Fighting IP-piracy

Tunisia challenges and opportunities

 Most common forms of IP-piracy in Tunisia

• IP-piracy becomes a significant threat to intellectual property rights and

holders’ related rights’ due to Internet speed, legal gap as well as the lack of
effective and efficient means of combating the infringers.
• Most common forms of IP-piracy in Tunisia are:
- illegal IPTV and TV sharing ;
- Pirate platforms;
- Websites that offers streaming illegally.
 Current legal framework
• Articles 9 and 87 of Telecommunications Code related to the fraud of
cryptology means or services
• Law n°94-36 of 24 February 1994 on intellectual and artistic property
• Article 199 bis of the Penal Code on fraudulent access to all or part of an
automated data processing system.
 A legal gap
• Actually, Tunisia is not a signatory of the Brussels Convention related to
the distribution of carrying signals programme transmitted by satellite.
• Budapest convention on Cybercrime (Treaty N°185) is still not been
signed nor ratified by Tunisia.
• A draft law on the fight against cybercrime in Tunisia adopted by the
ministerial council in May 2018 but has still not been adopted by parliament.
Possible legal recourse
 Field action
• It is recommended to (i) focus on legal recourse against illegal operators, resellers
and infringers rather than on consumers, (ii) provide consumers with offers
adequate with their purchasing power.
• The first action would be to identify:
- IPTV subscription resellers; there are specialized retail stores as well as online sales
platforms.
- TV sharing subscription sellers;
- Streaming websites hosted in Tunisia, if any.
 Administrative actions
• A notification could be sent to the main server hosting and housing
companies; National Internet Agency (ATI or Tunisie Internet),
Ooredoo Tunisia, Orange Tunisia and Topnet in order to make them
aware of IP-piracy and to ask them to make all the necessary investigations
when concluding hosting/housing agreements so that the servers would not
be used by infringers.
• A notification to the OTDAV (The Tunisian Copyright Agency) in order
to request its assistance about infringements of intellectual property and
related rights
 Extrajudicial / Pre-litigation actions
• An electronic notification could be sent to the IPTV subscription resellers
and TV sharing sellers (a significant number) in order to warn them of the
negative consequences of their infringements and to offer them the
opportunity to become authorized resellers. This electronic notification will
not have the legal force of a formal notice but will (i) convince some
infringers to stop the infractions, and (ii) strengthen the case evidences.
• Before proceeding to litigation, whether civil or criminal, a formal notice
must be sent to the infringers in the legal required form.
 Civil action on the basis of
infringements of neighbouring rights
• Under Tunisian Intellectual and Artistic Property Law, related/neighboring
rights are all the rights enjoyed by performers, producers of audio or
audiovisual media, radio and television organizations which, through their
performances, participate in the broadcasting of the works.
• Any person who has infringed copyright and neighboring rights shall be
required to pay the owner of such right material and moral damages, the
amount of which shall be determined by the competent court.
 Criminal complaint based on
Art. 199 bis Penal Code
• In the absence of cybercrime law, criminal complaints may be brought against infringers on the
basis of the article 199 bis of the Penal Code:
• Article 199 bis Penal Code: “Anyone who fraudulently has accessed or will be maintained in all
or part of an automated data processing system is punished by imprisonment for two months to
one year and a fine of one thousand dinars, or only by one of these two penalties. The penalty
shall be raised to two years imprisonment and a fine of two thousand dinars if, even without
intent, this results in the alteration or destruction of the existing data processing in the indicated
system. Anyone who intentionally alters or destroys the automated data processing is punished
by 3 years imprisonment and a fine of three thousand dinars. Anyone who has fraudulently
entered data into an automated processing system in such a way as to alter the data contained in
the programme or the way in which it is processed or transmitted shall be punished by five years
imprisonment and a fine of five thousand dinars. The penalty is doubled if the act is committed
by a person in the course of his professional activity. Attempt is punishable.”
 Criminal complaint based on
Art. 87 of Telecommunications Code
• Criminal complaints could, also, be based on the provisions of article 87 of
Telecommunication Code stating that:
“Anyone who uses, manufactures, imports, exports, holds for sale or
distribution, whether free of charge or against payment, or offers for sale or
sells cryptological means or services, or modifies or destroys them in
violation of the provisions of Decree n°2001-2727, shall be punished by
imprisonment for six (6) months to five (5) years and a fine of one thousand
(1,000) to five thousand (5,000) dinars, or by either of these two penalties.”
 ATT support to criminal complaints
• The Telecommunications Technical Agency (ATT) may be contacted by
the Public Prosecutor's Office further to a criminal complaint in order to
provide technical support for judicial investigations in cybercrimes.
• It is not possible to seize the ATT directly, it would be necessary to ask for
its support in the case of criminal complaint.