CARDS Regional 2002 Assessmen Report - Intellectual Property

CARDS Regional Intellectual Property Rights
The European Unions CARDS Programme
CARDS Regional 2002

INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
Contract n 65887
Assessment Report
May 2004
The project is financed by the European Union
The project is implemented by the European Patent Office in co-operation with the Office for Harmonisation of the Internal Market
object is financed by the European Union
I.
GENERAL INTRODUCTION
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Executive Summary - Assessment Report
II. ASSESSMENT 1: PATENTS, TOPOGRAPHIES OF INTEGRATED CIRCUITS AND PLANT VARIETIES

FOREWORD TO ASSESSMENT 1 A. Patents 1.1 The State of Legislation 1.1.1. Croatia 1.1.2. Serbia & Montenegro 1.1.3. Bosnia & Herzegovina 1.1.4. FYR Macedonia 1.1.5. Albania Conclusion - State of Legislation 1.2. State of Implementing Legislation 1.2.1. Croatia 1.2.2. Serbia & Montenegro 1.2.3. Bosnia & Herzegovina 1.2.4. FYR Macedonia 1.2.5. Albania Conclusion - State of Implementing legislation 1.3. Functioning of IP Institutions and their development needs 1.3.1. Croatia 1.3.2. Serbia & Montenegro 1.3.3. Bosnia & Herzegovina 1.3.4. FYR Macedonia 1.3.5. Albania Conclusion - The Functioning of the IP Institutions and their development needs 1.4. Impact on local industry from the legislative environment 1.5. Other Technical Assistance Projects 1.6 Regional Co-operation B. Topographies of Ingrated Circuits 2.1. State of Legislation 2.2. Conlusions and Recomendations
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16 17 17 17 18 19 20 20 21 22 22 23 24 24 24 25 25 26 26 27 27 29 29 31 32 33 36 36 37
C. Plant Varieties 3.1. The State of Legislation and Institutional Framework 3.1.1. Croatia 3.1.2. Serbia & Montenegro
39 39 40 29

3.1.3. FYR Macedonia 3.1.4. Bosnia & Herzegovina 3.1.5. Albania 3.2. Conclusions and Recomendations 3.2.1. The impact of plant varieties protection on local agriculture 3.2.2. The functioning of the Intellectual Property Institutions 3.2.3. Regional Co-operation 43 45 48 49 49 50 52
III. ASSESSMENT 2: TRADEMARKS, GEOGRAPHICAL INDICATIONS, INDUSTRIAL DESIGNS, COPYRIGHTS AND RELATED RIGHTS
1. 2. 3. 3.1 Executive Summary Terms of Reference Albania Legal Overview (a) Legislation (b) Compliance with WTO TRIPs Agreement 3.2 Meetings and Contacts (a) Trademarks, Geographical Indications and Designs (b) Copyright 3.3 IP and National Industrial Development 3.4 Regional Co-operation 4. Bosnia and Herzegovina 4.1 Legal Overview (a) Legislation (b) Membership of International Treaties and Conventions (c) Compliance with WTO TRIPs Agreement 4.2 Meetings and Contacts (a) Trademarks, Geographical Indications and Designs (b)Copyright 4.3 IP and National Industrial Development 4.4 Regional Co-operation 4. Croatia 5.1 Legal Overview (a) Legislation (b) Membership of International Treaties and Conventions (c) Compliance with WTO TRIPs Agreement 5.2 Meetings and Contacts (a) Trademarks, Geographical Indications and Designs (b) Copyright 5.3 IP and National Industrial Development 5.4 Regional Co-operation 6. Former Yugoslav Republic of Macedonia 6.1 Legal Overview (a)Legislation (b)Membership of International Treaties and Conventions (c)Compliance with WTO TRIPs Agreement 6.2 Meetings and Contacts (a) Trademarks, Geographical Indications and Designs (b) Copyright 6.3 IP and National Industrial Development 6.4 Regional Co-operation 7. Serbia and Montenegro 7.1 Legal Overview (a) Legislation (b) Membership of International Treaties and Conventions (c) Compliance with WTO TRIPs Agreement
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54 56 57 57 57 58 60 62 64 64 65 65 66 66 67 67 67 69 73 74 74 74 75 76 77 77 77 83 87 87 88 88 88 89 90 90 90 93 96 96 97 97 97 98 99
Membership of International Treaties and

7.2 Meetings and Contacts100 (a) Trademarks, Geographical Indications and Designs (b) Copyright 7.3 IP and National Industrial Development110 7.4 Regional Co-operation111 8. Recommendations112 8.1 Mentoring112 8.2 IP Education113 8.3 IP Institution Building113 100 105
IV. ASSESSMENT 3: ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES, IPR ENFORCEMENT AND PROTECTION OF UNDISCLOSED INFORMATION 115 1. INTRODUCTION 111
111 112 114
CARDS Programme Assessment 3 Framework Background of the Research Executive Summary
2.
LEGAL OVERVIEW:
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119 119 119 119 119 120 126 121 121 121 122 126 126 126 126 127 133 129 129 129 129 129 130 137 131 131
Albania- National Legislation Industrial Property Copyright And Related Rights Undisclosed Information Plant Varieties Protection International Conventions Albania WTO Status: Member Relevant Excerpts from the Working Party Report: Undisclosed Information Business Secrets Enforcement Bosnia and Herzegovina - National Legislation Industrial Property Copyright And Related Rights Undisclosed Information International Conventions Bosnia and Herzegovina WTO Status: Observer - accession working party Croatia - National Legislation Industrial Property Copyright And Related Rights Undisclosed Information Uncompetitive Practice International Conventions Croatia WTO Status: Member Relevant Excerpts from the Working Party Report: Requirements on undisclosed information, including trade secrets and test data.

Measures to control abuse of intellectual property rights Enforcement (a) Civil judicial procedures and remedies (b) Provisional measures (c) Administrative procedures and remedies (d) Special border measures (e) Criminal procedures FYR Macedonia - National Legislation Industrial Property Copyright And Related Rights Undisclosed Information Uncompetitive Practice International Conventions FYR Macedonia WTO Status: Member Relevant Excerpts from the Working Party Report: Requirements on undisclosed information, including trade secrets and test data Measures to control abuse of intellectual property rights Enforcement (a) Civil judicial procedures and remedies (b) Provisional measures (c) Administrative procedures and remedies (d) Special border measures (e) Criminal procedures Serbia and Montenegro - National Legislation Industrial Property Copyright And Related Rights Undisclosed Information International Conventions Serbia and Montenegro WTO Status: Observer - accession working party 131 132 132 133 133 133 133 135 135 135 135 135 136 143 137 137 137 138 138 138 139 139 140 142 142 142 142 143 150
3.
(i)
RECOMMENDATIONS:
ANTI COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES
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145 154 155 155 156 156 157 157 158 159 160 160 161 161 162 163 164 165 165 166
(ii) ENFORCEMENT Education on intellectual property Graduate legal education Post-Graduate legal education Continuing legal education Graduate courses in other educational fields (technical, humanistic and other) Interdisciplinary Cross-training for IP Rights Enforcement Personnel Local Experts and Practitioners as Trainers Training the Local Trainers Intellectual Property Rights Written Material Information management, searching and other data-mining trainings Training Journalists Institution building Legislators Governments Intellectual Property Offices Enforcement agencies Administrative (inspectorates, tax authorities) Police

Judicial Police Customs Judicial System Civil Courts Misdemeanour Courts Criminal Courts Public Prosecutors Attorneys at Law Patent and Trademarks Agents Private Investigators Sworn Court Experts Industry Associations Chambers of Commerce Competition Authorities Integrated Intellectual Property Rights Related Data Systems Projects for Intellectual Property Rights Related Statistical Data Organization Transparency of the Data Related to the Intellectual Property Rights Infringements Proposals on Intellectual Property System Reform Abolition of Administrative Courts Jurisdiction in Intellectual Property Rights Appeals Intramural appeals Decentralization Specialization and Concentration Institutional reorganization Governmental Coordinating Body Intellectual Property Offices Seized Goods Warehousing Institution Weaknesses and Political Interference Corruption (iii) PROTECTION OF UNDISCLOSED INFORMATION 168 168 168 168 169 170 170 171 172 172 172 173 173 174 174 175 176 176 176 178 179 180 181 181 183 185 186 187 188
COUNTRY SPECIFIC REMARKS

Albania Bosnia and Herzegovina Croatia Former Yugoslav Republic of Macedonia Serbia and Montenegro
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190 190 192 193 193
Annex to Assessment 3 - VISITS AND CONTACTS MADE:

Meetings in Tirana, Albania Thursday, January 29, 2004 Friday, January 30, 2004 Contacts in Tirana, Albania IP Office Judges Professors IP Practitioners Ministry of Public Order Competition Authorities Meetings in Sarajevo, Bosnia and Herzegovina Thursday, February 12, 2004 Friday, February 13, 2004
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196 196 197 198 198 198 199 199 199 199 201 201 201

Contacts in Sarajevo, Bosnia and Herzegovina IP Office Judges Professors IP Practitioners Ministry of Interior Competition Issues Prosecutors Office State Inspectorate Domain Names Meetings in Zagreb, Croatia Contacts in Zagreb, Croatia IP Office Judges Professors IP Practitioners Ministry of Interior Competition Authorities Customs State Attorney State Inspectorate Meetings in Skopje, Macedonia Thursday, February 19, 2004 Friday, February 20, 2004 Contacts in Skopje, Macedonia IP Office Ministry of Culture Judges Professors IP Practitioners Ministry of Interior Competition Issues Customs Meetings in Belgrade, Serbia and Montenegro Monday, February 23, 2004 Tuesday, February 24, 2004 Contacts in Belgrade, Serbia and Montenegro IP Office Judges Professors IP Practitioners Ministry of Interior Competition Issues Customs State Attorney State Inspectorate 202 202 202 203 203 203 203 204 204 204 205 206 206 206 206 207 207 207 207 208 208 209 209 209 210 210 210 210 210 211 211 211 212 213 213 213 214 214 214 214 215 215 216 216 216 216
Annex II: Overview of IPR situation
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I. General introduction
Executive Summary - Assessment Report The current report compiles the results of three separate assessments commissioned for the CARDS Regional IPR Project. Apart from minor corrections and reformatting, the text of the assessments has been unedited as presented by the assessors. The individual assessments were carried out during a six month period. As required by the project description of operations, the assessors met initially in November 2003 in Munich before actively starting their work to agree the subject-matter and scope of the assessments and then in March 2004 in Zagreb towards the end of their work to evaluate the approach taken and to agree on a determined format. All draft assessments were provided by the end of April 2004. These assessments covering all TRIPs IPR areas for each of the five CARDS countries were carried out by the following experts: Assessment 1: Patents; lay-out designs (topographies) of integrated circuits; plant varieties by Ms Bojana Dragovi, who had already produced an extensive report1 in May 2000 for the EPO regarding the state of patent laws in the ex-Yugoslav republics.
Report produced for EPO: Der Patentschutz in den Lndern auf dem Territorium des ehemaligen Jugoslawiens und TRIPs
CARDS Regional Intellectual Property Rights Assessment 2: Trade marks, industrial design; copyrights and related rights; geographical indications by Professor Michael Blakeney, Director of the Queen Mary Intellectual Property Institute, together with Professor Fiona Macmillan Birkbeck College, University of London. Assessment 3: Anti-competitive practices in contractual licences; enforcement procedures; protection of undisclosed information by Mr Mladen Vukmir, an IP attorney practising in Zagreb with wide international experience.
The assessments include the state of legislation and implementing regulations, the functioning of the IP institutions and their development needs, as well as give an estimate of how local industry has benefited/suffered from the IP legislative environment. One of the key tasks in the assessments was also to find out and recommend fields, which specifically would benefit from regional cooperation and where it would be economically sensible to co-operate between more countries. The assessments take account of relevant existing, committed or planned national technical assistance projects (both EU and other donors) and identify areas of interaction between them. A comparison table with the situation in each country is shown in Annex II. The underlying basis for all activities undertaken in the field of IPR and, particularly in this region, is very well expressed in Assessment 3: The central assumption of this Assessment is that the prominent role of intellectual property is instrumental to the transitional societies transformation into modern, efficient states. In other words, this Assessor strongly believes that the transition into the market economies and civil societies is possible only once intellectual property rights are properly perceived as a great social value and the basis for the creation of economic wealth. The longer a society delays proper perception of the value of intellectual property rights and postpones its full enforcement, the longer the transition will last. This means that no society in transition will emerge as a modern society without positioning intellectual property protection as the role comparable to those that the modern, democratic post-industrial societies have reserved for intellectual property. The assessments include conclusions with recommendations, the most important of which are summarised (not in any specific order) as follows: General
CARDS Regional Intellectual Property Rights Possible establishment of a single regional IP institution (politically very unlikely); Otherwise (more realistically), it is importance to strengthen and develop national IP institutions, which offer the advantages of being aware of local conditions; Regional harmonisation of IP institution organisational structure; conclusions could be drawn from the organisational analysis being carried out at SIPO in Croatia within the National CARDS 2001 project; Regional harmonisation for training, including setting curricula; Regional assessment and implementation of information systems, particularly the use of similar software (office administration, e.g. SOPRANO); Use and building on Croatian experiences to date, particularly from other CARDS projects, through mentoring relationships; Use and building on other Balkan and neighbouring countries experiences in IP, e.g. Slovenia, Romania, Bulgaria, Hungary, Czech Republic; sharing experiences in establishing IP systems in compliance with the acquis communautaire; A modality (programme) to be established for sub-regional cooperation in the field of IP between CARDS countries and new and more established EU countries; Sustainability for awareness raising and capacity building through train the trainer programmes and IP courses at law schools and postgraduate educational institutions; Preparation of IP teaching materials and development of IP curricula; The provision of IT assistance, particularly with respect to the organization of documentation, regional networking and interfacing with WIPONET; Providing attachment opportunities for all CARDS IP office staff in other European IP offices; The organization of training seminars in intellectual property rights and enforcement for the judiciary; The organization of consciousness-raising seminars for policymakers, government officials and private industry; The preparation of intellectual property case studies to be incorporated into awareness-raising literature; The organization of a documentation centre and library collection available to SMEs, researchers, and the public; Recruitment of staff to all areas of IP (BA); Establishment of a regional network of public documentation and resource centres; Intellectual property education in the CARDS region is undeveloped; there is a pronounced shortage of legal texts and curricula; it is suggested that a panel of professors and IP practitioners, combining both academics from CARDS countries and the EU could design a curriculum for intellectual property education appropriate for CARDS countries; this education would be not only for law students, but also for IP practitioners and IP office officials;
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CARDS Regional Intellectual Property Rights Production of university teaching materials across all areas of IP; Study visits to other experienced IP Institutions; A regional academic network to promote research and study in intellectual property should be established; Equipment for video and power point presentations in order to continue and develop the process of public awareness raising; The organization of training seminars with respect to intellectual property rights and their enforcement for the judiciary, public prosecutors, customs officials and officials of the Ministry of the Interior; Provision of computer hardware and software and for the training of staff in the use of this equipment; Training in foreign languages, especially English; Support should be given to a system of staff exchange and placement with other offices in which full examination is conducted; Support to be given for the strategy of IP offices to become selffinancing; Specialised case-based training in intellectual property for the judiciary is required; this training would be most effectively delivered if the court system was rearranged in order to allow for specialised intellectual property courts; Training for the purpose of establishing a system of intellectual property arbitration in the CARDS Region; such a system would have the capacity to alleviate the serious sub-regional problem with respect to lack of judicial expertise and unacceptable delays in the court system; Introduction of regular courses at law schools, availability of postgraduate legal education and the availability of general non-legal courses for other types of education to become standard in the countries of the region and financing such measures; The existing specialized institutions constituent of the intellectual property protection system need improvement in their training so that continuing legal education for the intellectual property practitioners is necessary, together with the specialist practical trainings for the professionals in the field to be made available to all institutions involved; Above all, such specialist practical trainings should on selected occasions be made available in the forms of cross trainings of various branches and institutions involved in the intellectual property enforcement system; Increased specialisation of the institutions and the individual professionals within the institutions for the intellectual property and for the individual rights within the intellectual property which is sorely lacking in all of the countries in the region as a consequence of the general lack of resources, both human and financial, In general, the region is ready to move from basic to more advanced training; Using local IP experts more within the project;
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CARDS Regional Intellectual Property Rights Training journalists covering IP issues; Establishment of a national IP advisory panel to the respective regional governments, on the lines of the Governmental Co-ordinating Commission on IP in FYR Macedonia; development of a national IP strategy; Widening the role played by national IP offices to become IP hubs offering wide range of advice for innovation support from pre-filing to licensing and marketing advice.
IPR Specific Further harmonisation of IP laws with regard to acquis communautaire; Lay-out design protection to be implemented, but slowly in current economic conditions; Drafting and revising of laws for plant varieties in accordance to acquis and UPOV; maintaining registers of recognised and approved foreign and domestic plant varieties and of protected varieties; training of staff in this field; Possible out-sourcing of the activities related to the protection of plant varieties to the institutions of other countries (as in FYR Macedonia); possible regional institution; Further regional co-operation in collective administration of copyrights and neighbouring rights; Increased focus of copyrights in next phase of CARDS Regional project; Establishment of regional support (both financial and awareness) for registration of geographical indications; Training of examination staff in the practice and procedures of the Madrid Agreement and Protocol administered by WIPO and of OHIM; The principal assistance requirements of the Albanian Copyright Office and collecting societies is in relation to staff training; training is also urged for those involved in civil and criminal enforcement of copyrights: the judiciary, prosecutors, investigators and the police; Copyright awareness-raising is recommended for legislators and IP policy makers, as well as the Albanian public; Regional seminars for police concerning detection and prosecution of copyright piracy drawing on the expertise of the Croatian police and Bulgarian police, and on the experiences of HDS-ZAMP (Croatia) in developing good relationships between the police and copyright collecting agencies; Regional seminars for government officials that focus on awarenessraising, particularly on the question of the economic and cultural importance of the copyright industries;
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CARDS Regional Intellectual Property Rights Pressure needs to be brought on the BA government to fund a position in the Institute that is concerned with the oversight of copyright policy, and also to establish a separate intellectual property office with its own budget; Establishment of regional mentoring relationships: Sine Qua Non would particularly benefit from support in order to increase its ties with HDSZAMP (Croatia), perhaps through opportunities for staff exchange; Regional training of judges with specialized knowledge in copyrights; a number of people around the region have suggested the establishment of specialized copyright or intellectual property courts in each of the countries in the region; Pressure should be put on collecting societies in countries outside the region, especially in the EU, to conclude reciprocal agreements with Sine Qua Non; Advanced training of specific subjects for SIPO staff; Training should be provided for police and customs officers with respect to the investigation of copyright piracy and copyright enforcement; Training in copyright law and practice is needed for prosecutors and judges of the criminal courts; A regional network of collecting societies should be established; the activities of this network could include the following: mentoring; training; awareness-raising; exchange of experiences generally; and, collaborating on a regional anti-piracy programme; within the framework of such a regional network, arrangements could be made to formalize and support particular mentoring relationships, such as that between HDS-ZAMP and Sine Qua Non in Bosnia and Herzegovina; Support to be given to HDU in relation to the use of information technology; Training with respect to the new trademark procedures including: the trademark opposition procedure; registering of three-dimensional marks; the legal regimes governing collective marks, certification marks and well-known marks; Establishment of a specialist court to deal solely with authors rights (ZAMP says that this is supported by the Ministry of Culture); ZAMP-Macedonia requestes education and training for its staff; opportunities for exchange of information amongst collecting societies on issues of importance within the region, such as the negotiation of contracts with respect to cable retransmission; awareness-raising amongst government bodies and media undertakings; and support in the area of information technology, especially with respect to the establishment of a regional database of musical works; The most serious problems for the collective licensing system result from the non-enforcement of the Serbian Laws on Broadcasting and on Telecommunications; Training directed at the owners of copyright is required in order to advise them of their rights in relation to other stakeholders in the copyright system;
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CARDS Regional Intellectual Property Rights In relation to OFPYU, which is at an early stage in its development, staff exchanges with more experienced phonogram rights collecting societies should be supported; Support be given to OFPYU in relation to the acquisition of specialised software and training in the use of that software; Further to the previous recommendation, support should be given to the Department of Copyright and Related Rights in order to allow it to mediate effectively between SOKOJ and OFPYU; Project collaboration with the Department of Copyright and Related Rights with a view to developing its current programme of public and governmental awareness-raising in relation to copyright; Comparable with a regional mentoring network for industrial property office, a regional network of collecting societies should be developed; It is also suggested that, given the common regional use of many copyright works, consideration be given to the establishment of a regional distribution system for collecting societies.
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ASSESSMENT 1: PATENTS, TOPOGRAPHIES OF INTEGRATED CIRCUITS AND PLANT VARIETIES
FOREWORD This Assessment has been conducted within the time period from November 2003 until March 2004 based on the Contract Nr. 511/csrog/2003-01 relating to the provision of consulting services for the CARDS Regional Western Balkans Intellectual Property Rights Programme. The scope of this Assessment was defined by the said Contract. For the preparation of this Assessment the author has used the documents received from the competent authorities of the countries in the Region, as well as written documents which were handed over and notes taken during the interviews in the course of each visit. Since it was not possible to organize a visit to Zagreb, Croatia in within the above stated time period, the data relating to Croatia was given based on written documents and the previous visit the author has paid to the SIPO (October 2001). The status quo shown in this Assessment refers to the time period in which it was created.
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A. PATENTS
1.1 The State of Legislation It is nowadays understood that the basic requirements regarding patent protection are regulated in TRIPs. The fulfilment of those requirements is the condition for admission to the WTO. Among the countries that are subject of our analysis (hereinafter: Observed Countries) Albania, Croatia and Macedonia (FYROM) are already WTO Members. Although the protection of IPRs is governed by many international conventions, the viewpoint of the EU is that single market imperative requires stronger protection in many IPR fields. In that sense we are going to analyze the Patent Laws of the Observed Countries under the aspect of Acquis Communautaire. The most important are the following three: 1. Regulation (EEC) No.1768/92 of June 1992 concerning the creation of a Supplementary Protection Certificate for medicinal products; 2. Regulation (EC) No.1610/96 of the European parliament and of Council of 23rd of July 1996 concerning the creation of a Supplementary Protection Certificate for plant protection products; 3. Directive 98/44/EC of European parliament and of the Council of 6th of July 1998 on legal protection of biotechnological inventions. Needless to mention, the Patent Laws of the Observed Countries must be in compliance with the Munich Convention on the European Patent (EPC), which was signed 1973 by a number of Member States and non-EC countries in Europe. It provides for patents to be obtained by a number of countries through a single application submitted to the EPO. All the observed countries have now signed Extension Agreements with the EPO, only in case of Bosnia and Herzegovina and Serbia and Montenegro they still need to be ratified. All the Observed Countries are also parties to the Patent Cooperation Treaty (PCT). We will now look into each legislation based on the above-mentioned requirements. 1.1.1. Croatia In a relatively short time span the complete package of IPR laws was passed twice. The law package was first passed in 1999, just before Croatia entered the WTO. It was passed a second time in October last year, when all the laws had been brought into compliance with the Acquis (SPC for medicinal
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CARDS Regional Intellectual Property Rights products and Biotech Directive were fully implemented). The patent law2 now in force was drafted with the assistance of German experts from the Gesellschaft fr Technische Zusammenarbeit. Therefore, we may conclude that the Croatian patent law does fulfil the above mentioned requirements. As regards to the substantial examination, the SIPO has a contract with the Patent Office of Austria by which it has outsourced this specific examination phase. In case of European Patents, the results of substantial examination conducted by the EPO are accepted automatically. This is also the case in all the remaining Observed Countries. 1.1.2 Serbia & Montenegro The law on patents3 was passed in 1995 and was already in compliance with most of the relevant EU directives and regulations at that time. However patent law changes are very dynamic and so unpredictable that international revisions now necessitate a new harmonization of the patent law of Serbia & Montenegro. The amendments of the law became inevitable at the beginning of 2002 as a consequence of several important and urgent demands. The amendments have to take particular account of certain requirements of the European Patent Convention, the standards of the TRIPs Agreement in context of potential WTO accession by S&M, the EU Biotechnology Directive passed in 1998, and provisions related to the ratification of the Patent Cooperation Treaty. Beginning of April 2002 several meetings were held with external experts and advisors preparing the amendments so the draft was finalized in late May 2002. As the amendments were very abundant the experts decided to rewrite the whole text into a new law, which was finalized in November 2003 and then submitted to the parliament. The experts viewpoint on this newest draft is that it perfectly complies with all the above stated requirements. This office is the only granting office in the Region in the full meaning of that word, namely the local examiners conduct substantial examination. We are using this opportunity to give a short review on the specific parliamentary paralysis in S&M, whose end cannot yet be seen. Beginning of 2003 the creation of S. Milosevic's called Federal Republic of Yugoslavia ceased to exist. It transformed into the Association of States Serbia and Montenegro, which, from the point of view of international public law has a single international legal identity, whereas internally this association is defined quite restrictively. The forming of this new state could be carried out only after two years of discussions of parliamentary majorities in Parliaments of Serbia and Montenegro. The Serbian side was requesting a higher level of unity and Montenegro preferred a union of two independent states with two chairs in
2 3
Peoples Newspaper Nr.173/03 (Official Gazette) Off. Gazette SRJ, No. 15/95
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CARDS Regional Intellectual Property Rights the Assembly of UN. The existing Association of States was achieved by a compromise concluded under great pressure exercised by the EU, and Montenegro finally agreed to have only one chair in the Assembly of the UN. However, in return they obtained a statement in the Constitutional Charter of this Association, which in 3 years time a referendum granting complete independence of the states concerned would be held. That way a state with an expiry date was created, having a Council of Ministers covering only five fields: foreign policy, defence, foreign economical relations, internal economical relations and human rights. In the past year since the Parliament of this Association was constituted, only a few sessions were held. It is very uncertain how the activities of the parliament are going to be carried out in the future, especially after the parliamentary elections held in Serbia on 28th of December 2003. An exchange of the members of the Parliament from Serbia is expected due to the election results. The object of our analysis is neither to discover the reasons nor to find out who is to blame for this situation. Our intention is to show that the Parliament of S&M is not functioning, a fact which very much influences all the aspects of life in S&M. The stalling of passing the IPR related laws only represents the collateral damage of such a state. 1.1.3 Bosnia and Herzegovina Initially a decree with the force of a law was passed in 1993, basically taking over the stipulations from the patent law of the former Yugoslavia. However, the transcription was not conducted thoroughly, therefore some important issues were omitted - such as product patent, deadlines for exhibition priority, SPC, exceptions to patent infringement, law as grounds of exclusion from patentability was left in etc. This decree was in force until June 2002, when the new law on industrial property4 came into force. That same year a contract with the Patent Office of Austria was signed, so this office is conducting substantial examination in the name of the B&H one. Once the Extension Agreement with the EPO comes into force, this office will basically become the registering office for the territory of Bosnia & Herzegovina.
1.1.4 Macedonia (FYROM) The first law on industrial property was passed soon after Macedonia gained independence in 1993 and was in force until the new law5 was passed end of June 2002. This law was supposed to enter into force on July 2003, but due to
4 5
Off. Gazette B&H, No. 3/02 Off. Gazette RM, No. 47/02
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CARDS Regional Intellectual Property Rights the lack of technical conditions its implementation was postponed until January 1st 2004. In the meantime the experts of the IP Bureau in Skopje had detected some inconsistencies, so a new set of amendments was submitted to the parliament and approved beginning of this year. Macedonia has become a WTO Member, so we may assume that the cited law is in compliance with TRIPs. It was also beginning of this year that the IP Bureau grew into the IP Office, gaining independence from the Ministry of Economy. This office has chosen a typical depo-system. Petty patents are allowed indirectly in the sense that each patent application, provided that it fulfils the basic requirements for submission (formal examination and novelty on national level), stays in force (if not challenged) for initial 9 years. During the 9th year the evidence on substantial examination has to be submitted and in case of a positive report, this patent may remain in force for the additional 10 years. It is very important to stress that, even though the definition of patentable subject matter is fully in compliance with TRIPs Art.27, we were assured by the experts from the IP Office of Macedonia, that product patents for medicinal products have never been granted and will not be granted in the future, based on this law. 1.1.5 Albania The very first regulation in the field of IPRs was passed in 1994 as law on industrial property. After that Albania signed a TRIPs Agreement and conducted some amendments to the said law in 1999. The translation of the text of this law as well as the amendments provided by the PTO of Albania contain some solutions that call for additional explanation by the local experts. Otherwise we cannot state with certainty if the law complies or not. Since my attempt to acquire the necessary clarifications in the course of the meeting failed, we have to wait until the written answers to the questions posed are submitted. For example, subject matter of a patent is not clearly defined, the officials seem not to recognize the difference between process and product patents, or the meaning of working of a patent, or why from all fields of technology is explicitly stated in Art.27 TRIPs. There are traces of implementation of international standards, but they are drafted much too vaguely and there is absolutely no knowledge and understanding about their background (e.g. SPC), so there is a great probability that these standards are being misinterpreted. Therefore the author has serious doubts that they can be implemented and enforced properly.
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Conclusion State of Legislation

The above overview of the activities in the observed countries shows that all of them have signalled distinct interest to bring their legislation into compliance with TRIPs and other international standards related to patent protection. So, regarding the definition of the patentable subject matter, rights conferred by a patent, patent term, exceptions to patentability, compulsory license, grounds for revocation of a patent etc. the relevant laws of the Observed Countries now contain standard solutions. This conclusion partially refers to harmonization with the Acquis Communautaire. While all of the Observed Countries now provide for the possibility to apply for an SPC, the wording chosen to implement this Directive is not always optimal. Taken individually Croatia and S&M have fulfilled all the above cited requirements and implemented all the relevant regulations with one major difference. At the end of last year Croatia passed its law on patents whereas, in S&M the draft of the new patent law had to go through the parliament of the new (mutual) state. We are going to say more about that procedure later in the text. The state of patent legislation in the remaining three countries Macedonia, Bosnia & Herzegovina and Albania is still not completely satisfactory regarding implementation of the Acquis. Nevertheless there are differences among these countries. The first two only lack corresponding regulations regarding biotechnological inventions6, while patent legislation in Albania is very insufficient in many aspects. The process of adjusting the observed patent laws to the requirements of the Acquis is not complicated in itself, provided there is a political will in a given country to realize such process. This is best shown in the Croatian example, where everything was successfully completed within several months. Besides it is known that this task is easily accomplished in regard of the IPR laws package and that the biggest problems occur in the sphere of implementation and enforcement. In that sense we expect the experiences of the national CARDS Program in Croatia to be of great value for the implementation and harmonization in the remaining countries. The author has also perceived a tendency on the part of Bosnian and Macedonian legislators to copy the finished formulations from the IP laws of Croatia and Slovenia. 1.2 The State of Implementing Legislation
The European Commission just recently took court action against 8 Member States (The Netherlands, France, Luxembourg, Belgium, Italy, Sweden, Austria and Germany) for non-implementation of legislation to allow the patenting of biotechnological inventions. The deadline for implementation was 30th July, 2000. EGA-EU Brief, Issue #1 2004, p.14;
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CARDS Regional Intellectual Property Rights Regarding the implementation of the patent laws we want to point out that S&M is the only country where substantial examination (regarding novelty, inventive step, industrial applicability) is still being conducted by the national office. In the remaining countries the offices rely on results of substantial examination conducted by other authorities from abroad, with which they have corresponding agreements. All of the observed countries grant so called "petty patents". Their main characteristic is that a lower level of inventive step is required and their protection only lasts 10 years from submission. There is no substantial examination regarding petty patents. The implementation of the patent laws in the region is best shown through statistical data that were made available to us. 1.2.1 Croatia According to the data gathered between 1992 and the end of 2003, there was a total of 11 010 patent applications filed, out of which 62% were submitted by foreign and the remaining 38% by domestic applicants. Taking the average of the observed period, in the last three years there were about 1050 patent applications filed, 590 published and around 280 patents granted per year. In the past 10 years the SIPO received 3469 requests for a substantial examination, out of which 25% were domestic and 75% were foreign applicants. During that same period of time SIPO has granted 1942 patents and 223 petty patents. The Gazette, the official publication of the SIPO is being published regularly, that is every two months. Regarding the implementation of the patent law a recently submitted protest by the US Ambassador deserves to be mentioned. Croatia again appeared on this years Priority Watch List of Countries, prepared by the US Pharmaceutical Manufacturers of America (PhRMA), based on its weak intellectual property protection policies. In the area of pharmaceuticals, in particular, the country stands accused of failing to provide clinical data protection, giving only process protection for drugs registered before 1993, and insufficient product protection for those registered after (due to a break-up in communication between the patent office and the pharmaceutical marketing authorization office).7
Source: World Market Research Center; Healthcare Sector Analysis, 7. 10. 2003.
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CARDS Regional Intellectual Property Rights 1.2.2 Serbia and Montenegro In the course of 2003 a total of 1.039 patent applications were submitted, out of which 128 were petty patent applications. The domestic applications refer almost entirely to the petty patents category. In that same year, 290 patents were granted, out of which over 100 were petty patents, filed prevailingly by domestic inventors. In regards to the fields of technology, over 75% of the applications were for pharmaceutical patents. As opposed to the normal patent, petty patents are not subject to examination. The Patent Law explains that the difference lies in the lower level of inventiveness required for petty patents. However, defining this lower level inventive step is creating enormous problems in practice. The Official Gazette of the IP Office is published regularly, twice a month. There was an initiative to have parts published in English, but this has not been realized yet. The problem we have pointed out with Croatia exists in S&M as well, especially in regard to product patent protection for drugs in the patent applications submitted before January 1st 1993. Up until that date only process patents were allowed for drugs, but not product patents pertaining to finished dosage forms as such. 1.2.3 Bosnia and Herzegovina Ever since the institution in charge of the IPRs was founded, back in 1993, there were a total of 1700 patent applications submitted. In the course of 2003, there were 350 patent applications out of which only 34 were national ones. Bosnalijek, actually being the only active subject on the IPR field holds a total of 7 patents. Ever since the new patent law has been passed an increase of patent applications has been observed, mostly related to pharmaceutical inventions. The substantial examination issue was resolved in 2002, when a co-operation agreement was signed with the Austrian PTO. It is practice that the applicant submits a substantial examination report in the 9th year of patent validity, and provided that the report is positive and the requirements are met, his patent continues to live for another 10 years (a full patent life of 20 years). The above stated problem regarding product patent claims relating to drugs in the applications that were submitted before January 1st 1993 exists in Bosnia and Herzegovina. The Official Gazette is being published irregularly and in undefined intervals. However, the officials do not seem to realize the consequence of this fact and the problems it may cause.
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CARDS Regional Intellectual Property Rights 1.2.4 Macedonia (FYROM) Since the founding of the Bureau in 1993 until 2003, there were 2610 patent applications processed, out of which 743 national ones. There were 833 patents granted, an average of 80 per year. An increase of patent applications, mainly by foreign inventors has been registered in the last few years. To illustrate this statement there were 241 patent applications in 2002 and 434 in 2003, when a total of 100 patents had been granted. Similar to S&M, 80% of the patent applications come from the pharmaceutical sector, which, in the case of Macedonia, represents the only industry active in the field of IPR. There is no apparent difference stated in the law itself regarding petty and normal patents. They have a universal deposit-system where the novelty is being examined but only in regards to the national applications (not absolute novelty). The inventive step is not being examined at all. In the course of the 9th year of patent validity, substantial evidence of the conducted examination must be submitted. In case the results are positive (there were cases of applicants actually submitting negative examination reports?!), the patent life can be extended for another 10 years. 1.2.5 Albania A structured approach to IPRs began in 1994, when the first (ever) law regulating this area was passed. There have been 940 patent applications since then. The latest statistical data we have acquired refer to the year 2000, when 62 applications had been submitted, and the year 2001 when 124 patent applications were submitted. The number of European patents that extend their protection on Albania in the time frame of 1996-2001 amounted to 10.000 applications. Substantial examination was never conducted at the local office and was always based on the examination reports coming from abroad. The Official Gazette appears regularly, in three months terms.
Conclusion State of implementing legislation

