113 too.

Art. 1132.—(1) Radio and television broadcasting organization have the exclusive right to prevent others from importing copies of their own programs of radio or television broadcasting, made without their authorization and fixed on any kind of physical medium.

(2) The provisions of Art. 113 letter d) do not apply when the import is made by a natural person, without commercial purpose, in the legally allowed personal luggage.

Art. 114.— The duration of the rights provided in the present chapter shall be 50 years, starting from the first of January of the year following that in which the first broadcast of the television or radio broadcasting organization’s service of programs took place.

Art. 115.— The distribution right of a radio or television program, fixed on any kind of physical medium, is exhausted with the first sale or the first rightful transfer of property over the original or copies thereof, on domestic market, by the owner of the rights or with his consent.

Art. 116.— The provisions of Articles 33, 34 and 37 shall apply, by analogy, to radio and television broadcasting organizations.

SECTION II

Communication to the Public by Satellite

Art. 117.—(1) Television and radio broadcasting organizations whose activity consists in the communication to the public of programs by satellite shall be bound to conduct their activity in a manner that respects the copyright and the neighboring rights protected by this Law.

(2) For the purposes of this Law, communication to the public by satellite means the production under the direction and responsibility of a television or radio broadcasting organization located on the territory of Romania, of program-carrying signals intended to be received by the public in an uninterrupted chain of communication leading up to the satellite and back down to Earth.

(3) For the purposes of this law, satellite shall mean any satellite operating on the reserved frequency bands, according to the legislation on telecommunications, for the broadcasting of the signal for the purpose of reception by the public or for the private individual communication. In the latter case it is however necessary that the individual reception be made under conditions similar to the ones from the former case

Art. 118.—(1) Where the program-carrying signals are sent in encoded form, their incorporation in the chain of communication shall be considered communication to the public if the device for decoding the broadcast is made available to the public by the organization concerned or with its consent.

(2) Responsibility for communication to the public, where the carrying signals are transmitted by an organization located outside Romania or in a country which is not member of the European Union and which does not provide the protection level provided for by the present law, shall be ensured as follows:

(a) if the signals are transmitted to the satellite through an uplink station, responsibility shall lie with the person who, located on the territory of Romania or of a country member of the European Union, uses the station;

(b) if no use is made of an uplink station, but the communication to the public has been authorized by an organization with main headquarters in Romania or on the territory of a member state of the European Union, the responsibility shall lie with the organization that authorized it.

Art. 119.—(1) Owners of copyright or neighboring rights may transfer their rights in communication to the public by satellite to a television or radio broadcasting organization only by means of a contract concluded individually or through a collective administration organisation.

(2) The standard contract concluded between a collective administration organization and a television or radio broadcasting organization for the communication to the public by satellite transmission of a type of work belonging to a given field shall also be binding on owners of rights who are not represented by the collective administration organization, if the communication to the public by satellite takes place at the same time as the terrestrial dissemination carried out by the same distributor. The unrepresented owner of rights may at any time put an end to the extended effects of the standard contract by means of an individual or collective contract.

(3) The provisions of paragraph (2) shall not apply to audiovisual works.

SECTION III

Retransmission by Cable

Art. 120.— Repealed

Art. 121.—(1) Owners of copyright or neighboring rights may exercise their rights to authorize or prohibit cable retransmission only through the agency of a collective management organization.

(2) The quantum of the remuneration on copyright and neighboring rights, for cable retransmission, shall be established by methodologies negotiated between the collective management organizations of copyright and neighboring rights and the associative structures of the cable distributors, according to the procedures provided for under Art. 131, 1311 and 1312, excluding from calculation the programs for which cable retransmission is legally binding.

(3) Should the parties fail to establish the methodologies by negotiation, before the initiation of the arbitration proceeding provided for by Art. 1312 paragraph (3) they may agree to resort to an optional mediation procedure. Such mediation is carried out by one or more mediators selected by the parties so that their independence and impartiality cannot be questioned. Mediators have the duty of helping the negotiations and may notify a proposal to the parties.

(4) Within 3 months as from the submittal of the proposal by the mediators, the parties shall notify the mediators and the Romanian Copyright Office the rejection or acceptance of the proposal by signing the protocol on methodologies. Notification of the proposal, as well as its acceptance or rejection shall be made according to the rules applicable to the notification of legal acts. Acceptance by all the parties is presumed if neither party has notified the rejection of the proposal within this term

(5) If certain owners of rights have not entrusted the management of their rights to a collective management organization, the entity managing rights in the same category shall be regarded de jure as managing their rights also. If multiple collective management organizations, are in the field concerned, the owner of rights may choose among them. Such owners of rights may claim those rights within a period of three years following the date of the notification

Art. 1211.—(1) The provisions of Art. 121 paragraph (1) do not apply to the rights exercised by broadcasting organizations in respect of their own broadcasts and services of programs, irrespective of whether the rights concerned are their own or have been assigned to them by other copyright owners or holders of neighboring rights. In this case the exercising of right of retransmission by cable, by a radio or television broadcasting organization is made by contracts concluded with the distributors by cable, except the cases in which the retransmission by cable is mandatory by law.

(2) Repealed.

Art. 122.— Repealed.

CHAPTER VI

Sui generis rights of the makers of databases

Art. 1221.—(1) The provisions of the present chapter concern the legal protection of databases, in any form thereof.

(2) For the purposes of the present law, database means a collection of works, data or of other independent elements, protected or not by copyright or neighboring right, arranged systematically or methodically and individually accessible by electronic means or in any other way.

(3) The protection provided for in the present chapter does not apply to computer programs used for the making or operation of databases accessible by electronic means

(4) For the purposes of the present law, the maker of a database is the natural or legal person that has made a qualitatively and quantitatively substantial investment for the obtaining, verification or presentation of the contents of a database.

Art. 1222.—(1) The maker of a database has the exclusive economic right to authorize and prohibit the extraction and/or re-utilization of the entire or of a substantial part of the database, evaluated qualitatively or quantitatively.

(2) For the purposes of the present law:

(a) extraction shall mean the permanent or temporary transfer of all or a substantial part, evaluated qualitatively or quantitatively, of the contents of a database to another medium by any means or in any form;

(b) re-utilization shall mean any form of making available to the public all or a substantial part of the contents of a quantitative or qualitative apprised database by the distribution of copies, by renting, or other forms, including by making available to the public of the contents of the database so that anyone may access it in a place and time individually chosen by them. The first sale, on domestic market, of a copy of a database by the rightholder of sui generis right or with his consent shall exhaust the right to control resale of that copy.

(3) Public sale of a database is not an act of extraction or re-utilization.

(4) The right provided for in paragraph (1) shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right provided for in paragraph (1) shall be without prejudice to rights existing in respect of their contents.

(5) The repeated and systematic extraction or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal use of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.

Art. 1223.—(1) The maker of a database which is made available to the public through whatever manner may not prevent a lawful user of the database from extracting or re-utilizing insubstantial parts of its contents, for any purposes of the use whatsoever. Where the lawful user is authorized to extract or re-utilize only part of the database, the provisions of the present paragraph shall apply to that part.

(2) A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal use of this database or unreasonably prejudice the legitimate interests of the maker of the database.

(3) A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or neighboring right in respect of the works or performances contained in this database.

(4) A lawful user of a database which is made available to the public through whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents:

(a) in the case of extraction for private purposes of the contents of a non-electronic database;

(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;

(c) in the case of extraction or re-utilization for the purposes of public order and national safety or an administrative or jurisdictional procedure.

(5) Legitimate user of a database or of a part of a database can carry out, without the consent of its author, any act of reproduction, distribution, communication to the public or transformation, necessary for the normal utilization and for the access to the database or to a part from it.

Art. 1224.—(1) The rights of the maker of database shall run from the date of completion of the making of the database. The term of protection is fifteen years from the first of January of the year following the date of completion of the database.

(2) In the case of a database which is made available to the public in whatever manner before expiry of the period provided for in paragraph (1), the term of protection shall be computed from the first of January of the year following the date when the database was first made available to the public.

(3) Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection.

TITLE III

Management And Protection of Copyright and Neighboring Rights

CHAPTER I

Management of the Economic Aspects of

SECTION I

General Provisions

Art. 123.— (1) Owners of copyright and neighboring rights may exercise their rights recognized by the present law individually or through collective management organizations, according to the present law.

