THIRD SECTION
Application no. 47384/07
AsDAC
against the Republic of Moldova
lodged on 19 September 2007
STATEMENT OF FACTS
The applicant, the Association for Copyright and Related Rights in Moldova (“AsDAC”), is a Moldovan non-governmental organisation, registered in 2000 in Chisinau. AsDAC has submitted the application in the interest of two of its members, Mrs. Liudmila Cojocari and Mr Oleg Cojocari (“L.C” and “O.C.”), both Moldovan nationals.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 December 2005 the Government decreed that in 2006 the National Bank of Moldova (“NBM”) was to issue four silver proof commemorative coins. NBM announced a contest for the selection of the design for these coins. In February 2006 L.C and O.C. submitted to NBM fourteen drawings and four graphic sketches.
On 10 May 2006 L.C. and O.C. became members of the applicant association, by signing an exclusive contract for the administration of their intellectual property rights. On 21 July 2006 the L.C. and O.C. obtained a certificate confirming their copyright on the four graphic sketches.
NBM approved their drawings as designs for commemorative coins and on 18 May 2006 adopted a decision to put three coins into circulation starting 1 June 2006.
On 24 May 2006, acting on behalf of L.C. and O.C., the Union of Plastic Artists of Moldova summoned NBM to pay them royalty. On 5 June 2006 NBM requested the presentation of signed contracts in order to perform payment. On 25 July 2006 the Union of Plastic Artists of Moldova summoned NBM about the illegal use of copyright and informed it that L.C. and O.C. prohibited the use of their drawings for issuing the fourth coin. It also requested the immediate conclusion of contracts. In reply, NBM requested the presentation of signed contracts.
On 27 July 2006 NBM adopted a decision to put a fourth commemorative coin into circulation starting 21 August 2006.
On 23 November 2006 the applicant association requested NBM to pay compensation for pecuniary and non-pecuniary damage and to return the drawings. On 1 December 2006, NBM dismissed those claims as ill-founded.
On 26 December 2006 the applicant association initiated court proceedings against NBM claiming 200,000 Moldovan lei (MDL) (equivalent of 11,900 euros (EUR) as royalty and as non-pecuniary damage to be paid to L.C. and O.C. and the return of drawings.
On 1 March 2007 the Chisinau Court of Appeal admitted the claims in part, awarding L.C. and O.C. MDL 100,000 and obliging NBM to return the original drawings and graphic sketches to them. The court found that L.C. and O.C. were the authors of the drawings and graphic sketches and that their creations had been used on the commemorative coins without their consent.
In March 2007 NBM appealed the judgment of the Chisinau Court of Appeal and, without denying the authorship of L.C. and O.C., claimed that under domestic law creations on money were not subject to copyright. The applicant association claimed that NBM may refer to this provision of the law only once they have legally obtained the copyright, which was not the case in the given circumstances.
On 27 June 2007 the Supreme Court of Justice upheld NBM’s appeal, quashed the judgment of the Chisinau Court of Appeal and adopted a new judgment dismissing the applicant association’s claims for compensation as ill-founded but upheld the judgment in the part ordering the return of the original drawings and graphic sketches. The court found:
“The authors knew for certain that their drawings were to be used for issuing commemorative coins for numismatic purposes and as means of payment. They have voluntarily accepted that their creations fall within the ambit of Art.7 para. 1) let. b) of Law no.293-XIII from 23 November 1994 on copyright and related rights, which provides expressly that monetary signs are not subject to copyright. A monetary sign is all which is struck or printed on money, including the drawings, which are thus not subject to copyright.”
B. Relevant domestic law
The relevant provisions of the Law on Copyright and Related rights no. 293-XII from 23 November 1994, in force at the time, read as follows:
“Article 4
(4) The author’s rights do not depend on the property right over the material object in which the relevant protected work is embodied. Purchasing the object does not imply the transfer to the purchaser of any copyright set out in the present law.
Article 6
(1) The author’s rights covers literary, artistic and scientific protected works in the form of:
(d) visual works (drawings, sketches, ...);
Article 7
(1) The following shall not constitute objects of copyright:
(b) State symbols and signs (...., money) ...
Article 19
(1) The use of the author’s protected work by third persons without changing it or in a changed form... is permitted on the basis of a contract concluded with the author or with his/her successors, except for cases mentioned in Articles 20-23.
Article 24
(1) The copyright ... may be transferred by the authors or other copyright owners through authorship contracts.
Article 37
(1) The use of ... artistic works in violation of the copyright of their authors is unlawful.
Article 38
(1) The owner of the copyright has the right to request from the person who has violated this right:
(a) the recognition of this right;
(b) the re-establishment of the situation pertaining before the violation of the right and the cessation of the actions violating the author’s rights or may lead to such a violation;
(c) compensation for the losses or lost revenue;
(d) the transfer of the revenues obtained through the unlawful use of the protected work, instead of compensation for the losses or lost revenue;”
(e) compensation within the limits of MDL 500 to MDL 500,000 instead of compensation for losses or the transfer of the revenues obtained though the unlawful use of the protected work;
(2) The sanctions mentioned under paragraph (1) (c)-(e) above are applied in accordance with the choice of the holder of the copyright”.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention about the unfairness of proceedings which resulted in unmotivated judgments.
2. The applicant also complains under Article 1 of Protocol No. 1 to the Convention about the failure of the domestic authorities to award its members compensation following the breach of their intellectual property rights.
QUESTION TO THE PARTIES
Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was the interference “provided for by law” and did it impose an excessive individual burden on the applicant (see Balan v. Moldova, no. 19247/03, § 46, 29 January 2008)?
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