The data shown indicates that the yearly number of patent applications in BA, MK and AL moves around few hundred, whereas this number is tripled in HR and CS and averages more than 1000 patent applications per year. Over 80% of the applications are filed by foreign applicants whereas domestic inventors prevailingly chose petty patents for protecting their inventions. The extension
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CARDS Regional Intellectual Property Rights of the European Patents granted through the Extension Agreement with the EPO is the dominant way used by the foreign applicants that want to cover the territories of Albania and Macedonia with their European Patents. Based on the insight that we managed to acquire we can conclude that apart from the lack of experience and other difficulties faced by IPR institutions, there are two main problems regarding the implementation of regulations, the processing of patent applications and granting of patents. One difficulty lies in the fact that the Official Gazette is not being regularly published in Bosnia and Herzegovina, leaving an enormous gap of legal uncertainty regarding valid rights. To make things even worse, it is explicitly stated in the patent law that all the patent rights (in their full scope) begin with the filing date of an application a fact that remains completely unknown to the other participants in market, due to the lack of the appropriate publication. The other problem deals with the persistence of keeping the substantial examination in within the competences of the local office in S&M. In addition, there is the aforementioned problem burdening countries of the former Yugoslavia which refers to product patent claims for drugs in applications submitted before January 1st 1993. There are plenty of other problems regarding enforcement of patent protection regulations, but these were not subject of our analysis.
1.3. The Functioning of the IP institutions and their development needs In this study we will limit ourselves to the patent granting institutions leaving other numerous participating institutions aside (i.e. inspection, customs, police, attorneys, judiciary etc), which are in charge of certain activities related to enforcement of the IPRs. With the exception of S&M, which inherited IP Institution(s) with long traditions, other observed countries founded their first IP institutions about 10 years ago. Using the data we were provided with during the course of our visits as well as the consultations with the officials we held on that occasion, we will give a short description of their working conditions and development needs. 1.3.1 Croatia The State Intellectual Property Office SIPO is in charge of conducting administrative and technical activities related to the protection process regarding: patents, topographies, industrial designs, trademarks, geographical indications of origin; the issuing of authorization for copyright; preparation of laws and other regulations in the field of IPR; activities related to preparation, conclusion and implementation of international agreements and conventions in the field of IPRs and for documenting the activities in IP fields such as
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CARDS Regional Intellectual Property Rights collecting and sorting out of patent documents and making them available to the interested parties etc. as well as information and dissemination of the information related to IPRs. SIPO occupies an appropriate location and employs 88 staff. Compared to the other offices in the Observed Countries SIPO undoubtedly shows the best results.
1.3.2 Serbia & Montenegro The central institution for IPR protection is the Intellectual Property Office IPO, which now, after the latest changes in the state organization and the founding of the State Association of Serbia & Montenegro (beginning of 2003) belongs to the Ministry for Internal Economic Affairs of the Association. The fields of IP covered by IPO are: patents, trademarks, appellation of origins & geographical indications, industrial design and layout designs (Topographies). Up until 1991 IPO was conducting all the IPR related activities on the territory of the Federal Republic of Yugoslavia and as such was inherited by the State Association of Serbia & Montenegro. That is the reason why in the remaining four observed countries and their IPR institutions, there are altogether less employees as in the IPO alone. Currently IPO has 102 employees, whereas 170 posts are planned. Organizationally, IPO is divided into four departments: (1) patents, (2) distinctive signs, (3) documentation and information and (4) registry. Here we are dealing typically with an inherited bureaucratic structure which, (according to Perkinss law on bureaucracy) holds together in spite of all the changes in the surroundings as well as in the structure and the size of the state it serves. One of the characteristics of the IPO is a high turnover of personnel especially in the last few years (probably due to the very low salaries in the state administration). In spite of the fact that the IPO has been delegated a new building, which provides very good working conditions, the traces of the very turbulent past period can still be seen. In the past 15 years the IPO has moved several times. During the period of the UN economic sanctions imposed on Yugoslavia, the IPO wasnt even receiving the databases from the EPO. During the bombings of Yugoslavia on the part of NATO forces 1999, the documentation of the IPO was hidden in several places, in order to be protected from eventual destruction. We have to mention that the complete archive has not been transferred to the new building yet. To avoid going into details regarding the working conditions let us just mention the fact, that the office up until today still does not have an email address nor can anybody from the office be contacted via email.
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CARDS Regional Intellectual Property Rights As shown above, the IPO is the only IP institution in the region, which is conducting a substantial examination of patents. Currently there are 18 engineers divided into 4 departments: chemistry, mechanical engineering, electrical engineering, and general technique. The author does not feel competent enough to judge on the quality of examination carried out by the group of engineers, but has to conclude that this symbolic group of experts is far from enough to cover all the patent classes. If we keep in mind that there are approximately over 300 patent applications per year pertaining to pharmaceuticals, it becomes completely clear that the existing group of examiners is insufficient to conduct substantial examination. The answer to the question: "why has this state lasted for so long?" is simple we are dealing with the inertia of a bureaucratic structure, which can only increase, but is unable to change. From the above stated reasons we can conclude that the IPO has to be thoroughly reorganized and set on completely different premises. On top of that, it has to be furnished both with personnel and adequate equipment in order to be able to perform in a contemporary manner. The problem, which the IPO is facing at the moment, is the lack of knowledge and good will to realize the importance of this program and the inability reorganize the office all by itself. The author reached this conclusion a long time ago and it was only confirmed in a recent conversation with the new Director, Prof. PhD. Slobodan Markovic. He is undoubtedly one of the most important authorities on the IPRs, copyrights and related rights in S&M. However, when asked about the needs of his office, his only concern was the lack of space. The author believes in the contrary. The IPO is lacking in everything else but in space; the last thing that needs to be invested in is additional room. For example, there is a huge need in this IPO at present to streamline its internal operations through the comprehensive introduction of modern computer technology. 1.3.3. Bosnia and Herzegovina After the tendencies of each entity of B&H to have their own patent administration have been overcome, the Institute for Standards, Metrology and Intellectual property of Bosnia and Herzegovina has been established in Sarajevo. One of the departments of this Institute deals with protection of IPRs. The Institute falls under the competence of the Ministry of Foreign Trade and Economic Relations but, as it is the case in many other spheres in B&H, the competencies are still disputed. In the same law that formed all three institutes it was foreseen that these institutes are supposed to split up at some point in the future. In the summer of 2003 the IPR department prepared and filed the proposal for establishing an independent IPR institution for intellectual property and related rights. As this report was being drafted, the author was informed that the division of the three headed (general) institute has been conducted and the seat of the future IPR institute has been moved from Sarajevo to Mostar.
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CARDS Regional Intellectual Property Rights The IP department currently employs 13 associates out of which six have a university degree. Until recently, there was only one examiner for the entire patent section and now there is also an assistant. The working premises (offices) of the IP Department are in need of improvement. All 13 associates occupy the total of four offices. Even though there is some improvement compared with August 2001, the office could still use some technical help as well. 1.3.4. Macedonia The Industrial Property Protection Bureau IPPB was within the Ministry of Trade ever since it was founded in 1993. According to the information we acquired end of January this year, it was planned for the IPPB to develop into an independent institution of state administration. The IPPB employs 24 associates with a university degree and a technical staff of 18 assistants. The internal organizational structure is not very transparent regarding the hierarchy (plenty of heads and advisors) but according to the results, it is functioning well. The premises in which the IPPB is situated are very cramped and inadequate for work; there are 3-4 associates per office and the same space is being used for the consultations with the public. 1.3.5 Albania The Patent and Trademark Office PTO was founded after the first law on IPR has been passed in 1994. It covers industrial property rights. PTO is the institution of public administration. Copyright and related rights are under the jurisdiction of Ministry of Culture. The PTO is a relatively small organization counting approximately 12 associates. So far Albania only has four registered patent attorneys. Mainly they are young lawyers, highly motivated for work, but lacking experience and knowledge in the field they work in. For example, the director of the PTO, who by vocation is professor of chemistry, was himself the only examiner for patents in their patent section. The PTO occupies a few offices in a building that has undergone a renovation beginning of this year, so it is to be expected, that the Albanian colleagues now have suitable working conditions. By the end of this year a computer program is going to be installed, enabling the associates to create a database for national applications.
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Conclusion The functioning of the IP institutions and their development needs

From the above overview of the main data on the IP Institutions in the observed countries, we can conclude that they are, with the exception of Croatia far under the required level. As regards the working premises, we can say that the conditions are extremely poor in B&H and Macedonia, and moderately bad in Albania. In contrast, problems in S&M have been resolved in a satisfactory way. In that respect the first thing that needs to be provided for B&H, Macedonia and Albania would be decent working premises for the IP institutions. Furthermore, office conditions and staffing structures in the PTOs of the observed countries who are involved in the patent issues are below the required level. The lack of staff does not only concern the Albanian, Bosnian and Macedonian office, where 1 - 2 employees are focused on patents. However, even the S&M office with its much bigger staff, is still inadequate for conducting substantial examination. The third requirement for fully functional institution is the need of a well run IT department. None of the offices meet recommended standards. As we have mentioned earlier, the S&M PTO does not even have an official email address, while Bosnian email is so overloaded that most messages remain undelivered. We can conclude that an all-inclusive assistance for the observed countries regarding the protection of IPRs should lie in furnishing their institutions with the basic requirements in order for them to successfully conduct the processes, which belong to them by the very nature of their authority. To avoid any misunderstanding regarding the competencies that we have in mind it is the standpoint of the author that the Croatian example should be followed, where SIPO is responsible for: 1) conducting the administrative and technical activities regarding the process of protection of: patents, topographies, industrial design, trademarks, geographical indications of origin; issuing the copyright authorization; 2) drafting laws and other regulations in the field of IPR 3) activities related to the preparation, conclusion and implementation of international contracts and conventions from the IPR field 4) for archiving and documenting the IPR activities, such as collecting and organizing of patent documentation and making them available to the public etc. 5) information and dissemination of information from the IPR field. The assistance to these institutions has to be all-inclusive. It has to begin with the drafting of a concept of their organizational structure, comprised of a list of the necessary posts and an overview of the required qualification structure of
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CARDS Regional Intellectual Property Rights the staff. It is extremely important to start with these basic elements, because the observed countries lack the knowledge and experience in administering the IPRs upon which their own concepts can be drafted. Another reason which is no less important in striking out the need for foreign expert help is the budget financing of these institutions and professional reluctance, on the part of the ones in charge of the budget, to allow the increase of the costs for administration. For that reason, pressure from a very high foreign authority is going to be needed so that the IP institutions are established on an appropriate organizational and personnel level. To mention one example: the government of Croatia in their preparation Program for joining the EU, which comprises a number of legal and other activities, mentions an unimportant detail such as hiring of three new apprentices in the SIPO! A specific problem among the observed institutions will be reorganization and modernization of the IPO in Belgrade, as we described before. Only when an agreement is reached in S&M for this office to restrain from substantial examination and the readiness is shown for this office to be organized along the same lines as the other observed offices, it will be possible to kick off the discussions on the new organizational concept of this institution. Of course, refraining from substantial examination will require adequate changes in patent law and other regulations. It is our firm standpoint that sticking to the old practice and insisting on a substantial examination of patents in the IPO, will significantly hinder or even disable the development of this institution in the desired direction. By naming further fields where the assistance to the IP institutions in the observed countries is necessary we can add the education of their employees (training) , drafting and purchasing of the contemporary IT equipment and software and specific training of the personnel on how to use this equipment and how to work with the software. The experiences of the national CARDS program for Croatia can be of great value for all the activities planned in the observed countries. The author feels the urge to point out a specific problem at the end of the text covering the functioning of the IP institutions, mainly concerning S&M, Macedonia and B&H. The problem has to do with the appointment of a director for IP institutions in these countries. The position of the Head of the IP office is viewed to be appointing of political officials of a rank equal to the level of assistant Minister. That is why political criteria are used for distribution of these posts among the coalition partners in a country.
1.4. Impact on local industry from legislative environment
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CARDS Regional Intellectual Property Rights With the exception of Albania, in all other observed countries there are noticeable problems concerning the impact of stronger patent protection on the functioning and development of the pharmaceutical industry. The entire development of the generic industry of Former Yugoslavia was based on process patent protection, which was valid in YU. From the whole region and a rather well developed pharmaceutical industry only one blockbuster was ever discovered (Company Pliva; Brand-name: Sumamed or Zitromax; active ingredient: Azythromicin). This breakthrough in R&D finally led to Pliva being bought by Pfizer. It would be an illusion to even expect local industry launching independently developed blockbusters, knowing that the discovery and development of a new chemical entity costs over 500 Million USD. However, the introduction of product patent protection together with data exclusivity related to clinical studies closes the way for the local pharmaindustry to develop their generic parallels in the future. In this context we need to mention that in Macedonia we were told that there was a very strong negative reaction on the part of their local pharmaceutical industry to the strengthening of patent protection, and especially to the introduction of the SPC. They even requested from the IPB to amend the patent law to explicitly include that the examination related to acquiring a marketing authorization for a certain drug up until the point of issuing a MA are exempt from patent protection. The IPB has rejected this request stating that they would not interfere with the procedure carried out in front of the Ministry of Health. Regarding the industrial branches interested in IP in Macedonia the tobacco industry was mentioned and in Albania geological investigations. In the remaining branches of industry it seems that the local industry is focused on technology transfer, securing of the foreign know-how, new product designs and state of the art production equipment through licensingin. Since everything is in licensed there are no patent protection issues, but there is very often a problem of discriminating conditions imposed on the license acceptor contained in these agreements. The phase of transition in which all the observed countries are presently found, partially with exception of Croatia, still does not enable local industry to feel the benefit in the sense of the improvement of the investment climate. Thus, they foster economic development by ensuring effective protection of intellectual property rights. It is to be expected that this type of arrangement in IPR field will eventually lead to the desired progress.
1.5. Other Technical Assistance Projects
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CARDS Regional Intellectual Property Rights According to the information that was available only Croatia has national CARDS programs. The first CARDS Project was defined in 2001 under the title: IPR, Republic of Croatia. The main objective of this project is to improve the investment climate and foster economic development by ensuring effective protection of IPR in Croatia. This project has three main goals: 1. Legal approximation: to reach harmonization of the Croatian legislative framework in the field of industrial property rights with the EU Acquis to be ready for adoption by the competent bodies; 2. Institutional capacity building and training: to strengthen the institutional capacity of SIPO, enabling improved implementation and application of the current and new legislation in the field of IPRs; 3. Development of a long to medium term strategy for implementation and enforcement: to support the improvement of implementation and enforcement in the field of IPRs. Second CARDS Project was defined later, in 2003. This project will focus on: 1. Capacity building for SIPOs Distinctive Signs and Patent departments; 2. Support to the further development of SIPO IT infrastructure and training of staff. In S&M there are no specific projects that are focused only on IPR field. It has been dealt with, among other issues, by: the SCEPP Advisory centre for economic and legal questions, which, was founded in Belgrade 2001 with financial help from the European Agency for Reconstruction. The expert assistance in adapting and harmonizing the legislative is also given by USAID WTO a project financed by the US. Occasionally interested parties from abroad appear in S&M. Recently, for example, (24th-26th of February 2004) there was a seminar held in Belgrade for customs and other officials on trade with counterfeit goods. The lecturers were appointed by companies like British American Tobacco, Harley Davidson, Lee, Wrangler etc. In Macedonia The American Legal Association Initiative of Central and Eastern Europe (ABA-CEELI) is present in certain projects promoting IPRs. This year a completion of a very interesting three year project for the education of 105 state officials is expected, which was financed by the Government of France with 1,5 million and realized by the prestigious ENA (National School for Administration) from Paris.
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CARDS Regional Intellectual Property Rights 1.6 Regional Cooperation Concerning the activities that are yet to be accomplished by the observed countries regarding the harmonization of their laws with Acquis Communautaire, there is not much space for regional cooperation, except for making use of Croatian experience. When talking about the IP institutions the situation is reversed. Theoretically speaking it would be possible and surely very sensible from the point of view of the economy for the observed countries to form one regional IP institution, which would then perform all the necessary tasks for the entire region. But it is not very probable that political consensus necessary for such type of projects could be achieved in a reasonable period of time, especially among the countries of the former Yugoslavia. That is the reason why this solution will not be analyzed further we view it as not realistic in the near future. Nevertheless we would like to point out that in this phase of IPR protection development in the observed countries such a centralized institution would not be useful, due to the rather low level on which the IPR culture (awareness) operates at present. The existence of independent local IPR institutions in each observed country has a specific importance as a home institution which is supposed to raise the awareness on the necessity of this type of protection and be its guarantee. For that reason further suggestions regarding regional cooperation are based on the model of the strengthening and development of separate IP institutions in each of the observed countries. Many of the suggestions we have made above, regarding the functioning of IP institutions and their development needs, could be realized with a strong regional component. We would like to state a few examples: a) The organizational structure model, the systematization of posts (staff) in within this structure as well as the overview of the desired educational background of the employees in the IP institutions would not have to be worked out for each country separately, but could be done as a uniform system for all the observed countries in the region. It could be accomplished as a continuation of the gaps and needs analysis proposal of short term measures enhancing the institutional and organizational structure of SIPO, which is most probably already finished in the national CARDS project in Croatia. Should specific needs arise, it would be much easier to give up the suggested uniform solution than to create separate solutions for each individual institution. b) Training needs analysis in different fields of IPR could also be done on the regional level, because the level of knowledge and experience of the staff in, for example, patent departments does not differ a great deal from country to country (perhaps with exception of Croatia). However, they all need thorough training.
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CARDS Regional Intellectual Property Rights c) Training curricula can also be developed at a regional level, keeping in mind, of course, the different fields of IPR and different rankings of the staff to be trained. d) Carrying out trainings would be the next task, which could be organized regionally, especially since the participants from Croatian, Serbian, Bosnian and Macedonian territories can to great extent understand each other. e) Overall and specifically IT component of the institutional assessment could also be developed and implemented regionally. This would serve for the procurement documentation of the equipment (IT equipment, books and other literature in the field of IPR) as well as for the development of training curricula for operating this equipment and using the software. We are going to cease listing possible regional co-operations believing that this agenda can be much richer.
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B. TOPOGRAPHIES OF INTEGRATED CIRCUITS

