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3.6. ПРАВА ИНТЕЛЛЕКТУАЛЬНОЙ СОБСТВЕННОСТИ, НАРУШЕНИЯ - ОБЗОР
Никола Тупанцески к.н.ю. профессор, юридический Факультет “Люстинианус Примус" - Скопье,
Республика Македония
Аннотация: Статья посвящена проблеме защиты прав интеллектуальной собственности, международноправовые основы для которой содержатся в Бернской конвенция об охране литературных и художественных произведений с 1886 года, Парижской конвенции по охране промышленной собственности от 1883 года, Конвенции об учреждении Всемирной организации интеллектуальной собственности 1967 года, Всемирной конвенции по авторскому праву от 1996 года и др. В статье дается обзор законодательных актов Республики Македония, содержащего правовые предписания, в том числе уголовноправовые, регулирующие вопросы защиты прав интеллектуальной собственности.
Ключевые слова: защита прав интеллектуальной собственности, международно-правовые конвенции, Республика Македония, законодательство Республики Македония.
INTELLECTUAL PROPERTY RIGHTS VIOLATIONS- AN OVERVIEW
Nikola Tupanceski, Ph.D, Full-time Professor, Law Faculty “lustinianus Primus" - Skopje, The Republic of Macedonia
Annotation: This paper deals with the problem of intellectual property rights, the international legal framework for which is contained in the Berne Convention for the Protection of Literary and Artistic Works in 1886, the Paris Convention for the Protection of Industrial Property of 1883, the Convention Establishing the World Intellectual Property Organization in 1967, World Copyright Convention of 1996, etc. This paper gives an overview of the legislative acts of the Republic of Macedonia, containing the legal requirements, including criminal law governing the protection of intellectual property rights.
Keywords: protection of intellectual property rights, international legal convention, the Republic of Macedonia, the legislation of the Republic of Macedonia.
In the Information Age, intellectual property is the “gold standard." It must be protected as it is the cornerstone for economic prosperity in this new era.1
In terms of the modern development of the society, the protection of the intellectual property (IP) represents one of its most important tasks. Increasingly, the global economy is dependent upon the creation and distribution of intellectual property to drive economic growth. However markets are plagued by fakes be it stamps, watches, cigarettes, cosmetics, pharmaceuticals, FMCG products, auto components, software, music, films etc. resulting in significant loss to companies, corresponding evasion of tax duties and violation of the rights of the consumer. As the EC Green Paper, Combating Counterfeiting and Piracy in the Single Market (1998) observed “.since the early 1980s counterfeiting and piracy have grown considerably
1 What Are Piracy and Counterfeiting Costing the American Economy? National Chamber Foundation, 2005,
http://www.fnal.gov/directorate/0QBP/sci/sci_reference_docs/SCI%20
Costs%20to%20Economy%20uscharriber.pdf
to a point where they have now become a widespread phenomenon with a global impact.”2
Annually, approximately 5% to 7% of world trade is in counterfeit goods, according to the FBI, Interpol, and World Customs Organization estimate. That's the equivalent of as much as $512 billion in global lost sales. Of that amount, U.S. companies lose between $200 billion and $250 billion.3 Studies carried out by the developed countries estimates that the number of counterfeited goods reaches up to 80 - 90% whereby audio and video products participate with about 50-60%, food products with 56%; almost 86% are household detergents; furthermore, the participation of alcohol beverages is around 60%; perfumes- 50%, while the percentage share of clothing and footwear is around 40%.
Besides the economic and social consequences, counterfeiting and piracy cause additional problems in terms of protection of consumers especially when it comes to health and safety. Increasing use of the internet enables distribution of pirated products all around the world.