(2) Collective management of copyright can be provided only for works that have already been disclosed to the public and collective management of neighboring rights can only be provided for performances that have already been fixed or broadcast, as well as for phonograms and videograms previously disclosed to the public.

(3) Owners of copyright and neighboring rights cannot assign the economic rights acknowledged through the present law to collective management organizations.

Art. 1231.—(1) Collective management is compulsory for the exercising of the following rights:

b) right to equitable remuneration for public lending provided for in Art. 144 paragraph (2);

c) resale right;

d) right to broadcast musical works;

e) right to communication to the public of musical works, except the public projection of cinematographic works;

f) right to equitable remuneration recognized to performers and producers of phonograms for communication to the public and broadcasting of phonograms of commerce or of the reproductions thereof;

g) right to retransmission by cable.

(2) For the categories of rights provided for in paragraph (1) the collective management organizations also represent the owners of rights who have not mandated them.

Art. 1232.— (1) The following rights may be managed collectively:

a) right to reproduction of musical works on phonograms or videograms;

b) right to communication to the public of the works, except the musical works and artistic performances in the audiovisual field;

c) lending right, except the case provided for in Art. 1231 paragraph (1) letter b);

d) right to broadcasting of the works and artistic performances in the audiovisual field;

e) right to equitable remuneration resulting from the assignment of the rental right provided for in Art. 1111 paragraph (1);

f) right to equitable remuneration acknowledged to the performers and producers of phonograms for the communication to the public and broadcasting of the phonograms published for commercial purpose or of the reproductions thereof.

(2) For the categories of rights provided for in paragraph (1) collective management organizations represent only the owners of rights who have mandated them and draw up methodologies within the limit of the managed repertoire, if the conditions provided for under Art. 130 paragraph (1) letter a) are fulfilled, or negotiate the license agreements directly with the users. Collective management organizations shall make available to the users, upon their request, the consulting at the headquarters of the organizations of the managed repertoire of works, from the ones used by the applicant, in the form provided for in Art. 126 paragraph (2), as well as the list of Romanian and foreign owners of copyright and neighboring rights represented by them. This collective management activity is under the supervision and control of the Romanian Copyright Office, as guarantor of the law enforcement.

(3) Collective management organizations authorize, upon request, the use of works of intellectual creation, only based on the documents certifying the existence of the mandate from the owners of copyright or neighboring rights, except the cases of mandatory collective management.

Art. 1233.— The rights recognized in the present chapter, except those provided in Art.1231 and Art.1232, may be managed through collective management organizations, only to the extent of the special mandate granted by the owners of rights.

Art. 1234.— The existence of collective management organizations shall not prevent the owners of copyright and neighboring rights from having recourse to specialized agents, who may be either natural or legal persons, to represent them in individual negotiations concerning the rights recognized by this law.

SECTION II

Collective Copyright and Neighboring Rights Administration Organizations

Art. 124. For the purposes of this Law, collective copyright and neighboring rights administration organizations, called collective administration organizations elsewhere in the Law, are legal entities constituted by free association and having as the main object of their activity the collection and distribution of the royalties whose administration has been entrusted to them by the owners thereof.

Art. 125.—(1) The collective management organizations provided for in this chapter shall be established according to law, subject to endorsement from Romanian Copyright Office and shall operate according to regulations on non-profit associations and to provisions of the present law.

(2) These organizations are created directly by the owners of copyright or neighboring rights, natural or legal persons, and act within the limits of the mandate entrusted to them and on the basis of statutes adopted according to the procedure provided for by the law.

(3) Collective administration organizations may be created separately for the administration of different categories of rights corresponding to different fields of creation, and also for the administration of rights belonging to different categories of owners.

Art. 1251.— Collective management organizations are obliged to communicate to the public, through mass media the following data:

a) categories of owners of rights that they represent;

b) economic rights that they manage;

c) categories of users and other categories of natural and legal persons that have payment obligations of compensatory remuneration for private copy towards owners of rights;

d) normative acts on the grounds of which they operate and collect the remunerations due to owners of rights;

e) modalities of collection and persons responsible for this activity, on local and central level;

f) working hours.

Art. 126.—(1) The endorsement provided for in Article 125 paragraph (1) shall be given to collective management organizations with headquarters in Romania, which:

(a) are going to be constituted or operate under legal provisions applicable on the entry into force of the present law;

(b) file with the Romanian Copyright Office a repertoire of works, performances, phonograms and videograms of their own members, managed by them, as well as the contracts concluded for the management of similar rights with foreign organizations;

(d) have the economic means of collective management and have the human and material means necessary for the management of the repertoire throughout the entire territory of the country;

(e) allow, as expressly provided in their own statute, the access to any owner of copyright or neighboring rights in the field for which they are set up and that want to entrust them a mandate.

(2) The repertoire mentioned in paragraph (1) letter b) shall be lodged under data base system and filled in written and electronic formats, established by general director’s decision and contains, at least, the author’s name, the name of the owner of the rights, the title of the work, the identification elements of the performers, of the phonograms or videograms.

(3) The endorsement of setting up and operation for a collective management organization is granted by decision of the Romanian Copyright Office and shall be published in the Official Gazette of Romania, Part I, at the expense of the collective management organization.

Art. 127.—(1) The statute of the collective management organization shall include provisions on the following:

(a) its name, its field and object of activity, and the rights that it manages on the basis of the repertoire constituted for this purpose;

(b) the terms on which the management of rights shall be carried out for the owners thereof, on the basis of the equal-treatment principle;

(d) the modality of appointment and the duties of the general manager responsible for the operation of the collective management organization, as well as the duties of the representation and management bodies;

(e) its initial patrimony and planned economic resources;

(f) the rules governing the distribution of the rights collected, proportional to real use of the repertoire of the owner of rights, the distribution of the rights collected for which it can not be established the real use, as well as the rules on the regime of the non-distributed non-claimed amounts;

(g) the rules on modality of establishing the methodologies that are to be negotiated with the users and the rules on representation in negotiations;

(h) the means available to members of verifying its economic and financial management;

(i) the means of determining the commission payable to the collective management organization to cover the necessary operating expenses;

(j) any other provisions that are mandatory according to the legislation in force.

(2) The general manager or any other person having the capacity of paid employee of the organization cannot be a member of the board of directors of the collective management organization. The members of the collective management organization that receive indemnity for participating in activities within the elected management bodies have not the capacity of paid members.

(3) Any proposal for the amendment of the statute is subject to endorsement from the Romanian Copyright Office, at least two months before the general meeting of the collective management organization in which the amendment is going to be endorsed. The Romanian Copyright Office shall issue this endorsement within 10 days as of the request, and the endorsement shall be filed with the judicial court with a view to registering the amendment. If the endorsement is a negative one, it has to be motivated.

(4) Any amendment of the statute made and registered with the judicial court without the endorsement from the Romanian Copyright Office is null de jure.

Art.128.— Repealed.

Art. 129.—(1) The mandate of collective management of the economic copyrights or neighboring rights shall be given directly by written contract, by the owners of rights.

(2) Each owner of rights that has entrusted a mandate to the collective management organization is entitled to own vote within the general meeting. Performers who have participated to a collective performance of a work are entitled to one vote within the general meeting, by the representative appointed according to the procedure provided for in Art. 99 paragraph (2).

(3) The mandate of collective management of economic copyrights or neighboring rights may also be entrusted indirectly by the owners, by written contracts, concluded between the collective management organizations from Romania and foreign organizations that manage similar rights, based on the repertoires of their members. The indirect mandate does not entitle the owners of the rights to a right to vote.

(4) Any owner of copyrights or neighboring rights may entrust by mandate the management of his rights on his own repertoire to a collective management organization. The concerned organization is obliged to accept the management of these rights based on the collective management, within the limit of its object of activity.

(5) Collective management organizations may not have as object of activity the use of protected repertoire, for which they have received a collective management mandate.

Art. 1291.— In the case of the mandatory collective management, if an owner is not associated to any organization, the competence lies with the organization from the field having the greatest membership. The claiming, by the non-represented owners of rights, of the amounts due to them can be made within 3 years as from the date of notification. After this term, the non-distributed or non-claimed amounts are used according to the decision of the general assembly, except the administrative expenses.