The Union on Intellectual Property related to integrated circuits was founded by an agreement concluded in Washington in the year 1989. The member countries of the Union realize their obligations regarding the protection of intellectual property of the right holder (to the integrated circuit) either by separate laws or by copyright, patents, models etc. By the Agreement on founding the Union the basic protection concept to be integrated in the national laws of the member states has been defined, rendering protection of a minimum of eight years. TRIPs refers to the protection of the topographies of integrated circuits (Articles 35-38) and says that a minimal protection of 10 years has to be granted. It is interesting that the first directive, at that point still EEC, in the field of copyright and related rights, adopted in 1986, was also included in the legal protection of the topographies of integrated circuits. 2.1 State of Legislation All the observed states, with exception of Bosnia and Herzegovina, have opted for the legal protection of integrated circuits to be regulated by sui generis regulations. Croatia Prior to acceptance of Croatia as a member of the WTO, parliament adopted the Law on Legal Protection of Topographies of Semiconductors Product8, which regulates the basis for this protection. In the process of the recent harmonization of all the laws in the IPR field a new law on topographies was passed in October 2003, bearing the same title as the old one. The law is adjusted to the above-mentioned international agreements and TRIPs. The law states that the State Intellectual Property Office is responsible for carrying out administrative activities pertaining to the protection of topographies. Serbia & Montenegro Yugoslavia was one of the few signatories to the Washington Treaty. The Law on the Protection of Topographies of Integrated Circuits9 was adopted in 1998. The most important provisions are based closely on language of the
8 9
Off. Gazette Rep. Croatia, No. 173/03 Off. Gazette Federal Rep. of Yugoslavia, No. 12/98; 15/98
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CARDS Regional Intellectual Property Rights Washington Treaty and it complies, in many respects, with applicable WTO requirements. Nevertheless, the law requires amendments to confirm to TRIPs provisions, especially regarding enforcement measures. In the institutional respect the law is being administered by the Intellectual Property Office in Belgrade. Bosnia and Herzegovina There is no law in place and no preparations or drafting attempts have been undertaken so far. Macedonia The Law on Protection of Topographies of Integrated Circuits was adopted in 1998. Like in Croatia, this law has been passed in the course of the preparations for Macedonia to enter the WTO. Industrial Property Protection (now officially) Office is responsible for conducting the procedures related to the protection of integrated circuits. The law provides for a 10 year term of protection. This field falls under the competence of the Ministry for Development. Albania The Law on Protection of Topographies of Integrated Circuits was adopted in 1999, as a law No. 8488. For the implementation of this law, as well as in all the other observed countries, the competence lies with the General Directorate for Patents and Trademarks. 2.2 Conclusions and Recommendations As we can conclude from the overview of the legal framework given above, the observed countries have created an adequate legal environment for the protection of the topographies of integrated circuits. The fact that there was not a single application in the past 4-5 years in the observed countries speaks for itself. It is obvious that the creators of new topographies have not yet found interest to protect their inventions in these countries. We can assume that this interest is not going to appear in the near future. In the observed countries there is no local industry capable of producing even the simplest components of computer hardware let alone microchips (integrated circuits). That is why we can conclude that there is no impact of this sort of protection on the local industry in the sense that its strengthening would result in the limitation of the local right to production or require payment of royalties. Indirectly the protection would have influence on the local industry for computer users.
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CARDS Regional Intellectual Property Rights We are dealing with a situation where a rather strong network of local service shops has been established in the past 10 years, whose main business consists of assembling computer configurations by using hardware components imported mainly from Taiwan, Singapore and Hong Kong. There is no need to be a great expert in the field of computer hardware to detect different prices for the same components among the numerous offers on the market, depending on the country of origin. Those prices are very often 3-4 times lower than those of the originals. It is absolutely clear to everyone that we are speaking of counterfeit goods (hardware components) very often of poor quality and limited life span. There are usually no frauds the salesmen are very direct regarding their offers and price ranges and the buyers are aware of what they are getting for their money. So we could conclude that the local industry at present (in the absence of protection) does benefit from being able to purchase computer configurations at relatively favourable prices. As regards to functioning of the IP institutions and their development needs, everything we already said in the chapter on patents can be said here as well. In that sense there are no specifics worthy of mentioning. The same goes for regional cooperation the conclusions made regarding patents are applicable to integrated circuits. We think that a centralized procedure, where the protection would be acquired for the whole region by one application in a single country, would make sense and it would also be better for the authors of new configurations. Nevertheless for the time being it is not very likely that it would be acceptable for all the countries in the region.
C. PLANT VARIETIES
The International Union for the Protection of New Varieties of Plants UPOV was established 1961 in Paris. The Convention entered into force in 1968 and was subsequently revised in Geneva in 1972, 1978 and 1991. This Convention sets the basic concepts for protection of the new plant varieties that have to be integrated into the laws of the Union member states. The membership in the Union enables the states to exchange and use information and experiences of other member states in order to advance the plants in their own territory, but also in the world as a whole. The uniformity of
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CARDS Regional Intellectual Property Rights regulations and coinciding rules implemented by the members of the Union in this field contributes to smooth running of international trade. In that sense, the condition to entering the UPOV (Art.34 of the Convention) is the harmonizing of the national legislation conducted by a certain body of the Union. The characteristics of this convention lies in the fact that the new member states (Art.3) are obliged to implement their regulations on a limited number of plant varieties of their choice, which (min.15) for the first 10 years and only after the expiry of the 10 years period are they allowed to apply the Convention rules on all plants and orders. When it comes to plant varieties and Acquis Communautaire, the most important regulations are to be found in the Rule Nr. 2100/9410 that relates to the Communautaire right to plant varieties. We also need to mention the Directive Nr.98/4411 on legal protection of biotech inventions which is a rather detailed document and also refers to plant varieties. 3.1 THE STATE FRAMEWORK OF THE LEGISLATION AND INSTITUTIONAL
Similar to the patent legislative, the countries that appeared after SFR of Yugoslavia fell apart also inherited their plant variety regulations. Only in this field there was no such long tradition in implementation, as was the case in patents. The first law on approval of the newly developed, recognition introducing production of foreign and protection of agricultural plants12 came into force in 1980. It contained the regulation stating the rules regarding its application should be passed within 6 months time, but this deadline was extended to 9 years. Basically, this regulation was not implemented in the meantime. It was only in 1989 that a register of the newly created national varieties has been established as register for the approved varieties of the foreign agricultural and forest plants. Four kinds or plums and one variety of apples and cherries entered into the register of the new domestic varieties. At the same time a list of varieties and orders of plants was established that will be protected in the first phase; on that list there were two kinds of wheat, barley, corn, sunflower, alfalfa, tomato, cauliflower, plum, peach, apricot, hops, grapevine, poplar, chrysanthemum etc. A few years after SFR of Yugoslavia fell apart (also in 1989) the then federal government established an institution called Bank of Plant Genes of Yugoslavia orig. BBGJ which was located close to Belgrade. In the meantime a relatively rich collection of over 5.300 samples was collected and stored, out of which there were over 3.000 seed and about 2.300 plant varieties for preservation in nature. The main goal of BBGJ was to collect, research, preserve and use the plant genetic resources of Yugoslavia. Special
10 11
Passed on 27.07.1994 Passed on 06.07.1998 12 Official Gazette of Socialist Federative Republic of Yugoslavia No. 38/80
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CARDS Regional Intellectual Property Rights attention was directed to varieties for which Yugoslavia is a primary or secondary source of origin, as well as the wild varieties and their relatives and autochthonous varieties. Preservation of plant genetic resources has great social and economic importance for every country, especially because of the very rapid deterioration of biological diversity, the so-called genetic erosion. The evolution is, however, based on variability. Nowadays it is known that the genetic variability of wild relatives and primitive varieties is going to have an enormous importance in refining programs especially regarding the adjusting to local climate conditions or resistance of the plants to parasites, different diseases and pest. After SFR Yugoslavia fell apart the legislative and other activities related to plant varieties went different routes in the newly founded countries. We are going to give an overview from state to state. 3.1.1 Croatia The Law on Seeds, Plant Material and Recognition of agricultural plant sorts and agricultural plant protection13 passed in 1997 regulates the sector of seeds, nurseries and recognition and protection of agricultural plant sorts. In this way the procedure of adjusting Croatian seed industry and overall plant protection to the world and European standards has been initiated. By applying the mentioned legal act, the following has been achieved: good quality and unbiased investigation procedure for the recognition of sorts to be included in the national list; protection of plant varieties and protection of plant breeder rights against the unauthorized use of sorts; supervision of seed crops by authorized inspectors; the issuing of prescribed documentation and post-control of seeds in transit in one place, the elimination of illegally produced reproductive material from the market, which ensures to the final user farmers and other a good quality product. In September 2001 Croatia became a member of UPOV. Prior to that it had to adapt its Law to this Convention which was done by amendments14 passed in the year 2000. The mentioned legal framework in the matter of protection of new varieties of plants and plant breeders rights are based on the EU Directive 91/414/EEC; 97/57/EC and 79/11/EEC. The text of the law mentioned shall not be examined, since it has been brought into compliance with the UPOV. a) Institutional Framework The entire jurisdiction in view of plant variety recognition and protection is vested in the Ministry of Agriculture and Forestry.
13 14
Off. Gazette of Rep. Croatia, No. 131/97 Off. Gazette of Rep. Croatia, No. 62/00
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CARDS Regional Intellectual Property Rights Inspection and customs authorities play a very important role in enforcing the plant breeders rights. The State Institute for Seeds and Seeding in Osijek, which was founded in 1998, plays a very important role in this field of IPR. Thanks to Farmers Support Services Program of the World Bank, the Institute has been equipped with modern, high quality equipment, which ensures the unified performance of sorts testing at all locations on Croatian territory. With the establishment of the laboratory for controlling declared quality of seeds, the institute met the conditions for membership in the International Seed Testing Association ISTA. Consequently, in 2002, the institute was accredited to issue international quality certificates. In September 2000, the Institute became a member of the OECD Committee for Agriculture, and thus met the conditions to perform crop control and to issue varietal certificates according to OECD schemes for the varietal certification of seed moving in international trade. The establishing of the additional two new specialized institutes was foreseen by the latest amendments to this law: 1) the Institute for fruit-trees and 2) the Croatian Institute for Grapevine and winery. Within the organizational framework of these two institutes the Bank of Plant Genes shall be established. Croatian Laws pay special attention to the control of the implementation of the regulations contained therein. Therefore customs inspection plays a very important role and was given broad competencies to prevent importation of the plant varieties, which are not registered in Croatia. The control of the implementation of the laws throughout the country is conducted by a special inspection, which is organized on two levels: the first one is field inspection by districts and the second one represents the Ministry of Agriculture and Forestry. These inspections have an all-inclusive task, starting from the control of the seeding in the fields up to controlling the packages of the seeding material already distributed to the retailers. 3.1.2 Serbia & Montenegro Serbia & Montenegro, viewing itself as the only legal successor of the SFR of Yugoslavia, on which territory the institutions from the former Yugoslavia relevant for this field remained, entered a process of stagnation that lasted several years and was caused by the well known events following the disintegration of the country. However some progress was made regarding the legislative: by passing the law on recognition of the varieties of agricultural and forest plants15 in 1998 (amended16 2002) and by passing the law on protection of agricultural and forest plant varieties17 in 2000.
15 16
Off. Gazette of SRJ, No. 12/98 Off. Gazette of SRJ, No. 42/02 17 Off. Gazette of SRJ, No. 28/00
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CARDS Regional Intellectual Property Rights Soon after the breakdown of Milosevics regime (end of 2000) it was concluded that the field of breeders' rights (copyright regarding the promoters and creators of the new plant varieties) is not in line with UPOV. Therefore, the work on drafting the new law was commenced in co-operation with UPOV Secretariat. The text approved by UPOV experts was adopted by the then Federal Government in October 2002 and forwarded to the Parliament for assessment and adoption. In the past year and a half this law proposal has not been included into agenda of the parliamentary sessions. In the context of our subject, of the law on plant varieties, we have to underline that it is very possible that the political will to pass such a law on the level of the Association of States could be missing, since the ruling structures such as Montenegro try to avoid joint functions with the association as much as possible. A clear signal in that direction was also the abolition of the Federal Office for Plant and Animal Genetic Resources, which was under the competence of former Federal Ministry of economy and internal trade, despite the fact that in the much reduced Council of Ministers of the new Association there is a Ministry with very similar competencies. Regarding the contents of the proposition of this law, which is waiting to be put on to the Association of S&M Parliaments agenda, it was construed in such a way that the functions of the protection of IPR in the field of plant varieties are on the federal i.e. level of the Association of states. It was already said that the text itself was drafted together with the UPOV experts, so we will not comment on the law itself at this point. a) Institutional Framework It was said already that the former Federal Office for Plant and Animal Genetic Resources was abolished, but its experts were taken over by the Government of Serbia, which formed a Section for seeds and seeding with 8 employees within the Ministry of Agriculture and Water Economy. These experts continued to carry out activities already commenced and that are not to be underestimated we are talking about 688 plant varieties which are currently undergoing the investigation procedure. Through consultations with the experts of this section, I came to the conclusion that this institutional problem has to be resolved as soon as possible, because the ministry to which they belong now is by no law or decree in charge of this field. As a result these activities are regarded as imposed and someone elses business. These experts are of the standpoint that it would be best to pass a law on the joint level of the Associated states and have the two states be responsible for its implementation independently. The other solution would be for Montenegro to pass over the competences regarding implementation to Serbia, since it is understood that Montenegro has no interest to conduct these activities on their own.
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CARDS Regional Intellectual Property Rights It is our impression that the said experts are very competent concerning the activities they are carrying out and that they have very clear plans and concepts on how to put in order and organize them in S&M. With other words they deserve our full support. Regarding the other necessary institutions and degree to which they are functioning properly, especially the inspections and customs authorities, we can say that there is a certain tradition present and that these services could conduct their part of the job successfully, provided there is an adequate legal environment. A confirmation of this statement, the author finds in her own experience when 5-6 years ago she tried to import 10 flower nursery plants from Hungary. The customs officer was almost shocked with this attempt (the importation of the unregistered plants) and of course did not allow it to happen. This whole incident happened during the times of the economic embargo imposed on Yugoslavia, when all kinds of semi-legal imports were normally tolerated. 3.1.3 Macedonia (FYROM) Up until January 1st of this year the protection of IPR on plant varieties was carried out on the basis of the patent law. This happened as a result of a explicit request of Ministry of Agriculture which did not want to deal with the activities of recognition and approval of plant varieties at the time when Macedonia gained independence as a state. Even the very first patent issued by the newly formed Macedonian Intellectual Property Bureau was a plant variety a new kind of tobacco. Ever since Bureau was founded (1994) there were around 40 applications for protection of plant varieties submitted to the Bureau all together. It was the practice of the Bureau not to conduct the substantial examination to establish the compliance of the application with the criteria set by the law. The grant of patents was based exclusively on the certificate which was issued by the Expert Committee at the Ministry of Agriculture. The Committee would establish if the plant variety in question was new. The date of the certificate in which the said plant variety was recognized as new was used as the priority date. By joining the WTO and signing of the Agreement of Stabilization and Association with the EU, Macedonia opted to arrange plant varieties with a separate law. The law on Seed, Planting and Propagating Material and Recognition, Approval and Protection of the Varieties18 came into force on January 1st 2004. As we can conclude from the title itself both issues are encompassed by this complex law: recognition and approval of the new varieties as well as their protection i.e. granting exclusive rights to the creators. When this law came into force, the above stated Law from SFR of Yugoslavia from 1980 and 1990 ceased to exist.
18
The English translation of the said law did not state the official Gazette where it was published;
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CARDS Regional Intellectual Property Rights With this new law, the Minister of Agriculture, Forestry and Water Economy now handles all the problems regarding plant varieties. This includes the approval of the use of certain kinds of seeds or plant varieties, as well as the issuing of certificates to creators or holders of new varieties, based on the usual exclusive rights. The procedures foreseen by this law are the standard ones. Their duration depends on the vegetative period of certain plant variety and is conducted under surveillance of especially nominated experts and expert committees. The law provides for the procedures to be in line with the OECD. In spite of the fact that the law is rather far reaching, it is interesting to point out that the issues like the preservation of the approved or protected variety, storing of the samples and growing of the mother trees are regulated in a very vague manner. The usual formula is that the right holder of the (approved or the protected) variety is obliged to maintain the variety containing its inherited characteristics in their unchanged form for the entire duration of the protection. As a matter of fact, with these kinds of creations (inventions), the nourishing of the reproductive capabilities of the biological material is at the same time conditio sine qua non for the maintenance of the protection. The observed law, however, brings in a new concept maintainer and says it can be carried out locally or abroad. The exclusive rights of the holder or the creator of the new variety last 25 years and in the case of the new varieties of grapevine, fruit and potatoes the right last 30 years. During the consultations at the said ministry in Skopje, the author was informed that it was concluded this law needs a thorough revision and it will be split into two parts. The first one to be passed is the law on recognition and approval of the new varieties and the second one is the law dealing with protection of the new varieties (of the same). Until these two laws enter into force there is a legal vacuum for all the breeders who want to register and protect new varieties in Macedonia. a) Institutional Framework During the consultations held in the Bureau for IP in Skopje the experts expressed their doubts regarding the concept of the law, because they are of the opinion that it is not optimal to regulate such complex issues with only one law. They also pointed out the differences in the duration of the protection (the patents issued so far lasted 20 years); the delay in issuing the regulations necessary to implement the new law; the unsolved question of the taking over of the existing registries; as well as the lack of the experience on the part of the new staff that is going to be responsible for dealing with plant varieties issues. The problem was raised that there are no adequate laboratories, where the morphological and chemical characteristics of the new varieties can be
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CARDS Regional Intellectual Property Rights investigated in compliance with the international practice. This observation was based on (supported by) the experts and committee reports received so far, referring mainly on visually determined characteristics of plants and fruits. In that context they were inquiring if there would be a possibility of using some of the CARDS financial resources in order to finance the equipment for such a laboratory. Having in mind the above stated, we can conclude that Macedonia at present has no institution, which could competently carry out issues related to plant varieties protection. There are experts in certain fields, they even take part in the work of the committees, but there is neither a system of institutions nor are there any equipped laboratories for investigating plant varieties. This must be the reason why in many articles of the above analyzed law it is foreseen that the activities be conducted abroad. 3.1.4 Bosnia and Herzegovina Since plant varieties are not explicitly excluded from patent protection according to the law of B&H, theoretically there is a possibility of applying and granting a patent for a plant variety. However there were no applications comprising plant varieties so far. The legislative activity directed to regulating this area with sui generis laws commenced in 2000. In that sense we are now speaking of a combined protection system (patents or sui generis regulation). Before we engage into further analysis of the specific regulations we need to remind ourselves that the Republic of Bosnia and Herzegovina consists of two entities that are to great extent autonomous. Each of them covers approximately 50% of the state territory. These are: Federation of Bosnia and Herzegovina (mainly inhabited by Croats and Moslems, nowadays also called Bosniaks) and Republic Srpska (mainly inhabited by Serbs). Since the city of Brcko did not go to one of the entities by the force of the Dayton Agreement (1995), it now has a status of a District (a vague analogy to the status of Washington and District of Columbia in the US). The Republic Bosnia and Herzegovina is one subject in the international and legal sense and therefore has one chair in the Assembly of the OUN. The Republic Bosnia and Herzegovina is still under the protectorate of OUN, whereby the High Commissioner of the Secretary General of the UN (at the moment it is Paddy Ashdown from Great Britain) has the broadest competencies allowing him to implement and abolish laws passed by the parliaments of the entities or the state. He also has the power to replace all the high officials including the elected presidents of the entities etc. This reminder was necessary in order to enable the reader to understand the further text on legislature and other activities regarding plant varieties. After the Dayton Agreement, the first steps were made in Sarajevo regarding the recognition of the new plant varieties. At the same time it was concluded that Republic of Bosnia and Herzegovina needed to join the UPOV. Unfortunately,
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CARDS Regional Intellectual Property Rights this was not yet achieved and there still is no mutual law in place valid for the state as a whole. The Federation of Bosnia and Herzegovina has passed their own law on recognition and protection of varieties of agricultural and forest plants19. The entity - the Republic Srpska has not passed its own law yet, but practices continuity with SFR of Yugoslavia in respect to the register of the approved varieties by simply adding the new ones, which have been approved by FR of Yugoslavia in the meantime. According to the information we have acquired in Sarajevo, the Republic Srpska is currently drafting their own law. While in Sarajevo, we were not able to determine if there were any activities in this respect underway in the District of Brcko. The stated Law of Federation of B&H regulates both the recognition and approval of new plant varieties and the protection of the rights of the creator or holder. As opposed to the law of Macedonia, this one pays much less attention to the protection of the local market from the unapproved and not recognized seeds and plants. The protection of a new variety according to this law is based on a prior recognition and approval of this variety and the approval is subject to the positive results of the testing and surveillance of the biological reproductive process of this variety. The duration of the tests depends on the propagation cycle of the plant and it can be shortened for the foreign varieties, when positive results appear in similar earth and climate conditions. A register of the new domestic varieties is planned (for the existing ones an inventory is going to be carried out) and there is also a record to be kept for the approved foreign ones. It is interesting that in addition to the usual data which is being entered into the register, this law provides for keeping on file on yearly quantities of produced seeds and seeding according to varieties and categories to be entered as well. For a variety to be protected the law cites an additional condition besides the certificate on recognition: that there are justified reasons for protection of the variety. The existence of the justified reasons is established by a special committee and the law helps by clarifying that these reasons are given when it is possible to indisputably conduct an identification of that variety. In spite it has been recognized in the Federation of B&H, a foreign variety can be protected only based on reciprocity. The protection lasts 18 years for grapevine, fruit, ornamental and forest plants and 15 years for all the remaining plants. The content of the exclusive rights of the creator or right holder is the usual one. It has been pointed out that the creators or right holders of the ornamental plants can have an exclusive right to production of such plants. a) Institutional Framework
19
Off. Gazette of Federation of B&H, No. 31/00
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CARDS Regional Intellectual Property Rights We can conclude from the above that in Bosnia and Herzegovina there is no institution that can deal with plant varieties protection on a state level. In the Federation of Bosnia and Herzegovina, according to the cited law, the key role lies in the hands of the Minister of Agriculture, Forestry and Water Economy, who is in exercising his various activities helped by a numerous expert committees that he himself chooses. The characteristic of the internal structure of the Federation of B&H reflected in very institutional network the Minister relies upon. The Federation B&H is composed of two cantons (like in Switzerland), having significant autonomous rights. As the majority of the cantons have been formed based on the nationality of the inhabitants (Moslems Bosniaks or Croats), there is also a tendency among them to keep the least competencies on the federal level. This tendency is noticeable in the text of this law where several articles direct the Federal Minister to act upon the proposals of the canton bodies (ministers). The best example is contained in Art.36 referring to vesting of the public authority and stating that the Federal Minister is to vest his competencies into other persons and further the competencies are being listed: 1) accepting the applications for recognition of the plant varieties and evaluating their justification (compliance) 4) running the registers of newly created varieties and keeping record of foreign varieties i.e. keeping the register for protected varieties. Regarding other institutions involved in the process of implementation and enforcement of plant breeders rights this law only mentions the competent court in front of which the right holder or creator can seek protection in case of infringement, but it doesnt clarify which court it means. As Republic Srpska to date has not passed their own law in respect of plant varieties protection, we assume that they also do not have adequate institutions that could be dealing with these IPRs. We also assume that the Ministry of Agriculture of Republic Srpska does have registers of the recognized and approved varieties based on the investigations carried out in Belgrade. 3.1.5 Albania The law Nr.8880, which was passed on April 15th 2002 by the Peoples Assembly of the Republic of Albania is titled Law on plant breeders rights. This law was drafted having in mind the UPOV requirements and regulates exclusively the field stated in its title. In that respect this law contains standard regulations. After fulfilling the standard requirements the law provides for the breeder to acquire the patent of the variety, which is then being published in within 30 days.
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CARDS Regional Intellectual Property Rights The rights conferred to the breeder by this patent are also standard ones. The breeders right on crops lasts 20 years and in case of fruit-trees, shrubs and ornamental plants 25 years. The law also provides for the possibility of issuing a compulsory license and states that this right shall effect the protection of public interest. All other issues related to the compulsory license remain to be regulated by the rules and regulations of the Ministry of Agriculture and Food. a) Institutional framework This law foresees the foundation of two institutions in within the general competencies of the Ministry of Agriculture and Food: SASS the State Agency for Seeds and Saplings and as its constitutional part the second one, namely SCVA the State Commission for Variety Attestation, which examines and qualifies new varieties. According to the information received from Albania, there were no plant varieties registered in the past two years.
3.2 CONCLUSIONS AND RECOMMENDATIONS 3.2.1 The impact of plant varieties protection on local agriculture Before giving our own estimate on the impact of the plant varieties protection on the local agriculture we would like to give an insight on the state in this field, which was essentially inherited from the former socialist system. The Yugoslav (Titos) socialist model was very often referred to as soft very much so because its agricultural policy did not follow the soviet model of collectivization and establishing of the so called Kolkhoz (state organizations for administering the land) and Sofhoz (state organizations for administering the agricultural mechanization). An attempt to introduce socialism by using this model in the country (side) in Yugoslavia was abandoned after 2 years (1952). At that point the compulsory collectivization was abolished and the land was given back to the former owners, whereby a farmer could keep in his own (private) possession only 10 + 10 ha of the cultivatable soil. The surplus (in case he had any) was confiscated and divided among the so-called landless peasants. That way the owner structure was formed in which about 80% of the land was in the private ownership of the farmers and about 20% was state owned (self-managing) by the so called agricultural combination or simply state farms. The average property of a farmer was rather small (3-4 ha), whereas the state farms (there were about 100) disposed of vast properties, very often over a couple of thousand hectares. The observed
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CARDS Regional Intellectual Property Rights states entered the transition phase based on this inherited ownership structure regarding the land after SFR of Yugoslavia disintegrated. For our further analysis it is useful to say that the return in agriculture in the 1950's were so low that the population living in cities was faced with the prospect of hunger. Since there was no hard currency that could have been used to pay for import foods, the starvation was avoided only through the help of the US Government, which was sending wheat and other foods. The conditions began to change only in the 1960's, when the imports of quality seeds of wheat and corn from Italy started. The local scientists and breeders were relatively quick in enhancement of these varieties so that by the end of 1960's Yugoslavia already appeared as an exporter for wheat, meat and other agricultural articles. Whereby we need to know that the entire food necessary to supply the domestic market as well as the surplus that was exported originated from those 20% of the cultivatable soil managed by the agricultural dominates. The production of small farmers basically covered the needs of their own families and the surplus that appeared on the market was symbolic. The key contribution to the success of the agricultural dominates lies in three factors: the using of high-yield agricultural varieties; the concentration of experts that were heading the production, and finally the application of modern mechanization in working of the soil and taking care of the crops. At that time not only on testing fields, but also on the big parcels, world records in corn yield were achieved. As all socialist countries, especially the USSR, suffered from problems connected to food production for decades - The Yugoslav example was like a miracle admired by everyone. In order to make the story on Yugoslav socialism seem a bit less idyllic, we would like to mention that up until mid 60's the ruling doctrine was that small farmers should not possess tractors because these represent means for exploitation of the work of the others. It was only one decade later, when the local production of tractors was developed, that their mass usage on private parcels began. This whole long story had only one goal to illustrate, by using this historical example, the impact that the enhancement and development of plant varieties has not only on local agriculture, but also on the economic life and development of each country as a whole. This being especially true in the case of the Observed Countries, since agriculture plays an important role in each of them. 3.2.2 The functioning of the Intellectual Property Institutions and their development needs
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CARDS Regional Intellectual Property Rights From the sections in which we talked about the institutional framework we can conclude that different situations are encountered from country to country regarding the institutions from the IPR field when it comes to plant varieties. Croatia is ahead in respect of the legal and institutional framework in place and can serve as an example for the rest of the observed countries. Croatia could also render significant expert and other help and assistance to the others, since not so long ago, it took the same road the others still have to. S&M finds itself in a very awkward situation. While other countries are working on the legal and institutional framework at an accelerated pace, S&M is stagnating. Furthermore, the remainder of the framework established in the former Yugoslavia is beginning to disintegrate. The remaining three observed countries: Albania, B&H and Macedonia are in the phase of defining the legal and institutional framework for plant varieties. In that sense they need all-inclusive help which would include: - working out a concept for the laws and other accompanying regulations; - designing a institutional model which would more specifically deal with recognition, approval and protection of the newly created plant varieties, as well as be in charge of keeping registers; - qualifying for field, laboratory and other testing; - equipping services and laboratories including the bank of the plant genes; - educating and training all levels of staff, starting from those that will work on administrative and technical processes related to the protection as well as those in other state structures, such as: inspection, customs, courts etc. We have to point out that having a defined long term agricultural policy or strategy is a very important condition to ensure the successful assistance from the outside. Let us take the example of Croatia once again there was an official document passed in 2001 under the title Agriculture Act in which the main courses of the agricultural development policy were defined, as well as the direction in which the existing institutions need to be developed and the new ones to be established to deal with this policy. Plant varieties protection is possible only in such an environment where the market for seeds and seeding is regulated and; where the system of recognition and approval of new varieties of agricultural and forest plants is in place; the existence and keeping of corresponding registers; adequate control on the part of inspectors, customs and others. The system of protection of new plant varieties will be ineffective without the implementation of the above recommended requirements. It will exist on paper, but would not be implemented in practice. In other words, if there is no political consciousness or will to regulate the field of seeds and seeding universally, then plant varieties protection is condemned to fail.
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CARDS Regional Intellectual Property Rights It is to be expected from the governments in the observed countries to use the opportunity given by the transition in the field of agriculture. The inherited structure of small parcels and the traditionally oriented farmers, who mainly produce in order to satisfy their own needs, was reluctant to the innovation and new plant varieties. The privatization renders opportunities for creation of larger properties and a new kind of farmers who will be oriented towards new plant varieties and modern methods of working the soil and crop maintenance. Their awareness towards IPRs is also automatically going to increase.
3.2.3 Regional cooperation In the sphere of plant varieties protection there are various fields that can be realized in the frame of regional cooperation in the preparation phase of establishing legal and institutional frameworks as well as afterwards. The first phase is normally the easier one and it comprises the drafting of the laws and the revising of existing laws with UPOV and with Acquis Communautaire. The regional aspects of this cooperation nevertheless need to be clarified and brought into accord (coordinated) beforehand, because they need to be incorporated in the legislature of each country. A great number of accompanying regulations required for the implementation of these laws can also be drafted in a uniform way on regional level. Among the questions that can be solved regionally we are going to mention the keeping of the registers of the recognized and approved foreign and domestic plant varieties as well as the registers of the protected varieties. The procedure and processes of field, laboratory and other tests can also be coordinated and mutually recognized on the regional level. A regional certificate for the protected plant variety could be established etc. The experts from this field could do a much better job than the author of this assessment in identifying the fields of regional cooperation under the assumption that there is political will of the ruling structures of the observed countries. The training of staff in all structures relevant for the plant varieties protection could also be organized on a regional level, especially because Croatian or Serbian can be understood by everyone except for Albanians. To repeat what was already stated before the experts from Croatia could have an important role in this education. Although the author is not a plant variety expert, nor an expert in the broader field of agriculture, she would like to present her own standpoint regarding the institutional network in each country. According to UPOV it is possible to out-
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CARDS Regional Intellectual Property Rights source many of the activities related to protection of plant varieties to the institutions of other countries, as it was done in Macedonia. It would be extremely attractive to realize this on the regional level. From the point of view of investments and related costs it would surely be an economically sensible solution. However, we are of the opinion that it would not be suitable from the point of view of agricultural development, which is very important for the economy of every observed country. It has to do with the fact that in each of the Observed Countries a modern agriculture cannot be established without developing the own experts and institutions in the field of enhancing the plants, seeds and seeding. In field of plant varieties the cooperation with other countries (international authorities / experts) is absolutely necessary but the existence of local experts and institutions is conditio sine qua non for raising the entire culture of a country, when it comes to plant varieties. This will require greater investment during period in which these of the corresponding institutions are being created, but it is certain that in the long run the benefits are going to be much greater than the costs.
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ASSESSMENT 2: TRADEMARKS, GEOGRAPHICAL INDICATIONS, INDUSTRIAL DESIGNS, COPYRIGHTS AND RELATED RIGHTS
1.
Executive Summary
The IP administration of the former Yugoslavia, IP was concentrated in Belgrade. As a consequence of the break-up of Yugoslavia each new country, other than Serbia and Montenegro, has been obliged to establish their own IP administrative regimes from the beginning. Assessment Mission 2 revealed a range of competencies in the countries of the West Balkans in the fields of trademarks, geographical indications, industrial designs, copyrights and related rights. As a general rule, their level of IP development is in direct relation to the disruption which they suffered consequential upon the break-up of Yugoslavia and its sequelae. In the case of Albania, the development of trademarks, geographical indications, industrial designs, copyrights and related rights has been constrained both by the availability of funds for IP administration and by the necessity to educate Albanian business and public as to the role of IP in the market economy. A national CARDS Programme in Croatia has particularly aided the industrial and intellectual property administration of that country. The collective administration of copyright in Croatia is similarly well-developed. The developmental experience of Croatia is of particular relevance to the countries of the West Balkans. It is recommended that the utilisation of Croatian IP experience be built in to the regional CARDS programme. This can be done through the funding of mentoring relationships with other CARDS countries and with non-CARDS countries which have had relevant IP experiences. This mentoring within CARDS countries already exists on an informal basis both in the fields of industrial property and the collective administration of copyright. At the same time the experiences of Slovenia and Bulgaria in establishing an intellectual property system in compliance with the Acquis Communautaire
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CARDS Regional Intellectual Property Rights have been identified as providing an immediate lesson for the countries of the West Balkans in harmonising their IP systems with the EU. At a more intermediate level, the organizational experiences of Hungary and the Czech Republic, as economies in transition, were considered to be of particular relevance to the countries of the West Balkans. The countries of the West Balkans look to the substantive legal experiences of the older EU countries, such as Austria, France, Germany and the UK in providing guidance in both laws and administration. The principal recommendation of the assessors is that a modality be established for sub-regional co-operation in the field of intellectual property, between the countries of the West Balkans, which also provides a facility for accessing the experiences of both applicants for EU membership, as well as more established members of the EU. The disparate level of intellectual property development of each West Balkan country has an obvious implication for the programmes of awareness-raising and capacity building which will be optimally sustainable. Sustainability in this regard will be effected through the training of trainers with the introduction of IP courses at law schools and other postgraduate educational institutions. A useful activity for the CARDS regional programme would be the preparation of IP teaching materials for the countries of the region and the development of IP curricula. The Assessment Mission noted that all CARDS countries conceded the potential significance of geographical indications for the development of trade, but the expense and administrative complexity of establishing registration procedures akin to those of the EU were considered to be too much of a burden for agricultural producers in the region. The establishment of regional support for this process is recommended in the context of the regional CARDS programme. This is also recommended by the fact that the history of the region has been characterised by the fluidity of borders and cultures, with the consequence that similar designations are used in a number of CARDS countries for similar wines and spirits and cheeses. In the field of copyright and neighbouring rights, the common language and culture of the CARDS region, in which creative works are sold across borders, also counsels regional co-operation in the collective administration of works. Criticism was made in a number of countries that the CARDS regional project had neglected the subject of copyright and requests were made, in particular, for the organisation of further copyright activities in the next phase of the project.
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CARDS Regional Intellectual Property Rights The assessors, visiting the Intellectual Property Bureau of Bosnia Herzegovina on this mission, found the staff to be preoccupied with an imminent decision of the Council of Ministers on the timing of the relocation of the Bureau to Mostar. Resolution of this issue is of primary importance in determining the effectiveness of the participation of Bosnia and Herzegovina in the Regional CARDS project.
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2.
CARDS Regional Intellectual Property Rights Terms of Reference
The assessors were required to carry out an assessment of: Trademarks, industrial design; copyrights and related rights; geographical indications across the five CARDS countries: Albania, Bosnia and Herzegovina, Croatia, Former Yugoslavian Republic of Macedonia and Serbia and Montenegro. The assessors visited each of the CARDS countries, following a co-ordination meeting before the start of the assessments and a meeting for the finalisation of their reports. The assessment should include the state of legislation and implementing regulation, the functioning of the IP institutions and their development needs, as well as estimate how local industry has benefited/suffered from the IP legislative environment. A key task in the assessments was to find out and recommend fields, which specifically would benefit from regional cooperation and where it was economically sensible to co-operate between more countries. The assessment also had to take account of relevant existing, committed or planned national technical assistance projects (both EU and other donors), and identify areas of interaction between them.
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CARDS Regional Intellectual Property Rights 3. 3.1 ALBANIA Legal Overview
Legislation dealing with substantive intellectual property rights in the fields of patents, industrial designs, trademarks, geographical indications, copyright, layout designs (topographies) of integrated circuits and copyright, has been in force in Albania since 1994. A Plant Variety Rights Act has been enacted, which is modelled on the 1991 version of the UPOV Convention. The new intellectual property legislation is TRIPs-compliant in its application to categories of protectable IP. Amendments to the Law on Industrial Property and the Law on Copyright have been drafted to bring both sets of legislation in line with acquis communautaire. In the case of the Law on Copyright the amendments take into account the establishment of a new Copyright Office that will be directly accountable to the Minister of Culture. (a) Legislation
Trademarks Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999 Geographical Indications Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999 Industrial Designs Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999 Copyright Law on Copyright No 7564 of May 1992, as amended by Law No 7293 of April 1995, by Law No 8594 of April 2000, by Law No 8630 of July 2000, and by Law No 8826 of November 2001 Penal Code, Civil Code, Penal procedure Code, Civil procedure Code, Council of Ministers Decision, No. 309, June 13, 2000, on the User Tariffs Ministry of Finance Ordinance No. 7714/1 of December 21, 2001, regarding the implementation of the Law on Copyright, Law on Public and Private Radio and Television No. 8410 of September 20, 1998, as amended by the Law No. 8655 of July 31, 2000 and by the Law No. 8794 of May 10, 2001
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(b)
Membership of International Treaties and Conventions
Intellectual Property Paris Convention for the Protection of Industrial Property, 1883 Convention Establishing WIPO, 1967 TRIPs Agreement 1994 Trademarks Madrid Agreement Concerning the International Registration of Marks, 1891 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, 1989 Industrial Designs Hague Agreement Concerning the International Deposit of Industrial Designs, 1925 Copyright Berne Convention for the Protection of Literary and Artistic Works, 1886 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961 WIPO Performances and Phonograms Treaty, 1996 WTO Status: Albania has been a member of WTO since 8 September 2000. Albania has not been involved as a complainant or respondent in WTO dispute settlement. (c) Compliance with WTO TRIPs Agreement
Trademarks The Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999, when viewed in conjunction with the Code on Civil Procedure, the Code on Criminal Procedure, the Customs Code and the enforcement provisions in the Penal Code as amended by Law No 7883 of January 2001, is in compliance with TRIPs obligations on the protection of trademarks.20
20
See WTO Council for Trade-Related Aspects of Intellectual Property Rights, Notification of Laws and Regulations under Article 63.2 of the Agreement: Albania, IP/N/1/ALB/1, 30-10-2002; & WTO
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CARDS Regional Intellectual Property Rights Geographical Indications The Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999, provides for the protection of geographical indications (appellation of origin) (Articles 93) as does Articles 13 and 14 of the "Law on some changes and supplements on the "Law on industrial property" (1999). These laws when viewed in conjunction with the Code on Civil Procedure, the Code on Criminal Procedure, the Customs Code and the enforcement provisions in the Penal Code as amended by Law No 7883 of January 2001, are in compliance with TRIPs obligations on the protection of geographical indications.21 The Law on Industrial Property does not have any special provisions for additional protection granted to wines and spirits. Article 93.1 of this Law defines goods protected by appellation of origin as natural, agriculture, industrial and handicraft products. This also includes protection for wines and spirits. However, in the Law "On the viniculture, wine and other products deriving from grape" (Law No. 8443 dated 21 January 1999) and its regulation, both administered by the Ministry of Agriculture and Food, there are well defined criteria concerning the denomination of controlled origin. Industrial Designs The Law on Industrial Property No 7819 of April 1994, as amended by Law No 8477 of April 1999, when viewed in conjunction with the Code on Civil Procedure, the Code on Criminal Procedure, the Customs Code and the enforcement provisions in the Penal Code as amended by Law No 7883 of January 2001, is in compliance with TRIPs obligations on the protection of industrial designs.22
Copyright The Law on Copyright No 7564 of May 1992, as amended by Law No 7293 of April 1995, by Law No 8594 of April 2000, by Law No 8630 of July 2000, and by Law No 8826 of November 2001, when viewed in conjunction with the Code on Civil Procedure, the Code on Criminal Procedure, the Customs Code
Council for Trade-Related Aspects of Intellectual Property Rights, Review of Legislation: Albania, IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1, 28-04-2003, 3-5, 10-12, 27, 28-33, 41-43. 21 See WTO Council for Trade-Related Aspects of Intellectual Property Rights, Notification of Laws and Regulations under Article 63.2 of the Agreement: Albania, IP/N/1/ALB/1, 30-10-2002; & WTO Council for Trade-Related Aspects of Intellectual Property Rights, Review of Legislation: Albania, IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1, 28-04-2003, 12-14, 28-33, 34-35, 41-43. 22 See WTO Council for Trade-Related Aspects of Intellectual Property Rights, Notification of Laws and Regulations under Article 63.2 of the Agreement: Albania, IP/N/1/ALB/1, 30-10-2002; & WTO Council for Trade-Related Aspects of Intellectual Property Rights, Review of Legislation: Albania, IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1, 28-04-2003, 14-15, 27-28, 28-33, 41-43.
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CARDS Regional Intellectual Property Rights and the enforcement provisions in the Penal Code as amended by Law No 7883 of January 2001, was in compliance with TRIPs obligations on the protection of copyright and related rights and with Articles 1-21 of the Berne Convention.23 The draft Law on Copyright is also consistent with the TRIPs Agreement. Tariffs for the users of copyright works were prescribed by Decision Number 309, dated 13.06.2000, of the Council of Ministers. 3.2 (a) Meetings and Contacts Trademarks, Geographical Indications and Designs
On Friday 9 April we met with Professor Dr Spartak Bozo, Director General of the General Directorate of Patents and Trademarks, Dr Armand Zajmi, Trademark and Design Section, Patents and Trademarks Office, and Dr Diana Sinojmeri, Trademark Examiner, Patents and Trademarks Office. Professor Bozo indicated that in the development of its IP system, Albania most frequently consulted on an informal basis with Macedonia and Croatia. Legislative assistance had been provided by WIPO and GTZ in bringing Albanian legislation into line with the TRIPs Agreement. (i) Trademarks
We were informed that trademark applications were increasing at a rate of fifteen percent per annum. The number of national trademark applications between 1995 and 2002 are as follows: 1995 830 1996 869 1997 608 1998 508 1999 519 2000 565 2001 750 2002 980 Ninety percent of these registrations were by foreign proprietors, of which the following countries were the most significant: USA, UK, Germany, and the countries of the Balkans. The principal categories of goods in respect of which trademarks are registered are pharmaceutical products and food. International trademarks registered through the Madrid Agreement are as follows: 1995 to 1996 2064
23
See WTO Council for Trade-Related Aspects of Intellectual Property Rights, Notification of Laws and Regulations under Article 63.2 of the Agreement: Albania, IP/N/1/ALB/1, 30-10-2002; & WTO Council for Trade-Related Aspects of Intellectual Property Rights, Review of Legislation: Albania, IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1, 28-04-2003, 5, 6-10, 33, 34, 41-43.
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CARDS Regional Intellectual Property Rights 1997 to 1998 3576 1999 to 2000 4078 2001 to 2002 4202 It is expected that with membership of the Madrid Protocol the number of applications will increase significantly. (ii) Geographical indications
Albania currently has one registered geographical indication (mineral water). (iv) Industrial Designs
A total of fifty industrial designs have been registered up until 2004, of which ninety percent are foreign owned. The principal categories of goods in respect of which industrial designs have been registered are food packaging and containers, furniture, and aluminium fittings. (iv) Staffing
The Patents and Trademarks Office currently comprises 13 persons of whom 3 are trademark examiners and 1 is an industrial designs examiner. Approximately 20 trademark searches are undertaken daily by the private sector. The 13 staff represent an increase by 7 persons in the last year and the Director General has indicated that he would like to build the staff numbers up to 20 persons. (v) Computer Equipment
All staff are equipped with Pentium 4 computers and appropriate peripheral equipment, and the Director General has indicated that the Patent and Trademark Office is not in need of assistance in this area. (vi) Documentation
The Patent and Trademark Office is equipped with all relevant WIPO publications, but is in need of technical periodical and monograph literature. (vii) Recommendations
The principal assistance requirements of the Patent and Trademark Office are: Training of examination staff in the practice and procedures of the Madrid Agreement and Protocol administered by WIPO and of OHIM
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CARDS Regional Intellectual Property Rights The provision of IT assistance, particularly with respect to the organization of documentation, regional networking and interfacing with WIPONET Providing attachment opportunities for Albanian IP office staff in other European IP offices The organization of training seminars in intellectual property rights and enforcement for the judiciary The organization of consciousness-raising seminars for policymakers, government officials and private industry The preparation of intellectual property case studies to be incorporated into awareness-raising literature The organization of a documentation centre and library collection available to SMEs, researchers, and the public
(b)
Copyright
On Friday 9 April, we met with Dr Neshat Tozaj, Director General of Albautor (the collecting society representing authors of musical works), Dr Eglantina Gishti of Albautor (International Relations), Mr Piro Milkani, Executive Director of FMPA (the collecting society representing film and video), Dr Nikoleta Ristani, Legal Issues Directorate of the Ministry of Culture, Youth and Sports. (i) Ministry of Culture, Youth and Sports
Currently the administration of copyright law is carried out through the Legal Issues Directorate of the Ministry of Culture, Youth and Sports. This Directorate has a staff of six persons who undertake all the legal work for the Ministry. However, the Directorate is in the final stages of preparing a new draft Copyright Law that will establish a new office directly under the Minister of Culture, Youth and Sports. This new office will coordinate all aspects of copyright protection in Albania. It is envisaged that 10 to 15 persons will work in the new office. It was indicated that assistance is needed on the selection and training of copyright staff, and on the development of library resources. The new copyright office will provide and train inspectors, who will assist in copyright enforcement. These inspectors will collaborate closely with the Taxation Police. Prosecutions of copyright infringements uncovered by the inspectors will be prepared in the new copyright office. Assistance is required in establishing a training programme for the inspectors. The new copyright office will also establish collecting societies to represent the rights of authors currently unrepresented. This will answer a pressing need in Albania as, at present, there are only two collecting societies representing respectively composers and the producers of audio-visual works. The Albanian Government has made an undertaking to the EU to bring the new copyright law into force this year.
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CARDS Regional Intellectual Property Rights (ii) Collecting Societies
Albautor, representing the composers of musical works, was the first collecting society established in Albania and in 1993 became a member of CISAC. FMPA, which represents audio-visual creators, is the only other copyright collecting society in Albania and was established in March 2004. Albautor comprises 6 staff members who are: the Director General, a person responsible for international relations, a manager, a lawyer, a person responsible for contracts with users (who also acts as the assistant of the Director General), and a secretary. While it has adequate computing facilities, it does not have a website. In 1995 Albautor signed a contract with national radio and television stations. However, since its inception Albautor has been engaged in litigation with commercial Albanian radio and television stations to establish its rights to collect copyright royalties on behalf of its members. Recently litigation has also been undertaken against mobile telephone networks. The expense of this litigation has been underwritten by CISAC. A conclusion reached by Albautor, as a result of its litigation experience is the importance of providing IP education for judges. It also considers that workshops are needed for policymakers and for media organizations in order to raise awareness of copyright issues. At present FMPA comprises 3 staff members who are: the Director General, a lawyer and a person responsible for marketing. The Director General has requested assistance in the training of staff members. He also requested assistance for the following purposes: establishment of a registry of all Albanian audio-visual works; a workshop on copyright issues for the creators of audio-visual works; establishment and operation of a website and computer network; establishment of a library. He also suggested that there is a need for the training of academics, at the regional level, in issues concerned with copyright collection. (iii) Recommendations
The principal assistance requirements of the Albanian Copyright Office and collecting societies is in relation to staff training. Additionally, training is urged for those involved in civil and criminal enforcement of copyright: the judiciary, prosecutors, investigators and the police. Copyright awareness-raising is recommended for legislators and IP policy makers, as well as the Albanian public.
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3.3
CARDS Regional Intellectual Property Rights IP and National Industrial Development
The principal industries of Albania are agriculture, product processing, textiles, oil products and cement. Albanias main agricultural crops are wheat, maize, sugar beet, potatoes and fruit. A small wine and spirits industry has been developed. Obvious fields for IP development are: the use of geographical indications in the marketing of wines and spirits and agricultural products and design protection for textile products. A single geographical indication has been registered for mineral water. A particular problem with increasing the level of protection in this area is the expense and administrative difficulty of organising associations of producers to undertake the registration process. Industrial designs have been registered for aluminium construction products such as window frames. In the area of copyright, Albanian music, art and literature are significant both within the country and in countries of significant Albanian emigration. 3.4 Regional Co-operation
Currently, Albanias closest relationship in the administration of IP is with the Former Yugoslav Republic of Macedonia. The limited availability of funds in both countries has prevented this co-operation from being more than occasional and informal. In the area of copyright protection there is a significant Albanian repertoire in Kosovo and Macedonia, but there is not yet any significant regional cooperation in the collection of royalties on behalf of Albanian creators. It was suggested by FMPA (and by collecting agencies in other CARDS countries) that a regional entity could be established with representation from collecting societies in each of the CARDS countries. This entity would provide both an opportunity for the cross-fertilisation of ideas, as well as arranging for the remuneration of copyright owners whose works are sold across the borders of CARDS countries.
4. 4.1
BOSNIA AND HERZEGOVINA Legal Overview
Bosnia Herzegovinas participation in the EU CARDS Regional IPR project has been compromised by the decision of the Council of Ministers of Bosnia and Herzegovina to detach the Intellectual Property Bureau of Bosnia
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CARDS Regional Intellectual Property Rights Herzegovina from the Institute for Standards, Metrology and Intellectual Property of Bosnia and Herzegovina and to relocate it from Sarajevo to Mostar. As Professor Dr Manuel Desantes, Vice President of the EPO, explained in a letter of 5th March 2004 to Mr Renzo Daviddi, Head of Economic and Political Section, EC Delegation in Bosnia and Herzegovina, much project operational experience and investment in personnel through training in the project has already taken place and might well be lost on decentralization. Professor Dr Desantes pointed out that the CARDS activities presupposes a well functioning industrial/intellectual property authority which can rely on a sound communication and traffic infrastructure and which may easily maintain international contacts. It would be detrimental to the enforcement of intellectual property rights and to the further development of the system if the Intellectual Property Bureau were to move to Mostar thereby leaving the city of central political and economic importance in Bosnia and Hezegovina. The assessors, visiting the Intellectual Property Bureau of Bosnia Herzegovina on this mission, found the staff to be preoccupied with an imminent decision of the Council of Ministers on the timing of the relocation of the Bureau to Mostar. Resolution of this issue is of primary importance in determining the effectiveness of the participation of Bosnia and Herzegovina in the Regional CARDS project. On 16 January 2002 the Parliamentary Assembly of Bosnia and Herzegovina enacted the Industrial Property Law of Bosnia and Herzegovina. This Law deals with substantive intellectual property rights and the enforcement of those rights in the fields of patents, industrial designs, trademarks and geographical indications. This legislation will require fine-tuning to bring it into compliance with TRIPs. Further industrial property legislation is also required on plant variety protection and layout designs of integrated circuits, to comply with TRIPs. Also on 16 January 2002, the Parliamentary Assembly of Bosnia and Herzegovina enacted the Copyright Law of Bosnia and Herzegovina, which is compliant with the Berne Convention. Further copyright legislation is required to enact the copyright provisions of the Rome Convention to bring the legislation of Bosnia and Herzegovina into line with the TRIPs Agreement. Amendments to the Law on Industrial Property and the Law on Copyright are required to bring both sets of legislation in line with acquis communautaire. (a) Legislation
Trademarks Law on Industrial Property (Official Gazette 3/02, 29/02) Trademark Regulations (Official Gazette 22/02)
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CARDS Regional Intellectual Property Rights Geographical Indications Regulations on Geographic Indications (Official Gazette 22/02)
Industrial Designs Industrial Design Regulations (Official Gazette 22/02)
Copyright Law on Copyright and Related Rights in Bosnia and Herzegovina, March 2002 (b) Membership of International Treaties and Conventions
Intellectual Property Paris Convention for the Protection of Industrial Property, 1883 Convention Establishing WIPO, 1967 Trademarks Madrid Agreement Concerning the International Registration of Marks, 1891 Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957 Industrial Designs Locarno Agreement Establishing an International Classification for Industrial Designs,1968 Copyright Berne Convention for the Protection of Literary and Artistic Works, 1886 Universal Copyright Convention, 1952 Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite, 1974 WTO Status: Observer Bosnia Herzegovina applied for WTO membership on 11 May 1999. An Accession Working Party was established on 15 July 1999. It submitted a Memorandum on its Foreign Trade Regime in October 2002 and questions and replies and other documentation in September 2003 (see TRIPS WT/ACC/9, 5 Sept. 2003). 4.2 Meetings and Contacts
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CARDS Regional Intellectual Property Rights (a) Trademarks, Geographical Indications and Designs On 16 April 2004 at the Institute for Standards, Metrology and Intellectual Property of the Republic of Bosnia And Herzegovina we met with Dr. Alija Krdali, Assistant Director; Mr. Nedim Kobaevi, (Industrial Design Examiner); Ms. Lidija Vignjevi, (Trademarks Examiner); Ms. Melika Filipan (International Trademarks Examiner); Mr Elevedin Pani, (International Trademark Examiner). (i) Trademarks
The number of trademark applications between 1995 and 2003 are as follows: 1995 280 1996 891 1997 1430 1998 824 1999 626 2000 726 2001 909 2002 754 2003 - 950 The principal categories of goods in respect of which trademarks are registered are pharmaceutical products, food products, wine and tobacco. (ii) Geographical indications
Bosnia Herzegovina currently has 1 registered geographical indication (cheese). The administrative difficulty and expense of registering geographical indications may be an explanation of why in this agriculturally rich country, this category of intellectual property has not been exploited by local enterprises. (iii) Industrial Designs
Domestic Industrial Design applications between 1995 and 2003 were as follows: 1995 4 1996 11 1997 15 1998 17 1999 22 2000 31 2001 19 2002 14
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CARDS Regional Intellectual Property Rights 2003 - 56 (iv) Staffing
The Intellectual Property Department of the Institute for Standards, Metrology and Intellectual Property of Bosnia and Herzegovina currently comprises 13 persons of whom 4 are identified as being in the national trademark division, 2 in the international trademark division; 2 in the patent division, 1 in the industrial designs division, the balance are involved in administration and clerical activities. There are no employees with competence in copyright and neighbouring rights. The Department is currently located in rented premises and expansion is out of the question in this location and until the question of the relocation to Mostar is resolved.
(v)
Computer Equipment
The IP records of the IP Department are computerised. Software has been provided by WIPO. The consideration of further equipment in this area should be deferred until the question of relocation to Mostar is resolved. (vi) Documentation
The IP Department is equipped with relevant WIPO publications, but is in need of technical periodical and monograph literature. (vii) Recommendations
As is indicated above, the requirements of the IP Department are subject to the resolution of the issue of its relocation to Mostar. Of the CARDS countries, the IP Department of Bosnia and Herzegovina is most in need of the full range of assistance. This includes: a. Recruitment and training of staff in all areas of IP; b. Training of examination staff in the practice and procedures of the Madrid Agreement and Protocol administered by WIPO; c. Training of examination staff in the practice and procedures of OHIM d. The provision of IT assistance, particularly with respect to the organization of documentation, regional networking and interfacing with WIPONET
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e. f. g.
CARDS Regional Intellectual Property Rights The organization of training seminars in intellectual property rights and enforcement for the judiciary The organization of consciousness-raising seminars for policymakers, government officials and private industry The organization of a documentation centre and library collection available to SMEs, researchers, and the public
(b) Copyright (i) Intellectual Property Department, Institute for Standards, Metrology and Intellectual Property of the Republic of Bosnia And Herzegovina
The Bosnian Copyright Law of 2002 invests the Intellectual Property Department, Institute for Standards, Metrology and Intellectual Property of the Republic of Bosnia And Herzegovina with responsibility for the administration of copyright in the country. The IP Department does not yet employ any staff with this competency and copyright matters are left primarily to Sine Qua Non, the principal copyright collecting society in Bosnia and Herzegovina. (ii) Collecting Societies
On 16th April, 2004 we met with Dr Amela Hadrovi-Hasanefendi, President of Board, Sine Qua Non, and Mr Ivan Radeljovi, International Affairs, Sine Qua Non. Sine Qua Non is the first copyright collecting society in Bosnia and Herzegovina. It was first registered as a copyright agency in 1997. Pursuant to the requirements of the Law on Copyright and Related Rights 2002, it received a licence from the Institute for Standards, Metrology and Intellectual Property in 2002 to operate as a copyright collecting society. There are no other copyright collecting societies in Bosnia and Herzegovina. However, the Institute has granted a licence to another collecting society in relation to performers rights. Sine Qua Non has six full-time employees, all with university degrees, and twenty two part-time employees. Its full-time employees are responsible for the following functions: President; International Affairs; Director; Financial Director; Business Director; Licensing; Documentation and Databases. Sine Qua Non joined CISAC in 2001. In that year it also formed the Coalition of Authors Societies and Other Copyright Holders. The other members of the Coalition are: Society of Composers and Musical Creators (AMUS); Writers Society and PEN Centre; Society of Fine Arts (ULUBIH); Society of Applied Artists and Designers (ULUPUBIH); Society of Architects; Society of Performing Artists, Actors and Orchestral Artists; Society of Film Workers; and, Musicologists Society and Publishers of Works of Music. The objectives of the Coalition include the following: participation in the creation of cultural
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CARDS Regional Intellectual Property Rights policy for Bosnia and Herzegovina; collective copyright administration; and, protection of other interests of authors and artists. Activities of the Coalition have included: training of members; lobbying activities before state and private bodies; awareness-raising amongst the general public; and supporting legal proceedings undertaken by members individually or collectively. Since its inception, Sine Qua Non has faced particularly severe problems within the region. In general, these problems are a consequence of the socioeconomic, political and legal dislocations caused by the war. Added to this has been confusion arising from the new state and legal structure introduced by the Dayton Accords in 1995. Specifically in relation to copyright law and administration, Sine Qua Non has faced four main challenges. First, during the period of the war copyright users had made no royalty payments to authors and, as a result, continue to be particularly resistant to making such payments despite the introduction of new copyright legislation in 2002. Secondly, during the war the authors lost contact with the professional organizations that had previously represented them and this contact has not been fully re-established. Thirdly, the documentation of authors was destroyed during the war. Finally, even though the Institute for Standards, Metrology and Intellectual Property became the responsible body for copyright law and policy in 2000, there is not yet any staff member of the Institute with responsibility for copyright. The Institute confirmed that Sine Qua Non had de facto responsibility for awareness-raising, education and enforcement in relation to copyright in Bosnia and Herzegovina. Sine Qua Non, in association with the Coalition, has conducted an impressive range of activities in relation to awareness-raising and education. Some assistance in this respect has been provided by, in particular, UNESCO and WIPO. However, Sine Qua Non requires further assistance with these activities. The problems outlined above have meant that Sine Qua Non has been particularly hampered in its operations, despite the commitment and enthusiasm of its staff members. At present, Sine Qua Non is focusing on securing authors rights in relation to broadcast piracy and piracy by the organizers of live events. Until 2002 Sine Qua Non had no contracts with broadcasters. In 2002 it took an action to force national television and radio to sign a contract, however compliance with this contract has been very poor. In 2003 it commenced cases against three private broadcasters, but these cases are still pending. It seems likely that the resolution of these cases is being hampered by a lack of knowledge of copyright law on the part of the relevant judges. Sine Qua Non has, however, signed a contract with the Association of Electronic Media in Bosnia and Herzegovina. Generally, enforcement of copyright obligations has been difficult. Sine Qua Non has been building relations with the police, but this has been hampered by a lack of political will as well as a lack of expertise on the part of the police in relation to forms of copyright piracy. To date, Sine Qua Non has not employed investigators in the field as it is not yet in the position to focus on copyright piracy by small users such as shops or restaurants or on pirated
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CARDS Regional Intellectual Property Rights CDs. In any case, it does not consider that it has authority to conduct investigations into copyright piracy. The particular difficulties faced by Sine Qua Non were recognized by CISAC in its Resolution in Support of SINE QUA NON in Bosnia and Herzegovina (CA/03/0420), which was made by the Administrative Council of CISAC in Budapest on 5 June 2003. This resolution: Backs the legal proceedings and actions that Sine Qua Non has initiated against radio and TV stations and organizers of live performances in order to prevent the further violation of authors rights; Calls upon the public authorities in Bosnia and Herzegovina to live up to their responsibilities and to offer support to Sine Qua Non in order to secure the implementation of obligations fixed in the Copyright Act of Bosnia and Herzegovina; Respectfully requests that the High Representative of Bosnia and Herzegovina takes all possible measures in order to remove any obstacles to the full application of Bosnia and Herzegovina Copyright legislation. Within the region, the Bosnia and Herzegovina musical repertoire is particularly popular in Serbia and Montenegro, Croatia, Macedonia, and Slovenia. Sine Qua Non appears to be satisfied with the reciprocal agreements so far concluded with collecting societies in these countries. It has also developed close relationships with its sister collecting societies in Croatia (HDS-ZAMP) and Macedonia (ZAMP-Macedonia). As part of a proposed regional mentoring programme, Sine Qua Non would be particularly interested in receiving further mentoring from these two collecting societies and from the Slovenian composers collecting society. Outside the region, the Bosnian and Herzegovina repertoire is particularly popular in Germany as a result of the substantial expatriate population. However, the rate of royalty returns from outside the region is low as difficulty has been experienced in concluding agreements with collecting societies outside Bosnia and Herzegovina. Sine Qua Non indicated that it would be particularly grateful for assistance in providing a range of seminars for the following target groups: Police: It was suggested that it would be useful to involve the Croatian police and the Bulgarian police, who have excellent practical knowledge in dealing with copyright piracy, along with Mr Tomislav Radoaj and Mr Nenad Marec of HDS-ZAMP (Croatia). Relevant government departments: It appears that the economic and cultural benefits of copyright are not well understood amongst government officials. Not only has this resulted in the under-resourcing (or non-resourcing) of the Institute for Standards, Metrology and Intellectual Property in relation to copyright, it is responsible for a climate of non-enforcement of copyright and, in some cases, even official hostility to Sine Qua Non.
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CARDS Regional Intellectual Property Rights Sine Qua Non also considers that public and media awareness of copyright issues would be promoted by the study of copyright as an academic discipline within universities, as well as by the establishment of a public documentation and resource centre for collecting information on copyright. (iii) Recommendations Regional seminars for police concerning detection and prosecution of copyright piracy drawing on the expertise of the Croatian police and Bulgarian police, and on the experiences of HDS-ZAMP (Croatia) in developing good relationships between the police and copyright collecting agencies. Regional seminars for government officials that focus on awarenessraising, particularly on the question of the economic and cultural importance of the copyright industries. Pressure needs to be brought on the B&H government to fund a position in the Institute that is concerned with the oversight of copyright policy, and also to establish a separate intellectual property office with its own budget. The location of the intellectual property department within the Institute for Standards, Metrology and Intellectual Property undermines its profile and importance. Admittedly, however, this matter is of less importance than putting pressure on the government not to move the office to Mostar. Establishment of a regional network of public documentation and resource centres. Production of university teaching materials across all areas of IP. Establishment of regional mentoring relationships: Sine Qua Non would particularly benefit from support in order to increase its ties with HDSZAMP (Croatia), perhaps through opportunities for staff exchange. Regional training of judges with specialized knowledge in copyright. A number of people around the region has suggested the establishment of specialized copyright or intellectual property courts in each of the countries in the region. Pressure should be put on collecting societies in countries outside the region, especially in the EU, to conclude reciprocal agreements with Sine Qua Non. It seems particularly unfortunate that authors in B & H, who have suffered such privation, should not be able to access royalties for the use of their works outside the region. IP and National Industrial Development
4.3
The principal industries in Bosnia and Herzegovina are: agriculture and mining. The major agricultural crops are wheat, maize, potatoes and cabbage. The principal mineral products are crude steel, lignite, iron ore, bauxite, coal and oil. Electrical production and food industries accounting for 50 per cent of
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CARDS Regional Intellectual Property Rights total industrial activity. The construction industry has become the main sector of industrial growth and the steel industry has been important for the reconstruction of Bosnia Herzegovina. Trademarks have been used in the marketing of tobacco and cigarettes, cheeses and Herzegovinian wines. There is some potential for the use of geographical indications with these products and also with the marketing of honey.
4.4
Regional Co-operation
Currently, Bosnia and Herzegovinas closest relationship in the administration of IP is with Bulgaria, Croatia, Slovenia and Macedonia. Staff exchanges with these offices was identified as a desirable aim by the IP Department. The assessors mentioned that Bulgaria in particular, was engaged in an ECfunded twinning project with the Governments of Denmark and the UK, which involves, inter alia, the organization of training workshops on IP administration and enforcement. It was suggested that the possibility of funding for participants from Bosnia and Herzegovina to attend these workshops might be explored within the regional CARDS programme. Sine Qua Non has a close working relationship with HDS-ZAMP. Sine Qua Non, raised the suggestion that a regional entity could be established with representation from collecting societies in each of the CARDS countries. This entity would provide both an opportunity for the cross-fertilisation of ideas, as well as arranging for the remuneration of copyright owners whose works are sold across the borders of CARDS countries.
5 5.1
CROATIA Legal Overview
At its session of 30 June 1999 the Croatian Parliament adopted the following intellectual property laws: Patent Law; Trademark Law; Industrial Design Law; Law on the Protection of Geographical Indications of Products and Services; Law on Protection of Layout Designs of Integrated Circuits; and Law on the Amendments of the Copyright Law. These Laws came into force on 1 January 2000 and were drafted following consultations with WIPO, the EC, and the industrial property offices of Austria, Germany and the USA. This legislation was designed to be in harmony with the TRIPs Agreement and with EU Directives.
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CARDS Regional Intellectual Property Rights A National CARDS Project Intellectual Property Rights- 60343 has been conducted in Croatia, the main objective of which was to improve the investment climate and to foster economic development by ensuring effective protection of Intellectual Property Rights (IPR) in Croatia. The purpose of the project was to improve the legal and institutional framework for effective implementation and enforcement of IPR through: 1. Legal approximation: in the field of industrial property rights with the EU Acquis to be ready for adoption by the competent bodies; 2. Institutional capacity building and training: to strengthen the institutional capacity of SIPO, enabling improved implementation and application of the current and new legislation in the field of intellectual property rights; 3. 0. 4. Development of a long to medium term strategy for implementation and enforcement: to support the improvement of implementation and enforcement in the field of IPR. Project activities included: 1. Review and quality control of proposed draft laws 2. Provision of workshops on EU legislation and practice in the fields of industrial property 3. Assessment of the current legislative framework in the field of Intellectual Property Rights 4. Conduct overall and specific (IT component) institutional assessment 5. Prepare procurement documentation for equipment (IT equipment, books and other literature in the field of IPR) 6. Conduct gaps and needs analysis and propose short-term measures enhancing the institutional and organisational structure of SIPO 7. Implement selected activities 8. Conduct Training Needs Analysis in the fields of copyright and related rights, and legal and economic horizontal aspects of IPR 9. Develop Curricula 10. Carry out training in the fields of copyright and related rights, and legal and economic horizontal aspects of IPR 11. Conduct an overall assessment and description of IPR implementation and enforcement system in Croatia 12. Conduct an overall assessment of strengths and weaknesses of the current system 13. Make recommendations for future governmental and nongovernmental activities 14. Provide an Action Plan with appropriate indicators and results As a consequence of this national CARDS Programme the intellectual property legislation of Croatia has been compliant with TRIPs and the EU Acquis.
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Deleted: Provide an action plan with appropriate indicators and results
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Deleted: 14.
Unknown Formatted: Bullets and Numbering
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CARDS Regional Intellectual Property Rights (a) Legislation
Trademarks Trademark Law enacted October, 2003, applied as from January 1, 2004 Trademark Regulations (Official Gazette 146/99-to be amended) Geographical Indications Law on the Protection of Geographical Indications of Products and Services enacted October, 2003, applied as from January 1, 2004. Industrial Designs Industrial Design Law enacted October, 2003, applied as from January 1, 2004. Copyright Copyright and Related Rights Law October, 2003, applied as from January 1, 2004. (b) Membership of International Treaties and Conventions
Trademarks Paris Convention for the Protection of Industrial Property, 1883 Madrid Agreement Concerning the International Registration of Marks, 1891 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, 1989 Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957 Convention Establishing WIPO, 1967 Trademark Law Treaty, 1994 Agreement Establishing the WTO, 1994 Geographical Indications Paris Convention for the Protection of Industrial Property, 1883 Convention Establishing WIPO, 1967 Agreement Establishing the WTO, 1994 Industrial Designs Paris Convention for the Protection of Industrial Property, 1883 Berne Convention for the Protection of Literary and Artistic Works, 1886 Hague Agreement Concerning the International Deposit of Industrial Designs, 1925 Convention Establishing WIPO, 1967 Locarno Agreement Establishing an International Classification for Industrial Designs, 1968
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CARDS Regional Intellectual Property Rights Agreement Establishing the WTO, 1994
Copyright Berne Convention for the Protection of Literary and Artistic Works, 1886 Universal Copyright Convention, 1952 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 Convention Establishing WIPO, 1967 Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms, 1971 (Geneva Convention) Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite, 1974 Agreement Establishing the WTO, 1994 WIPO Copyright Treaty, 1996 WIPO Performances and Phonograms Treaty, 1996 WTO Status: Member Croatia has been a member of WTO since 30 November 2000. Croatia has not been involved as a complainant or respondent in WTO dispute. (c) Compliance with WTO TRIPs Agreement
As was mentioned above, following the implementation of a national CARDS programme, Croatias IP laws are fully TRIPs compliant. [See also WTO Council for Trade-Related Aspects of Intellectual Property Rights Notification of Laws and Regulations under Article 63.2 of the Agreement, IP/N/1/HRV/1, 29-10-2002; & WTO Council for Trade-Related Aspects of Intellectual Property Rights, Review of Legislation: Croatia, IP/Q/HRV/1, IP/Q2/HRV/1, IP/Q3/HRV/1, IP/Q4/HRV/1, 07-05-2003.] By notification of 28 July 1992, the Republic of Croatia became party to the Berne Convention from 8 October 1991, with a reservation in relation to Article 8 of the Convention. On 16 September 1999 the reservation was withdrawn for the purpose of complying with Articles 9 of the TRIPS Agreement, providing for the obligation of complying with Articles 1 through 21 of the Berne Convention. 5.2 Meetings and Contacts
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(a)
CARDS Regional Intellectual Property Rights Trademarks, Geographical Indications and Designs
On Tuesday 13 April we met with Dr Slavica Matei, Assistant Director General, State Intellectual Property Office of the Republic of Croatia, Professor Jasna Kljaji, Head of the Section for International Registration of Trademarks. Dr Matei informed us that the Croatian IP Office had already communicated its proposals for further activities under the regional CARDS project to the project communicator, which we were unaware. These proposals are reproduced below as recommendations. (i) Trademarks
Trademark applications received 1992-2002: Residents 6928 Non-residents 9664 Total 16592 Notifications under Madrid Agreement Trademarks Total Trademark applicants: Croatia US EU Japan Slovenia Switzerland 46788 63380 41.76% 25.53% 19.25% 2.41% 2.07% 1.86%
Trademark Notifications under Madrid Agreement: EU 79.88% Switzerland 11.26% Czech Republic 1.76% Slovenia 1.14% Hungary 0.97% (ii) Geographical indications
Croatia currently has five registered geographical indications. Under Croatian law, the Ministry of Agriculture is responsible for registering geographical indications in relation to wines and spirits and to agricultural products. SIPO is responsible for the registration of all other geographical indications. (iii) Industrial Designs 1786 411
Applications 1992-2002: Residents Non-residents
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Total
CARDS Regional Intellectual Property Rights 2197
The breakdown of applicants 1992-2002: Croatia 81.29% EU 10.10% US 4.11% Slovenia 1.82% Switzerland 0.68% Japan 0.41% (iv) Staffing
SIPO currently comprises 7 departments under the authority of the Director General. These are: Patents Trademarks, Geographical Indications and Industrial Designs Copyright and Related Rights Information Technology and Documentation Information and Domestic Cooperation Intellectual Property Development General Affairs and Finance The staffing of the Trademarks, Geographical Indications and Industrial Designs Department currently comprises: Formal and Substantive Examiners - 7 persons; Oppositions and Changes - 5 persons; Industrial Designs 4 persons; International Registration 2.5 persons. The Copyright and Related Rights Department comprises 1 person; and the Intellectual Property Development Department comprises 2 persons, of whom 1 is a lawyer. The Assistant Director General indicated that she wished to raise the general educational standard of officials in her sector, with a particular emphasis on legal training. (v) Computer Equipment
The Assistant Director General indicated that the Trademark Department was not in need of assistance in relation to computer equipment as this was a matter covered by the National CARDS Project. (vi) Documentation
The Assistant Director General indicated that the Trademark Department would benefit from the procurement of further technical periodical and monograph literature.
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(vii)
CARDS Regional Intellectual Property Rights Recommendations
The principal assistance requirements of the Trademark Department, which have already been presented to the CARDS Regional project officer are: CARDS ACTIVITIES SUGGESTED BY TRADEMARK DEPARTMENT (SIPO-CROATIA)
ACTIVITIES
INSTITUTIONS THAT CAN PROVIDE THE ACTIVITY
NUMBER OF TRADEMARK DEPARTMENT EMPLOYEES
LOCATION
LECTURES / SEMINARS
1. Consequences of Croatia joining the EU that will directly (or indirectly) affect SIPO (organizational, financial etc.), especially those connected with Community trademark system (e.g. rise/fall in the number of national applications, financial implications etc.) detailed comparative analysis with comments and suggestions 2. Full picture of the current EU legislation and practice in the field of trademarks detailed comparative organization analysis of the practice (not only in one country, important decisions of the European Court of Justice and the Court of First Instance etc.) + comments and suggestions 3. Procedures in the trademark departments of OHIM, certain national offices in "old" EU countries and certain candidate (2004) countries - detailed comparative analysis with comments and suggestions 4. Awareness raising activities promotion of intellectual property, national, CTM and Madrid systems, connection of trademark departments with Information and cooperation departments detailed comparative analysis with comments and suggestions - OHIM - Austrian national office - offices of the candidate countries (the ones that are going to join the EU in 2004) preferably Czech and Hungarian national offices - OHIM 18 SIPO
18
SIPO
- OHIM - the national offices (preferably Austrian, Danish, Czech and Hungarian national offices) OHIM
18
SIPO
18 + Information and cooperation department (8 persons)
SIPO
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WORKSHOPS, STUDY VISITS, INDIVIDUAL ONTHE-JOB TRAINING, EXCHANGE OF PERSONNEL Study visits (general) analysis of the organization and practice of OHIM, Austrian, Danish, Czech and Hungarian national offices ADVANCED, THEMATIC TRAINING WITH SPECIAL ACCENT ON (THEORETICAL INTRODUCTIONS AND PRACTICAL FOCUS): 1. Detailed analysis of Community regulations on the CTM 2. Registration and administration procedures related to examination and granting procedures in the field of trademarks especially examination of absolute and relative grounds (opposition and invalidation procedures), revocation procedure and appeal proceedings detailed analysis in order to harmonize Croatian practice with OHIM (EU) and international standards 3. Development and training in electronic search techniques 4. The link between administration procedures and IT system training in use and possibilities of up-to-date - OHIM - Austrian, Danish, Czech and Hungarian national offices 4 - OHIM - Austrian, Danish, Czech and Hungarian national offices
OHIM
OHIM or SIPO
- OHIM and national offices recommended by OHIM
- OHIM and national offices recommended by OHIM
- OHIM - organizations recommended by OHIM - OHIM and organizations recommended by OHIM
- OHIM - organizations recommended by OHIM - OHIM and organizations recommended by OHIM
2 + IT staff
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software for trademarks which has to be completely compatible with EU and WIPO standards (exchange, Efiling etc.) - trademark staff together with IT staff 5. Participation in EU and international seminars recommendations and participation 6. On-the-job training OHIM 1-2 - depending on OHIM recommendations
OHIM
- depending on OHIM recommendations - depending on OHIM recommendations
OHIM
7. Exchange of personnel (two-way exchange)
- OHIM - national offices recommended by OHIM
- depending on OHIM recommendations
LEGISLATION FOLLOW-UP (SEMINARS, WORKSHOPS) 1. Opinions and recommendations concerning the new Croatian Law on Trademarks 2. Suggestions about drafting examination guidelines and practice guides 3. Development of legislative drafting skills (recommendations for future work) OHIM OHIM
OHIM
OHIM or SIPO
- OHIM - institutions recommended by OHIM
OHIM, SIPO or institutions recommended by OHIM
INFORMATION AND COOPERATION ACTIVITIES CONNECTION BETWEEN INFORMATION AND COOPERATION DEPARTMENTS AND TRADEMARK DEPARTMENTS
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1. Documentation needs list of data bases, books, periodicals and other documents concerning trademarks which SIPO should have acquisition of this documentation 2. Awareness raising activities -promotion of intellectual property national, CTM and Madrid systems training of trademark staff together with Information and cooperation department staff (workshop) - OHIM and national offices recommended by OHIM OHIM and national offices recommended by OHIM
OHIM
18 + Information and cooperation department (8 persons)
SIPO
In addition, it is recommended that a documentation centre and library collection available to SMEs, researchers, and the public. (b) Copyright
On Tuesday 13 April, we met with Dr Tajana Tomi, Head of the Copyright Department of the State Intellectual Property Office, Dr Saa Zatezalo, Intellectual Property System Development Department of the State Intellectual Property Office, Dr Tomislav Radoaj, General Manager of ZAMP-HDS Collecting Society, Dr Nenad Marec, Deputy General Manager of ZAMPHDS Collecting Society, and Professor Hrvoje Markulj, Secretary General of HDU Collecting Society. (i) State Intellectual Property Office
The administration of copyright is carried out by the Copyright Department, which is part of the State Intellectual Property Office. One person (Dr Tomi) is currently employed in this Department, although the Department receives support from the Intellectual Property System Development Department in the State Intellectual Property Office. The Department was responsible for the drafting of the Copyright and Related Rights Law 2003. In order to carry out this task it convened a large working party composed of academics, representatives of collecting societies, record company representatives, user representatives and representatives from the Chamber of SMEs. Dr Tomi considers that the current system of copyright administration and enforcement is working well. In relation to the issue of enforcement, her view is that the police have developed a satisfactory level of expertise with respect
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CARDS Regional Intellectual Property Rights to the investigation of CD and DVD piracy. The police also have a special division on software piracy, which is working to a satisfactory level. Nevertheless, Dr Tomi takes the view that training updates for the police and customs offices with respect to enforcement techniques would be useful. The main concern voiced by Dr Tomi was that the intellectual property system in the region is not well served by research and teaching at the university level. A step in the right direction, therefore, would be the creation of a regional academic network. (ii) Collecting Societies
A HDS-ZAMP HDS-ZAMP is a collecting society for Croatian composers. It was formed as a collecting society in its own right after Croatia became independent from the former Yugoslavia. At the time of its formation as an independent entity it had three employees and collected royalties from 2000 users. Currently it has over 60 employees, it collects royalties from approximately 30,000 users, and it has 4000 members. It has negotiated reciprocal agreements with 95% of other relevant collecting societies. All this means that in regional terms it has been extremely successful in establishing itself in a comparatively short period of time. It has received particular assistance from SOKOJ, the parent collecting society for composers in the countries of the former Yugoslavia. It has also received assistance from the Austrian composers collecting society, which was nominated by CISAC to be a mentor for HDS-ZAMP. It is a member of CISAC. The employees of HDS-ZAMP work in six different departments, as follows: Department for Documentation and Distribution, which is headed by a mathematician; Collecting Department, which is headed by a lawyer; Media and New Technologies Department, which is headed by an economist; Information Technology Department; Public Relations Department, which is headed by a journalist; Inspection Department, which is headed by a former policeman. The majority of its employees (around 30 people) are employed in its Inspection Department, which carries out field investigations into piracy. It also has four branch offices, two of which are headed by lawyers. The General Manager is in charge of external relations, while the Deputy General Manager is in charge of operations. Almost half of the income of HDS-ZAMP comes from the tariff paid to it by national radio and television, which is based on a percentage of total revenue. It also has agreements with some commercial radio and television broadcasters covering about 35% of such users in Croatia (120 commercial radio stations and 12 commercial television stations), with the Hotel Association, with record companies, and in relation to mobile telephone
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CARDS Regional Intellectual Property Rights ringing tones. It is currently conducting negotiations with companies involved in cable retransmission. HDS-ZAMP has recently obtained the approval of the State Intellectual Property Office to take enforcement actions against private users. Generally speaking, however, HDS-ZAMP is unable to take court proceedings to enforce copyright as often as it would like as a result of the expense of legal proceedings. It tends to use the Misdemeanours Court in order to recover penalties, rather than launching civil cases. It takes the view that the judges in the Misdemeanour Court and the Civil Court have adequate expertise. On the other hand, HDS-ZAMP is not happy with the level of expertise of prosecutors and judges in the criminal courts. It believes that the CARDS programme should focus on training in this area. HDS-ZAMP has a supportive relationship with the Copyright Department in the State Intellectual Property Office. It welcomed the opportunity afforded by the Copyright Department to take part in the drafting of the recent copyright legislation. However, it considers that it relationship with the Ministry of Interior and the State Inspectorate of Customs could be improved. It advocates further training in copyright enforcement for the police and customs officers. The countries of the former Yugoslavia share a common musical repertoire, which means that cooperation on enforcement between the various collecting societies in the region is highly desirable. It is also the case that the collecting societies have experienced many common problems. Accordingly, HDSZAMP considers that an organized network of collecting societies within the region would confer great advantages in terms of the enforcement of copyright law. HDS-ZAMP noted that the CISAC regional office in Budapest has provided assistance within the region with respect to seminars, equipment and information technology. However, as the CISAC office is a regional office for 26 countries it is not in a position to concentrate on the special problems of the CARDS countries. HDS-ZAMP has acted as a mentor society to Sine Qua Non in Bosnia and it was the first collecting to sign a reciprocal agreement with Sine Qua Non. HDS-ZAMP would be very happy to place this mentoring relationship on a more formal basis, but would require assistance to do so.
B. HDU
HDU was established in 1995 as a phonographic rights society. It was first recognized in the Croatian copyright legislation in 1999 and in that year obtained a contract with the national radio and television stations. It is not yet a full member of IFPI, but hopes to be fully recognized by IPFI next year.
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CARDS Regional Intellectual Property Rights HDU has 32 members, which comprises 95% of the legal Croatian market for phonogram production. It has so far managed to distribute 90% of all monies collected each year. In addition to its user contracts with Croatian radio and television, HDU also has contracts with a number of commercial broadcasters and it is currently negotiating with the owners and manufacturers of jukeboxes. Relationships with the commercial broadcasters remain difficult. At present HDU has 2 staff members. It will shortly employ a legal adviser and thereafter it intends to employ an anti-piracy officer. At present, it is substantially reliant upon HDS-ZAMP with respect to investigation and enforcement. The relationship between the two collecting societies appears to be good. HDU also has a good relationship with the Copyright Department in the State Intellectual Property Office, and participated in the drafting of the new Copyright and Related Rights Law. In the view of HDU, however, the relationship between customs officers, on the one hand, and SIPO and the collecting societies, on the other, has room for improvement. The Secretary General of HDU was enthusiastic about the establishment of a sub-regional network of collecting societies involving Slovenia, Serbia and Montenegro, Bosnia and Herzegovina, and Macedonia. (The Croatian repertoire is especially popular in these countries.) In particular, such a network should concentrate on a regional anti-piracy programme. The Secretary General indicated that a substantial portion of pirated CDs entered the region from the Ukraine via Serbia and Montenegro. It was noted that the number of legitimate phonograms being sold in the region of the former Yugoslavia had decreased markedly, which is attributable to the high rate of piracy and the spawning of a large number of commercial radio stations. Despite this there are Croatian record companies that represent the major labels, although as noted elsewhere the majors have not yet established their own subsidiary undertakings within the CARDS region. The main training requirement of HDU is in relation to anti-piracy work, especially with respect to forensic techniques. It would also be grateful for specialist software and training in the information technology area. (iii) Recommendations Training should be provided for police and customs officers with respect to the investigation of copyright piracy and copyright enforcement. Such training should also focus of the importance of the relationship between the police and customs officers and the other stakeholders in the system of copyright administration and enforcement.
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5.3
CARDS Regional Intellectual Property Rights Training in copyright law and practice is needed for prosecutors and judges of the criminal courts. A regional academic network to promote research and study in intellectual property should be established. A regional network of collecting societies should be established. The activities of this network could include the following: mentoring; training; awareness-raising; exchange of experiences generally; and, collaborating on a regional anti-piracy programme. Within the framework of such a regional network, arrangements could be made to formalize and support particular mentoring relationships, such as that between HDS-ZAMP and Sine Qua Non in Bosnia and Herzegovina. It is also recommended that support be given to HDU in relation to the use of information technology. IP and National Industrial Development
The Croatian manufacturing sector contributed 23.28 per cent of GDP in 2001 and employs just over 33 per cent of the labour force. Principal manufacturing industries include textiles, chemicals, construction materials, food products, and steel. In each of these industries, patenting and industrial designs protection could play a significant role. The agricultural sector in Croatia employs about 4.5 per cent of the workforce (1995). The principal crops are corn, wheat, sugar beet, potatoes and grapes. Trademarks and geographic indications could play a significant role in the marketing of these products. The mineral wealth of Croatia is reflected in an active mining industry, including oil and gas, bauxite and iron ore. There is not yet any significant inventive activity based on this mining. 5.4 Regional Co-operation Croatia was identified as the office to which other CARDS members turned for industrial property advice in the first instance. At the same time the collecting agencies in other CARDS countries turn to HDS-ZAMP for guidance. It is proposed that this informal system of mentoring be underpinned by a formal programme of activities supported by CARDS funding. On its part, Croatia looked in the first instance to the industrial property offices of Slovenia and Austria for guidance. These offices could also be designated as mentors within the Regional CARDS Programme. 6. FORMER YUGOSLAV REPUBLIC OF MACEDONIA 6.1 Legal Overview
Legislation dealing with substantive intellectual property rights in the fields of patents, industrial designs, trademarks, geographical indications, copyright, layout designs (topographies) of integrated circuits and copyright, has been in
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CARDS Regional Intellectual Property Rights force in Albania since 1994. A Plant Variety Rights Act has been enacted, which is modelled on the 1991 version of the UPOV Convention. The new intellectual property legislation is TRIPs-compliant in its application to categories of protectable IP. Amendments to the Law on Industrial Property and the Law on Copyright have been drafted to bring both sets of legislation in line with acquis communautaire. In the case of the Law on Copyright the amendments take into account the establishment of a new Copyright Office that will be directly accountable to the Minister of Culture. (a) Legislation
Trademarks Law on Industrial Property of June 2002 Geographical Indications Law on Industrial Property of June 2002 Industrial Designs Law on Industrial Property of June 2002 Copyright Law on Copyright and Related Rights No. 47/96 of September 1996 and No. 3/98 of January1998, as amended by Law on Alterations and Additions to the Law on Copyright and Related Right, adopted on 24 December 2002. (b) Membership of International Treaties and Conventions
Trademarks Paris Convention for the Protection of Industrial Property, 1883 Madrid Agreement Concerning the International Registration of Marks, 1891 Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957 Convention Establishing WIPO, 1967 Agreement Establishing the WTO, 1994 Geographical Indications Paris Convention for the Protection of Industrial Property, 1883 Convention Establishing WIPO, 1967 Agreement Establishing the WTO, 1994 Industrial Designs Paris Convention for the Protection of Industrial Property, 1883
85
CARDS Regional Intellectual Property Rights Berne Convention for the Protection of Literary and Artistic Works, 1886 Convention Establishing WIPO, 1967 Locarno Agreement Establishing an International Classification for Industrial Designs, 1968 Agreement Establishing the WTO, 1994
Copyright Berne Convention for the Protection of Literary and Artistic Works, 1886 Universal Copyright Convention, 1952 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 Convention Establishing WIPO, 1967 Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms, 1971 (Geneva Convention) Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite, 1974 Agreement Establishing the WTO, 1994 WIPO Copyright Treaty 1996 WTO Status: Member The Former Yugoslav Republic of Macedonia (FYROM) has been a member of WTO since 4 April 2003. It has not been involved as a complainant or respondent in WTO dispute settlement (c) Compliance with WTO TRIPs Agreement
The provisions of the TRIPS Agreement, in so far as not implemented in national law, are directly applicable in the Former Yugoslav Republic of Macedonia, pursuant to Article 118 of the Constitution and may not be changed by law. 6.2 (a) Meetings and Contacts Trademarks, Geographical Indications and Designs
On 15 April we met with Dr Elizabeta Simonovska, Head of Trademark Section, Industrial Property Protection Office (IPPO), Dr Biljana Leki, Deputy Head of Department, IPPO (responsible for Geographical Indications).
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(i)
CARDS Regional Intellectual Property Rights Trademarks
The number of national trademark applications by domestic applicants between 1995 and 2002 are as follows: 1995 332 1996 280 1997 157 1998 206 1999 368 2000 736 2001 440 2002 411 The number of national trademark applications by foreign applicants between 1995 and 2002 are as follows: 1995 1528 1996 718 1997 740 1998 687 1999 564 2000 785 2001 746 2002 624 International trademarks registered through the Madrid Agreement are as follows: 1995 -2618 1996 1975 1997- 2860 1998- 3924 1999- 3009 2000 - 3016 2001 - 3132 2002 2406 The principal categories of goods in respect of which trademarks are registered are pharmaceutical products and food products. In 2002 the following countries were the most significant Applicants under the Madrid Agreement: Germany 32.15%, Switzerland 12.22%; France 11.88%, Italy 11.88%; Netherlands 7.32%. (ii) Geographical indications
Macedonia currently has 45 registered geographical indications. The principal categories of goods in respect of these registrations were obtained: are mineral water 65.22%; wine 19.57%; cheese 10.87%. (iii) Industrial Designs
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CARDS Regional Intellectual Property Rights Domestic Industrial Design applications between 1995 and 2002 were as follows: 1995 41 1996 26 1997 20 1998 35 1999 46 2000 81 2001 75 2002 29 Foreign applications between 1995 and 2002 were: 1995 8 1996 10 1997 9 1998 7 1999 9 2000 14 2001 5 2002 12 Applications under the Hague Agreement between 1997 and 2002 were: 1997 252 1998 421 1999 485 2000 546 2001 606 2002 671 (iv) Staffing
The State Office of Industrial Property currently comprises 24 permanent employees, including the Director, and 8 temporary employees. Of the permanent employees: 6-7 work in the Patents Department; 7-8 work in the Trademark Department (trademarks, geographical indications and designs); 9 work in the Legal Administrative Department (publishing, legal and administrative). Temporary employees move between the various departments according to need. The number of temporary employees leads to a heavy training burden, which distracts permanent employees from their other duties. We were informed that, as a consequence of the restrictions on the number of state employees,
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CARDS Regional Intellectual Property Rights SOIP is understaffed. While 40 permanent employees would be optimal, it is evident that this would lead to a serious problem in the current office accommodation as it is already extremely cramped. Approximately 5 members of the public per day come into the office to search the register. There are approximately 100 written searches per month. At present the search facilities are paper-based, however once the re-equipping of the office is complete it is intended that electronic searching facilities will be made available to the public. (v) Computer Equipment
The SOIP is currently in the process of re-equipping itself and transferring some of its paper-based procedures to electronically-based procedures. It has been the beneficiary of several technical development projects. In particular, WIPO has provided free software and computer equipment, and has promised a scanner. The software is still in the process of being installed. SOIP plans to have the process of re-equipping its office completed by the end of this calendar year. (vi) Documentation
The library of SOIP is in the process of development as a result of ongoing technical development projects conducted by the CARDS National Programme and the Agency for European Reconstruction. (vii) Recommendations
The principal assistance requirements of the State Office of Industrial Property are: Equipment for video and power point presentations in order to continue and develop the process of public awareness raising Training with respect to the new trademark procedures including: the trademark opposition procedure; registering of three-dimensional marks; the legal regimes governing collective marks, certification marks and well-known marks. This training should include study visits to mentor offices in order to identify specific problems and the solutions to those problems. The organization of training seminars with respect to intellectual property rights and their enforcement for the judiciary, public prosecutors, customs officials and officials of the Ministry of the Interior The organization of conscious-ness raising seminars for policymakers, government officials and private industry The provision of IT assistance, particularly with respect to the organization of documentation, regional networking and interfacing with WIPONET.
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(b)
CARDS Regional Intellectual Property Rights Copyright
On 15th April, 2004 we met with Dr Aco Stefanoski, Head of Unit for Copyright and Related Rights, Ministry of Culture; Dr Dragana urioska, Head of Sector for Normative, Administrative and Supervisory Affairs, Ministry of Culture; Dr Dejan Pavleski, Expert Adviser, Sector for Normative, Administrative and Supervisory Affairs, Ministry of Culture; Dr Zoran Vaskovski, General Manager, ZAMP Macedonia; Dr Antoneta Tokovska Kotevska, Head of Documentation and International Affairs, ZAMP Macedonia. (i) Ministry of Culture, Youth and Sports
Currently the administration of copyright law is carried out through the Ministry of Culture. Assistance has been received from the German Agency for Technical Assistance- GTZ in amending the Macedonian Copyright Law to bring it into compliance with the TRIPs Agreement and the acquis communautaire. (ii) Collecting Societies
In 1947 SOKOJ (the Composers Collecting Society of Serbia) was established with a regional office in Skopje. In 1992 ZAMP-Macedonia was established as the Macedonian collecting society for the composers of musical works. It joined CISAC in 1993 and after that signed a range of reciprocal agreements with collecting societies in other jurisdictions. At present ZAMP-Macedonia is the only collecting society in Macedonia with a permanent licence. The Ministry of Culture has given a temporary licence to a collecting society for Phonographic Producers. However, this licence expires at the end of May 2004 and it is not clear at this stage whether it will be renewed and, if so, on what basis. ZAMP-Macedonia has 6 regular staff members and 10 temporary staff members. The six regular staff members comprise: General Manager, Head of Distribution, Head of Documentation and International Affairs, Head of Finance, and persons working in the accounts section. It also has field staff, who work on commission, making contracts with users. ZAMP-Macedonia has no staff investigating piracy as it considers that it does not have authority to investigate and prosecute piracy of copyright works. Instead, the task of investigation is undertaken by the Ministry of Culture in association with the police. However, ZAMP-Macedonia is obliged to take proceedings against users that do not comply with the obligations contained in their agreements with the collecting society. As is commonly noted in the CARDS Region, these court proceedings are often very slow.
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CARDS Regional Intellectual Property Rights ZAMP-Macedonia has signed agreements with: national radio and television broadcasters; 70% of commercial broadcasters in Macedonia; concert organizers; hotels and restaurants. It has also recently signed an agreement in respect of cable re-transmission and it appears that, so far, it is the only collecting society in the region to have signed such an agreement (although a number of other collecting societies are currently negotiating such agreements). It has 1200 members. However, when it makes a distribution it distributes to 3000 authors, as it is required by law to protect the financial interests of all authors. The domestic repertoire, which protected by ZAMP-Macedonia, covers both popular and classical music. The popular repertoire covers pop, jazz, rock, arrangements of traditional music, ethno-music (embracing new ethno-folk and traditional ethno-music). There are approximately 5 large music producers in Macedonia. There are no major (international) production companies or their subsidiaries that currently operate in Macedonia. However, it is expected that this situation will change in the near future. The amount of royalties collected suggests that outside Macedonia, its music is most used in Australia, Canada and the US. However, this usage is not particularly heavy. Within the region, Macedonian music is popular in Serbia, while Serbian and Croatian music is popular in Macedonia. ZAMP-Macedonia received an interest-free loan from CISAC in order to purchase computing equipment. Subsequently, they received technical support for hardware and software under the Phare Programme. The Phare Programme has also provided educational support, in the form of seminars, for field-staff. A limited amount of educational support has also been provided by the CISAC Regional Office in Budapest. However, ZAMP-Macedonia considers that there is an opportunity for a considerable increase in the amount of educational support relevant to the activities of collecting societies in the region. ZAMP-Macedonia considers that it has a good relationship with the Macedonian Ministry of Culture, although it would like the opportunity to be more closely involved in the re-drafting of the Copyright Law. It would also like to promote links with other governmental organizations in order to raise awareness about the importance of copyright to economic and cultural development. ZAMP-Macedonia expressed its support for the extension of the CARDS Regional Programme into the area of copyright. It was noted that previous CARDS projects appeared to have been concerned solely with industrial property rights. It requested assistance from the CARDS Regional Programme for the following: education and training for its staff; opportunities for exchange of information amongst collecting societies on issues of importance within the region, such as the negotiation of contracts with respect to cable retransmission; awareness-raising amongst government bodies and
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CARDS Regional Intellectual Property Rights media undertakings; and, support in the area of information technology, especially with respect to the establishment of a regional database of musical works. (vii) Recommendations
Establishment of a specialist court to deal solely with authors rights (ZAMP, which says that this is supported by the Ministry of Culture) complained of slowness ZAMP-Macedonia wanted: education and training for its staff; opportunities for exchange of information amongst collecting societies on issues of importance within the region, such as the negotiation of contracts with respect to cable retransmission; awareness-raising amongst government bodies and media undertakings; and support in the area of information technology, especially with respect to the establishment of a regional database of musical works 6.4 IP and National Industrial Development
The principal agricultural products of Macedonia are wheat, corn, tomatoes, rice, peppers, livestock and livestock products, and tobacco; fruits and other vegetables are also grown for export in significant quantities. Food and beverage processing are highly developed: flour milling and baking, canned and bottled fruits and vegetables, bulk and bottled wines; beer malt and beer. Skopje Brewery has been ranked as the most successful enterprise in Macedonia and has already developed a number of trademarks for its products. Wine is also an important export. Industry primarily is low technology and includes oil refining, mining (coal, chromium, lead, zinc and ferro-nickel), basic textiles, construction, shoe production and tobacco processing. Obvious fields for IP development are: the use of geographical indications in the marketing of wines and spirits, tobacco and agricultural products and design protection for textile products. A number of geographical indications have been registered for wines and mineral water. Metal fabrication and electrical equipment industries manufacture various structures including buses, castings, batteries, cable, pumps, etc, while others produce household appliances. Capacities exist for basic chemicals, polyacrylonitrile fiber, polyvinyl chloride, as well as detergents, fertilizers, polyurethane foams and fibers. Pharmaceutical and cosmetics firms are well established in Macedonia. Each of these industries has the potential of exploitation through patenting and industrial designs and through trademarks. The textile industry, including fibres, fabrics and finished products, is a major employer and contributor to Macedonian industry. Cotton thread and fabric, denim cloth, wool yarn, fabric and knitted fabric, are the principal products.
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CARDS Regional Intellectual Property Rights Ready-made clothing production has increased in response to demands from European and North American markets for quality merchandise at reasonable costs. Also a significant leather and leather-processing industry exists. This is a significant producer of shoes, which could also be exploited through trademarks and industrial designs. The construction and building materials industries rely on domestic raw materials: feldspar, calcium carbonate, bentonite, crumbled and micronized quartz, perlite, etc. Outputs include china, tile, sanitary ware, asbestos, cement and cement products, as well as gypsum and gypsum products. 6.5 Regional Co-operation
Currently, Macedonias closest relationship in the administration of IP is with the Albania. It aspires to a closer mentoring relationship in the first instance with the IP Office of Bulgaria. Given the fact that Macedonian music is popular in Serbia, while Serbian and Croatian music is popular in Macedonia, regional cooperation in the collective administration of copyright is recommended.
SERBIA AND MONTENEGRO 7. SERBIA AND MONTENEGRO 7.1 Legal Overview
Serbia and Montenegro have a long tradition of engagement with the international intellectual property law system. Serbia was one of the founder countries of the Paris Convention for the Protection of Industrial Property. Its Intellectual Property Office was founded in 1920. Under the Constitutional Charter of Serbia and Montenegro, the State Union is responsible for intellectual property matters. The respective Republics of Serbia and Montenegro are, however, in charge of enforcement matters. The current Intellectual Property Office of Serbia and Montenegro is an independent office under the Federal Ministry for Internal Economic Affairs. It has responsibility across the areas of patents, trademarks, geographical indications, industrial designs and copyright. Shortly, it will assume a new competence in the area of plant variety protection. Currently, amendments to the Trade Mark Law of 1995 and a new Law on Designs are in the legislative pipeline. A new Draft Law on Geographical Indications and a new Draft Law on Copyright and Related Rights will be put into the legislative procedure by the end of 2004. All these Laws are designed to bring the substantive intellectual property law of Serbia and
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CARDS Regional Intellectual Property Rights Montenegro into compliance with the TRIPs Agreement. In relation to border enforcement of intellectual property rights, reference should be made to the Customs Code of the Republic of Serbia, Ch VI, which came into force on 1 January 2004. (a) Legislation
Trademarks Trademark Law (Official Gazette 19/95, 28/96). Draft amendments were finalized in July 2002 and scheduled for adoption by the end of 2003. Decree on the procedure of granting protection to trademarks, Official Gazette 7/96) Geographical Indications Law on Geographical Indications of April 1995 (Official Gazette 15/95, 28/96) (Official Gazette 15/95, 28/96) Decree on the procedure for recognizing geographical indications and acknowledging capacity of an authorized user (Official Gazette 7/96) A new Draft Law on Geographical Indications is in preparation and will be put into the legislative procedure by the end of 2004. Industrial Designs Law on Models and Patterns of April 1995 There is a new Draft Law on Designs, which was scheduled for adoption by the end of 2003. Copyright Law on Copyright and Related Rights of May 1998 There is a new Draft Law on Copyright and Related Rights. This Law will be put into the legislative procedure by the end of 2004. (b) Membership of International Treaties and Conventions
Trademarks Paris Convention for the Protection of Industrial Property, 1883 Madrid Agreement Concerning the International Registration of Marks, 1891 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, 1989 Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957 Convention Establishing WIPO, 1967 Nairobi Treaty on the Protection of the Olympic Symbol, 1981 Trademark Law Treaty, 1994
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CARDS Regional Intellectual Property Rights Geographical Indications Paris Convention for the Protection of Industrial Property, 1883 Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, 1891 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958 Convention Establishing WIPO, 1967 Industrial Designs Paris Convention for the Protection of Industrial Property, 1883 Berne Convention for the Protection of Literary and Artistic Works, 1886 Hague Agreement Concerning the International Deposit of Industrial Designs, 1925 Convention Establishing WIPO, 1967 Locarno Agreement Establishing an International Classification for Industrial Designs, 1968 Copyright Berne Convention for the Protection of Literary and Artistic Works, 1886 Universal Copyright Convention, 1952 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 Convention Establishing WIPO, 1967 Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms, 1971 (Geneva Convention) Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite, 1974 WIPO Copyright Treaty, 1996 WIPO Performances and Phonograms Treaty, 1996 WTO Status: Observer Serbia and Montenegro (then the Federal Republic of Yugoslavia) submitted a request for Accession to the WTO on 21 January 2001. A Working Party was established at the General Council on 8 February 2001. The Memorandum on the Foreign Trade Regime was circulated on 27 June 2002. (c) Compliance with WTO TRIPs Agreement Trademarks
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CARDS Regional Intellectual Property Rights A new draft law on Trademarks was finalized in July 2002, in order to bring the Law on Trademarks of 1995 into compliance with the TRIPs Agreement.
Geographical Indications The Law on Geographical Indications of 1995 does not conform to the TRIPs Agreement in a number of respects: Protected subject matter: The definitions appellations of origin and indications of source do not comply with the TRIPs Agreement definitions. Protection of consumers: The law does not provide legal protection against the use of geographical indications in such a fashion as to mislead consumers as to their true origin. Nor does it prevent the registration of such indications as trademarks or geographical indications. Wines and spirits: The law does not prohibit the use of unauthorized indications where there is no risk of misleading consumers. Enforcement: The range of enforcement provisions are insufficient. The new Draft Law on Geographical Indications will address these issues. Industrial Designs The new Draft Law on Designs will amend the Law on Patterns and Models of 1995 in order to bring it into compliance with the TRIPs Agreement. Copyright The Law on Copyright and Related Rights of 1998 is not in full compliance with the TRIPs Agreement. In particular: Exclusive rights: The exclusive rights of the copyright holder do not include the right to authorize adaptations, as required by the Berne Convention and consequently by the TRIPs Agreement. Enforcement: The provisions on criminal prosecution are insufficient to comply with the TRIPs Agreement enforcement obligations. It should also be noted that the 1998 law does not comply with the requirements of the Rome Convention in relation to the protection of foreign right-holders. There is now a new draft Law on Copyright and Related Rights, which will amend the 1998 Law by bringing it into conformity with the TRIPs Agreement. This new Law will put into the legislative process by the end of 2004. 7.2 (a) Meetings and Contacts Trademarks, Geographical Indications and Designs
On Monday 19 April we met with Professor Dr Slobodan Markovi, Director General of the Intellectual Property Office and Dr Branka Toti, Assistant Director of the Intellectual Property Office.
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CARDS Regional Intellectual Property Rights Professor Markovi indicated that, unlike the other intellectual property offices in the CARDS region, the Intellectual Property Office of Serbia and Montenegro carries out full examination. As a result, Professor Markovi is of the view that there would be a limited benefit for the Intellectual Property Office of Serbia and Montenegro in establishing closer ties with other intellectual property offices in the CARDS region. On the other hand, the Intellectual Property Office of Serbia and Montenegro has enjoyed a fruitful relationship with the Rumanian Intellectual Property Office, which conducts full examination. The Rumanian Intellectual Property Office has also become self-financing. The Intellectual Property Office of Serbia and Montenegro wishes to move from its current financing basis, under which it receives a budgetary allocation from the State Union on a yearly basis, towards a system of self-financing. Accordingly, the Intellectual Property Office of Serbia and Montenegro regards the Rumanian Intellectual Property Office as its model office. It has also developed good contacts with the Swiss Intellectual Property Office. Overall, Professor Markovi expressed the view that the CARDS Programme should take a suitably differentiated approach to the varying needs of intellectual property offices in the region. (i) Trademarks
Trademark applications between 1994 and 2003 are as follows: Year International Applications through Madrid Agreement 3318 3467 3906 4634 4668 3682 4726 5319 4456 4480 National Applications by Foreign Applicants 322 424 863 923 866 587 827 891 738 663 National Applications by domestic Applicants 604 731 861 573 529 310 462 971 923 1077 Total
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
4244 4622 5630 6130 6063 4579 6015 7181 6125 6220
Of national trademark applications in 2003, 98.4% were made by Serbian applicants and 1.6% were made by applicants from Montenegro.
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CARDS Regional Intellectual Property Rights Most applications for trademarks are in respect of pharmaceutical products. The other principal categories of goods in respect of which trademarks are registered are foods, cosmetics and textiles.
Trademark registrations between 1994 and 2003 are as follows: Year International Registrations through Madrid Agreement 3318 3467 3906 4338 4340 3095 4438 4785 3605 4330 National National Registrations: Registrations: Foreign Domestic Holders Holders 619 472 434 457 1093 615 189 368 731 886 255 203 286 290 551 243 172 279 342 459 Total
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
4192 4142 4626 5085 5984 3953 4799 5432 4678 5675
Of national trademark registrations in 2003, 98.4% were granted to Serbian holders and 1.6% were granted to holders from Montenegro. At present there is a backlog of 4,800 non-examined national trademark applications, which accounts for approximately two and a half years worth of applications. Currently, therefore, the office is examining trademark applications from 2001. The position is similar with respect to international applications, in relation to which there are approximately 800 unexamined applications. The current law does not provide for a separate Board of Appeals to deal with the grant of trademarks. As a result, the same examiners are involved in initial examination and in the revocation procedure. In 2003 a total of 1634 searches were conducted. There is a backlog for searching of approximately 15 days. There are approximately 30 35 firms of Patent and Trademark Attorneys with which the Intellectual Property Office has dealings in Serbia and Montenegro. The Intellectual Property Office is satisfied with the level of expertise of these attorneys. However, it was reported that despite training
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CARDS Regional Intellectual Property Rights from both domestic and international bodies the level of expertise of the judiciary in intellectual property matters was not adequate.
(ii)
Geographical indications
To date 773 geographical indications have been registered under the Lisbon Agreement and 42 national geographical indications have been registered. In 2003 there were 3 applications for national geographical indications. National geographical indications are in the following areas: food (meats, salami, cheese, and tea); carpets; mineral water; and, wine. (v) Industrial Designs
Under current law industrial designs in Serbia and Montenegro are divided between models (three dimensional designs) and patents (two dimensional designs). In the new law, these will be aggregated and re-designated as industrial designs. The figures given below are also aggregated. Aggregated applications for industrial designs (patents and models) in 2002 and 2003 are as follows: 2002 195 2003 - 188 Of these applications, 208 have now been registered. International design applications received through the Hague Agreement in 2002 and 2003 are as follows: 2002 934 2003 627 A total of 73 national rights were registered in 2003 and 30 searches were conducted. (iv) Staffing
The Intellectual Property Office currently comprises 107 persons. The Office is divided into six departments, as follows: Patents (26 persons); Distinctive Signs (16 persons); Information and Documentation (52 persons); General Affairs (8 persons); Copyright (3 persons); and International Cooperation (2
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CARDS Regional Intellectual Property Rights persons). However, in order to function at an optimal level, the Director indicated that the Intellectual Property Office needs 160-200 employees. Within the Department for Distinctive Signs the staff members comprise: national trademarks 8 persons; international trademarks 4 persons; models and patents (industrial designs) 4 persons. The registers are managed within the Department for Information and Documentation. (v) Computer Equipment
The Intellectual Property Office is seriously under-equipped in relation to computer equipment. At present the operations of the office are entirely paper based. Given that it conducts full examination, the fact that the operations of the office are paper based not only creates severe logistical problems it also threatens its ability to lodge international applications on behalf of domestic applicants. The Director reported that some offices in other countries will not accept paper applications. Support with respect to the provision of computer equipment and training in the use of such equipment in order to provide a system of online registration and document digitalisation is the most pressing need of the Intellectual Property Office of Serbia and Montenegro. (vi) Documentation
The Intellectual Property Office has cooperated successfully with WIPO and it is equipped with all relevant WIPO publications. It is, however, seriously hampered in its ability to access up-to-date information through the Internet and by the use of CD-ROMs as a result of its very low level of computer provision. (vii) Recommendations The most pressing need of the Intellectual Property Office is for support in relation to the provision of computer hardware and software, and for the training of staff in the use of this equipment. In particular, so far as training is concerned, assistance is required in constructing a system of on-line registration and searching, digitisation of documents, on-line access to sources of information and use of CD-ROMs, regional networking and interfacing with WIPONET. The Intellectual Property Office has a website and support should be provided with respect to the design and development of this site. Training in foreign languages, especially English, was identified as a particular need of the office.
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CARDS Regional Intellectual Property Rights Support should be given to a system of staff exchange and placement with other offices in which full examination is conducted. Since relationships already exist with the Rumanian and Swiss offices it is suggested that these would be appropriate mentor offices for the Intellectual Property Office of Serbia and Montenegro. Support should be given for the strategy of the office to become selffinancing. Such support might take the form of provision of information for government officials on other successful regional models of selffinancing such as the Rumanian Intellectual Property Office. Such a change in the financial status of the office would allow it to plan more efficiently, particularly with respect to required staffing levels. At present it is evident that the office understaffed. This understaffing applies not only to the technical processes of examination and registration, but also to the general level of support. For example, the Intellectual Property Office has a low level of translation support. The absence of English translations of data and other documentation makes it more difficult for the office to integrate with the international intellectual property system. Provision of language training for staff members, as recommended above, will also aid in alleviating this problem. Specialised case-based training in intellectual property for the judiciary is required. This training would be most effectively delivered if the court system was rearranged in order to allow for specialised intellectual property courts. Copyright
(b)
On Monday 19 April, we met with Professor Dr Slobodan Markovi, Director General of the Intellectual Property Office, Dr Ljiljana Rudi-Dimi, Head of the Copyright and Related Rights Department of the Intellectual Property Office, Dr Jelena Radojevi, Higher Counsellor for Copyright and Related Rights in the Intellectual Property Office, Dr Ivan Tasi, Director of SOKOJ (Composers Collecting Society), Dr Marija Obradovi, International Relations Executive of SOKOJ, Dr Ana Novakovi, Director of the Licensing Department of SOKOJ, and Dr Mirjana Ili, Director of OFPYU (Collecting Society for Phonogram Producers). (i) Intellectual Property Office
The administration of copyright is carried out by the Department of Copyright and Related Rights in the Intellectual Property Office. Three persons are currently employed in this Department. The Department has recently prepared a new draft Law on Copyright and Related Rights that will be put into the legislative process by the end of 2004.
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CARDS Regional Intellectual Property Rights One of the functions of Department of Copyright and Related Rights is the oversight of collecting societies. Currently, there are two operational collecting societies, SOKOJ (copyright) and OFPYU (related rights). The Department enjoys a good and mutually supportive relationship with both of these collecting societies. The Department of Copyright and Related Rights also functions as a depositary for copyright works and the subject matter of related rights. Deposit of such works is not required in order to receive copyright protection. However, the depositary system provides evidence of ownership and duration in the case of copyright disputes. Public seminars in order to raise awareness of copyright issues, especially amongst SMEs, have been conducted by the Department of Copyright and Related Rights. Collaborations with international governmental and nongovernmental organisations for the purpose of raising public awareness have also been conducted. Awareness raising amongst media organisations is seen as a particular area of need, but there have been difficulties in securing audience attendance for such events. (ii) Collecting Societies
A SOKOJ SOKOJ started life approximately fifty years ago as an organisation of composers. Since 1975 it has been directly involved in copyright administration. As the composers collecting society of the Former Yugoslavia, it is the oldest collecting society in the region. It is a member of CISAC. SOKOJ has 64 employees and is divided into six substantive departments, which are: Documentation; Information; Licensing; Distribution; Legal; and Finance. At present there are 8 persons working in the Licensing Department and 13 persons working in the Distribution Department. Dr Tasi, the Director, indicated that he would like to reform the organisational structure in order to have fewer persons working in the Distribution Department and more persons working in the Licensing and Legal Departments. There are a further 37 persons employed as field workers in order to investigate copyright infringements. All senior staff are experienced and further training in copyright law is not an urgent requirement for these staff members. However, there is a need for the development of training programmes for new employees. The most serious training needs are, however, in relation to the authors themselves, who have a tendency to sign away all their intellectual property rights in return for production of their musical works. During the 1990s SOKOJ had serious concerns about the survival of the copyright system. In 1993 it commenced proceedings against the national
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CARDS Regional Intellectual Property Rights radio and television broadcaster (RTS) for failure to observe its copyright obligations. This case was successful, however as a result of political influence over the court system SOKOJ was unable to recover the judgement debt and was deregistered in 1999. With the change of political regime in 2000, SOKOJ was able to enforce the judgement debt against RTS. The new political structure in Serbia and Montenegro has provided new challenges for SOKOJ. A major problem is the non-enforcement of the Serbian Law on Broadcasting of 2002. Legislative competence in this area belongs to the respective Republics of Serbia and Montenegro. The Law on Broadcasting of each of the Republics provides that broadcast licences will only be granted if the holders respect intellectual property rights. However, it appears that, at least in the Republic of Serbia, the Law on Broadcasting is not enforced. Not only are licences granted to broadcasters that are not respecting intellectual property rights, but there are also a considerable number of unlicensed broadcasters operating in Serbia. At present there are approximately 1000 broadcasters, of which only 651 (477 for radio and 174 for television) have licences. Less than half of those broadcasters with licences respect their obligations to SOKOJ and to the composers represented by SOKOJ. This necessitates the commencement of legal proceedings, which is costly and inefficient. The need to commence legal proceedings has resulted in the administrative costs of SOKOJ rising to 45% of its total budget in 2003. The problems here are not only recalcitrance on the part of the broadcasters and non-enforcement of the Law on Broadcasting. There is also a need for reform of the Law on Broadcasting in order to oblige broadcasters to keep data on works broadcast. At present SOKOJ is entitled to levy a 3.5%-4.5% tariff on the total income of registered broadcasters. It appears that broadcasters may understate their total income in order to reduce the total amount payable. This, of course, has implications in other areas such as income taxation. The situation is even more serious in relation to piracy as a result of cable retransmission. The regulation of cable operators is also within the legislative competence of the Republics. Each Republic has a Telecommunication Law, under which cable operators ought to be registered, but there is insufficient enforcement of these laws. There are approximately 40 cable operators registered but it is thought that this represents a minority of actual cable operators in Serbia and Montenegro. To date, no cable operator has respected its obligations to SOKOJ and SOKOJ has been obliged to take legal proceedings against a number of cable operators. These proceedings are pending. The other major area of piracy is in relation to phonogram production. SOKOJ estimates that approximately 95% of the market turnover is of pirate origin. There are somewhere between 2 and 4 factories producing pirate CDs. In response to inclusion on the US Section 301 Watch List, the Government of Serbia formed an anti-piracy commission. However, this does
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CARDS Regional Intellectual Property Rights not seem to have made a substantial difference to this situation. SOKOJ attempts to bring prosecutions for piracy have so far come to nothing as a result of the apparent lack of expertise of the prosecutors and the judges. In particular, SOKOJ is of the view that prosecutors and judges have little experience or understanding of the concept of collective copyright administration. As noted in relation to the other CARDS countries, the musical repertoire of Serbia and Montenegro is popular in other countries in the region. In particular, the repertoire is popular in Bosnia, Slovenia, Croatia, Macedonia, Turkey, Greece and Bulgaria. Dr Tasi was unsure whether or not there would be advantages in the creation of a regional database of musical works, but he stressed the cost and efficiency advantages of establishing a regional system for distribution by collecting societies. Based on revenues received under reciprocal agreements with other collecting societies, outside the region the repertoire of Serbia and Montenegro is most popular in Germany, Austria and Switzerland. A feature of the recorded music industry that prevails in Serbia and Montenegro and is also common across the region is the absence of the major recording labels. It seems unlikely that the major labels will wish to establish themselves in the market until substantial improvements have been made in combating copyright piracy. B. OFPYU OFPYU was registered as a collecting society in 2002 in relation to the rights of phonogram producers. It currently employs two persons. The OFPYU tariff in relation to broadcasters was announced in the Official Gazette SCG, No 2, in February 2003. As with SOKOJ, the tariff is set at 3.5-4.5% of the income of the broadcaster, depending upon the programme content. As a result of the non-enforcement of the Serbian Law on Broadcasting and general resistance on the part of broadcasters, it was not possible for OFPYU to negotiate with broadcasters in relation to the tariff. As reported above in relation to SOKOJ, payment of the tariff is probably incomplete as a result of the broadcasters under-reporting their annual income. OFPYU plans to start legal proceedings against a number of broadcasters. Dr Ili, the Director of OFPYU, drew a distinction between the situation prevailing in Serbia and that prevailing in Montengro. In Montenegro the Law on Broadcasting is enforced and the Broadcasting Council of Montenegro ensures that users comply with their obligations under that law, including their obligations with respect to intellectual property. In relation to other public performances of recorded music, OFPYU wishes to negotiate an agreement with SOKOJ to allow SOKOJ to collect royalties on
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CARDS Regional Intellectual Property Rights behalf on of the members of OFPYU. The representatives of both collecting societies indicated that, at present, there are some tensions in their relationship. OFPYU indicated that it enjoyed a mutually supportive relationship with the Ministries of Interior in Serbia and Montenegro and with the police in each Republic. A similarly supportive relationship exists with the Department of Copyright and Related Rights. However, it would welcome the opportunity to be more involved in the drafting of new copyright legislation. OFPYU is happy with the support it receives from IFPI. In particular, IFPI has nominated LSG, the Austrian Phonogram collecting society, as a mentor for OFPYU and other newly-founded phonogram right collecting societies in South-Eastern Europe. Through its own efforts, OFPYU has also established a warm relationship with PPL, the UK collecting society for phonogram rights. It regards PPL as its primary role model. Within the region it has contacts with the Croatian (HDU) and Slovenian phonogram rights societies. However, it has not yet negotiated reciprocal contracts with these societies. The Slovenian society has not yet, in any case, commenced collecting royalties on behalf of its members. The employees of OFPYU will attend the upcoming IFPI workshop in Budapest. They feel, however, that the best form of training for them would be to engage in exchanges and placements with other more experienced collecting societies, especially PPL in the UK. They also have a need for specialised software, which deals with collective licensing and distribution, and training in the use of that software. In terms of requirements for the effective functioning of the copyright system, OFPYU also stressed the need for training of customs authorities and of judges. In common with many other persons we interviewed, the Director of OFPYU indicated that intellectual property enforcement would be better served by specialised intellectual property courts. The Director also suggested that the possibility of arbitration in relation to copyright matters be explored. (iii) Recommendations The most serious problems for the collective licensing system result from the non-enforcement of the Serbian Laws on Broadcasting and on Telecommunications. It is recommended, therefore, that representations be made to the Republic of Serbia concerning the economic and cultural advantages of an operational copyright system. Such representations should make it clear that foreign investment in the cultural industries is likely to be low until the problem with respect to non-enforcement is remedied.
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CARDS Regional Intellectual Property Rights Training directed at the owners of copyright is required in order to advise them of their rights in relation to other stakeholders in the copyright system. In relation to OFPYU, which is at an early stage in its development, staff exchanges with more experienced phonogram rights collecting societies should be supported. In particular, the possibility of staff exchanges with PPL in the UK should be investigated. It is also recommended that support be given to OFPYU in relation to the acquisition of specialised software and training in the use of that software. Specialised training should be given to judges, prosecutors and customs officers. Support should be given to the Department of Copyright and Related Rights in order to allow it develop its expertise in relation to the regulation of collecting societies. Opportunities for exchange and placement with government departments in EU countries should be explored. For this purpose, particularly useful models operate in France and Germany. Further to the previous recommendation, support should be given to the Department of Copyright and Related Rights in order to allow it to mediate effectively between SOKOJ and OFPYU. The current tensions between the two societies are likely to be having an adverse effect on the enforcement of copyright. The CARDS Programme should collaborate with the Department of Copyright and Related Rights with a view to developing its current programme of public and governmental awareness-raising in relation to copyright. IP and National Industrial Development
7.3
The principal industries of Serbia and Montenegro are machine building (aircraft, trucks, and automobiles; tanks and weapons; electrical equipment; agricultural machinery); metallurgy (steel, aluminium, copper, lead, zinc, chromium, antimony, bismuth, cadmium); mining (coal, bauxite, nonferrous ore, iron ore, limestone); consumer goods (textiles, footwear, foodstuffs, appliances); electronics, petroleum products, chemicals, and pharmaceuticals. Its main agricultural products are cereals, fruits, vegetables, tobacco, olives; cattle, and livestock. The trademark system appears to have provided considerable support to the pharmaceutical, foods and textiles industries. The current system of protection for geographical indications also provides support with respect to foods and textiles. There were only three applications for geographical indications in 2003. It is too early to say whether or not the reform of the Law on Geographical Indications will encourage the lodging of more applications in this area.
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CARDS Regional Intellectual Property Rights Serbia and Montenegro have considerable cultural industries, which have generated a wide range of copyright works. At present, however, there is only a very small range of collecting societies to defend the rights of the authors of copyright works. This is an obvious area for IP development. In particular, there is a need for the development of new collecting societies operating in relation to copyright works other than musical works and rights related to musical works. So far as musical works and rights related to musical works are concerned, there is a need for greater enforcement of intellectual property rights. If this does not occur foreign investors will be deterred from investing in music production. 7.4 Regional Co-operation
Due to the fact that the Intellectual Property Office of Serbia and Montenegro conducts full examination of trademarks, geographical indications and industrial designs, it is not clear that substantial cooperation with the Industrial Property Offices in the CARDS countries will be of particular assistance. It would be more useful, therefore, to promote a mentoring relationship between the Intellectual Property Office of Serbia and Montenegro and the Rumanian Intellectual Property Office. The Rumanian Intellectual Property Office constitutes a useful model because its conducts full examination and it has conducted a successful campaign to move to a self-financing basis. In relation to copyright and related rights, there is a need for more substantial regional and sub-regional cooperation at both the governmental and collecting society levels. Informal links exist, but these could usefully be developed into a more formal system comprising regional meetings and staff exchanges. More specifically, at the governmental level a good relationship exists between the Copyright Department in Serbia and Montenegro and the Copyright Department in Croatia. This link might be built upon in order to establish a regional governmental network with respect to the regulation of copyright.
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8.
CARDS Regional Intellectual Property Rights Recommendations
The IP administration of the former Yugoslavia, IP was concentrated in Belgrade. As a consequence of the break-up of Yugoslavia each new country, other than Serbia and Montenegro, has been obliged to establish their own IP administrative regimes from the beginning. Assessment Mission 2 revealed a range of competencies in the countries of the West Balkans in the fields of trademarks, geographical indications, industrial designs, copyrights and related rights. As a general rule, their level of IP development is in direct relation to the disruption which they suffered consequential upon the break-up of Yugoslavia and its sequelae. In the case of Albania, the development of trademarks, geographical indications, industrial designs, copyrights and related rights has been constrained both by the availability of funds for IP administration and by the necessity to educate Albanian business and public as to the role of IP in the market economy. Specific recommendations for each CARDS country have been outlined above. Our general recommendations for the CARDS region address: Mentoring, IP education, awareness-raising and IP institution building. 8.1 Mentoring
The developmental experience of Croatia is of particular relevance to the countries of the West Balkans. It is recommended that the utilisation of Croatian IP experience be built in to the regional CARDS programme. This can be done through the funding of mentoring relationships with other CARDS countries and with non-CARDS countries which have had relevant IP experiences. This mentoring within CARDS countries already exists on an informal basis both in the fields of industrial property and the collective administration of copyright. At the same time the experiences of Slovenia and Bulgaria in establishing an intellectual property system in compliance with the Acquis Communautaire have been identified as providing an immediate lesson for the countries of the West Balkans in harmonising their IP systems with the EU. At a more intermediate level, the organizational experiences of Hungary and the Czech Republic, as economies in transition, were considered to be of particular relevance to the countries of the West Balkans. The countries of the West Balkans look to the substantive legal experiences of the older EU countries, such as Austria, France, Germany and the UK in providing guidance in both laws and administration.
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CARDS Regional Intellectual Property Rights The principal recommendation of the assessors is that a modality be established for sub-regional co-operation in the field of intellectual property, between the countries of the West Balkans, which also provides a facility for accessing the experiences of both applicants for EU membership, as well as more established members of the EU. 8.2 IP Education
Intellectual property education in the CARDS region is undeveloped. Only Sarajevo University Law School has offered a course in Copyright and Industrial Property Rights. As a consequence, there is a pronounced shortage of legal texts and curricula. It is suggested that a panel of professors and IP practitioners, combining both academics from CARDS countries and the EU could design a curriculum for intellectual property education appropriate for CARDS countries. This education would be not only for law students, but also for IP practitioners and IP office officials. Additionally, training courses would be offered to judges, magistrates, prosecutors, police and investigators. The training should be provided in the vernacular, wherever possible. To this end the CARDS regional programme should undertake the training of trainers within the CARDS countries. Given the shortage in the region of practitioner and student texts on intellectual property it is recommended that a core intellectual property text, including major IP conventions and general principles of substantive law and procedure, be prepared. Country supplements, containing national laws and court decisions can be prepared. 8.3 IP Institution Building
Comparable with a regional mentoring network for industrial property office, a regional network of collecting societies should be developed. It is also suggested that, given the common regional use of many copyright works, consideration be given to the establishment of a regional distribution system for collecting societies. This would eliminate a considerable amount of double-handling or royalty payments. Also, there is a need for substantial awareness-raising in relation to collecting societies in the region. Such a programme would have the capacity to contribute to the establishment of further collecting societies in the region. At present the collecting societies that exist are concentrated in the area of musical and related rights. This means that there are a wide variety of authors of other types of copyright works who are unable to take advantage of collective licensing schemes.
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CARDS Regional Intellectual Property Rights Finally, the CARDS Programme should provide training for the purpose of establishing a system of intellectual property arbitration in the CARDS Region. Such a system would have the capacity to alleviate the serious sub-regional problem with respect to lack of judicial expertise and unacceptable delays in the court system.
ASSESSMENT 3: ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES, IPR ENFORCEMENT AND PROTECTION OF UNDISCLOSED INFORMATION
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1.
INTRODUCTION:
CARDS Programme Assessment 3 Framework