Although there are multiple reasons why actors commit IPR violations, earning a profit remains the principal motivator across the various types of actors involved. Offenders also perceive IP violations to be a low risk crime because they believe both the likelihood of apprehension and possible penalties if prosecuted are relatively low compared to other - more serious offenses, such as violent crimes and drug trafficking. A variety of types of offenders participate in IPR violations including: individuals and small groups; members of general criminal enterprises, as well as their subset organized crime groups; supporters of terrorist organizations; members of gangs; foreign government actors; and members of warez groups. These offenders are involved in various phases of the manufacturing, distribution, and sales of infringing goods.
To effectively protect Intellectual Property Rights, the international community must understand the myriad threats posed by IP violations. Thus, within the past few years,the efforts of the international community resulted in the adoption of several international instruments out of which the following are of particular importance: Berne Convention for the Protection of Literary and Artistic Works since 1886,4 Paris Convention for Protection of Industrial Property from 1883 (Paris Convention) (last revised in 1979), Convention for establishment of the World Intellectual Property Organization (WIPO) from 1967,6 Universal Convention from 1952 (revised in 1971), WIPO Copyright Treaty from 1996, Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations since 1961,7 Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971 ),8 Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite from 1974, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) since 1994,9 European Patent
2Blakeney, M., Guidebook on Enforcement of Intellectual Property Rights, p. 6.
3 See supra 1, p. 2.
4 http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001 .html
5 http://www.wipo.int/wipolex/en/wipo_treaties/details.jsp?treaty_id=2
6 http://www.wipo.int/treaties/en/convention/trtdocs_wo029.html
7 http://www.wipo.int/wipolex/en/wipo_treaties/details.jsp?treaty_id=17
8 http://www.wipo.int/treaties/en/ip/phonograms/trtdocs_wo023.html
9 http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
Бизнес в законе
2’2013
Convention (1973),10 Trademarks Act from1994, EU Community Design Regulation from 1998, EU Regulations on Protection of Geographical Indications, Designations of Origin and Certificates of Specific Character for Agricultural Products and Foodstuffs from 1992.
It is a broad and complex legal area, thus, there is an extensive list of international instruments governing various aspects of the phenomenon. However, focusing primarily on the criminal law aspects of the phenomenon and the related violations, it seems that one of the most important documents is the Agreement on Trade-Related Aspects of Intellectual Property Rights - the TRIPS Agreement.
Article 61 from the above mentioned document envisages the obligation for the state parties to introduce, into their national legislations, criminal procedures and penalties that will be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offense. Additionally, members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.
Intellectual property in the Republic of Macedonia is regulated by the Constitution (Art. 47), The Law on Copyright and Related Rights, Criminal Code, Law on ratification of International Conventions and Treaties, as well as most of the bylaws.
The provision of Art.47 of the Constitution guarantees the freedom of scientific, artistic and other types of creative works. At the same time, it has provided a guarantee of the rights deriving from the scientific, artistic and other type of intellectual creative work.
The Republic of Macedonia encourages, assists and protects the development of the science, arts and culture. Law on Copyright and Related Rights in the Republic of Macedonia is modern law, in compliance with all the international conventions and treaties that regulate this area and, more importantly, it was created by the Model law of the WIPO and, as such, consists of numerous common points with the Slovenian Law on Copyright and Related Rights. The Law is founded on the basic principles and standards of the international conventions and incorporates the minimum rights contained in the most significant international instruments that regulate this area.
From a criminal law perspective, it has to be noticed that the modern era of broad criminalization of IP crimes began in 2008 when Macedonia adopted Amendments to the Criminal Code,11 which came into force on January 23, 2008.
Namely, in the previous period, the penal legislation of the Republic of Macedonia was confronted with several reform processes which leave their own implications in the system of penal acts of this type as well. The implemented solutions are directed towards the broadening ofthe penal
10 http://www.epo.org/law-practice/legal-
texts/html/epc/1973/e/ma1 .html
"Official Gazette of RM No.7/2008.
and legal protection of new incriminations and the intensifying of the penal repression, which simultaneously is in function of the harmonization of the Macedonian with the European legislation.
