Concept Of Property And Intellectual Property In Latvia - Part 1

Contents:

Implementation and development of the intellectual

property

Legislation on the intellectual property –

most important stages of development

Form of protection

Priorities of protection

Rights acquired indirectly

Preconditions of registration

Specifics of the protection process of the intellectual

property

Specialized protection means in the civil

procedure

White areas" in the legislation on the

intellectual property

Application of legal norms on the intellectual

property

Concept of the intellectual property

Piratism

Summary

List of sources

The article deals with the main development stages of the

intellectual property in Latvia. The practical implementation of

the intellectual property started after regaining de facto

independence of Latvia when, as per the decision of the respective

government, preconditions were ensured to re-register those

trademarks in the independent Latvia which were already registered

in the territory of this state according to the USSR legislation.

The Latvian legislation on the intellectual property, in turn,

appeared only shortly after it. The main development stages are

– adopting of the first laws in 1993; legislative

amendments necessary to ensure Latvia's joining the World Trade

Organization (in 1999) and the European Union (in 2004). Conceptual

foundation in legislation has been little changed and they are:

protection of intellectual property based on registration

(registration system); registration is secured after the formal

preconditions for registration are fulfilled. No requirement is set

forth for the expertise of the intellectual property object in

point of fact (patent novelty, confusing similarity between a

trademark and a design with the competing objects). Several types

of intellectual property are not either regulated (domain names,

trade secrets, rights to an image) or else are regulated

insufficiently (sui generis database rights).

The concept of intellectual property in the Latvian law science

was analyzed considerably later – approximately 10 years

after the legislation was enforced regulating individual types of

intellectual property. A narrow understanding of the property still

prevails in the law science and court practice. Intellectual

property is regarded as an incomplete property object by many law

experts. Many types of intellectual property, like domain names,

are contested in the court not to be regarded as property objects.

Such doctrine not only contradicts the already established court

practice, e.g. the practice by the European Court of Human Rights,

but is also putting obstacles to the practical development of the

intellectual property.

1. Implementation and development of the intellectual

property

The history for the development of the intellectual property is

quite short after regaining Latvia's de facto

independence. In the given case there is no reason to have a

retrospective look at the period from 1918 – 1940 as the

laws of that time were not restored. However the term of

intellectual property per se had the key role in transforming the

Latvian economy from a centralized state regulated economy to the

market economy. Discussion about transformations in the property

system started in the summer of 1989 in the Supreme Council of the

Latvian SSR: There is necessity for different forms of property, of

equal status, it is necessary to have equivalent exchange, free

market of goods, services, intellect"1.

Historically the first source is – Decision adopted by

the Council of Ministers of the Republic of Latvia On temporary

procedure for protection of inventions, industrial designs and

trade marks in the Republic of Latvia"2. This

document may be regarded as a starting point for revival of

intellectual property after Latvia regained its independence de

facto. It is exactly this decision which established

preconditions for intellectual property in Latvia and such property

was created literally at this very moment as it was the

precondition for the registration boom" of the intellectual

property rights, like it is also reflected on the home page of the

Patent Board of the Republic of Latvia demonstrating the dynamics

of the patent and trademark registration with the sharp rise in

1992 (see Diagram no 1).

Diagram no 1

This diagram is an example of the strength and weakness of the

intellectual property in the Republic of Latvia. First, the diagram

demonstrates an uneven rise when the number of registered objects

reached several thousands within a short period, afterwards in the

successive years it became stable with a considerably smaller

amount. Second, the diagram shows the asymmetric character of the

intellectual property protection. Only one segment of the

intellectual property – trade marks –

experienced sharp rise with the rest remaining low. It is

significant that the preconditions for re-registration" were

created even before the preconditions for registration" were

worked out as the respective laws on registration of trademarks and

patents were only in the draft stage. A fair question arises

– how was it possible to re-register the already existing

old" trademarks if there were no preconditions for such

registration procedure. The only explanation is that already from

the very beginning the expertise of the intellectual property to be

registered was not required as a precondition. Respectively, the

re-registration of the old" trademark took place without

considering a possibility that the mark might be confusingly

similar to some local mark and could be contested before the local

court since neither the objection preconditions nor the procedure

existed altogether.

This tendency reflects the extravert" nature of the Latvian

intellectual property which is more expressed as a reaction towards

the processes elsewhere, outside Latvia than legal consolidation of

the innovations developed in the state – the trademarks

developed abroad are re-registered in Latvia mainly in a way of the

imported goods and marketing instruments. While the rest of the

intellectual property objects actually languishes, including one of

the main indicators of the local scientific creation products

– patents.

It is not possible to schematically reflect protection of all

intellectual property objects as some of the intellectual property

objects, e.g. copyrights, database rights (to a certain extent also

designs as from 2004) are in force" and thus protected without

registration. However, also to these development spheres of

intellectual property one may attribute an assumption that at least

within the early stage of the intellectual property development,

Latvia has been a passive absorbent of intellectual property

objects.

Out of all intellectual property spheres, the copyright sphere

(computer programs) could be the most perspective for Latvia as a

potential exporter of innovation products, i.e. with respect to the

intellectual property objects protected irrespective of their

registration. Yet in this sphere the potential obstacle is the

excessive accent on the author's rights (in disadvantage of the

rights of the consumer and the indirect acquirer of the work, see

Chapter 2).

In comparison with the earlier period with the legislation

recognizing the rights to a private patent only within a restricted

form (with extensive rights by the state to exercise a forced

license), mostly for the foreign subjects3, to a

restricted range of objects, without admitting the patent

capacity4 for substances, including medicine, and within

a limited number (within 10 years i.e. from 1942 -1952 only 385

patents were submitted in the entire Soviet Union5) ,

possibly there might be established a regress instead of a progress

i.e. the number of the protected patent-capable innovations in

Latvia under the USSR could have been considerably higher, yet

bearing in mind that they were not owned by separate individuals,

protected by patents.

In this way one can get an impression that the factual

development of the intellectual property was import-oriented from

the very beginning. The true reasons for such tendency might be

also other, e.g. the small number of patents is also explained by

the collapse of industry, poor science financing etc. Still this

tendency is programmed in the very patenting system which is

oriented to the issue of weak patents (see Subchapter d) under

Chapter 2).

2. Legislation on intellectual property – most

important stages of development

Laws on individual types of intellectual property were adopted

in 1993. The next development stage is related to Latvia's

joining the World Trade Organization (1999) and the European Union

(2004).

The Latvian law of 15.05.1993 On copyrights and neighbouring

rights" shows eclectic approach to the conceptual matters.

E.g. according to Article 11 of this law "producers shall be

recognized as the authors of audio-visual works", besides, the

latter is defined as a persona who has undertaken obligation to

create such (i.e. audiovisual – J.R.) work". The

producer as an author is a legal construction unfamiliar to the law

system of the Continental Europe, while the definition given in the

mentioned law is simply a defect.

Whereas the initial wording of the Patent law dated 31.03.1993

already contained all the preconditions for the issue of a weak

patent which was also characteristic for the wordings of the laws

dated 1995 and 2007 (see subchapter d) of this chapter).

Approximately at the same time the laws on Protection of designs

(10.06.1993), on Protection of plant varieties (03.06.1993) and on

Protection of topographies of semiconductor products (12.03.1998)

were adopted. On 07.09.1993 Latvia reviewed its membership in the

Paris Convention on protection of industrial property (Paris

convention).

By the Cabinet Regulation no 197 dated 18.04.1995. On renewal of

presence of the Republic of Latvia in the Berne Convention for the Protection of Literary and

Artistic Works" occurred several, poorly researched

problems in the law...