The Stabilization and Association process instigated by the European Commission in 2000, foresees a comprehensive and solid frame for future economic and political relations between the European Union and the countries approaching European integrations. The process is supported by the Unions financial and technical assistance implemented in CARDS program, i.e. Community Assistance for Reconstruction, Development and Stabilization. Set up by the CARDS Council Regulation No. 2666/2000, amended by Council Regulation No. 2415/2001, it identified four areas of support: (i) integrated border management aimed at decreasing cross-border crime and removing the obstacles still impeding free trade, (ii) institutional capacity building raising general awareness of European standards and legislation that comprised countries should adopt, (iii) democratic stabilization with special emphasis laid upon the involvement of civil society, and (iv) integration of transport, energy and environmental infrastructure into the European network. Albania, Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia and Serbia and Montenegro participate in this project and benefit from financial, technical and professional support in all a r e a s c o v e r e d b y t h e P r o g r a m m e . Within the area of institutional capacity building, one field is dedicated to intellectual property rights. Improving their enforcement and facilitating access to them lies among the key priorities for a functional market economy, creating fruitful atmosphere for innovations, increased employment and global competitiveness of the region. The main objectives in the IP field embrace the following: (i) (ii) (iii) general improvement of functioning of IP rights institutions and their regional cooperation, adaptation of national legislation in line with the TRIPS (Agreement on trade-related aspects of IP rights) criteria, and, creating broad awareness of IP rights.
Reviewing the state of national IP institutions, functioning and needs thereof, as well as analysis of respective legislation and its application in real life, are subject to initial comparative assessment. In all, three assessors have been appointed, each one covering specific aspects of IP. This Assessment 3 is covering the following fields: (i) Anti-competitive practices in contractual licenses,
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(ii) (iii)
CARDS Regional Intellectual Property Rights Enforcement of intellectual property rights, and Protection of undisclosed information.
At the briefing, which preceded the initial work, this Assessor was specifically instructed to focus on assessing of the enforcement procedures; Of course, the fields of anti-competitive practices in contractual licenses and protection of undisclosed information were duly researched within the timeframe remaining after the evaluation of the enforcement institutions, mechanisms and cases. For the purposes of this Assessment, the Assessor analyzed the respective legislation and paid visits to each of the designated countries in order to get closely acquainted with practice, problems, development needs and suggestions of institutions and/or individuals forming part of the integral intellectual property system. National intellectual property offices, courts, inspectorates, police, customs, state attorneys, competition agencies, private investigators, collecting societies and local practitioners shape the institutional basis of intellectual property system. Their roles and the interplay of their functions would, however, be hampered or even disabled without the support of the national governments and politics in general, business and scientific communities involvement, institutions in charge of trade promotion and the media. For that reason it was necessary to get the insight of the various characteristics and aspects of functioning of all of these subjects before creating a general image on the state of IP system in any one country.
Background of the Research