SECTION III

Functions of Collective Administration Organizations

Art. 130.— (1) Collective management organizations shall have the following obligations:

(a) to grant to users non-exclusive authorizations, upon their request, made before the use of the protected repertoire, in exchange for a remuneration, by non-exclusive license, in writing;

(b) to compile methodologies for their field of activity that include the economic rights payable that have to be negotiated with users for the payment of these rights in the case of works having a manner of exploitation that precludes individual authorization by the owners of the rights;

(c) to conclude, in the name of the owner of rights that have mandated them or based on convetions established with similar foreign organisations, general contracts with the organizers of shows, television and radio broadcasting organizations and distributors or services of programs by cable with a view to the authorization of the use of their protected repertoire;

(d) to protect the interests of their members in relation to the management of their rights due as a result of the utilization of their own repertoire, outside the territory of Romania, by the conclusion of representation contracts with similar foreign organizations;

(e) to collect the sums owed by users and to distribute them among the owners of rights according to the provisions of their statutes;

(f) to ensure the access of their own members to the information on any aspect of activity of collecting the amounts owed by users and their repartition;

(g) to provide specialized assistance to owners of rights and to represent them within the legal procedures, within the limit of their object of activity;

(h) to request the users or their intermediars to communicate in 10 days any information and submit any necessary documents, in written and electronic form, so that to determine the quantum of the remunerations that they collect, with a view to distribution; the information and documents submitted shall be accompanied by an address mentioning the name of the lawful representative, signature and stamp;

(i) to ensure the transparency of the collective management activity in relation to public authorities having control duties and, through their mediation, to users;

(j) to engage in any other activity in accordance with the special mandate received from the owners of copyright or neighboring rights within the limits of their object of activity.

(2) The representation contracts concluded by the similar organizations from abroad, provided for in paragraph (1) letter d) shall be concluded in writing, mentioning the mode of carrying out of the exchange of information on the parties’ repertoire, of the rights managed, of the duration and of the payment modalities.

Art. 131.—(1) With a view to initiating the negotiation procedures, collective management organizations have to file an application with the Romanian Copyright Office, accompanied by the methodologies that are proposed for negotiation, according to the provisions of Art. 130 paragraph (1) letter a).

(2) The methodologies are negotiated within a commission established by the decision of the general director of the Romanian Copyright Office, issued within maximum five days from the reception of the application for the initiation of the negotiation procedures. The decision of the general director of the Romanian Copyright Office shall be published in the Official Gazette of Romania, Part I, at the expense of the collective management organizations. The negotiation commission is constituted from:

a) one representative for each of the main collective management organizations operating for each category of rights;

b) one representative for each of the main associative structures of users or, failing these structures, one representative for each of the first three major users in the particular field, established based on the turnover, as well as of public organizations or radio and television broadcasting, as the case may be.

(3) With a view to appointing within the commission mentioned in paragraph (2), collective management organizations shall file with the Romanian Copyright Office, together with the methodologies the list of the associative structures of users or that of the major users that are to be convened for negotiations, as well as the identification elements thereof.

(4) The decision for the appointment of the negotiation commission shall be submitted to the parties by registered letter, together with the proposal of methodologies filed by the collective management organizations.

Art. 1311.—(1) The methodologies shall be negotiated by the collective management organizations with the representatives provided for in Article 131 paragraph (2) letter b), taking into account the following main criteria:

a) the category of owners of rights, members or non-members and the filed for which the negotiation is made;

b) the category of users represented at negotions by associative structures or the other users appointed to negotiate;

c) the repertoire, confirmed by the Romanian Copyright Office, managed by the collective management organization, for its own members, as well as for members of other similar foreign organizations, on the basis of the representation contracts;

d) the proportion of utilization of the repertoire managed by a collective management organization;

e) the proportion of utilizations for which the user has complied with the payment obligations by direct contracts with owners of rights;

f) the incomes obtained by users from the activity that uses the repertoire that is the object of negotiation;

g) if no incomes exist, there will be used the European practice in the field;

h) the European practice regarding the results of negotions between users and collective management organizations.

(2) The collective management organizations may request, from the same category of users lump or percentage remunerations reported to the incomes obtained by users from activites that uses the repertoire such as: roadcasting, cable retransmission or communication to the public, taking into account the European practice regarding the results of negotions between users and collective management organizations. For broadcasting activity, the percentage remunerations will be diferentially established, by reference to the incomes obtained by users from the activity that uses the collective managed repertoire, and, failing these incomes, to the expenses occasioned by the use.

(3) The lump or percentage tariffs provided for in paragraph (2) may be requested only if and to the extent in which the protected copyright or neighboring rights are in the terms of protection provided by law.

(4) In case that collective management is mandatory according to the provisions of art. 1231, the methodologies are negotiated taking into consideration the criteria provided for in paragraphs (1) letter c) and e), the repertoires being considered extended.

Art. 1312.—(1) The negotiation of methodologies takes place according to the schedule established between the parties during 45 calendar days at the most from the date of the establishment of the commission.

(2) The parties’ agreement regarding the negotiated methodologies is registered in a protocol that is filed with the Romanian Copyright Office. The protocol is published in the Official Gazette of Romania, Part I, at the expense of the collective management organizations, by decision of the general director of Romanian Copyright Office issued within five days as of the date of the filing. The methodologies thus published, are opposable to all the users from the field for which it has been negotiated.

(3) The initiation of the arbitration procedure developed by arbitrators can be requested from the Romanian Copyright Office, under the following situations:

a) entities forming a party which is going to participate in the negotiation, could not agree upon a common point of view to be presented to the other party;

b) the two parties under negotiation could not agree upon a unique form of the methodology within the term provided for under paragraph (1);

c) collective management organizations could not agree upon the conclusion of a protocol for the distribution of the remunerations and for the establishment of the fee due to the sole collector.

(4) The Romanian Copyright Office shall convene, within 5 days as from the requesting of the arbitration, the parties for drawing lots for the appointment of 5 standing arbitrators that shall form the arbitration panel and of the 3 reserve arbitrators. The latter ones shall replace, in the order of the drawing of the lots, the unavailable standing arbitrators. The appointment of the arbitrators by drawing lots is made also in the case of the absence of the convened parties.

(5) The Romanian Copyright Office convenes, at its headquarters, the appointed arbitrators and the parties, for the establishing of the mediation panel. The mediation panel shall establish the fee, within the limit of the professional usages for the activities of arbitration, the first date and the place of mediation and informs the parties.

(6) The two parties in mediation, collective management organizations and, respectively, the users, contribute equally to the payment of the fee established by the arbitrators. The amounts are deposited with the pay office of the Romanian Copyright Office, before the first date of mediation. The failure to pay in due time brings about the declining of the parties that has not paid the fee fro the right to propose proofs and to formulate conclusions during the mediation.

(7) Arbitrators, within 30 days as from the first date of arbitration, must file with the Romanian Copyright Office the award comprising the final form of the methodologies subject to arbitration, for the communication to the parties. By way of exception, the arbitrators may request, motivated, to the Romanian Copyright Office the extension of this term with maximum 15 days. The arbitrators may cash their fees from the pay desk of the Romanian Copyright Office only after the filing of the arbitration award.

(8) The decision by arbitration on the final form of the methodologies is communicated to the parties by the Romanian Copyright Office and shall be published in the Official Gazette of Romania, Part I, at the expense of the Office, by decision of the general director, issued within five days from the date of the filing. The methodologies thus published are opposable to all the users from the field for which it has been negotiated and discounts to the payment of the remunerations owed, other that those provided for in the published methodologies, cannot be granted.

(9) Within 30 days as of the publishing in the Official Gazette of Romania, Part I, of the decision by arbitration, the parties may appeal against it with the law court of the Bucharest Court of Appeal that shall pronounce itself on the case, in civil panel. The decision by arbitration is executory de jure until the pronouncing of the solution on the maintaining or the amendment of the methodologies. The solution of the Court of Appeal is final and binding, is submitted to the Romanian Copyright Office and is published in the Official Gazette of Romania, Part I, on the expense of the Romanian Copyright Office, by decision of the general director, issued within 5 days as of the date of the submission.

(10) The methodologies negotiated or established, in accordance with the provisions of the paragraph (1)-(9) are not opposable to the users that on the date of the negotiation proceeding launching have been under the course of direct negotiation of a license contract or have already completed such negotiations with the collective management organizations.

Art. 1313.—(1) Collective management organizations or, as the case may be, the associative structure of users, major users or public radio or television broadcasting organizations may lodge a new application for the initiation of the procedures for the negotiation of the tariffs and methodologies only after three years as of the date of their publication in a final form in the Official Gazette of Romania, Part I. The former methodologies remain valid until the publication of the new methodologies.

