Piracy
The most common questions addressed to BSA Hotline offer you the necessary information.
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Music piracy is a general term used to describe a violation of copyright and related rights protected by law and consists in the unauthorized reproduction and exploitation of such right-bearing products.
Reproduction and marketing of sound or audiovisual recordings without the consent of right holders is prohibited by law under penalty of imprisonment. Penalty limits are set by the authorities according to certain criteria such as: commercial purpose, extremely serious consequences, repeated acts of piracy, etc.
The most widespread forms of piracy are those of physical products and digital piracy.
Piracy of physical products
It is the form of classical piracy and occurs when a person sells pirated products - unauthorized copies by protected products - in order to distribute them. Law not only condemn acts of unauthorized reproduction and distribution, but also possession, transport, promotion through advertisements of pirated goods in order to be marketed.
Piracy on digital medium / online
Online communications and the possibility to dispose of products protected as digital information facilitated the exploitation of works and products protected by copyright and related rights in the digital environment.
Most commonly, this happens when individual users use DC++, Torrent type programs, etc. and put in share files and folders from computer hard disk that contain protected musical works. Thus, they become available to the public which can take them directly from the computer of the person providing them.
Software piracy is the illegal copying of original programs or counterfeiting and distribution of unauthorized computer programs. Software piracy also refers to the situation where a person executes more copies than allowed, or when borrows a copy of a program from someone else.
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Without the consent of the author or other holder of copyright and without payment of royalties, is permitted:
- temporary reproduction of works;
- reproduction of works for personal use;
- reprographic reproduction by libraries, archives and other institutions;
- use of computer programs and databases in accordance with their destination, including to correct errors, legal acquirer
Also, are permitted without the consent of the author or other holder of copyright and without payment of royalties, the following actions:
- use of short quotations in other works in order to achieve the critical opinions or reviews, provided they relate to a work or other protected object, which has already been made lawfully available to the public, indicating the source and the author, except where this is impossible, and their use in accordance with proper practice and to the extent required for a specific purpose;
- use of works by illustrations in publications, broadcasts or audio or video recordings for teaching, provided that the source and author’s name is indicated, unless this is impossible and to the extent justified by achieving a commercial purpose;
- reproduction and distribution in the press, publishing or making available to the public in interactive regime of published articles on current economic, political or religious topics or of radio or television broadcast works or other protected objects of the same character or made available to the public in interactive mode, in cases where such uses are not expressly reserved and if the source, including author's name is indicated;
- use of works or other protected objects for reporting current events, to the extent that it is justified by the informatory purpose and provided that the source, including author's name is indicated, unless this is impossible;
- use of public speeches and statements of public lectures, works or similar protected objects, to the extent justified by the purpose of information and provided that the source, including author's name is indicated, unless this is impossible;
- use for public safety or to provide the proper conduct and narration of parliamentary, administrative or judicial procedures;
- use of own equipment and for own broadcasts for temporary recordings of works made by broadcasting organizations. Such recordings will be deleted and destroyed after six months, except those who have exceptional documentary value to be kept in state archives;
- use for the benefit of visually impaired people, with direct connection with that deficiency and non-commercial nature, to the extent required by it;
- printing of broadcasts aired by nonprofit social institutions such as hospitals, provided that the rightholders receive fair remuneration;
- use of works during religious celebrations or official celebrations organized by a public authority;
- use of works, such as works of architecture or sculpture, destined to be located permanently in public places;
- use of works for advertising of public exhibitions or sales of works of art, to the extent necessary to promote the event, excluding any other commercial purposes;
- use of works in order to caricature or parody;
- use of works in connection with demonstration or repair of equipment;
- use of an artistic work as a building or a drawing or plan of a building for the purpose of reconstructing the building;
- use of works by communication or making them publicly available in interactive mode, for the purpose of research or private study by individual members of the public through dedicated terminals in the premises of libraries, archives and similar institutions of works and other protected objects being in their collections and which are not subject to purchase or license terms;
- fixation of works in the public domain in electronic form for archiving by libraries, without obtaining a direct or indirect economic or commercial advantage.
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What actions may undertake the persons whose copyright or related rights were violated?
Any natural person or legal entity, and other right holders, who have claims in respect of exploitation of an object of copyright, related rights or other rights protected by this law, is entitled to initiate actions in the competent court or to notify other authority for implementing the measures, procedures and remedies provided in this chapter.