This Assessment 3 is prepared based on the interviews with the individuals from public and private institutions within the five countries in the region, whose work involves intellectual property rights protection. The experts were invited to provide relevant data o the level of legislative situation within their country and to furnish as much as possible of an insight of the intellectual property rights enforcement situation in the country where they operate. Typically, this Assessor aimed to meeting the representatives of the following institutions and the expert individuals in each country: Intellectual Property Office Ministry of Culture (in connection with copyright and neighbouring rights protection and enforcement) University Law School and members of the academia Active Judges (Criminal, Civil, Misdemeanour and/or Administrative courts) Ministry of Interior and Police Public Prosecutors (State Attorneys) Customs Administrative oversight agencies (market inspectors) Competition Agencies Private Practitioners (attorneys at law, patent and trademark agents)
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CARDS Regional Intellectual Property Rights Due to the shortage of time given for conducting the Assessment filed-trips, the following public and private institutions were contacted irregularly and when the time would have allowed such contacts: Ministry of Justice and Judicial Academies Private Investigators Collecting Societies Ministry of Science Scientific Parks Industry Associations Chambers of Commerce Ministry of finance (other than Customs, where part of this Ministry)
When it was not possible to meet with all of the institutions listed above during the brief two days assigned for a visit to each country some subsequent interviews were arranged via telephone and additional information was gathered via e-mail. Certain private institutions important for the intellectual property rights enforcement were not visited during this visits, such being primarily industry associations, which if they exist in the country usually would have good overview of typical enforcement problems. Also, the existence of private investigators in a country was primarily checked with the police but no attempt was made to interview any of the private investigators, regardless of their potential deep insight in the enforcement matters. This report was prepared based on both, information provided by the above described expert individuals and based on the documentation gathered during the visits and independently, through the Internet research and library research. Not all of the documentary information gathered has been analyzed, for various reasons, among which the shortened assessment period and practical focus are the main reasons. Short and shortened assessment periods refer to the fact that the original term given for the Assessment 3 was twelve (12) months starting from the beginning of the assignment. This term has been shortened to six (6) months at the beginning of the assignment. Having in mind the complexities in assessing the true functioning of enforcement system in any given country, starting from understanding the interdependence of the involved institutions and the true nature or lack of their cooperation, to surveying the wealth of applicable laws and regulations requires a lot of time. It could be stated without exaggeration that studying laws of each single country involved in this assessment, for the sake of a complete assessment report would require a couple of weeks studying time at least. Accordingly, a comprehensive survey was not even attempted and only a summary of the situation in each country could have been produced.
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CARDS Regional Intellectual Property Rights This is not to say, however that there was no conditions for reaching the overall comprehensive conclusions on the situations, and accordingly, to draw appropriate conclusions on the situations and, finally, to develop the recommendations for further actions within the CARDS program. The legislative material collected on each country is not complete but is completed as much as it was possible to be obtained in a short time. Most of the material is gathered in electronic format and is attached as a CD-R disc to this report. In addition, it should be stated that a two-day visits allowed to each country for the purposes of Assessment 3, which is to cover three largely disparate grounds, were generally not adequate for any kind of in-depth assessment. Accordingly the surface findings are reported and analyzed, hoping that they accurately reflect the true state of these complex issues. As many as six meetings, formal and/or informal, were sometimes crammed into a single day of meetings in a foreign city, in order to achieve grasping a representative segment of the local realities. Naturally, such intense scheduling did not leave a lot of time for exploring the fine details of local situations. Therefore, this report relies a lot o the Assessors own experience in enforcement practice in a transitional economy, especially as it is in one of the countries in the region, which is also one of the subjects of this CARDS Programme Assessment. This is not to say that the Assessor had any difficulty in finding the topics to report or in finding the proper way to grade the intensity of the local problems during the Assessment period. To the contrary, it was rather easy to summarize the findings and extract the typical issues common to every and all countries in the region, despite their wide differences. Having said this, it should be restated that although all of the countries share certain similarities due to the fact that all of them are in the process of transition and that most of them belonged to the former Yugoslav federation, their current problems are highly different and divergent. Finally, although may of the current problems might be truly different, it does not mean that common solutions to these varied problems cannot be found. If any are available, such common cure-all solutions can be found in the field of various training and education problems, because behind each such local problems probably lies a lack of knowledge on the possible solutions. Once the general knowledge will be provided and internalized by the recipient countries, each and every one of them will be capable to apply such knowledge to founding of the consistent solutions in line with the state of the art intellectual property rights thinking.
Executive Summary
This Assessment takes a position that the enforcement of intellectual property rights, anywhere in the world, will be proportionately successful to the measure of its integration and interlinking of the institutions which are necessary for its successful functioning. The institutions necessary for the functioning, fully integrated intellectual property rights protections system are normally: national intellectual property offices, judicial system including courts
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CARDS Regional Intellectual Property Rights and state attorneys, administrative oversight agencies such as various inspections, police, customs, competition agencies, private investigators, collecting societies and local practitioners such as attorneys and patent and trademark agents. The meaningful functioning of these institutions is decisively shaped by the strategies, which should be developed by the national governments, codified by the national legislators, and implemented by Governments competent Ministries. The business and scientific communities should take active role in their involvement of the systems betterment and it is desirable that the institutions in charge of trade promotion and the media assist in reaching the relevant population which could benefit from the intellectual property rights exploitation and usage. In order for this integrated system to operate functionally all of the above elements should have proper training and knowledge on the intellectual property rights, which is the vital element missing in the countries of the region. The university level education is insufficient, the postgraduate studies in intellectual property law inexistent and the continuing legal education scarce or inexistent. The central assumption of this Assessment is that the prominent role of intellectual property is instrumental to the transitional societies transformation into the modern, efficient states. In other words, this Assessor strongly believes that the transition into the market economies and civil societies is possible only once the intellectual property rights are properly perceived as a great social value and the basis for the economic wealth creation. The longer a society shall delay proper perception of the value of intellectual property rights, and postpone their full enforcement, the longer the transition will last. This means that no society in transition will emerge as a modern society without positioning the intellectual property protection at a role comparable to those that the modern, democratic post-industrial societies have reserved for the intellectual property. As there is no effective intellectual property protection without the enforcement of the intellectual property rights and there is no effective intellectual property enforcement without the proper, formal legal education in this respect, this Assessment concludes that it is absolutely necessary for the societies to improve the legal and general education in the field of intellectual property rights in order to successfully emerge from their transition processes. The measures recommended and the types of trainings preferred to achieve the desired results are listed in this report and will be here restated only briefly for the purposes of summarizing the report. Introduction of regular courses at the law schools, availability of the postgraduate legal education and the availability of general non-legal courses for other types of education should become standard in the countries in the region and this Assessor considers financing such measures as directly relevant institution building for the effectiveness of the intellectual property enforcement systems.
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CARDS Regional Intellectual Property Rights The existing specialized institutions constituent of the intellectual property protection system need improvement in their training so that continuing legal education for the intellectual property practitioners is necessary, together with the specialist practical trainings for the professionals in the field to be made available to all institutions involved. Above all, such specialist practical trainings should on selected occasions be made available in the forms of cross trainings of various branches and institutions involved in the intellectual property enforcement system. Such cross trainings will ideally enable the individuals involved to get to know other professionals involved in other institutions, therewith effectively enable personal contacts allowing for interlinking of the institutions and better definition of the scope of their jurisdictions and generally improve the integration and subsequent efficiency of the intellectual property enforcement system. Other recommended measures are increased specialization of the institutions and the individual professionals within the institutions for the intellectual property and for the individual rights within the intellectual property which is sorely lacking in all of the countries in the region as a consequence of the general lack of resources, both human and financial. At the same time, the measures leading to the increased concentration of activities within the fewer centres in any given country should increase the efficiency of the intellectual property system as well. Concentration would include all kinds of improvements of the territorial and real jurisdiction of the courts and focusing the activities to the least possible number of the courts optimal to cover the territory of each country.
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2.
LEGAL OVERVIEW:
The following data has been gathered during the Assessment 3 filed trips and was supplied primarily by the state institutions such as national Intellectual Property Offices or Ministries of Justice, as well as by the courtesy of the private practitioners. In general, most of the English translations of the pertinent laws that were made available to this Assessor were unofficial translations rather then strictly official copies. At the same time, many of these copies vary rather widely in the quality of their translation, ranging from the edited, polished translations ordered by the state institutions and used in the official and semi-official ways, to the unedited, sometimes even unskilful translations made either by the official institutions but never edited, or some makeshift copies ordered by the private practitioners for the one-off use by their clients. The content of the legal provisions in all five legal systems was generally not examined for the purposes of this Assessment for several reasons. In light of the dominant part of the Assessment, which is the field of the intellectual property enforcement, it was practically impossible to obtain the translations of all of the pertinent laws as the procedural matters are scattered in various procedural laws and codes whose sheer volume would prevent completion of the Assessment within the predetermined timeframe. Such systematic codifications are often not translated so their content would be hard to examine in the cases of Albania and Macedonia for this Assessor. At the same time, the intricate features of the procedural codes and their interpretation in practice of the local courts was deemed to be beyond reach of the assessment field trips as envisioned for the purposes of this CARDS programme Assessment 3. It was further deemed that is best left to the practitioners to point out to the Assessors to the particular features of their legal systems and to emphasise any possible problematic issues. As a consequence, the legal texts that would apply to the subject of this Assessment were not generally approached in the comparative scholarly way at this stage. The same applies to the various laws and regulations applicable to the administrative structures, courts and various agencies competence and other defining moments for the functioning of the administrative and judicial bodies involved in the intellectual property enforcement system. All of these were not gathered or studied although they are certainly relevant for the overall assessment of the system of enforcement. On the other side, in the field of unfair competition and contractual licenses, the field research revealed the absence of the pertinent provisions in the applicable laws. As the institutions repeatedly pointed out to the absence of such provisions, it was deemed unnecessary to research the remaining texts of the laws and in total absence of any regulatory activity in that respect.
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CARDS Regional Intellectual Property Rights Research in the field of the undisclosed information law (business, trade secret) showed a remarkable absence of awareness of any legislation in the field. In this case, as it was the case with the above mentioned contractual licenses registration requirements, it has to be pointed out that some discrepancies were discovered in respect of the World Trade Organization Working Party Reports on each country in question, which is already a WTO member. Practically not a single practitioner or official interviewed for this Assessment did point out to the existence of any regulations of this type in any country other than Croatia. Even in Albania who, as a member of WTO should have fulfilled the TRIPS criteria for protection, even the Ministry of Justice could not actually point to the existence of the regulations on the undisclosed information in their legislative system, in spite of the apparent presence of such regulations mentioned specifically in the WTO Working Party Reports. Similarly, in Croatia there were certain discrepancies discovered in respect of the undisclosed information protection, specifically in respect of the clinical trials data, which is going to be comprehensively regulated after the completion of this report, while it was mentioned as existing already in the WTO Working Party report. As these were not isolated instances in which there were certain discrepancies from the earlier reports this Assessor concluded that such discrepancies and other difficulties in determining the exact level of protection in each field assessed actually stem out of the generally undeveloped practice of intellectual property rights usage and perception. Obviously, in the legal systems of a country in transitional flux, it is relatively hard to obtain the complete and reliable information, especially not in the limited time frame such as for the purposes of this Assessment 3. The information obtainable from the earlier reports might be conflicting with the later ones, the laws are amended and changed several times over a decade, and the situations reported by individual experts and practitioners might be disparate to a degree. Accordingly, it is even more important to look at those systems from a comprehensive point of view, judging them by their stated and demonstrated policies and trends in development, while narrowing down the analysis of the unresolved issues in accordance with the forthcoming information. Such approach was taken for the purposes of this Assessment 3.
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Albania- National Legislation