(2) In the case of the negotiations provided for under Art. 107 paragraph (4), any of the parties may lodge a new application for the initiation of the procedures for the negotiation of the methodologies only after two years as of the date of their publication in a final form in the Official Gazette of Romania, Part I.

(3) The former methodologies remain valid until the publication of the new methodologies.

Art. 1314.— The remunerations established in lump sum can be annually modified, starting from the first month of the year following the one in which the methodologies were published, by the collective management organizations, base on the inflation index, established at national level. These modifications are filed with the Romanian Copyright Office, following for them to be published in the Official Gazette of Romania, Part I on the expense of the collective management organizations, by decision of the general director of the Romanian Copyright Office issued within five days as of the date of the filing. The modifications become effective starting from the month following the publication.

Art. 132.— Repealed.

Art. 133.—(1) Collection of the amounts owed by the users or by other payers is made by the collective management organization of which repertoire is used.

(2) Should multiple collective management organizations exist for a sole field of owners of rights and the managed rights are from the cathegory of those provided for in art. 1232, the beneficiary organizations establish, through a protocol filed with the Romanian Copyright Office, in view of publishing in the Official Gazette of Romania, Part I, on their expense, the following:

a) the criteria for the distribution of the remuneration among organizations;

b) the collective management organization that is going to be appointed, from them, by decision of the general director of the Romanian Copyright Office, as sole collector in the field of the owners of rights under discussion;

c) the modality of registering and justifying the expenses on real coverage of the collecting costs of the collecting management organization.

(3) In the case provided for in paragraph (2), should the beneficiary collective management organizations fail to file with the Romanian Copyright Office the mentioned protocol, within 30 days as of the entering into force of the methodologies, the Romanian Copyright Office shall appoint, among them, the collector in the field of owners of the rights under discussion, based on representativeness, by decision of the general director.

(4) For the situation provided for in paragraph (3) the sole collector appointed by the Romanian Copyright Office cannot distribute the collected amounts neither between beneficiary organizations, nor to its own members, unless following the filing with the Romanian Copyright Office of a protocol concluded between the beneficiary organizations establishing the criteria for the distribution of the collected amounts. The collection expenses, in this case, are distinctively registered and have to be justified by documents on real coverage of the collection costs of the management organization, which is the sole collector in the field of the owners of the rights under discussion.

(5) Upon expiry of the 30 days term provided for under paragraph (3) either collective management organization can apply to the Romanian Copyright Office for the initiation of the arbitration procedure carried out by arbitrators for the establishment of the criteria for the distribution of the remuneration between the categories of beneficiaries. Arbitration procedure as well as subsequent stages are those provided for in Art. 1312 paragraphs (3)-(9).

(6) The amounts collected by the collective management organization, as sole collector, according to the provisions of Art. 1071paragraph (1), of Art. 121 paragraph (2) and paragraphs (1) and (3) of this Article, shall be registered in different analytical accounts.

(7) The collective management organization that is sole collector has the obligation to issue the authorization by the non-exclusive license, in written form signed by all the beneficiary collective management organizations, and to ensure the transparency of the collection activities, as well as of the afferent costs in relations with the beneficiary collective management organizations. These have the obligation to support the collection activity.

(8) Provisions of Art. 134 paragraph (2) letter f) shall apply accordingly also to collective management organizations which are sole collectors.

(9) The collective management organizations can agree upon, by a protocol that shall be published in the Official Gazette of Romania, Part I, by decision of the general director of the Romanian Copyright Office, the appointment of a joint collector for one field of payers, on the remunerations due to the categories of owners of rights represented by them. The collective management organizations can also establish, with the endorsement of the Romanian Copyright Office, joint collecting organizations for multiple fields, which to operate according to the legal provisions regarding the federations of non-profit legal persons of private law as well as according to the express provisions on organization and operation of collective management organizations from the present law.

Art. 134.—(1) The exercise of the collective administration entrusted to the organization under the management contract may not in any way restrict the economic rights of the owners.

(2) Collective management shall be exercised according to the following rules:

a) decisions regarding the methods and rules for the collection of the remuneration and other amounts from the users and those regarding the distribution thereof among the owners of rights, and also decisions on other important issues of collective management, must be made by the members, within general assembly, according to the statute;

b) the fee owed by the owners of rights, which are members of a collective management organization, for the covering of the operation expenses thereof, provided for in Art. 127 paragraph (1) letter i), cumulated with the fee owed to the collective management organization which is the sole collector, according to the provisions of Art 133 paragraph (2) letter c) and paragraph (4) cannot exceed 15% from the annually collected amounts;

c) failing an express decision of the general meeting, the amounts collected by a collective management organization cannot be used for joint purposes, other than the covering of the real costs of the collection and distribution to the members of the due amounts; the general meeting may decide for a maximum of 15% from the collected amounts to be allowed to be used for joint purposes and only within the limit of the object of activity;

d) the amounts collected by a collective management organization are distributed individually to owners of rights, proportionally to the use of the repertoire of each of the owners, within maximum 6 months as of the date of the collection; the owners of rights may request the payment of the amounts nominally collected and whose distribution does not require a special documentation within 30 days as of the collection date;

e) the fee owed by the owners of rights is withheld from them, from the amounts due to each of them, after the calculation of the individual distribution;

f) the amounts resulting from the investment of the non-claimed and non-distributed remunerations existing in bank deposits or obtained from other operations made within the limit of the object of activity, as well as those obtained as prejudices or damages as a result of an infringement of copyright or neighboring rights, are due and shall be distributed to the owners of rights and cannot become incomes of the collective management organization;

g) the negotiated remunerations for neighboring rights may not exceed one third from the negotiated remunerations for copyright having the same category of users.

(3) Remunerations collected by the collective management organizations are not and cannot be assimilated to their incomes.

(4) In the exercising of the mandate, under the provisions of the present law, the copyright and neighboring rights or the use thereof cannot be assigned or transferred to collective management organizations.

Art. 1341.—(1) Collective management organizations have the obligation to publish, in electronic format, on their own web page, the following updated information:

a) the statute;

b) the list of the members of the central and local management bodies, composition of the internal commissions and the list of the local managers;

c) the annual statement regarding the balance of the non-distributed amounts, the amounts collected by categories of users or payers, the withheld amounts, the cost of management and the amounts distributed by categories of owners;

(2) Any member is entitled to request, personally or by authorized representative, detailed information and documents on the amounts distributed to him in the last 12 months, their source, mode of computation of the rights and applied withholdings as well as the verification of the concordance of these data with the provisions of the distribution regulation.

(3) In a period of time of 30 days before the general meeting, any member is entitled to consult, at the collective management organization headquarters:

a) the annual report;

b) the accounting balance-sheet;

c) the report of the management bodies and of the auditing commission;

d) the text and the preamble of the decisions that are to be subject to approvals of the general meeting;

e) the employees’ individual salaries;

f) the situation of the amounts from the banking accounts, of the investments and of the interests obtained at the ending of the last financial year;

g) the situation regarding the categories of users, the number of payers from each category and the global amount collected from each category;

h) the situation of the litigations with the users.

(4) The access to the information provided for in paragraph (3) is made, under the regime of confidentiality, based on written application and with the limitation of access to the personal data of the employees of the collective management organization.

(5) Members considering that their right to access to the requested information has been infringed may inform, within three days, the special permanent commission regarding the access to information, appointed by the general meeting, composed from five members that are not employees and are not part of the management bodies. The commission is obliged to answer, within seven days, both to the one lodging the complaint, and to the general manager. The commission shall draw up an annually report on its activity that shall be submitted to the general meeting and to the Romanian Copyright Office.

Art. 135.—(1) The collective management organizations have the obligation of filing with the Romanian Copyright Office, in the first quarter of each year, after the general meeting:

(2) The documents provided for in paragraph (1) letter a) and d) shall be filed with the Romanian Copyright Office, in the format established by the decision of the general director of the Office.

Art.136.— Repealed.

CHAPTER II

Romanian Copyright Office

Art. 137.—(1) Romanian Copyright Office operates as specialized body under the subordination of the Government, being the sole regulatory authority, registration by national registries, supervision, authorization, arbitration and technical-scientific establishment in the field of the copyright and neighboring rights.