Judicial proceedings regarding the violation of copyright and related rights may be initiated by the following persons:
- right holders or authorities authorized to act for the protection of their rights;
- all other persons who enjoy such rights, in particular licensees;
- organizations for collective management of copyright and/or related rights, including in the exercise of rights which fall under the incidence of extended and/or required collective management;
- professional defense organizations and other representatives of right holders and licensors.
These persons are exempt from payment of the state fee upon filing the request for judgment of matters arising out of the copyright or related rights. This will be collected, in the manner and amount established by law, from the person found guilty of infringement of copyright or related rights.
In legal proceedings initiated in respect of infringement of copyright or related rights, it may be requested in the court or other competent bodies, as appropriate, the recognition of their rights, finding of the violation thereof and recovery of damage by setting compensations.
The court may fix the compensation of the injured party, at its discretion, in one of two ways:
- restoration of the situation that existed prior to the violation of right and cessation of acts that infringe the right or creates the threat of its violation;
- recovery of losses, including the missed benefit incurred by the injured party;
- perception of illegally obtained profit of the person who violated the rights;
- payment of an indemnity of 500 to 500,000 lei for the violated right
The injured holder of rights protected by this law can also claim the material recovery of moral damage.
Any person who infringes the copyright or related rights shall be liable under the civil, administrative and criminal law.
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In accordance with the applicable law, police is the only competent authority to carry out inspections. BSA provides specialized support, if necessary and requested by the competent authorities. AGEPI employees can also participate in inspections as specialists and/or can perform technical expertise after inspection, at the request of the police.
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What shall I present in case of an inspection?
Situations may vary, but, usually, you must present at least the original licenses and copies of purchase invoices. In the event that an inspection would be performed you should make sure that you have at the headquarters and branches (if you have multiple) copies of licenses for computer software used, copies of invoices or purchase documents thereof.
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Who is responsible for the legality of software used?
Liability (criminal and civil) for installation and use of computer programs within a company shall be born by the manager, respectively, managers of the company. If the company has in its organization chart a specialized structure for the acquisition, installation and use of computer programs, then liability will be born by the head of this department or the person who has entered in the job description tasks related to installation and use of computer programs (e.g., IT manager, head of computing office, network administrator, etc.).
In accordance with Article 185/1 of the Criminal Code of the Republic of Moldova, for violation of copyright on computer programs can also be held criminally liable the legal person, i.e. the company.
In terms of the Civil Code, the company will always be liable in damages caused to holders of copyright on computer programs, aggrieved by violation of applicable legal provisions in the field, and also the natural person (manager or employee of the company).
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What are the most common forms of software piracy?
Use of a larger number of programs than allowed by the license granted by the producer-copyright holder, with or without the consent or knowledge of the manager;
Production and/or sale of counterfeit or pirated optical discs
Marketing of PCs with installed unlicensed software (hard-disk loading;
Piracy on the Internet
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What are the consequences of software piracy?
Introduction into the network of the organization of incomplete programs and/or programs that may contain viruses;
Lack of technical support;
Failure to receive higher quality versions (upgrades) on favorable terms;
Judicial investigation that could lead to conviction of the person up to five years in prison and the legal person to a criminal fine of up to 200,000 lei, to which can be added additional penalties, including liquidation of the company;
Payment of substantial damages;
Mention in the record of sentenced persons, implying inability to hold certain positions;
Loss of company reputation or image of the person involved.
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How can I protect my company from the consequences of piracy?
Implement a management system for computer programs used within your institution, regularly make an inventory/analysis of software installed and licenses owned;
Centralize the purchasing process, so you will be able to work in conditions more favorable to producers and will have a standardization of IT resources: buy software only from reputable dealers;
Designate a person responsible for the acquisition and management of computer programs in strict accordance with the law;
Elaborate a regulation on the mode of installation, downloading and use of computer programs within your institution;
In case of discovery of installed unlicensed software either remove them immediately or acquire the necessary licenses;
Make a record of each computer, comprising software installed by the management of the institution, signed by both the employee who uses that computer and a representative of the institution; do not allow employees to load programs from the Internet without the notice of the IT department.
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How can I make an effective internal software audit?
Periodically check all company computers and make a list of installed programs and copyright holders. Electronic tools for verification of installed programs can be downloaded free of charge and used from: http://www.bsa.org/countrz/Tools and Resources/Free Software Audit Tools.aspx
Compare the list of installed programs with that of purchased licenses.