Industrial Property
Law on Industrial Property, No. 7819 of April 27, 1994, as amended by the Law No. 8477 of April 22, 1999 (covering patents, trademarks, industrial design and appellations of origin), Law on Protection of Topographies and Integrated Circles, No. 8488 of May 13, 1999, Customs Code Law, No. 8449, of January 27, 1999, Penal Code, Civil Code, Penal procedure Code, Civil procedure Code
Copyright And Related Rights

Law on Copyright, No. 7564 of May 19, 1992, as amended by the Law No. 7923 of April 19, 1995, by the Law No. 8594 of April 6, 2000 and by the Law No. 8630 of July 3, 2000, Penal Code, Civil Code, Penal procedure Code, Civil procedure Code, Council of Ministers Decision, No. 309, June 13, 2000, on the User Tariffs Ministry of Finance Ordinance No. 7714/1 of December 21, 2001, regarding the implementation of the Law on Copyright, Law on Public and Private Radio and Television No. 8410 of September 20, 1998, as amended by the Law No. 8655 of July 31, 2000 and by the Law No. 8794 of May 10, 2001
Undisclosed Information
Law on Competition No. 8044, of December 7, 1995 Regulation No. 393 on Registration of Drugs in the Republic of Albania, of January 20, 1998 and June 8, 1999, Regulation No. 2976 of the Commission of the Verification of the Manufacturing Conditions on Pharmaceuticals of June 14, 1998
Plant Varieties Protection

Council of Ministers Decision, No. 72 of February 15, 2001 Draft Law on Protection of Plant Varieties (to be approved by the Parliament)
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International Conventions
Convention Establishing the World Intellectual Property Organization Paris Convention for the Protection of Industrial Property Madrid Agreement Concerning the International Registration of Marks Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks Patent Cooperation Treaty Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure Berne Convention for the Protection of Literary and Artistic Works Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations WIPO Performances and Phonograms Treaty Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (Geneva Phonograms Convention) TRIPS Agreement
Main sources: IP Offices brochures Law Office Hajdari Ms. Shomo Vjollca, EUROMARKPAT ALBANIA www.wipo.org www.wto.org
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Albania WTO Status: Member

Albania has been a member of WTO since 8 September 2000. Albania has not been involved as a complainant or respondent in WTO dispute settlement.
Relevant Excerpts from the Working Party Report:

Undisclosed Information The representative of Albania noted that the registration of pharmaceutical products is carried out according to the relevant legislation. The registration of plant protection products is done in accordance with the Law No. 7662 dated 19 January 1993, "On Plant Protection Service" and the Decision of the Council of Ministers No. 584 dated 6 December 1993 For the Approval of the Regulation for pesticides used in agriculture according to which, each product, despite the bioequivalence, must equally undergo the registration procedures. Therefore, each applicant, in order to obtain the marketing right, must register the product by submitting the registration file with its original data. The duration of the registration lasts ten years. All applicants for registration are approved if criteria are met. The duration of the registration for pharmaceutical products lasts five years. Each pharmaceutical product despite the bioequivalence, must equally undergo the registration procedures. Each applicant, in order to obtain the marketing right, must register its product by submitting the registration file including its original data. All applicants for registration are approved if the criteria are met. The registration file for agricultural and pharmaceutical products registered through the abovementioned procedures, remain confidential. Their data are only disclosed to the registration commission members. In the case of fertilizers, the registration process does not involve a commission or formal procedures, only to provide information related to the quality, the sort of product and the relevant characteristics Concerning data submitted to obtain marketing approval of pharmaceuticals, the representative of Albania stated that the procedure was provided in the regulation "On the Registration of Drugs in the Republic of Albania" as follows: each pharmaceutical company submitted the dossier for any drugs to be marketed along with the bioequivalent studies. All this information was protected and other applicants or third persons were not allowed to consult this information.
Business Secrets
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CARDS Regional Intellectual Property Rights Regarding trade secrets, the representative of Albania stated that Article 49 of Law No. 8044 dated 7 December 1995, provided protection for business secrets. According to this article the providing of business or operative secrets on the activity of the competitors in an illegal manner or encouraging their employees in order to use or to sell them was prohibited. It was forbidden, to give to others or to use business or operative secrets, knowledge which were provided during the relations of employment or other confidential relations, during the term of these relations in order to gain some advantages in the competition for oneself or for another third party or to damage the owner of any commercial company. This obligation was valid for a period of two years after the termination of the employment or the confidential relation if the owner of the business activity had a justified interest and if it did not lead to any unreasonable restriction of the business or the professional activity of others. She further added that Albania protected data submitted to obtain marketing approval for pharmaceuticals or agricultural chemicals which used a new chemical entity. For the protection of their confidentiality, Point 12 of the Regulation of the Commission of the Verification of Manufacturing Conditions on Pharmaceuticals stated: "After the verification from the Commission, the documentation, which is confidential, is deposited in the National Centre of Drugs Control together with a copy of the authorization. The authorization to which this refers was that for marketing. This documentation is the exclusive ownership of the Albanian authorities which deal with drug registration." For the registration of pesticides used in agriculture, the State Commission on Pesticides was set up in the Ministry of Agriculture and Food. This Commission did not use confidential data from other enterprises (Article 5 of the Regulation "On Pesticides Used in Agriculture")." Enforcement a) The representative of Albania noted that the Law on "The Customs Code in the Republic of Albania", No. 8449 dated 27 January 1999, Article 82, Paragraph 4, gives the customs authorities the competence to intervene, upon request of a holder of an intellectual property right for stopping the free circulation, export, re-export and place under suspension measures goods recognized as counterfeit or pirated. The procedures for such intervention by the customs authorities were set out in a Decision of the Council of Ministers, No. 205 dated 13 April 1999, entitled "The Implementing Provisions on Customs Code". The first part of this decision defined counterfeit and pirated goods according to Article 82 of the Customs Code. Title 9 defined the procedures of action of customs authorities. According to Point 119, the customs authorities took action after an application in written form of the holder of the right, when the counterfeit or pirated goods were released for free circulation export or re-export, placed under a transit procedure or a procedure with economic impact. She further added that the application of the holder of the right was required to be in written form and contain a sufficiently detailed description of the goods to enable the customs authorities to recognize them, a description of
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CARDS Regional Intellectual Property Rights the period during which the customs officers were requested to take action and any other useful information to identify the exporter and the importer. The application was required to be accompanied by proof that the applicant was holder of a trade mark, production licence, copyright etc. The customs authorities would then examine the application, and notify the applicant within five days whether it would be accepted. When the application was accepted the decision of the General Directorate was notified promptly to all customs offices. This decision also specified the period within which the customs authorities would intervene. The decision could also require the provision of a repayable deposit to cover any administrative charges occurred by the customs administration for carrying out the action (including storing the goods). If the applicant did not agree with the given amount, the General Directorate was required to review it. She further noted that point 120 of the Decision of the Council of Ministers, No. 205, defined the control procedures for counterfeit and pirated goods according to the description of the rights holder. When customs authorities proved that the controlled goods correspond with the description of the applicant they suspended their release or seized the goods depending on the circumstances and visible proof. They then had to notify the applicant immediately about the action taken. In accordance with the legislation in force regarding the protection of professional, commercial and industrial secrecy, the customs authorities notified the holder of the right of the name and address of the declarant, and if known, the name of the consignee of the goods, with a view to allow the applicant to take legal action against the consignee. If the applicant asked to inspect the suspended or seized goods, the custom authorities would allow him or her to do so. After notification of the decision of the General Customs Directorate for the suspension of seizure of the goods, the holder of the right had the right to appeal to the competent judicial bodies for damages and to require compensation, but he or she had to notify the customs authorities within 20 days. If the right holder did not notify the customs authorities within 20 days, the customs would suspend the decision for the suspension or seizure of the goods, and release the goods. If the alleged infringement was not proven, and damage has been incurred to the importer or any third party as a result of the intervention of the customs authorities, the applicant was responsible and liable to compensate for damages incurred. In response to questions concerning the compliance of Albanian legislation with Article 61 of the TRIPS Agreement, the representative of Albania stated that, according to Law No 8594 dated 6 April 2000, On some Supplements and Changes on the law No. 7564 dated 19 May 1992, On Copyright, article 50 of the Law on Copyright was changed as follows: a) the translation, adoption, sound or visual recording, importation, reproduction and circulation, the entry of special instruments for recording sounds and/or images, radio and/or television broadcasting or transmission other than through radio or
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CARDS Regional Intellectual Property Rights television, or the transmission of an artistic work by any other means without the authorization of its author or the agency to which the rights have been transferred by the author, which conflicts with the provisions of this law or the international conventions ratified by the Republic of Albania, when the author's moral and economic rights have been infringed, constitutes a criminal work and is penalized by fine or imprisonment up to one year; b) Disputes between the user of an intellectual property work and the author or the agency to which the rights have been transferred by the author, because of a violation of the conditions specified in the contract concluded between them, are submitted by the interested party to the relevant court for civil settlement. Apart from the abovementioned Article, Articles 147, 148 and 149 of the Penal Code are dealing with infringements of the intellectual property rights. In these cases, the prosecutor's office initiated the penal procedures based on the complaint lodged by the right holder. Some members of the Working Party noted that the general civil juridical system in Albania applied to IPR cases and that provisional remedies were available. They asked that Albania confirm explicitly that a right holder is able under Albanian law to seek and receive an order for an ex parte search and seizure or apply for other appropriate injunctive or provisional relief. In response, the representative of Albania stated that Article 11 of the Law entitled "Some changes and supplements on the Law No. 7819 dated 27 April 1994, for Industrial Property" No. 8477 dated 22 April 1999, provided that: "In addition to the measures specified in paragraph 2 (a) of article 89 of the "Law on Industrial Property", the court may re-establish the situation that existed before the infringement and to stop infringing actions, to proceed with an effective seizure of the goods and, when necessary, to destroy illegally used marks, tools that could be used to manufacture the goods and the goods themselves in absence of possibility to remove any illegally mark from such goods." She further noted that Article 19 of the cited Law above provided: "The judicial authorities shall have the authority to order prompt and effective provisional measures: to prevent an infringement of any industrial property rights from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance; and to preserve relevant evidence in regard to the alleged infringement." The representative of Albania confirmed that articles 42, 70 and 89 of the Law On Industrial Property authorize the court to enjoin patent, trademark or industrial design infringements. In the Implementation Provisions on Customs Code, approved by the Council of Ministers on 13 April 1999, it is mentioned
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CARDS Regional Intellectual Property Rights that the holder of the right may lodge an application in writing at the General Directorate of Customs for action after presenting proof that there are counterfeited or pirated goods. When the General Directorate of Customs is convinced, it may suspend the release of the goods or seize the goods, depending on the situation. In Article 292 of the Code of Civil procedure it is stated When evidence on which depends the solution of the dispute or which influences its clarification, is in danger of disappearing or its acquisition to become difficult, on the request of the interested party, it may be ordered its acquisition in advance. Article 294 of the same Code states in the request for the securing of the evidence, must be shown: the evidence to be taken, the circumstances for whose proving it serves and the reasons which justify its acquisition in advance. The copy of the request is communicated to the other party, except when it is not known or when the acquisition of the evidence does not allow delay. In Article 274 of the Code of Criminal Procedures it is stated: When there is a danger that free possession of an object related to the criminal offence may aggravate or prolong its consequences or facilitate the commission of other criminal offences, the competent court will on demand of the prosecutor order its attachment by reasoned decision. The representative of Albania stated that her Government would apply fully the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) by the date of its accession to the WTO without recourse to a transitional period. The Working Party took note of this commitment.
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Bosnia and Herzegovina - National Legislation

Industrial Property
Law on Industrial Property (Official Gazette 3/02, 29/02) Trademark Regulations (Official Gazette 22/02) Regulations on granting protection to patents (Official Gazette 22/02, 29/03) Industrial Design Regulations (Official Gazette 22/02) Regulations on Geographic Indications (Official Gazette 22/02) Decision on special expenses for acquiring and maintaining of industrial property rights (Official Gazette 29/02) Law on Trade, Law on Trade Inspection, Criminal Law, Law on Criminal Procedure, Law on Civil Procedure, Law on General Administrative Procedure

Law on Copyright and Neighbouring Rights (Official Gazette 7/02)
Law on Competition (Official Gazette 30/01) Law on Corporations (Official Gazette 28/99)
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Convention Establishing the World Intellectual Property Organization; Paris Convention for the Protection of Industrial Property; Berne Convention for the Protection of Literary and Artistic Work Madrid Agreement Concerning the International Registration of Marks Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks Locarno Agreement Establishing the International Classification for Industrial Designs Brussels Convention Relating to Distribution of Program-Carrying Signals Transmitted by Satellite Patent Cooperation Treaty
Main sources: Gazette of the IP Office Law Office Protic-Tkalcic Law Office Micunovic Law Office Residovic www.wipo.org
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Bosnia and Herzegovina WTO Status: Observer - accession working party