(2) Financing of the current and capital expenses of the Romanian Copyright Office is made fully and distinctly from the state budget, through the agency of the budget of the Ministry of Culture and Religious Affairs, the coordinating minister being the main credits ordering institution.

(3) The organization, operation, personnel structure and endowments necessary for the fulfillment of the duties of the Romanian Copyright Office are established by Government Decision.

(4) Romanian Copyright Office is coordinated by the minister of culture and religious affairs and is managed by a general director, assisted by a deputy general director, appointed by decision of the prime-minister, upon the proposal of the coordinating minister.

(5) The personnel of the Romanian Copyright Office benefits of incentives from the amounts collected for the state budget, from the operations performed against payment by the Romanian Copyright Office, at a percentage up to 15%.

(6) The constituting level for each and every of the operations provided for under Art. 138 paragraph (1) letters d), e) k) and l) and the conditions for the distribution and utilization of the incentives fund are established by norms approved by Government Decision.

Art. 138.— (1) The main duties of the Romanian Copyright Office are as follows:

a) to regulate the activity in this field, by decisions of the general director, according to law;

b) to draw up drafts of enactments in its field of activity;

c) to keep record of all the repertoires submitted by the collective management organizations;

d) to organize and manage, against payment, the registration with the National Registries and with the other specific national records provided by law;

e) to issue against payment holographic sticks usable according to the provisions of the law in the field of the copyright and neighboring rights, at the value of the purchase price to which 30% administration fee is added;

f) endorses the establishment and supervises the operation of the collective management organizations;

g) endorses, as specialized body of the central public administration, according to law, the registration with the Registry existing at the court clerk’s office of the court of law, of the associations and foundations established in the copyright and neighboring rights field, including as regards the associations fighting against pirated goods;

h) controls the operation of the collective management organizations and establishes the measures of abiding by the law or applies sanctions, as the case may be;

i) ensures the secretarial work of the arbitration procedures carried out according to law;

j) performs technical and scientific ascertains with reference to the original character of the products bearing copyright or neighboring rights, at the request of the criminal investigation bodies and on the expenses of defendants, if their guilty was proved;

k) performs, upon request and against payment, investigations, on the expense of the interested parties;

l) develops informing activities on legislation in this field, on its own expense, as well as training activities, on the expense of the interested parties;

m) develops representation activities in relations with the similar specialized organizations and international organizations in this field, to which the Romanian state is a party;

n) fulfills any other duties provided by law.

(2) The tariffs of the operations that may be performed by the Romanian Copyright Office, against payment, are established by Government decision. The equivalent value of the operations provided for in paragraph 1 letter j will be enclosed in the law expenses.

(3) In order to fulfill its duties established by law, Romanian Copyright Office has operatively and free of charge access to the information necessary from the National Center of Cinematography, National Office of the Trade Registry, National Customs Authority, National Agency for Fiscal Administration and from the General Inspectorate of the Border Police, National Inspectorate for the Evidence of the Population and the General Direction of Passports within the Ministry of Administration and Interior, as well as from the financial-banking institutions, according to law.”

Art. 1381.— On occasion of the controls made by the Romanian Copyright Office according to the provisions of Art. 138, the controlled person is obliged to present any documents and information requested by the control bodies and to hand over copies thereof, if requested.

Art. 1382.— (1) The control activity of the Romanian Copyright Office, provided for in Art. 138 paragraph (1) letter h) is carried out only subject to prior notification of the controlled collective management organization, specifying as well the objectives of the control. The Romanian Copyright Office may carry out general controls once a year, notified with 10 days before the carrying out of the control, as well as punctual controls on issues that are the object of complaints, any time necessary, subject to three days prior notification.

(2) On occasion of the controls made by the Romanian Copyright Office the general manager is obliged to present any documents and information requested by the control bodies and to hand over copies thereof, if requested. Control bodies may take explanatory notes in relation to situations established, both to the general manager and to other persons employed.

(3) The conclusions of the control bodies of the Romanian Copyright Office, together with the observations of the general manager, are registered in a report.

(4) Based on the conclusions of the control, in case of finding out some irregularities, the Romanian Copyright Office can decide the submittal of the minutes to the general meeting of the relevant collective management organization which is going to debate it during the first ordinary meeting.

Art. 1383.— If the collective management organization no longer complies with the conditions provided for in Art. 124 and Art. 126 or infringes the duties provided for in Art. 130, 133, 134, 1341, 135 or Art. 1382 paragraph (2), Romanian Copyright Office may grant to the collective management organization, by decision of the general director a term for the abidance by the law. The decision may be challenged with the administrative contentious courts of law. Should it fail to observe the final decision, the Romanian Copyright Office withdraws temporarily the endorsement provided for in Art. 125. The temporary withdrawal of the endorsement results in the suspension of the collective management organization activity until the general meeting replaces the general manager.

Art. 1384.—(1) Attached to the Romanian Copyright Office, operates a body of arbitrators consisting of 20 members, appointed at each 3 years by the order of the coordinating minister of the Romanian Copyright Office. The appointment of the 20 members is based on draw by the Romanian Copyright Office general manager, in the presence of the candidates proposed by the collective management organizations, by the associative structures of users and by the public radio and television broadcasting organizations. The proposed candidates must have legal training and with a minimum of 10 years of activity in the field of civil law.

Proposals shall be filed with the Romanian Copyright Office together with a presentation of the proposed candidate and with his written acceptance, including information on the modalities of convening.

(2) Arbitrators shall not have the capacity of employees of the Romanian Copyright Office and they are entitled to a fee for their participation in the arbitration of the collection methodologies of the rights managed by the collective management organizations, subject to conditions provided for by the present law.

CHAPTER III

Measures of protection, proceedings and sanctions

SECTION I

Technological measures of protection and rights-management information

Art. 1385.—(1) The author of a work, performer, producer of phonograms or of audiovisual recordings, radio or television broadcasting organization or the maker of database may institute technological measures of protection of the rights recognized by the present law.

(2) For the purposes of this law, technical measures means the use of any technology, of a device or component that, in the normal course of its normal operation, is destined to prevent or restrict the acts, which are not authorized by the owner of the rights acknowledged by the present law.

(3) Technological measures shall be deemed effective where the use of a protected work or other subject-matter of protection is controlled by the owner of rights through application of an access control or protection process, such as encryption, coding, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.

(4) Owners of rights that have instituted technical measures of protection must make available to the beneficiaries of the exceptions provided for in Article 33 paragraph (1) letters a), c) and e), Art. 33 paragraph (2) letters d) and e) and Art. 38 necessary means for the legal access to the work or any other object of protection. They have also the right to limit the number of copies made under the aforementioned conditions.

(5) Provisions of paragraph (4) are not applied to the protected works made available to the public, according to the contractual clauses agreed between the parties, so that the members of the public to be permitted to have access to them in any place and at any time chosen, individually.

Art. 1386.—(1) The owners of the rights recognized by the present law may provide, in electronic format, associated to a work or any subject-matter of protection, or in the context of their communication to the public, rights-management information.

(2) For the purposes of the present law, rights-management information, means any information provided by the owners of rights which identifies the work or other subject-matter of protection by the present law, of the author or of other owner of rights, as well as the conditions and terms of use of the work or of any other subject-matter of protection, as well as any number or code representing such information.

SECTION II

Procedures and sanctions

Art. 1387.—(1) Violation of rights acknowledged and guaranteed by the present law shall bring about the civil, contravention or criminal liability, as the case may be, according to law. The procedural provisions shall be those specified in this law, completed with those of the common law.

(2) Within an action referring to the infringement of the rights protected by the present law and as a response to a justified application of the applicant, the Court is entitled to demand the supplying of information about the origin and distribution networks of the goods or services prejudicing a right provided for by the present law either from the offender and/or from any other person that:

a) was holding for commercial purposes pirated goods;

b) was using for commercial purposes, services through which the rights protected by the present law were infringed;

c) was submitting, for commercial purposes, goods or services used in activities through which the rights protected by the present law were infringed;

d) was indicated, by any of the persons provided for under letters a), b) or c), as being involved in the production, execution, manufacturing, distribution or rental of the pirate goods or of the pirate access control devices or in the supplying of the products or services through which the rights protected by the present law were infringed.

(3) Information provided in paragraph (2) include, as the case may be:

a) name and address of the producers, manufacturers, distributors, suppliers and of the other previous holders of the goods, devices or of the services, transporters included, as well as the consignee wholesalers and of the retail sellers;

b) information regarding the quantities produced, manufactured, delivered or transported, received or ordered, as well as the price obtained for the respective goods, devices and services.