In Macedonia, criminal liability for IP violations is based on the provisions of Article(s) 157“„Violation of copyright and related rights" (basic IP incrimination), “Violation of the distributor's right to technical, specially protected satellite signal” (Art. 157-a), “Piracy of audiovisual work (Art. 157-b) and Piracy of a phonogram (Art. 157-c), positioned in the set - provisions against the freedom and rights of people and citizen.It is namely a system of incriminations that possesses certain specifics, primarily in terms of complex legal description of the offenses and one of the main features is their blanket nature (the Intellectual Property Rights constitute the subject of meticulous legal regulation grounded on the Law on Copyright and Related Rights mentioned above, Law on Industrial Property,12Law on protection of Topography of Integrated Circuits,13Law on Customs Measures for Protection of Intellectual Property Rights14 etc.
But, this analysis is not only concerned with conduct(s) associated with copyright violations; it may also involve breaches of Industrial Property Rights (unfair competition). The amendments of the Macedonian Criminal Code in 2009 are an important reinforcement in that sense.15 These situations, from a domestic point of view, are those included in the provisions of the Criminal Code that refers to the offenses such as: “Violation of industrial property rights and unauthorized use of another's company” (Art.
285) and “Violation of the right deriving from reported or protected invention and integrated circuit topography” (Art.
286).
From the comparative point of view, there are various approaches in terms of the commitment to the establishment of an effective legislative framework that would ensure protection of the Intellectual Property and Industrial Property Rights from infringements of this type. What is particularly apparent is the tendency for autonomous position in the Special part of
the Criminal Code, for so-called IP crimes (e.g. Criminal Code of Finland -“Copyright offences”, Estonian Criminal Code “Offenses Against Intellectual Property''; Serbian Criminal Code which composes a separate group of criminal offenses against Intellectual property; Bulgaria: “Crimes Against Intellectual Property”, including also Croatia: “Offenses AgainstIntellectualProperty).
In the Russian Criminal Code, actions by which Intellectual property Rights are offended are placed in the corps of criminal offenses whose object of protection are the constitutionally granted rights of people and citizens, a similar situation is in the Ukrainian Criminal Code where these incrimination are contained in the system of criminal offenses regarding the Electoral rights, Labor rights, as well as other Human rights of people and citizens.
What is important in this sense is to mention the approach of the Spanish Criminal Code which contains separate chapters where actions which represent offenses of Intellectual Property Rights are placed, and under the impact of the Law also fall those behaviors that represent a violation of consumers rights and а deviation from the basic market rules (Chapter 11).
12Official Gazette of RM No.42/09, 24/11. 13Official Gazette of RM, No.5/98; 33/06; 136/11. 14Official Gazette of RM, No. 58/05; 107/07. 15Official Gazette of RM, No. 114/2009.
From the aspect of the national law, it seems that the established solutions are to a significant extend in line with the ones generally accepted in the Slovenian Criminal Law, with regards to the systematization and in terms of the scopes of the criminal law protection (see Art.158-161).
Список литературы:
1. Блэкни, М., Руководство по защите прав
интеллектуальной собственности, с. 6.
2. http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
3. http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ma1 .html
4. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001 .html
5. http://www.wipo.int/treaties/en/convention/trtdocs_wo029.ht ml
6. http://www.wipo.int/wipolex/en/wipo_treaties/details.jsp7trea ty_id=17
7. http://www.wipo.int/treaties/en/ip/phonograms/trtdocs_wo02 3.html
Reference list:
1. Blakeney, M., Guidebook on Enforcement of Intellectual Property Rights, p. 6.
2. http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
3. http://www.epo.org/law-practice/legal-texts/html/epc/1973/e/ma1 .html
4. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001 .html
5. http://www.wipo.int/treaties/en/convention/trtdocs_wo029.ht ml
6. http://www.wipo.int/wipolex/en/wipo_treaties/details.jsp7trea ty_id=17
7. http://www.wipo.int/treaties/en/ip/phonograms/trtdocs_wo02 3.html