Bosnia Herzegovina's Working Party was established on 15 July 1999. Bosnia Herzegovina submitted a Memorandum on its Foreign Trade Regime in October 2002 and questions and replies and other documentation in September 2003. The first meeting of the Working Party took place in November 2004 and, depending on new inputs from Bosnia and Herzegovina, the next meeting could be held before Easter 2004. 1. 2. Application Received 11 May 1999
Working Party Established, Chairperson: Mr. P.R. Jenkins (United Kingdom) 15 July 1999 Memorandums Questions and Replies Meetings of the Working Party Documentation (other) (a) Additional Questions & Replies (b) Agriculture (WT/ACC/4) (c) Services (WT/ACC/5) (d) SPS/TBT (WT/ACC/8) (e) TRIPS (WT/ACC/9) (f) Legislative Action Plan Negotiations on Goods (a) Tariff Offers (b) Draft Goods Schedule Negotiations on Services Draft Services Schedule Factual Summary Draft Working Party Report 10 October 2002 5 September 2003 5 November 2003
3. 4. 5. 6.
17 September 2003 5 September 2003 5 September 2003 5 September 2003
7.
8. 9. 10.
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Croatia - National Legislation

Industrial Property
Patent Law (Official Gazette 173/03) Patent Regulations (Official Gazette 146/99*) Trademark Law (Official Gazette 173/03) Trademark Regulations (Official Gazette 146/99) Industrial Design Law (Official Gazette 173/03) Industrial Design Regulations (Official Gazette 146/99) Law on the Protection of Geographical Indications and Appellations of Origin of Products and Services (Official Gazette 173/03) Geographical Indications Regulations (Official Gazette 146/99) Law on the Protection of the Layout Designs of Integrated Circuits (Official Gazette 173/03) Integrated Circuits Regulations (Official Gazette 146/99) Law on General Administrative Procedure, Law on Obligations, Law on Civil Procedure, Law on Execution, Law on Trade, Criminal Law, Law on Criminal Procedure, Law on State Inspectorate
(*Patent Regulations as well as other above mentioned regulations governing that were enacted in 1999, should soon be replaced by new regulations in line with the new IP legislation of 2003 that is applied as of January 1, 2004)

Copyright and Neighbouring Rights Law (Official Gazette 167/03)
Law on the Protection of Confidential Data (Official Gazette 108/96) Criminal Law (Official Gazette 110/97, 27/98, 129/00 and 51/01) Company Law (Official Gazette 111/93, 34/99, 52/00, 118/03) Law on Obligations (Official Gazette 53/91, 73/91, 3/94, 7/96, 112/99)
Uncompetitive Practice
Competition Law (Official Gazette 122/03)
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Convention Establishing the World Intellectual Property Organization Paris Convention for the Protection of Industrial Property Madrid Agreement Concerning the International Registration of Marks Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks Patent Cooperation Treaty (PCT) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure Strasbourg Agreement Concerning the International Patent Classification Hague Agreement Concerning the International Deposit of Industrial Designs Locarno Agreement Establishing an International Classification for Industrial Designs Berne Convention for the Protection of Literary and Artistic Works Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations WIPO Copyright Treaty WIPO Performances and Phonograms Treaty Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellites TRIPS Agreement
Main source:
VUKMIR & ASSOCIATES
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Croatia WTO Status: Member

Croatia has been a member of WTO since 30 November 2000. Croatia has not been involved as a complainant or respondent in WTO dispute settlement

Requirements on undisclosed information, including trade secrets and test data. The representative of Croatia said that a Law on the Protection of Data Secrecy had entered into force at the end of 1996. Clauses regulating the protection of information within government administration or by enterprises themselves could be found in the Law on General Administrative Procedure (Article 150), the Law on Government Officials and Employees (Article 32), the Penal Law (Article 295), the Labour Law (Articles 89, 92 (paragraph 4), 93 and 155), the Trade Law (Article 58) and the Company Law (Articles 248, 273 and 629). Test data and other information supplied in the context of approving the marketing of pharmaceutical and of agricultural chemical products were protected by special regulations (by-laws) applied by the Ministry of Health and the Ministry of Agriculture and Forestry. The rules did not differ from the normal provisions applied in other countries. Article 16 of the Law on Medicines and Medical Products stipulated that documents received on pharmaceuticals or medical products should be treated as trade secrets. Measures to control abuse of intellectual property rights The representative of Croatia said that mechanisms for the protection of intellectual property rights existed in administrative, civil and penal law. Abuse of copyright and the right of performers was controlled by agents of the organization of authors or the organization for performers' rights. Representatives registered with the State Intellectual Property Office could act on behalf of foreign and domestic legal and natural persons in the procedure for protection of industrial property rights. A new Law on Enforcement included compulsory measures (fines, arrest and imprisonment) which could be applied in an expedite procedure. Punishment - fines or imprisonment - for the infringement of copyright was set out in the Penal Law as well as in the Amended Copyright Law. Fines for infringement of the rights of authors or performers could amount to (maximum) HRK 60,000.
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CARDS Regional Intellectual Property Rights Enforcement The representative of Croatia said that the Law on Enforcement, relating to the enforcement of court decisions, had entered into force on 12 August 1996. Articles 298 and 299 of the Law contained provisions on provisional measures. A court could also order provisional measures at the request of the infringed party in accordance with Article 442 of the Law on Legal Proceedings. In his view, Croatian legislation fulfilled the requirement of Article 44 of the TRIPS Agreement regarding the right of a party to ask for injunctions. He also noted that the Law on the Protection of Market Competition could be invoked in disputes over the infringement of intellectual property before a commercial court in Croatia. In the combat against illegally produced phonograms, the authorities in Croatia had seized 12,899 video tapes, 9,646 audio tapes and 4,873 compact discs in 1996. During 1997, 14,405 video tapes, 11,986 audio tapes and 2,920 compact discs had been seized. During 1998 and the first quarter of 1999, the Department for Economic Crime Prevention of Ministry of Interiors (police) had brought 149 criminal charges for video piracy, 138 criminal charges for audio piracy and 47 criminal charges for trademark counterfeiting. In the same period, the Department had seized temporarily 16,051 video tapes, 34,442 audio tapes, 6,618 CDs and 6,390 products bearing counterfeited trademark. Criminal proceedings relating to these charges were under way. (a) Civil judicial procedures and remedies The Commercial Courts seated in Zagreb, Osijek, Rijeka and Split had initial jurisdiction over intellectual property matters. The High Commercial Court (in Zagreb) was the competent second-instance body for the protection of intellectual property. Decisions of the High Commercial Court could be appealed to the Supreme Court of the Republic of Croatia, which could also decide on the infringement of procedural rights. The procedures in a case of infringement before a court were laid down in the Law on Civil Procedure, which also contained provisions on the right to obtain information to develop the case of a right holder. Depending on the complexities of the case, the time between the initiation of the case before the court, and the court's decision, could take from two to three months to more than one year. Court decisions were set out in writing and substantiated in accordance with Article 338 of the Law on Legal Proceedings. The dissatisfied party to a dispute could invoke regular legal remedies (appeal and objection) or extraordinary legal remedies (request for the protection of legality, review or repetition of the procedure). For example, a request for review of a decision of the High Commercial Court should be filed with the Supreme Court within 30 days of receipt of the decision of the appellate court. A request for the protection of legality should be filed with the Supreme Court
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CARDS Regional Intellectual Property Rights by the Croatian State Attorney if the law or a treaty had been violated by a final decision. (b) Provisional measures The representative of Croatia said that the Law on Enforcement contained provisions on provisional measures. In respect of infringement of copyright, a court could order provisional seizure or prohibit the continued use of the disputed objects or works. The competent police administration could prohibit cultural or artistic performances at the request of the author or a professional association. The financial police could temporarily seize objects, documentation or financial means utilized in a criminal or economic offence or infringement. As a general rule, courts did not have the authority to introduce provisional measures inaudita altera parte, but could do so if the rights of the infringed party were seriously threatened, and against security for any damage inflicted on the other party as a result of the provisional measure. In addition, Article 442 of the Law on Civil Procedure stipulated that judicial authorities could introduce provisional measures inaudita altera parte for the purpose of eliminating an immediate threat of unlawful damage, removing irreparable damage, or to prevent violence. (c) Administrative procedures and remedies Administrative procedures in the area of industrial property were carried out by the State Intellectual Property Office. An administrative lawsuit against an act of the Office could be initiated before the Administrative Court. The administrative procedure itself was governed by the Law on Industrial Property, the Law on General Administrative Procedure and the Law on Administrative Lawsuits. (d) Special border measures The representative of Croatia said that Croatia had recently adopted the Law on the Ratification of International Convention on the Harmonization of Border Controls of Goods. Croatia planned to introduce a border control system concerning the infringement of intellectual property rights, with due consideration to Articles 51 to 60 of the TRIPS Agreement, through the new Customs Law which Parliament had passed on 30 June 1999. (e) Criminal procedures The representative of Croatia said that action in cases of copyright piracy and trademark counterfeiting could be instituted ex officio by the State attorney on the basis of criminal charges brought by the author or other copyright holder, the trademark holder, the police or any other government body (financial police, market inspectorate) which, in the course of its activity, had detected a committed criminal act. Remedies - including seizure, forfeiture and destruction of the infringing goods - were available in the Penal Law, notably
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CARDS Regional Intellectual Property Rights in Chapters XVII and XXI, as well as in the Amended Copyright Law. The procedural criminal provisions were contained in the new Law on Criminal Procedure in force since January 1998. The representative of Croatia that his Government would apply fully the provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) by the date of its accession to the WTO without recourse to a transitional period. The Working Party took note of this commitment.
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FYR Macedonia - National Legislation

Industrial Property
Industrial Property Law (1993) Law on Administrative Fees (1993) Tariff of particular costs for the procedure and costs for informative services (1994) Regulations on Granting Protection to Patents (1994) Regulations on Granting Protection to Industrial Design (1994) Regulations on Granting Protection to Trademarks (1994) Regulations on Granting Protection to Appellations of Origin (1998) Law on General Administrative Procedure (1986) Law on Protection of Topographies of Integrated Circuits (1998) Law of the Ratification on European Convention Relating to the Formalities required for Patent Applications (1997) Law of the Ratification of the Convention on Unification of certain of substantive Low on Patents for Invention (1997) Criminal Code, Law on Civil Procedure, Law on Misdemeanours, Law on Obligations, Law Against Unfair Competition

Law on Copyright and Related Rights (1996, 1998, 2000), about to be replaced with the new Copyright and Related Rights Law
Company Law (2002) Criminal Code (1996) Labor Law (1993)
Uncompetitive Practice
Law Against Limiting Competition (Antimonopoly Law) (2000)
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Convention Establishing the World Intellectual Property Organization Paris Convention for the Protection of Industrial Property Madrid Agreement Concerning the International Registration of Marks Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks Patent Cooperation Treaty (PCT) Agreement on co-operation in the field of Patents between European Patent Organization (EPO) and Government of the Republic of Macedonia (1997) Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure Strasbourg Agreement Concerning the International Patent Classification Hague Agreement Concerning the International Deposit of Industrial Designs Locarno Agreement Establishing an International Classification for Industrial Designs Berne Convention for the Protection of Literary and Artistic Works Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations WIPO Copyright Treaty Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellites TRIPS Agreement
Main Sources: www.ippo.gov.mk Law Office Pepeljugoski Law Office Polenak www.wipo.org www.wto.org
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FYR Macedonia WTO Status: Member

The Former Yugoslav Republic of Macedonia (FYROM) has been a member of WTO since 4 April 2003. The Former Yugoslav Republic of Macedonia (FYROM) has not been involved as a complainant or respondent in WTO dispute settlement

Requirements on undisclosed information, including trade secrets and test data 1. The representative of FYROM said that FYROM had no special law for the protection of undisclosed information, including trade secrets and test data. Protection of undisclosed information was essentially afforded through the provisions on unfair competition in the Law of Enterprises (Articles 176-178b) and the Law on Trade (Articles 31-37). The protection of know-how was regulated by the Law on Foreign Trade Operations. Disclosure or nonauthorized acquisition of business secrets were criminal offences according to Article 281 of the Criminal Code. Government officials were required to maintain secrecy pursuant to Article 20 of the Law on Government Officials. Secrets or confidential information divulged in the course of public hearings or judicial proceedings were protected according to the Law on General Administrative Proceedings (Article 150), the Law on Trial Proceedings (Article 292), the Law on Criminal Proceedings (Article 280), and the Law on Misdemeanours. 2. In response to a specific question concerning the protection of undisclosed test and other data submitted in the procedure for marketing approval of pharmaceutical and agricultural chemical products (Article 39.3 of the TRIPS Agreement), he added that such protection was ensured through the unfair competition provisions (Articles 31, 34 and 37) in the Law on Trade (Official Gazette Nos. 23/95, 30/96, 43/95, 23/99 and 43/99), the Law on Unfair Competition (Official Gazette No. 80/99) and Articles 23-24 of the Law Against Limiting the Competition (Official Gazette No. 80/99). These laws complied with Article 10bis of the Paris Convention. In addition, protection of undisclosed information and records for pharmaceutical products was provided by the Law on Medications, Remedial Medicines and Medical Devices (Official Gazette No. 21/98). Measures to control abuse of intellectual property rights
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CARDS Regional Intellectual Property Rights 3. The representative of FYROM said that action against abuse of intellectual property rights could be taken in accordance with FYROM's legislation, including its legislation on competition. Enforcement (a) Civil judicial procedures and remedies 4. The representative of FYROM said that existing intellectual property legislation as well as the Law on Civil Procedure included provisions on civil judicial procedures and remedies. Any person whose intellectual property rights had been infringed through non-authorized use, handling or imitation could bring the matter before the courts. The right holder could testify before the court in his/her capacity as party to the case; only third party experts authorized by the court could appear before it. A court could compel production of evidence in civil cases. The right holder, authorized user or licensee could claim damages and seek court injunctions to prevent further violation. In case of infringement of moral rights without material damage, the court could order indemnity to be paid for the damage done to his/her person, honour and reputation. 5. He added that the general rules for compensation of material and nonmaterial damage, provided by the Law on Obligations (Official Gazette Nos. 18/01 and 4/02) applied in cases of infringement of industrial property rights. For rights acquired under the Law of Industrial Property the right holder could seek payment of normal compensation increased by 200 per cent in case of premeditated infringement or infringement resulting from gross negligence, irrespective of whether the infringement had resulted in pecuniary damage of the same magnitude. In deciding the amount of the fine in response to claims for damages, the court would take into account all circumstances surrounding the case, in particular the degree of guilt of the defendant, the level of normal compensation, and the preventive function of the penalty. 6. The person whose rights had been infringed could demand that the court order the person infringing his/her rights to refrain from further violation, seizure or destruction of the infringing goods produced or placed in the market, or that the court order the person infringing his/her rights to provide records and data. The sentence establishing the infringement could be published by the court in the public media at the expense of the defendant. Specific provisions to this effect were contained in Article 159 of the Law on Copyright and Related Rights, as well as in its Article 162, paragraph 1 (provisional measures).
(b) Provisional measures
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CARDS Regional Intellectual Property Rights 7. The representative of FYROM said that Articles 263 to 276 of the Law on Enforcement Procedure and provisions of the Law on Civil Procedure authorized judges to grant temporary restraining orders and provisional relief to prevent infringement and to preserve evidence. The Law on Copyright and Related Rights (Articles 159, 162 and 168), the Criminal Code (Article 157) and the Law on Industrial Property (Article 249) also provided for provisional measures to be introduced by the decision of a court. Provisional measures could be ordered inaudita altera parte in cases involving copyright pursuant to Article 162, paragraph 2 of the Law on Copyright and Related Rights. Provisional measures in cases involving industrial property rights were available according to Articles 26 and 263 to 275 of the Law on Enforcement Proceedings and Articles 257 and 260 of the Law on Trial Proceedings. According to these provisions, provisional measures could be ordered inaudita altera parte. (c) Administrative procedures and remedies 8. The representative of FYROM said that the Law on General Administrative Procedure contained provisions on the protection of citizens and public interest (Article 5), efficient enforcement of the rights (Article 6), opportunity for the parties to express their opinion about the facts and circumstances (Article 8), the least costly procedure (Article 13), and the provision of assistance to ignorant parties to protect his/her legal rights (Article 14). All final administrative decisions could be submitted to the Supreme Court for review in a procedure known as "administrative dispute" pursuant to the Law on General Administrative Proceedings and the Law on Administrative Dispute. 9. Asked to describe the circumstances under which intellectual property rights might be enforced through administrative rather than civil judicial procedures and remedies, the representative of FYROM said that, for industrial property rights, administrative proceedings carried out by special units of the Supreme Court might be considered advantageous due to the specialization of the tribunals, the small number of cases, and expedite procedures. He did not see similar advantages for cases involving enforcement of copyright and related rights. (d) Special border measures 10. The representative of FYROM said that the new Law on Industrial Property included measures in full compliance with TRIPS Agreement and the Paris Convention on border controls and seizure of goods involving infringement of industrial property rights. The right holder should submit to the customs authorities a detailed description of the goods, and substantiate his/her rights and the alleged violation. The right holder or his/her representative would have the right to inspect the goods, which would be confiscated, banned from trade, and stored in a safe place. The customs authorities were obliged to inform the importer and the consignee about any ruling, including the suspension of the release of goods (Article 215, paragraph 3 of the Law on
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CARDS Regional Intellectual Property Rights Industrial Property (Official Gazette No. 47/02)). At the request of the importer, customs officials could order the holder of the right to provide security (guarantee) for possible damages caused by the border measures pursuant to Article 215, Paragraph 2. Article 165 of the Law on Copyright and Related Rights contained similar provisions on border control and seizure of pirated goods. The customs authorities would cancel the measures if the right holder failed to bring the matter before a court within 8 days. 11. Neither the Law on Copyright and Related Rights nor the new Law on Industrial Property provided for the application of ex officio measures at the border. Customs was not empowered to take action relating to the exportation or transit movement of counterfeit or pirated goods. 12. The suspension of release of goods was initiated by filing a complaint, subject to a fee based on the value of the infringed good and determined according to the Law on Court Fees (Official Gazette No. 46/90). The relevant customs authority would also calculate the amount of the deposit, sufficient to cover storage of the goods, on the basis of the Law on Industrial Property and the Law on Copyright and Related Rights and pursuant to customs regulations. The amount of time allowed for the right holder to provide collateral would be determined in forthcoming regulations based on existing legislation. Pursuant to Article 203 of the Law on Industrial Property, the plaintiff could institute action within three years from learning about the infringement or within five years from the day of the infringement. (e) Criminal procedures 13. The representative of FYROM said that infringement of industrial property was liable to criminal prosecution pursuant to Articles 285, 286 and 272 of the Criminal Code (Official Gazette No. 37/96). The Criminal Code recognized unauthorized use of someone else's company name or invention, and falsification of goods, measures and indicators of weight as criminal acts. Criminal acts relating to patent, trademark or copyright infringement were dealt with in Article 157 of the Criminal Code, providing for a fine or imprisonment. Non-authorized use of someone else's company name, mark, trademark or special mark, invention or model was liable to a fine and imprisonment up to three years. Falsification of marks or the designation of goods, measures and weight, was punishable with prison sentences ranging from three months to five years. 14. Any unauthorized use of a copyrighted work or works subject to related rights was punishable by fine or imprisonment of up to one year. Infringement resulting in considerable illegal economic gain was punishable with a fine or imprisonment up to three years. The perpetrators of infringements resulting in significant illegal economic gain could be punished by imprisonment ranging from three months to five years. Attempts to perform such act were also punishable. Copies of copyrighted works and works subject to related rights and the means for their reproduction would be seized. Courts routinely
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CARDS Regional Intellectual Property Rights ordered the destruction of infringing goods, materials and implements in criminal cases. 15. Infringement of moral rights was prosecuted upon a private complaint. Infringement of copyright and related rights could also be treated as a misdemeanour under Articles 168 and 169 of the Law on Copyrights and Related Rights. In cases of copyright-related misdemeanours, these provisions provided for a fine accompanied by provisional measures, i.e. a prohibition on performing the specific activity or seizure of goods. 16. The representative of FYROM confirmed that his Government would apply fully all the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights from the date of accession to the WTO, without recourse to any transitional period. The Working Party took note of this commitment.
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Serbia and Montenegro - National Legislation

Industrial Property
Patent Law (Official Gazette 15/95, 35/95, 28/96) Decree on the procedure of grating protection to patents and small patents (Official Gazette 7/96) Trademark Law (Official Gazette 19/95, 28/96) Decree on the procedure of granting protection to trademarks, Official Gazette 7/96) Law on geographical indications (Official Gazette 15/95, 28/96) Decree on the procedure for recognizing geographical indications and acknowledging capacity of an authorized user (Official Gazette 7/96) Law on the protection of topographies of integrated circuits (Official Gazette 12/98, 15/98), Decree on the procedure of protecting topographies of integrated circuits Official Gazette 44/98, 47/98) Basic Criminal Law, Criminal Law of the Republic of Serbia, Criminal Law of the Republic of Montenegro, Law on Obligations, Law on General Administrative Procedure, Law on Trade Decree on the customs authorized dealing with custom goods, giving permission to pass thereto and collection of customs debt (Official Gazette of the Republic of Serbia 127/2003)

Copyright and Related Rights Law (Official Gazette 24/98) Decree on keeping records on authors works and neighbouring rights (Official Gazette 50/99) Basic Criminal Law, Criminal Law of the Republic of Serbia, Criminal Law of the Republic of Montenegro, Law on Obligations Decree on the customs authorized dealing with custom goods, giving permission to pass thereto and collection of customs debt (Official Gazette of the Republic of Serbia 127/2003)
Law on Obligations Law on Trade (Official Gazette 32/93, 50/93, 41/94 and 26/96)
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Convention Establishing the World Intellectual Property Organization Paris Convention for the Protection of Industrial Property Patent Cooperation Treaty Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure Madrid Agreement Concerning the International Registration of Marks Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks Trademark Law Treaty Nairobi Treaty on the Protection of the Olympic Symbol Hague Agreement Concerning the International Deposit of Industrial Design - The Hague Act 1960 Locarno Agreement Establishing an International Classification for Industrial Designs Lisbon Agreement for the Protection of Appellations of Origin and their International Registration Madrid Agreement for the Repression of False and Deceptive Indication of Source on Goods Berne Convention for the Protection of Literary and Artistic Works WIPO Copyright Treaty WIPO Performances and Phonograms Treaty Convention for the Protection of Producers if Phonograms Against Unauthorized Duplication of their Phonograms Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Brussels Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite
Main sources: www.yupat.sv.gov.yu Law Office Petosevic www.wipo.org www.plac-yu.org
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Serbia and Montenegro WTO Status: Observer - accession working party

Serbia and Montenegro (then called Federal Republic of Yugoslavia) submitted a request for Accession in January 2001. A Working Party was established at the General Council on 8 February 2001. The Memorandum on the Foreign Trade Regime was circulated in June 2002. The Working Party has not yet met. 1. 2. Application Received 21 January 2001
Working Party Established Chairperson: H.E. Mr. Milan Hovorka (Czech Republic) 9 February 2001 Memorandum Questions and Replies Meetings of the Working Party Documentation (other) (a) Additional Questions & Replies (b) Agriculture (WT/ACC/4) (c) Services (WT/ACC/5) (d) SPS/TBT (WT/ACC/8) (e) TRIPS (WT/ACC/9) (f) Legislative Action Plan Negotiations on Goods (a) Tariff Offers (b) Goods Schedule Negotiations on Services Draft Services Schedule Factual Summary Draft Working Party Report 27 June 2002
3. 4. 5. 6.
7.
8. 9. 10.
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CARDS Regional Intellectual Property Rights 3. RECOMMENDATIONS:
(i) ANTI COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES

This field of the Assessment 3 adds another layer of complexity to this otherwise rather complex Assessment. This should be restated here in light of the shortened overall assessment period from twelve to six months. Namely, in order to research this disparate field, related to intellectual property law, but mainly regulated by the body of unfair competition laws in each country it would take additional time to do it independently. As it stands the information was collected jointly with the bulk of other information and the laws were just superficially screened for the existence of relevant provisions without going into the details of the present legislative solutions. At the same time this approach was not totally out of the tune with the situation on the ground, chiefly because the majority of the relevant institutions of the legal system in vast majority of the CARDS countries are in such pre-initial stages of their work that there is no real relevant legal practice in this respect at all. This is to say that the first laws on unfair competition enacted in most of the countries barely contained complete provisions regulating the field of unfair competition and setting up of the pertinent regulatory agencies. Most often the regulation on concentrations (mergers), dominant position and monopolies are so basic as hardly allowing for the practice to develop. The agencies are often staffed with a handful of people or less, thus not allowing any proper anti-competition work to develop. This situation is at this stage further hampered by the fact that in several countries the members of the anticompetition councils were not nominated by the Parliament although this was required and mandated by the enacted anti-competition laws. The consequence of this situation is that there were very few anti-competition activities conducted in Albania, Bosnia Herzegovina, Macedonia and Serbia and Montenegro at the time of writing of this report although some embryonic activities were conducted under the first laws in Albania and Macedonia a couple of years ago. In addition, the present legislation, or the pending drafts in most of the countries hardly preview inclusion of the registration or exemption requirements for the contractual licenses that might include intellectual property related elements at the same time overlapping with the prohibited competition practices. In the interviews conducted with the personnel of the anti competition authorities (Albania, Croatia, Macedonia), or with the staff of the competent ministries (Bosnia and Herzegovina and Serbia and Montenegro) the conclusion was that only in Croatia has this particular field of the Assessment 3 has a recognized role within the scope of the work of the competent agencies. All other countries were either not aware of the need to
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CARDS Regional Intellectual Property Rights regulate the field of the anti-competitive contractual licences or were not contemplating any action in that respect, if they did understand the issue in general. This means that it might pass several years before the laws are adequately structured as to cover this field and before the practice starts developing. Accordingly, it is to be recommended that appropriate assistance is given to the countries, primarily by consulting with the local competition authorities and providing them with advice in structuring their laws. At the same time this Assessor feels that this CARDS programme might not be an ideal framework for this assistance. Namely, due to its breadth and the focus on the intellectual property rights it might be better to leave the assistance to the competition authorities to those CARDS programme activities focusing on the competition law, rather then including it the intellectual property fields. For example, the country with the most developed field of competition law in the region, which is Croatia, did receive its assistance in this respect form a national CARDS program related to the competition activities. Croatia is accordingly, the only country in the region that has any relevant practice in the field of regulating the contractual licenses (exclusive distribution agreements, franchise agreement etc.). Croatia used to have the mandatory registration requirement for certain types of the agreements and now has switched to the block exemption type regulation with the possibility for single exemption process and is planning further harmonization with the relevant EU Directives in the field as it approaches EU integration. This leading Croatian position seems to be well understood and accepted in the region as most of the personnel from the anti-competition authorities actually referred to the Croatian experiences as relevant for their activities planning, and did request experience exchange programs with Croatia. At the same time Croatian Anti-competition agency pointed to their own lack of relevant knowledge and did request further foreign specialized training in respect of all aspects of their work (including the state subsidies) and specifically in respect of the possibly uncompetitive contractual licenses. Therefore, in most of the countries in the region most energetic action would be necessary if it is maintained that this is essential step in making the intellectual property system functioning fully in the immediate future. It appears more appropriate to tackle this issue gradually and from a various aspects, meaning that the separate anti-competition assistance programmes might be better suited to bring about changes.
Licensing regulations
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CARDS Regional Intellectual Property Rights As far as material provisions governing license agreements are concerned, it should be mentioned that one of the laws that is still applicable in former Yugoslav countries is the Law on Obligations, a codification of the rules on obligations. In fact all the countries formed through Yugoslavias dissolution, i.e. Bosnia and Herzegovina, Serbia and Montenegro, FYROM and Croatia took over this Law from the former federation. Generally speaking, the Law on Obligations was enacted in 1970s and the relatively recent date of legislation explains the fact that licensing agreements are designated as a specific, named type of contracts. The Law defines licensing agreement as an agreement establishing the obligation of a licensor to grant to a licensee the right to make or to use an invention, technical knowledge, and experience, trademark, model or design. It is sometimes held that this would encompass all other forms of intellectual property, although not specifically mentioned, if licensed. Of course, the licensee has a corresponding obligation to pay the agreed compensation. As to the anticompetitive practices in the Law on Obligations, there are only few provisions that may have indirect impact in that connection, in spite of the fact that the Law was drafted in the time when the former federation was a member of the non-aligned movement, and as such, concerned with unbalanced relation between the licensors from the developed and the licensees from the developing worlds. In fact, the Law on Obligations itself is one of the legal sources that to great extent allow parties to agree upon some issues in the manner different from the one provided by the Law. For that reasons, some of the provisions regulating licenses will become applicable only absent parties stipulation. In accordance with the above, the Law on Obligations besides the obligation of the licensor to grant the rights in question and to hand over the technical documents necessary for the practical application of the transferred rights, extends such obligations to the instruction and information necessary for the successful exploitation of the rights transferred. This and other such provisions mostly arise out the fact that the Law was drafted during the 1970s when a full disclosure of the transferred rights was a primary political issue between developed and developing countries. However, there are no blatantly anti-competitive regulations contained in the Law on obligations, which would merit mention in this Assessment. For the purposes of illustration some other provisions will be mentioned. The Law on Obligations determines certain obligations on behalf of a licensor. In Article 691 it is prescribed that a licensor has to grant the rights within a stipulated term (Sec. 1) and that a licensor has an obligation to hand over to a licensee the technical documentation necessary for the practical application of the transferred rights, presumably with the purpose of preventing the incomplete technology transfer deals. Article 692 extends such an obligation of a licensor from technical documentation to the instruction and information necessary for the successful exploitation of the transferred rights.
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CARDS Regional Intellectual Property Rights Further, the Law on Obligations sets the obligation of a licensor to give certain guarantees and warranties. A licensor has to guarantee the technical feasibility and usefulness of the transferred right by the virtue of the provision of Article 693. Article 694 it its Section (1) sets an obligation of a licensor to guarantee that the transferred right is, indeed a right within his disposal, that it was not encumbered and that it is not limited to use. Section (2) extends this obligation to guarantee that an exclusive license was not granted partially or in full to a third licensee. Section (3) sets an obligation of a Licensor to safeguard and defend the right transferred to a licensee against all claims by third persons. In other words, it appears that Licensors have the active duty to defend the rights transferred and enter into litigation on behalf of their licensees. As it can be seen, it could be hardly concluded that there is much of anti-competitive practices embedded in the text of the law, regardless of the fact that the law is obviously intended to establish the balance between the licensing parties of uneven weight, where the licensor is the party benefiting form the economic strength. Article 703 of Law on Obligations determines that, should a disproportion arise between the royalties agreed and the income a licensee realizes under the transferred rights, an interested party may request a modification of the agreed royalty fee. We presume that the former Yugoslav legislator had in mind protection of licensees in the first place when it drafted this provision. Article 699 of Law on Obligations determines that if a license to manufacture a product is accompanied by a licence to use a trademark a licensee is obliged to produce and distribute the goods under such a trademark only if the quality complies with the standards of the licensor. Section (2) of this article determines that an agreement to the contrary does not have legal effects. Marking of the goods with a note on manufacturing under license is an obligation of a licensee set by Article 700 of the Law on Obligations, but it still does not cross the threshold of the anti-competitive practices. In spite of the absence of advice by local contacts in this sense, this Assessment tried to expose those aspects on licensing which were encountered by a general analysis of the IP laws which were made available during the assessment period. This analysis is not conclusive. ALBANIA As the only country included in the regional CARDS program 2002 that was not formed through the dissolution of the former Yugoslavia, Albania, to the Assessors knowledge does not have respective regulation of licensing agreements in its general civil legislation. Albanias Intellectual Property Law provides for a definition and basic rules with respect to licensing agreements for all types of intellectual property rights subject to its regulation. These limited provisions, although not so detailed, mutatis mutandis correspond with the solutions from the Law on Obligations
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CARDS Regional Intellectual Property Rights that is valid in this field in rest of the countries. The provision that lures the attention is contained in Article 35 of the Intellectual Property Law stating that secret patents may be licensed or assigned only if there is a written consent of the Ministry of Defence or Ministry of Public Order for such a transaction. Said provision, from Assessors point of view is rather defensive, although not unusual at all, and might lead to unnecessary public interference into potential business relationship of the market competitors in defence industry. As such provisions are normally intended to safeguard the strategic interest of the countries regarding their defence, many countries resort to this type of legislative interference. However, it is imaginable that in the conditions of increasingly liberal market conditions such restrictive provisions might, under certain circumstances, negatively impact the transfer of certain technologies. The issue does remain largely hypothetical as long as it is confined to the defence industry technologies. In respect of the anti-competition legislation, Albania only recently enacted its Competition Law (the Law on the Protection of Competition), as mentioned elsewhere in the Assessment Report. It is interesting that the Albanian Competition Law places licensing agreements within general exemptions from the Agencys assessment, besides horizontal and vertical ones. With this solution license agreements may be exempted if the commercial freedom of licensee or other undertakings is not unfairly restricted and the market competition is not substantially impaired. In this Assessors opinion the mere fact that Albania enacted a rather modern competition law is of significant value for its legal and economic development. On the other hand, Assessors deems that a better solution for licensing agreements in the competition legislation would be placing them among exempted agreements as such and not subject to competition authoritys evaluation whether they should be exempted or not. Such a conduct would certainly be more in line with standards, and consequently, more beneficial for Albanias further economic development. MACEDONIA As stated above Macedonia is one of the countries that took over the Law on Obligations as a general legal source for regulating the licensing agreements. Besides this general legislation, their Law on Industrial Property, when addressing the licensing agreements contains one provision that is the relict from what it used to be a common practice among countries that used to belong to NAM (Non Aligned Movement) in which former Yugoslavia played a rather significant role. The idea, especially strong in 1970s, was to protect domicile mostly state-owned enterprises, in various fields of economic life, among others in the field of intellectual property. In line with this, the Macedonian Industrial Property Law in its Article 220 provides for a somewhat old fashioned solution stating that certain provisions in the licensing agreement, such as those that do not result from the right which is closely related to the subject of the agreement, or which is
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CARDS Regional Intellectual Property Rights unnecessary for maintaining the right are null and void. Such and similar legal provisions that were standard in former Yugoslavia and other NAM members, served as a protection of domestic subjects against possible monopolistic conditions that might have been imposed by foreign companies, which, as far as this Assessor is concerned, lost its purpose. For the Assessor it was also interesting to learn that said ideas are to some extent followed in Macedonian Law on Foreign Trade that applies on agreements between foreign and domestic subjects. Although the mentioned provisions do not apply on licensing agreements, but on the agreements on the transfer of rights, they do deserve some attention in respect of this topic. In its Article 49 the Law on Foreign Trade contains a provision on the disclosure similar to, but stronger than the one that may be found in the pertaining licensing provisions. In line with this provision, the agreement on the transferred patent and know-how must contain transferors guarantee that the implementation of the knowledge and experience (know-how) will result in production of goods of the agreed quality, as well as its obligation to enable to the receiver of know-how to use the improvements of the patent and knowhow during the term of the agreement. Also, the same Law stipulates that the agreement on transfer of patent and know-how cannot ban the acquirer to use, improve and further develop the acquired patent and know-how and protect it as a patent resulting from its own research. Even though said provisions are not directly involved in this field of Assessment, from this Assessors point of view should be mentioned in this context, at least as the leftovers from what it used to be a non-aligned state controlled economy. SERBIA AND MONTENEGRO Just as other former Yugoslav countries, Serbia and Montenegro took over the Law on Obligations as a fundamental law for regulating the licensing agreements. As to the development of adequate and modern competition legislation and authority, Serbia and Montenegro still have rather undeveloped institutions in this field, as indicated elsewhere in this chapter. From the Assessors knowledge, their previous Antimonopoly Law, unlike the recent competition legislation in other countries, defined only abuse of dominant position and conclusion of monopolistic agreements. The Antimonopoly Commission, although constituted by the federal government as a federal administrative body, has not even properly commenced its functioning in a way adjusted to modern market economy. Due to various shortcomings of the old Antimonopoly Law, the Federal government completed drafting the new Antimonopoly Law that should have represented a step forward to the European standards. Nevertheless, from Assessors knowledge, the subject law has still not been enacted due to the political and constitutional concerns referred to in other pertinent sections of this Assessment Report.
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CARDS Regional Intellectual Property Rights On the other hand, the Assessor had a chance to go through one of the drafts of the mentioned law. From the field of its application, it may be noticed that it now expressly refers to, among others, intellectual property in cases when exercising of such rights becomes dangerous for free market competition. Furthermore, it would be interesting to mention that Serbia and Montenegro until recently had foreign trade provisions not entirely encouraging technology transfer, similar as those Macedonian mentioned above. Actually, the former Law on Foreign Trade Operations, provided for some protectionist stipulations in cases of acquisition (transfer) of intellectual property rights or know-how. As the Assessor was unofficially informed, such provisions are completely left out in the new Law on Foreign Trade recently enacted in the National Assembly although its text has not been analyzed for the purpose of this Report as they were not made available timely. BOSNIA AND HERZEGOVINA Proper institutions in the field of market competition in Bosnia and Herzegovina are far from being developed in a way corresponding to the needs of the country. The Law on Competition was adopted on the federal level in 2001 with an idea to establish principles and competition institutions for stimulating development but so far the results are far from being noticeable. As far as legal framework governing licensing is concerned, apart from the Law on Obligations described above, the Law on Intellectual Property in its Article 133 defines licenses, among others, stating that any provision of licensing agreement which impose limitations upon the licensee which do not ensue from the right subject to the agreement, and are unnecessary for exercising such a right, shall be null and void. It goes without saying that such solutions stem from former Yugoslavian regulations in the field. From the information the Assessor obtained in the interviews during his visits, the scope of the applicability of any such provision is rather uncertain, as there have not been similar cases brought before the court or administrative bodies. Bearing in mind that the law enforcement is still sporadic and the economy not strong, the Assessor feels that even if anti-competitive provision exist within the legal systems of any entity or on the federal level, and assuming they would have had taken place, their analysis by the judicial system or other authorities would not necessarily be registered. CROATIA As far as competition law and its application are concerned, Croatia leads the countries included in this project. This country did almost entirely abandon the former Yugoslav regulations in the field, especially the restrictive foreign trade laws and regulations whose leftovers are still sporadically lurking in the laws of some successor states to the former federation.
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CARDS Regional Intellectual Property Rights The Croatian Competition Agency from the beginning of its activity (1997) performs administrative and professional activities relating to protection of competition and lately to authorization, monitoring and recovery of general and individual state aid. Croatian Competition law undertakes the task to prevent particular practices and business activities, which may place some undertakings at a competitive disadvantage and thereby challenge free competition between undertakings. In that connection, the old Competition Law used to have the mandatory registration requirement for certain types of the agreements so that, for example, licensing and franchising agreements previously needed to be registered and approved by the agency. The new Competition Law switched to block exemptions for licensing agreements placing them among agreements that contribute to improving the production or distribution of goods and/or services, or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit. The mentioned agreements shall be granted individual or group exemption under the conditions laid down by Croatian government. Agreements fulfilling the mentioned conditions do not need to be submitted to the Agency for assessment in respect of individual exemption but the Agency may ex officio initiate the proceedings to assess the compatibility of a particular agreement if it finds that the agreement itself or due to its cumulative effect with other similar agreements in the relevant market, does not comply with the mentioned conditions. As already mentioned Croatia is the only one of the countries that has rather developed anti-competition practice that is more or less regularly published in the Croatian Official Gazette. Although the lack of anti-competition practice that tackles intellectual property rights is still noticeable, it may be interesting to mention a case in which the Competition Agency declared a part of certain licensing agreement null and void due to its anti-competitive clauses. The subject case goes back in the time when the submission of licensing agreements to the Agency was mandatory. The parties had not submitted the agreement, in fact the Agency learned of its existence from other sources. The Agency found one of the clauses of the agreement in question limiting the market competition, since the subject licensing agreement was partially used for the purposes of geographically dividing the Croatian market. Namely, the licensee obliged not to distribute goods subject to exclusive license to third persons if it knows or should reasonably assume that such third persons would be selling out of the territory embraced with the licensing agreement. In respect of substantial provisions applicable on licensing agreements, the Law on Obligations stands as most important legal source governing licensing. As it was mentioned above, Croatia does not appear to have significant anti-competitive regulations in its legal system, and she abandoned restrictive Yugoslav provisions from the laws governing foreign trade.
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CARDS Regional Intellectual Property Rights Moreover, her intellectual property legislation ceased to contain certain provisions that are still rather common in other countries practice, such as stipulations that the licensing agreements will be null and void if containing strong limitations imposed on the licensee. In addition, it should be pointed out that the Croatian Patent Law, when governing compulsory licensing provides for a possibility of granting compulsory licenses if it is necessary to remedy a practice determined by the Agency or a court to be anti-competitive. The compulsory licensing provisions for patents were not specifically analysed neither for Croatia, nor for the other countries of the region in this Report, as their existence is generally internationally accepted, and their scope locally will have to be adjusted to the EU acquis communautaire, but this level of compliance is not part of the terms of reference for this Report.
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(ii)
ENFORCEMENT
One of the reasons why the countries in the region are termed transitional is the fact that the societies exiting from the former communist regimes have to undergo significant changes in their social structures and priorities in order to adjust to the different social models tied to the democratic values of transparency and accountability and market oriented economies. Although the societies in the transitional countries in the region that are subject to the CARDS program assistance, and have been subject to this Assessment 3 have repeatedly politically declared their intention and determination to transform into modern democratic, market oriented societies, it should be said that the transformation has proved to be more complex and more demanding than initially envisaged by anyone involved. The uncertainties of the market forces intruding into the previously sheltered fields of life such as health care, employment, public infrastructure etc., have somewhat dampened the general public willingness for change and transformation of the societies. The spectacle of the champions of change sometimes indulging in power and neglecting the proclaimed goals, coupled with corruption and effective disregard for wider social concerns have created deeply entrenched scepticism of the changes necessary to continue the path towards the democratic transformation of the societies. It has to be acknowledged that in almost all of the transitional societies at some point, lagging behind in economic terms has become temporary destiny for wide swaths of society. At such moments, underprivileged strata of population were confronted with the wide opportunities existing for the small segment of population, and with another segment creating similar or even greater opportunities besides the legally accepted means. All this has, to a certain degree created disinterest and almost palpable disengagement in the social transformation for the significant parts of the population in most of the countries in the region. The intellectual property rights are trailing at the rear of the transition process, with the majority of population not understanding the whole concept and its role at all, or in the best event, understanding the general outlines of the concept but not grasping the position of it on the transitional totem-pole. The political factors guiding the transition have largely accepted this situation, without any attempt to move the intellectual property rights to the central point of the discussion on transformation. At the same time, the same factors were seen as pretending that intellectual property is important to them when confronted with the demands of the international community and asked for the results in the stabilization and association processes. As a result, the political forces did not take the issue of intellectual property rights as their own, partly because they do not share any deeper insight in the process than the population that has elected them, and partly because they are confronted with
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CARDS Regional Intellectual Property Rights such an array of problems that they have problems grasping the other priorities. Paradoxically, the political forces do not seem to understand or to believe that one of the shortest practical changes available to lead their societies into transformation is wholeheartedly adopting the intellectual property rights as an effective generator of change and a generator of social well-being. This Assessment is prepared on the presumption that intellectual property rights are really powerful and readily available instrument for creating stronger local economies and providing additional well being for the population of Western Balkan countries. Initially, while the transformation is still underway, the greatest benefit of the introduction of the intellectual property rights is actually in its properties of the generator for change as it has the capacity to move the societies into other forms of self-organization. Only after this phase will be completed, are the societies in question likely to benefit from the economic sides of the intellectual property rights themselves. For most of the populations of the transitional countries this proposition would be a stretched one, but there are signs that intellectual property rights would play a role that is no different than it had in developed countries in the world where it, indeed, gained the central role in the transformation of their economies and the societies. Under the above assumptions this Assessment 3 looks at the issues related to the intellectual property rights enforcement into a rather broad optics, which could be seen as holistic. It is held, accordingly, that there could be no meaningful and functioning enforcement system, without all the social conditions related to it developed to a sufficient desirable degree. Needless to say, under this aspect the education on intellectual property rights becomes essential part of the enforcement system and of the intellectual property rights in general.
Education on intellectual property