(4) Provisions of paragraphs (2) and (3) shall apply with no adverse effects to other legal provisions, which:

a) grant to the owner the right to receive more extensive information;

b) provide for the use, in the civil or criminal cases, of the information communicated according to this Article;

c) provide for the liability for the abuse of right to information;

d) give the possibility to reject the supplying of information that could constrain the person mentioned under paragraph (1) to admit its own participation or the one of its close relatives in an activity through which the rights protected by the present law are infringed;

e) provide for the confidentiality protection for informing sources or for processing of the data with personal character.

Art.139.—(1) The owners of rights acknowledged and guaranteed by the present law may request to the courts or other competent bodies, as the case may be, the acknowledgment of their rights and of the establishment of the infringing thereof, and may claim damages for the redressing of the prejudice caused. The same requests can be lodged on behalf and for the owners of rights by the management organizations, by the associations fighting against piracy or by the persons authorized to use the rights protected by the present law, according to the mandate given for this purpose. When the owner has started an action, the persons authorized to use the rights protected by the present law can intervene in the lawsuit, claiming the remedy of the prejudice caused to them.

(2) In establishing the damages, the court takes into account:

a) either criteria such as the negative economic consequences, particularly the non-earned benefit, the benefits earned unlawfully by the offender and, as the case may be, other elements besides the economic factors, such as the moral damages caused to the owner of the right;

b) or granting of damages representing the triple of the amounts that would have been lawfully owed for the type of utilization that made the object of the illicit deed, in the case when the criteria mentioned under letter a) cannot be applied.

(3) Should suspicions exist in connection with the infringement of some rights acknowledged and protected by the present law, the entitled persons may apply to law court or other competent bodies for:

a) ordering immediately the measures to be taken for preventing the imminent occurrence of damage through the violation of a right, by forbidding, provisionally, the continuation of the presumed violations brought to this right or to condition their continuation by some guarantees aimed at ensuring the indemnification of the applicant; the provisional forbidding measures will be imposed, as the case may be, through the compulsory payment of civil fines according to the common law;

b) ordering immediately the taking of measures for ensuring the remedy of the damage; for this purpose the court can order the ensuring measures to be taken on the movable and immovable assets of the person presumed to have infringed the rights acknowledge by the present law, including the blocking of his/her bank accounts and other assets. For this purpose, the competent authorities can order the communication of the banking, financial or commercial documents or adequate access to the pertinent information;

c) ordering the taking or handing over to the competent authorities of the goods in connection with which suspicions exist on the violation of a right provided for by the present law to prevent their introduction in the commercial circuit.

(4) Measures provided for under paragraph (3) and (6) can also be ordered by interlocutory order. In this case, the law courts can request for the plaintiff to deposit a sufficient security to ensure the compensation of any prejudice that might be suffered by the defendant.

(5) The same measures can be requested, under the same conditions, against an intermediary whose services are used by a third party for the infringement of a right protected by the present law.

(6) Owners of rights or their representatives provided under paragraph (1) may request to the law court, even before introducing the action on the merits of the case, to take some measures for the ensuring of the evidences or finding out the state of fact, where a risk for the infringement of the rights provided by the present law exists and if a risk for the destruction of the elements of evidence exists.

(7) Measures provided for under paragraph (3), (5) and 6) can include the detailed description with or without the sampling of the specimen, or the real seizure of the goods under dispute and, as the case may be, of the materials and instruments used to produce and/or distribute such goods, as well as the documents thereof. Such measures shall be taken into account in the enforcement of the provisions of Art. 96-99 Criminal Procedure Code.

(8) For the ordering of the provisional measures and of the ensuring measures provided for under paragraph (3) and for taking the measures for the ensuring of the evidences or establishing a state of fact provided under paragraph (6), as well as for exercising of the remedies on the measures taken, the provisions of the common law are applicable. The pronouncing may be delayed with 24 hours at the most.

(9)Law courts are qualified to adopt the measures provided for in paragraphs (3) and (6) without summoing the opposite party, in the cases in which this shall be necessary, especially when any delay may cause an irreparable prejudice or when there is the provable risk for destruction of the elements of evidence. The opposite party shall be immediately informed, at the latest after the enforcement of the measures.

(10) The court may authorize the taking of objects and documents that constitute evidences of the infringing of copyright or neighboring rights, in original or in copy, even at the time when they are in the possession of the opposite party. In case of infringements committed at commercial scale, the competent authorities can also order the communication of the banking, financial or commercial documents or adequate access to the pertinent information.

(11) For the adoption of the measures provided for under paragraphs (3), (6) and (10), subject to the ensurance of protection of the confidential information, the Courts shall request for the plaintiff to provide any element of evidence, reasonably accessible, in order to prove, with sufficient certainty, that his right was infringed, or that such an infringement is imminent. A reasonable specimen from a substantial number of copies of a work or of any other protected object shall also be considered as representing a sufficient element of evidence. In this case, the law Courts can request for the plaintiff to deposit a sufficient security to ensure the compensation of any prejudice that might be suffered by the defendant.

(12) The measures for the ensuring of the evidences or establishing of a state of fact ordered by the court shall be fulfilled by an officer of the court. Owners of the rights presumably infringed or regarding on which the risk to be infringed exists or the representatives of these owners are entitled to participate in the enforcement of the measures ensuring the evidences or establishing a state of fact.

(13) The court may order the removal of the measures provided for under paragraphs (3) and (6) upon defendant’s request if the plaintiff has failed to introduce an action that leads to a settlement on the merits of the case within 20 business days or 31 calendar days, if this term is longer, terms calculated as of the date of the measures fulfillment.

(14) The owners of the infringed rights may apply to the court for the ordering the enforcement of any of the following measures:

a) remittance, in order to cover the prejudices suffered, of the proceeds from the unlawful deed;

b) destruction of the equipments and means belonging to the offender that were solely or mainly intended for the perpetration of the unlawful deed;

c) removal from commercial circuit by seizure and destruction, of the illegally made copies;

d) dissemination of information referring to the court’s decision, including the posting of the decision as well as the integral or partial publication of it in the mass media at the expense of the offender; under the same conditions the courts may order additional publicity measures adapted to the particular circumstances of the case, including an extensive publicity.

(15) The court orders the enforcement of the measures provided for under paragraph (14) at the expense of the offender, except the case when well-grounded reasons exist for he/she not to bear the expenses.

(16) Measures provided for under paragraph (14) letters b) and c) may be ordered also by the prosecutor with the occasion of the settling of the case under the criminal proceeding stage. Provisions of paragraph (14) letter c) shall not apply to the constructions made with the infringement of the rights on the architecture work, protected by the present law, if the destruction of the building is dictated by the circumstances of that case.

(17) In ordering the measures provided for under paragraph (14) the court shall observe the principle of proportionality with the seriousness of the infringement of the rights protected by the present law and it shall take into account the interests of In ordering the measures provided for under paragraph (14) the court shall observe the principle of proportionality with the seriousness of the infringement of the rights protected by the present law and it shall take into account the interests of the third parties susceptible for being affected by such measures.

(18) Legal authorities must communicate to the parties the solutions adopted in the cases of infringement of the rights regulated by the present law.

(19) Government of Romania, through the agency of the Romanian Copyright Office supports the preparing, by the professional associations and organizations, of the ethics codes at the Community standard, intended to contribute to the ensuring of the observance of the rights provided by the present law, particularly with respect to the utilization of the codes that allow the identification of the manufacturer, affixed on optical disks. Also, the Government of Romania, through the agency of the Romanian Copyright Office, supports the delivery to the European Commission of the ethics codes drafts at the national or Community level and of the appraisals referring to the enforcement thereof.

Art. 1391. – (1) The owner of copyright or neighboring rights may be represented, in all the procedures, negotiations and legal acts, for the entire duration and in any stage of the civil or criminal lawsuit or outside such a lawsuit, by attorney with a special power of attorney.

(2) For the beginning of the criminal action, as well as for the withdrawal of the prior complaint and parties’ reconciliation, the power of attorney is considered special, if it is given for the representation of the owner of copyrights or neighboring rights, in any situation of infringement of his rights.

Art. 1392.— It shall be a contravention and punishable with a fine from RON 3,000 to RON 30,000 the following deeds:

a) infringement of the provisions of Art. 21;

b) infringement of the provisions of Art. 88 and 89;

c) infringement of the provisions of Art. 107 paragraphs (3) and (7);

d) non-observance by the users of the provisions of Art. 130 letter h);

e) fixation, without the authorization or consent of the owner of the rights acknowledged by the present law, of the performances or of the radio or television broadcasts.

Art. 1393.— Repealed

Art. 1394.—(1) It shall be a contravention, if it is not an offence, and punishable with a fine from RON 10,000 to RON 50,000 and the seizure of the pirated goods or of the pirated devices of control of the access the deed of the legal or natural persons authorized for permitting the access in the spaces, to the equipment, means of transport, goods or own services, with a view to committing, by another person of a contravention or offence provided for by the present law.

(2) With the same fine are punished the economical operators which infringe the obligation provided for in art. 145 paragraph (3).

(3) For the repetition of committing the deed provided for in paragraph (1) and (2), which had as a result the committing of the offences provided for in Art. 1396, within one year, the establishing body shall also apply the complementary sanction of closing the unit.

Art. 1395.—(1) Contravention sanctions provided for in Art. 1392 shall also apply to legal persons. Should the contravener, legal person, carrying out activities that involve, according to its object of activity, communication to the public of works or products involving copyright or neighboring rights, the limits of the contravention fines are increased twice.

(2) Contraventions provided for in Art. 1392 and 1394 are established and are applied by the police officers or agents from within the Ministry of Administration and Interior with competences in the field.

(3) Contravener may pay, within 48 hours from the date of the reception of the minutes establishing the contravention, half from the minimum fine provided for by the present law.

Art. 1396.—(1) It shall be an offence and punishable with imprisonment for 2 to 5 years or with a fine the following deeds:

a) making of pirate goods, for the purpose of the distribution, without aiming at, directly or indirectly, a material benefit, with any means and in any modality;

b) placing of the pirate goods under a final import or export customs regime, under a suspensive customs regime or in free zones;

c) any other modality of introducing the pirate goods on the domestic market.

(2) It shall be an offence and punishable with imprisonment from 1 to 5 years or with a fine the offering, the distribution, possession, or storage and transportation, for the purpose of distribution of pirate goods, as well the possession of them for the purpose of utilization through the communication to the public at the working locations of the legal persons.

(3) In the case in which the deeds provided for in paragraphs (1) and (2) are committed for commercial purpose, these are sanctioned with imprisonment from 3 to 12 years.

(4) The rental or offering for rental the pirate goods are sanctioned with the punishment provided for under paragraph (3).

(5) It shall be an offence and punishable with imprisonment from 6 months to 3 years or fine the promotion of the pirate goods through any means and in any modality, including the utilization of public announcements or electronic means of communication or through the exhibiting or presentation to the public of the lists or catalogues of products.

(6) In the case in which any of the deeds provided for in paragraphs (1)-(4) have caused very serious consequences, these are sanctioned with imprisonment from 5 to 15 years. In order to evaluate the seriousness of the consequences, the calculation of the material damage is made by taking into account the pirate goods identified under the conditions provided in paragraphs (1)-(4) and the price per unit of the original products, cumulated with the amounts illegally earned by the offender.

(7) Committing of the deeds mentioned under paragraphs (1)-(5) by an organized infraction group is sanctioned with the punishment provided for under (6).

(8) For the purposes of this Law, pirate goods shall mean: all the copies regardless the physical medium, including the sleeves, made without the consent of the owner of rights or of the duly authorized person by him and that are executed, directly or indirectly, in whole or in part, from a product involving copyright or neighboring rights or from the packages or their sleeves.

(9) For the purposes of the present law, commercial purpose means aiming at the obtaining, directly or indirectly, of an economic or material benefit.

(10) The commercial purpose shall be presumed if the pirate good is identified at the headquarters, working locations, in the annexes thereof or in the means of transport used by the economic entities that have in their object of activity the reproduction, distribution, rental, storing or transport of products involving copyright or neighboring rights.

Art. 1397.— The refusal to declare the source of the pirate goods or of the pirate devices of control of the access, used for services of programs with conditioned access, is punishable with imprisonment for 3 months to 2 years of with a fine.

Art. 1398.— It shall be an offence and punishable with imprisonment for 1 to 4 years or with a fine, the making available to the public, including through the Internet or other computer networks, without the consent of the owners of rights, of products involving copyrights, neighboring rights or sui generis rights of the makers of databases or copies thereof, regardless the physical medium, so that the public may access them from any place and at any time individually chosen by them.

Art. 1399.— It shall be an offence and punishable with imprisonment for 1 to 4 years or with a fine, the unauthorized reproduction on computer systems of computer programs in any of the following modalities: installation, storing, running or execution, display or transmission in the domestic network.

Art. 140.—(1) It shall be offences and punishable with imprisonment for one month to 2 years or with a fine, the following deeds committed without the authorization or consent of the owners of rights acknowledged by this law:

a) reproduction of works or products involving neighboring rights;

b) distribution, rental or import, on domestic market, of copies of works or products involving neighboring rights, others than the pirate goods;

a) communication to the public of the works or products involving neighboring rights;

a) broadcasting of works or products involving neighboring rights;

a) cable retransmission of the works or products involving neighboring rights;

f) making of derivative works;

g) fixation for commercial purpose of performances or radio or television broadcasts;

h) infringement of Art. 134.

(2) Products involving neighboring rights means fixed performances, phonograms, videograms or their own broadcasts or services of programs of radio and television broadcasting organizations.

Art. 141.— It shall be an offense and punishable with imprisonment for 3 months to 5 years or a fine of ROL 25,000,000 to ROL 500,000,000, 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.

Art. 1411.—(1) It shall be an offence and punishable with imprisonment for 2 years to 5 years or a fine, the production, import, distribution, possession, installing, maintaining or replacing illicitly the devices for the control of the access, either original or pirate ones, used for the services of programs with conditioned access.

(2) The deed of a person who unlawfully connects to or unlawfully connects another person to the programs with conditioned access shall be an offence and it is punishable with imprisonment for 6 months to 3 years or with a fine.

(3) Utilization of the public announcements or of electronic communication means for the purpose of promoting the pirate devices for the control of the access to the services of programs with conditioned access, as well as the exhibiting or presentation to the public in any mode, unlawfully, of the information needed for making devices of any sort, capable to ensure the unauthorized access to the said services of programs with conditioned access, or intended for the unauthorized access in any mode to such services, shall be offences and punishable with imprisonment for 1 month to 3 years.

(4) Sale or rental of the pirate devices for the control of the access is punishable with imprisonment for 3 years to 10 years.

(5) Committing of the deeds mentioned under paragraphs (1) and (2) for commercial purposes is sanctioned with the punishment provided for under paragraph (4).

(6) For the purposes of the present law, pirate devices for the control of the access, means any device of whose making has not been authorized by the owner of rights acknowledged by the present law in relation to a certain service of television programs with conditioned access, made to facilitate the access to that service.

Art. 142.— Repealed

Art. 143. (1) It shall be an offense and punishable with imprisonment for 6 months to 3 years or with a fine the deed of a person that, unlawfully, produces, imports, distributes or rents, offers, in any way, for sale or rent, or possesses for commercial purposes, devices or components that allow the neutralization of the technological measures of protection or performs services which lead to the neutralization of some technological measures for protection, including in the digital environment.

(2) It shall be an offence and punishable with imprisonment for 6 months to 3 years or with a fine, the deed of a person who, without having the consent of the owners of rights and knowingly of having to know that this way permits, facilitates, causes or hides an infringement of a right provided for by the present law:

a) removes, for commercial purposes, from the works or other protected products or modifies on them, any information under electronic form, on the applicable regime of copyright or of neighboring rights;

b) distributes, imports for distribution, radio broadcasts or communicates to the public or makes available to the public, so that anybody can access them in any place and at any time individually chosen by them, without having the right to do so, by means of digital technology, works or other protected products for which the information existing under electronic form on the regime of copyright or of neighboring rights have been removed or modified without authorization.

Art. 1431.—(1) The person shall not be punished, who, before to institute of the criminal proceedings, denounces to the competent authorities its participation in an association or agreement with a view to committing one of the offences provided for in Article 1396, thus allowing for the identification and criminal accountability of the other participants.

(2) The person that has committed one of the offenses provided for in Art. 1396 and who, during the criminal proceedings, denounces and facilitates for the identification and criminal accountability of other persons who have committed offences connected to pirated goods or to pirated devices of control of the access, benefit from the reduction by half of the limits of the punishment provided by law.

(3) By the provisions mentioned in paragraph (1) benefit as well the persons that have committed offenses provided for in Art. 1399, 140 si 141 if the finded prejudice is recovered.

Art. 144.— Repealed

Art. 145.— (1) Establishment of offences provided for in the present law shall be made by the specialized structures of the General Inspectorate of the Romanian Police and the General Inspectorate of the Border Police.

(2) Establishment of offences provided for in Art. 1396 paragraph (6), Art. 1398, Art.1399 and Art.143 is also made by the General Inspectorate for Communications and Information Technology, and those provided for in Art. 1396, Art. 1398 and Art. 1411 may also be made by the Romanian Gendarmery, subject to conditions provided for in Art. 214 Criminal Procedure Code.

(3) The competence to judge the offences provided for in Art. 1396-143 is incumbent to the tribunal.

TITLE IV

Application of the Law.

Transitional and Final Provisions

Art. 146.— The following benefit from the protection provided for by this law:

a) works whose authors are Romanian citizens, even if they have not yet been disclosed to the public;

b) works whose authors are natural or legal persons having the residence or headquarters in Romania, even if they have not yet been disclosed to the public;

c) works of architecture built on the territory of Romania;

d) performances of performers taking place on the territory of Romania;

e) performances of performers that are fixed in recordings protected by this law;

f) performances of performers that have not been fixed in recordings, but are transmitted by radio or television broadcasts protected by this law;

g) sound or audiovisual recordings the producers of which are natural or legal persons having residence or headquarters in Romania;

h) sound or audiovisual recordings the first fixation of which on a physical medium has taken place for the first time in Romania;

i) radio or television broadcasts transmitted by the radio or television broadcasting organizations with the headquarters in Romania;

j) radio or television broadcasts transmitted by transmitting organizations with headquarters in Romania.

Art. 147.— Foreign citizens or juridical persons, owners of copyright or neighboring rights shall enjoy the protection provided by international conventions, treaties and agreements to which Romania is party, failing which they shall enjoy treatment equal to that accorded to Romanian citizens, on condition that the latter, in turn, are granted similar (national) treatment in the concerned countries.

Art. 1471.— For the completion of the provisions of the present law, special regulations can be adopted for the establishing of certain measures, including the ones regarding the application and utilization of the codes for the identification of the source, with a view to fighting against the import, production, reproduction, distribution or rental of the pirate goods or pirate devices for the control of the access, used for services of programs with conditioned access, as well as for the use of the special sticks for the attestation of the payment of the compensatory remuneration for private copy.

Art. 148.—(1) For the registration as means of evidence, of the works made in Romania, the National Registry of Works is established, managed by the Romanian Copyright Office. The registration is optional and is made, against payment, according to the methodological norms and tariffs established by Government decision.

(2) The existence and content of a work may be proved by any means of evidence, including its presence in the repertoire of a collective management organization.

(3) The authors and other owners of rights or owners of authors’ exclusive rights referred to in this law shall have the right to register on the originals or authorized copies of the works a notice of reserved exploitation, signaled according to the usages, rights consisting of a symbol represented by the letter C, in the middle of a circle, accompanied by their name and the place and year of first publication.

(4) Producers of sound recordings, performers and other owners of the exclusive rights of producers or performers referred to in this law shall have the right to register on the originals or authorized copies of the sound or audiovisual recordings or on the box or sleeve containing them, a notice of reserved exploitation, signaled according to the usages, rights consisting of a symbol represented by the letter P, in the middle of a circle, accompanied by their name and the place and year of first publication.

(5) Until proven otherwise, it shall be presumed that the exclusive rights signaled, according to the usages, by the symbols mentioned in paragraph (3) and (4) or by the notices provided for in Art.104 and Art.1062, exist and belong to the persons who have used them.

(6) The provisions of paragraphs (3), (4) and (5) shall not determine the existence of the rights acknowledged and guaranteed by the present law.

(7) The authors of works and the owners of rights may, at the same time as their works are entered the repertoire of the collective management organization also may register the name under which they write, perform or create registered, for the sole purpose of making it known to the public.

Art. 149. – (1) Legal acts concluded under the former legislation shall produce all their effects according to that legislation, with the exception of clauses that provide for the transfer of the utilization rights in any future works that the author might yet create.

(2) Works created prior to the entering into force of this Law, including the computer programs, performances, sound or audiovisual recordings, as well as the programs of television and radio broadcasting organizations, shall also enjoy protection under it, subject to conditions provided for in paragraph (1).

(3) The duration of the economic rights in works created by authors deceased before the entry into force of this Law and for which the term of protection, calculated according to the procedures of the prior legislation, has not expired shall be extended up to the limit of the term provided for in this Law. Such extension shall come into effect only since the entry into force of the present law.

Art. 150.—(1) The equipment, sketches, mock-ups or models, manuscripts and any other objects that serve directly for the making of a work that gives rise to copyright may not be seized in attachment proceedings.

(2) The sums payable to authors for the use of their works shall benefit from the same protection as wages, and may be attached only on the same conditions. The sums shall be subject to taxation according to the applicable fiscal legislation in the field.

(3) Repealed.

Art. 151.— All litigation relating to copyright and neighboring rights shall be under the jurisdiction of the courts according to this Law and the provisions of ordinary legislation.

Art. 1511.— (1) The European Commission shall be informed regarding the intention for the adoption of certain national provisions for the regulation of certain new neighboring rights, specifying the essential reasons which justify the regulation of such rights, as well as the adequate protection term.

(2) Any national provisions adopted in the field regulated by the present law shall be communicated to the European Commission.

(3) The list of the radio broadcasting organizations to which the provisions of the Art. 119 paragraph (2) shall be submitted to the European Commission.

(4) The Romanian Copyright Office is responsible for the delivery of the communications provided under paragraphs (1)-(3) to the European Commission.

Art. 1512.— The present law transposes the provisions of the following Community enactments:

a) Council Directive 91/250/CEE from the 14th of May 1991 on legal protection of computer programs, published in the Official Journal of European Communities no. L 122 from the 17th of Mai 1991;

b) Council Directive 92/100/CEE from the 19th of November 1992 on the rental and lending right and other rights related to copyright in the field of the intellectual property, published in the Official Journal of EC no. L 346 from the 24th of November 1992;

c) Council Directive 93/83/CEE from the 27th of September 1993 on the harmonization of certain provisions regarding copyright and neighboring rights applicable to the broadcasting of programs via satellite and cable retransmission, published in the Official Journal of EC no. L 248 from the 6th of October 1993;

d) Council Directive 93/98/CEE from the 29th of October 1993 on the harmonization of the duration for the protection of copyright and certain neighboring rights, published in the Official Journal of EC no. L 290 from the 24th of November 1993;

e) European Parliament Directive and that of the Council 96/9/CE from the 11th of March 1996 on the legal protection of databases, published in the Official Journal of European Communities no. L 077 from the 27th of March 1996;

f) European Parliament Directive and that of the Council 2001/29/CE from the 22nd of May 2001 on the harmonization of certain issues of copyright and neighboring rights in the information society, published in the Official Journal of European Communities no. L 006 from the 10th of January 2002;

g) European Parliament Directive and that of the Council 2001/84/CE from the 27th of September 2001 on resale right for the benefit of the author of original works of art, published in the Official Journal of European Communities no. L 272 from the 13th of October 2001;

h) European Parliament Directive and that of the Council 2004/48/CE from the 29th of April 2004 on insuring the observance of intellectual property rights, published in the Official Journal of European Communities no. L 157 from the 30th of April 2004.

Art. 152.— Collective administration organizations active on the date of entry into force of this Law shall be compulsorily subject to the provisions of Article 125 within 6 months following the entry into force of this Law.

Art. 153.— The provisions of this Law shall be completed by the provisions of ordinary legislation.

Art. 154.—(1) This Law shall come into force within 90 days following the date of its publication in the Official Gazette of Romania.

(2) Statutory Decree No. 321 of June 21, 1956, on Copyright, as subsequently amended, and any other provisions to the contrary, shall be repealed on the same date.

(3) Until such time as the tables and procedures negotiated under the provisions of Article 131 of this Law have been approved, the tariffs laid down by the statutory instruments in force shall apply.

Law No. 8 of March 14, 1996 on Copyright and Neighboring Rights

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