Graduate legal education There is hardly any university in and the region where intellectual property subjects are thought as a part of regular non-elective curriculum. In light of the actual needs this situation is truly discouraging. Only Sarajevo University Law School over longer periods of time had obligatory subject of Copyrights and Industrial Property Rights while at the other Universities the courses could be chosen as elective, usually as two courses, one in Authors and Neighbouring Rights and the other in Industrial Property Rights. The universities in the region appear to hold the attitude that the intellectual property education is of secondary importance for their students, thereby unfortunately only reflecting the broader social perception of the insignificance of the intellectual property as a subject.
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CARDS Regional Intellectual Property Rights As a consequence, hardly any student takes both elective courses during his or hers studying and there is no legal textbooks on the subject available in some countries. Many smaller universities in micro-regional urban centres in the broader region do not have the optional courses in intellectual property at all. Having in mind the paramount importance of proper legal education from both enforcement and public awareness points of view, it is this Assessors recommendation that additional research on the precise situation of the legal education in the Western Balkan countries is conducted and the results carefully analyzed. One possible further step might be founding of a joint panel of professors and practitioners, which panel would then draw the appropriate conclusions and recommend a streamlined, practice oriented curriculum for training in intellectual property tailored to the local needs and appropriate for the regional law schools. Post-Graduate legal education In addition courses for postgraduate studies in intellectual property, preferably in one regional centre, in order to avoid the wasting of the resources and for the purposes of increasing the quality of such studies. Probably, it would be beneficial that such training is conducted in English language. The Panel proposed above might draw a curriculum for such intellectual property postgraduate course in intellectual property. Such postgraduate course would ideally be established in one regional centre of learning with the longer traditions in higher learning. Preferably, such a program will be developed with the financial support of the larger regional industries that realize the importance on intellectual property and will be further motivated by the CARDS program measures to be formulated on the basis of this recommendation. As there are hardly a half dozen companies in the region that have intellectual property departments, it might easily be that only those companies will realize such importance and additional funding will have to be initially provided by international community. It is my opinion that the field of legal education in intellectual property is one of the primary fields suited for regional cooperation as all the regional professors with appropriate knowledge might form the core of the faculty, with the regular additions of the recognized international experts in the field. In order for the strongest impact, and as opposed on the theory based legal training prevailing in the region, legal practitioners and business managers should be invited to teach thereby emphasizing the vitality and importance of the intellectual property as a subject.
Continuing legal education
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CARDS Regional Intellectual Property Rights Regretfully, the idea of organized continuing legal education is almost absent from the traditional educational schemes in the region. The professionals do participate in various workshops and seminars during a year and following legal developments within various legal fields, but such education is neither requested by the professional bodies, nor systematically organized or properly evaluated. It is therefore proposed that CARDS programme further evaluates the situation and works with the selected bodies on implementing the appropriate continuing legal education programmes. Graduate courses in other educational fields (technical, humanistic and other) It would be hard to detect a single field in which the general population with academic education would not benefit from introduction of non-legal, one semester courses in which the general principles of intellectual property would have been thought. At the forefront of the possible beneficiaries are, doubtlessly the educational fields in which the modern industries participants are formed ad trained. This would include both the technical fields, such as the electronics and programming where the universities in the region create techies with no insight or feeling for instruments of transferring the rights such as licensing agreements, nor the basic understanding of the rights themselves; and the humanistic fields such as the art academies and other creative professional schools where the professionals also lack basic tools of trade once they leave the educational institution trained as musicians, actors, painters, designers or professionals in other creative endeavours fields. All of such highly trained creative professionals, from some of the best educational institutions in the region do lack insight in licensing and publishing deals structures. It is easy to note that there is a true deficiency of understanding of intellectual property for such individuals and they have problems adjusting to the marketplace realities of the quickly shifting transitional economies of their countries and the region. Again, this Assessors opinion is that such education could quickly contribute to intellectual property taking more central role in the transitional societies of the region and not only contributing to public awareness of the issue but actually directly contributing to the transformation of the societies into modern, intellectual property wealth-creating organisms. Interdisciplinary Cross-training for IP Rights Enforcement Personnel If it is accepted that a working, integrated intellectual property system is a basic prerequisite for the successful intellectual property right enforcement, then after the formation of the necessary public and private institutions, their joint cross-training is essential for its functioning. Under the cross-trainings this Assessor understands the joint training sessions that are primarily practice oriented for the persons of various educational backgrounds involved
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CARDS Regional Intellectual Property Rights as institution representatives in intellectual property enforcement. It should be stated clearly that such trainings are considered as essential part of upgrading of the functionality and effectiveness of intellectual property rights enforcement system institutions. The participants of these cross-trainings would be ideally persons involved in the day-to-day or future enforcement activities. The topics of such crosstraining sessions might vary according to the country and the level of development of intellectual property rights enforcement systems in question, but have a common point of aiming of building a seamless, integrated network of institutions operating in the intellectual property rights enforcement field. The goal of those cross-trainings; besides empowering the individuals and the institutions with the required knowledge is enabling the institutions to achieve standard criteria for action in the intellectual property rights enforcement arena and interoperability of the institutions through building their contact points for the purposes of information exchange. The information to be exchanged and shared might involve data access regarding other trainings, intellectual property rights databases, decision making mechanisms etc. Namely, this Assessor has noted that in spite of the existence of all expected and regular intellectual property rights institutions in the countries in the region, the expert staff actually does not fully grasp the roles of their own institutions in full, and even less understanding do they have for the role of other institutions within the intellectual property rights system. Therefore, even an expert staff member that did receive specialized intellectual property training and adequate foreign experience exposure is likely not to understand the role another institution within the system is expected to play, nor will s/he understand the possible points of overlapping or possibilities to increase the efficiency of the interlinked operations of such institutions involved. Especially in absence of the integrated data systems in the countries of the region, and in absence of the strong institutions, creation of such virtual personality network of empowered individuals is essential for kick-starting the operational enforcement systems. In other words, once the individuals will know which institutions are supposed to play which role in creating the full intellectual property rights enforcement system, and they know which individuals are in charge of acting within their institutions, it is to be expected that the joint effectiveness of the entire system will dramatically rise. Early experiences from some countries are encouraging. Once the institutions will be linked in the system the importance of the individual connections should decrease, but will always remain a benefit for the working of the system. Local Experts and Practitioners as Trainers It was repeatedly and vocally repeated, especially in the least developed countries of the region, during the Assessment 3 interviews that the institutions came to the conclusions that it would me much more useful and efficient to have local experience delivered in local language to the attendees
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CARDS Regional Intellectual Property Rights of the training sessions. The attendee constituency is apparently turned down by the fact that trainers in the past periods did not know the local conditions sufficiently and gave only general advice of limited practicability. In addition, they have apparently found out that the translation was usually less then perfect and that the foreign speakers always remained to a degree less then fully understandable in their messages. The fact that broader base of institution personnel is to be trained at this stage in order to further increase the efficiency of the institutions also requires training in the local language. Apparently, the individuals beyond the top-level management are far less knowledgeable in foreign languages than the first batch of the attendees of the training programs. Most of the people I interviewed held that there is enough local expertise available after dozen years of transition that would make the local experience more beneficial. I was explicitly told, on several occasions, that it would not be desirable for the CARDS program intellectual property implementation to result in one more string of the general intellectual property trainings that the recipient countries have received over the past five years. Most of the participants of such trainings feel that they became repetitive as every other trainer from the EU and USA tried to introduce the basic intellectual property concepts to the attendants. The feeling is that the assistance programs became victims of their own perception that the countries in the region will always need only the intellectual property basics training and have not yet matured into the recipients of more sophisticated, specific topics oriented training or higher level of complexity training. Admittedly, while the intellectual property knowledge is spread only to a rather narrow band of population, many of the interviewed experts actually feel that at this stage they do have enough relevant experience in all fields of intellectual property enforcement in their countries to make a genuine contribution to the education in the region. They also feel that their expertise might even be more relevant to the untrained local officials then more developed countries experiences are. Obviously, the number of such local experts is not great, but this Assessor fully agrees that each of the countries does hold a small number of true intellectual property experts and does recommend that they are involved in the future CARDS program trainings. In addition, spreading of the expertise between the countries of the region might directly lead to the fulfilment of one of the CARDS programs objectives, which is increasing of the regional cooperation. Training the Local Trainers It has also been mentioned in the interviews that the need for training the trainers within the countries of the region exists. The local trainers to be educated would primarily be the individuals who would try to spread the acceptance of the intellectual property rights as the tool to use in the
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CARDS Regional Intellectual Property Rights economy, more on the public awareness and business awareness building measures. If this recommendation is taken, this measure would be best entrusted to the local intellectual property rights hubs, formed around the national intellectual property offices. Trainers enabled for general intellectual property education of small and medium businesses could be trained, for example the staff of the chambers of commerce, SME Ministries in the region and similar, as well as the basic courses for the in-house lawyers and managers could be set within this group. Intellectual Property Rights Written Material In light of the fact that there is a serious shortage of expert texts of any kind, books and scholarly textbooks on intellectual property in the region it is recommended that the attention of the CARDS programme implementation is at least partially focused on creating a body of intellectual property texts devoted to various aspects of intellectual property law. While it is true that several known legal periodicals in the region actually started devoting space to the intellectual property issues, there are actually still a rather few knowledgeable local authors who can make a true contribution to the field and devote their efforts in the intellectual property field. Generally speaking, there are no locally prepared updated textbooks in intellectual property subjects to be used in the university education, with a few notable exceptions, most of which actually need serious updating to reflect the recent changes in the legal systems. Therefore, it is recommended that the educational funds be partially directed into supporting the scholars and their institutions to devote their time, energy and attention to creating legal texts that will hopefully become standard legal textbooks in intellectual property legal education for the countries in the region. At the same time, to speed up this process and to plug this gaping hole in the short term, while at the same time improving the general information availability, it might be beneficial directing funds and efforts into translating selected internationally relevant seminal works in intellectual property law to one of the local languages and/or making such works available in English language. However, any real impact on the Judiciary and the Bar might be expected only such selected works are actually translated. Information management, searching and other data-mining trainings It was repeated in various contexts and on various occasions during the Assessment 3 interviews that local experts consider that any intellectual property training is accompanied by information technology and databases trainings. As everyone seems to realize, the increased digitalization of
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CARDS Regional Intellectual Property Rights intellectual property related information and the information on its infringement lead to the situation that the two issues, the intellectual property side and the IT sides are inextricably linked. As the transitional countries are lagging in both fields, the general perception is that the common training will only enhance each group of knowledge conveyed. Therefore, it is recommended that the planned intellectual property trainings in the future contain an enhanced IT component, addressed to the general aspects of the database ad equipment usage and to the specific intellectual property database content at the same time. Training Journalists It has been often noted that journalists covering intellectual property issues for the media in the region, including the most serious papers devoted to the economy, actually do not have much depth in understanding the intellectual property issues. It is rather uncommon to find any journalist who actually understands the basic differences between the copyright and patent protection, and a precious few even know that there are any other intellectual property rights other then the two or three best known ones. In such situation, it might be beneficial to organize specific training for journalists, within the realms of their associations and within the conferences or events they cover, usually connected to certain topics related to the intellectual property rights problems and situations which media and their consumers consider to be hot at the moment and do try to cover (such as it used to be the situation with the Napster, MP3 formats, copyright piracy raids, patent pipeline protection or others).
Institution building
Aiming at the WTO/TRIPS compliance, all of the countries in the region have introduced the need for the market-oriented institutions that are usually necessary for the successful intellectual property rights enforcement. In general, at the moment of this Assessment most of the necessary institutions existed, at least in the embryonic stage, but not all of them were functioning properly as designed or as expected in comparative law and some were functioning but did not yet extend their activities to intellectual property.
One of the key problems is surely the lack of specialization of institutions and individuals who should provide for smooth, exact and standardized application of the relevant laws. In fact, as it has been pointed out above, the Universities in the region where the intellectual property enforcement should actually begin through adequate academic training, intellectual property subjects are present restrictively, mostly as elective subjects and even without proper postgraduate compensation for this shortcoming. Such deficiency continues in professional circles as well. Interdisciplinary specialist trainings for judges, police and custom officers, state attorneys,
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CARDS Regional Intellectual Property Rights attorneys at law and inspectors are unfortunately still an exception, rather then a rule, in everyday practice.
As far as necessary institutions are concerned, although most of them already exist in most of the countries in the region, not all of them are functioning properly, and some did not yet extend their activities to the intellectual property field. The improvements are necessary in forming their functional structure, equipment acquisition, IT technology development, education of staff and allocating necessary financial resources. Frequent changes of the personnel working in the institution of state administration and judiciary surely does not contribute to more efficient intellectual property system. Often cited problems in the intellectual property enforcement in the region, such as the slowness in the administrative and judicial proceedings, lack of clear determination and absence of criteria for proving damages inflicted by intellectual property infringements, poor efficiency in enforcement of judgments, may be eliminated only through full engagement of all the relevant institutions and on all levels. However, the experience in the region shows that the efforts made by one isolated institution attempting to improve its results in the intellectual property enforcement arena cannot lead to the optimal possible results. This experiences point to the fact that without Governments being behind the efforts and building the coordinated, efficient overall strategy in protection of intellectual property rights, any single institution may hardly reach optimal results on its own. The coordination on all levels (including business leaders and policy makers), whether national or supranational, imposes itself as a condition sine qua non in adjusting to TRIPS and EU acquis communautaire standards. Without the clear overall strategies and focused efforts within the broader directions, such standards are less likely to be implemented successfully in the short term desirable to speed up the transition.
Therefore, it is recommended that the role of each type of institutions involved in intellectual property enforcement system is separately analyzed and appropriate conclusions drawn for the betterment of their functioning. For the purposes of this Assessment 3 it is considered that the following public and private institutions should be enabled and involved in the intellectual property rights enforcement system for such a system to become fully effective: Legislators
The practical life of intellectual property institutions is initially designed in the legislation field. Although the sufficient legal framework more or less exists in all of the countries, there is a huge need for balancing out internal legislation standards, since the current legislation often suffers from influences of various legal traditions.
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CARDS Regional Intellectual Property Rights The internal balancing unavoidably requires for local lawyers and experts to be consulted in legislation drafting. Without their field experience and expertise, chances for applying the overall adopted standards to various legal systems with their own way of life, frequently results with unclear, inapplicable or even damaging solutions. From our point of view, it is further important that the national intellectual property offices assume full jurisdiction over authors and neighbouring rights issues, i.e. assume integral competence over the intellectual property rights. The division that puts authors and neighbouring rights in competence of Ministries of Culture obviously did neither match the expectations nor did produce the necessary results.
Needless to say, as the countries of the region will enter into the association process with the aim of achieving the candidate status, their legislation will gradually improve as they will study and implement higher standards of legislation in the intellectual property filed. The assistance they will receive in this process will also significantly enhance their legislation, but at exactly at that stage the quality implementation of such legislation is likely to be in the starkest disproportion with the quality of the legislation itself.
Governments One of the most important aspect of achieving a fully functioning and efficient system of intellectual property enforcement is to achieve the general and profound understanding of an entire society that the subject of protection of intellectual property regime is a truly valuable asset of its holder and that the undisturbed exploitation of such an asset is beneficial for the well-being of the entire society. Unfortunately, most of the Governments in the region seem to share the lack of understanding of the profound implications of the lack of protection to the creative endeavours protected by the intellectual property laws. In other words, it is apparent that the Governments of the region actually do not fully appreciate that once they have decided to enter the transition processes with the aim of transforming their societies into the market economies, with the goal of building modern societies, which will be able to determine and steer their courses in global arena, actually have a rather limited set of tools for achieving this goal. It seems that once they enter the transition processes, their vision narrows only to the practical problems such as conducting the privatization and politically approaching the integration processes. At the same time, it appears that the Governments lack appreciation that the true transformation is also to be achieved by reorganizing their societies so to be able to tap into the creative resources of their populations in order to be able to produce economic results relying on their own resources. It is therefore essential that the Governments undertake steps to reveal to themselves that the true goal of the intellectual property protection is not only to protect the immaterial assets of the foreign rights 163
CARDS Regional Intellectual Property Rights holders, but that it is actually a process of mobilizing internal resources and reorganizing their societies in such a way that it becomes economically selfsustainable by the means of creating its own intellectual property rights to be exploited for the purposes of successfully competing in the modern markets. It has been noted that the intellectual property rights institution building without an entire Government being behind the effort does not yield optimal results. It is hereby submitted that the pro-reformist, market oriented, transitional country Governments have a unique chance to improve the overall economic performance by the means, among others, of protection the intellectual property rights. In order to open this possibilities up the Governments might decide to focus on the intellectual property as a new tool. One such possible step would be for a Government to decide that it wants to focus on the intellectual property. Best practices, established by some developed countries, would be to introduce panel of experts to advise a Government. This Assessors opinion, tailored for the countries of the region would be to devote an entire Government session to the issues related to the intellectual property rights and their enforcement in country. Ideally, a Government would invite to such a session a series of witnesses from the group of intellectual property experts from various fields, business leaders and policy makers to inform them on their views on the situation, their analysis of the problems and their recommendations for the further steps. Ideally, such a Government session would be followed by forming of a Panel on intellectual property, which would then draw an expert analysis of the situation, and recommendations on necessary steps for the optimization of a national intellectual property rights situation. Once the recommendations would have been drawn, a Government would have somewhat simplified task of proceeding in accordance with the changes recommended by instructing the appropriate Ministries on the most efficient measures to be taken. Usually, following Ministries would be assigned tasks for action on intellectual property matters: Interior, Judiciary, Economy, Science and technology, Finance. Intellectual Property Offices It is submitted hereby it might be possible that the Offices might in the future serve as the intellectual property hubs for the smaller countries. This would mean that the Offices would, besides their traditional role of the administrative institutions responsible for granting of intellectual property rights, and recently acquired duties of administrative oversight over the collecting societies, take over new activities. In many countries of the region the offices actually did expand recently their role to following activities: intellectual property rights information research for members of the public, intellectual property rights text publication, and education and have attempted public awareness building.
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CARDS Regional Intellectual Property Rights Having in mind the limited resources that the transitional countries in the region have at their disposal for building of the intellectual property systems, it would be advisable that they concentrate those resources in the most efficient manner. This would imply that the issue of enforcement, which is in many ways crucial to the good functioning of an intellectual property system, would have to be at least partially dealt by the intellectual property offices as well. However, strong changes in the culture would have to be incurred in the offices, which are now basically concerned with their role in granting of the intellectual property rights. Normally, the staff of the intellectual property offices do not fully appreciate that the main part of the life of an intellectual property right occurs once a right is registered. The offices would optimally exploit their potential role as hubs if they would extend their activities to coordinating various enforcement activities from trainings to enforcement agencies contacts, and to the efforts of making their rights databases as widely available as possible. It is important in that sense, that the national intellectual property office assumes its jurisdiction also in respect of taking care for authors and neighbouring rights issues and takes over from the Ministries of Culture. Namely, the traditional division of competence over intellectual property rights usually would assign the authors and neighbouring rights jurisdiction to the Ministries of Culture. This Assessor is not aware of the instance in the region where this situation would be more successful than creating an integrated intellectual property office with the copyright competences and would propose that all offices in the region or indeed in all transitional countries assume the full competence over the intellectual property rights. Highly desirable goal is achieving the successful cooperation between the institutions of a system with the purpose of achieving the interoperability and efficiency in the intellectual property enforcement matters. If the intellectual property offices assume their responsibility in the proposed roles as a hub, they would then have the central role in organizing the cross-trainings, gathering the relevant national and international information and coordinating various intellectual property related activities. Different hiring policies would be prerequisite for changing the culture prevailing in the intellectual property offices at present and achieving the conditions necessary for taking the role of the intellectual property hub in a country. Enforcement agencies Administrative (inspectorates, tax authorities) Although generally not perceived as an important part of the intellectual property enforcement systems in many countries, with certain notable exceptions, such as the Trading Standards bodies in the United Kingdom, the administrative agencies are perceived as a convenient and successful system
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CARDS Regional Intellectual Property Rights of combating piracy and counterfeiting in the region. Largely due to the inheritance of the former federal legal system of the Yugoslav federation the successor states in the region share the similarity of the administrative control services based on the model of the so called market inspectorate. Although these services did mutate into diverse forms in each successor state of the former Yugoslavia, all of them share their administrative nature and draw on the strength of their everyday presence in the marketplace in order of increasing the efficiency of their operation. And the efficiency is quite remarkable, due to the fact that the inspectors generally do not need special warrant when searching the premises of commercial or incorporated businesses and that they can temporarily seize or suspend trading in the offending goods. The practicality of this system is well demonstrated in the only country in the region that did not inherit such Market inspection system, which is Albania. Namely, in Albania, one of the first systematic enforcement actions in the country was conducted in the copyright field via the tax inspectors, another administrative agency with similar general procedural characteristics as the market inspectors. It is recommended that this system is properly evaluated and its characteristics well defined. Namely, the inspectors in approaching their role theoretically prefer to have jurisdiction in control and oversight of those aspects of intellectual property that are connected with possible consumer confusion and deception which primarily involve pirated and counterfeited goods, rather than the oversight of the private IP rights which do not have this impact on the consumers, such as enforcing the collective organizations rights. Once this is done all of the advantages of this system should be fully exploited and their benefits emphasized to the rights holders. Naturally, the inspectors should benefit from the same specialization and training efforts as the other selected bodies and services.
Police Police force within the Ministry of Interior has repeatedly shown as an instrumental institution for initially combating intellectual property violations in the transitional countries. Without exception in the region, wherever the police started their enforcement work in the field the results in improving the general perception of the role of the intellectual property rights started to show. It is notable that this is a self feeding process in which the members of the police force generally draw professional satisfaction from their newly assigned work and serve as enthusiastic beacons at the joint seminars and cross-trainings with other professionals to be involved in the intellectual property protection system and are rewarded when seen as the most experienced participants in the field. Besides this positive side effect, it should be said that by criminalizing the intellectual property violations the countries actually start reforming their legal
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CARDS Regional Intellectual Property Rights and social systems showing that their priorities do lay in the protection of creative economic endeavours. Inclusion of the Police force therefore, serves as an emblematic point of visibility of changes in the transition process and has huge practical implications in the market. Accordingly, the importance of including the Police force in the enforcement process in the transitional countries cannot be overestimated. Although it cannot be excluded that at some point in the future the transitional countries might decide that the strong penal protection of intellectual property is not necessary anymore, it is an important achievement in all countries that have introduced it at this point. At the same time, due to their more conservative structure, and often-archaic inherited modalities of operation, without transparency and cooperation with the injured parties the Police force sometimes reveals the weaknesses of the societies in transition. One of the self-evident remedies to this situation is the political transformation and educational support of the Police forces. While this task appears to be fully compatible with the CARDS programme objectives and should be pursued, at the same time the regional cooperation between the forces should be increased. One of the possible organizations that could serve as a vehicle for regional cooperation is SEPCA (Southeast Europe Police Chiefs Associations). Regional cooperation in enforcement of intellectual property rights is a significant tool in achieving the needed results and should embrace all the levels of intellectual property system. Of course, some institutions by their nature deserve greater attention and cooperation on the regional level. For example, police cooperation is unavoidable due to its great perspective in progression of police efficiency and decrease of the crimes in general. The mutual support and teamwork between various countries police departments is presently limited to the issues connected with organized crime, but fails to extend to other fields of general interests. The protection of intellectual property rights is, naturally, greatly alleviated if the enforcement procedure is standardized not only inside the borders but outside them as well. The required cooperation comprises the following: welleducated and trained officers, continuous contacts with the experienced personnel that does not constantly change its position, adequate support from the government etc. During the visits to the countries engaged in this project the assessor learned some valuable information on the organization called SEPCA (Southeast Europe Police Chiefs Association), which begun with its activity in January 2002, supported by the Royal Canadian Mounted Police and Canadian government. The mentioned association embraces all countries included in CARDS project, as well as Bulgaria and Romania. It was originally designed to become principal regional organization for promoting and facilitating professional police development, modern policing principles, collaboration in implementation of policing strategies etc. SEPCA currently has five standing boards, for: public order, organized crime, community policing, police education and harmonizing of the legislation.
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CARDS Regional Intellectual Property Rights Although the organization is yet to extend and upgrade its activities, it may serve as a basis for building up police cooperation in the intellectual property field, with particular emphasize on specialized regional police trainings, exchange of the relevant data and collaboration with customs offices. From assessors point of view, it may be foresighted to use its already existing infrastructure and to promote the intellectual property to become one of its general fields of interest. Judicial Police In most countries of the region the Judicial Police is newly formed and modern conceived force at the disposal of the judicial system. While this force was not a subject of research for the purposes of this assessment, it should be stated that, generally speaking, the judicial Police is of a potential great benefit to the intellectual property enforcement system. Namely, the most obvious role of the Judicial Police should be in the enforcement of the judicial decisions, from the preliminary measures enforcement to the enforcement of the final and binding decisions. Accordingly, the force should be structured so that it gathers relevant experience and expertise at an institutionally predetermined point of the force. By taking over this role it would significantly contribute to the efficiency of the intellectual property enforcement system and would add to the institutional build-up of the judicial system by adding the sheer strength of efficiency to the system that is otherwise perceived as lacking in it.
Customs Having the imperative of complying with the TRIPS requirements in the near future, or having fulfilled them in the recent past, the countries in the region are opening a new frontier, so to say, to the border enforcement of intellectual property rights. The Customs in the region largely still do not have sufficient capacity in intellectual property enforcement and are not seen as effective force in the field. However, after the Border enforcement measures will be built in the legal systems of the countries in the region it is to be expected that a significant regional cooperation will start in this field. Training programs should be developed and the risk analysis systems made available for the regional Customs services. Practical training in the developed countries with significant border enforcement experience should be made available to the services and the organizational consulting given to the services. Judicial System Civil Courts
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CARDS Regional Intellectual Property Rights In most of the countries civil courts, either generalized or specialized (such as commercial or other courts) having the jurisdiction in the IP matters benefited most from the specialization and training efforts in the initial stages of the transition, regardless of the fact that the costs of their utilizations are higher than those of the administrative and other enforcement agencies and their efficiency in resolving the disputes somewhat less pronounced. As the points that simply were assigned the jurisdiction in the intellectual property matters in the country they were natural recipients of the assistance for the sheer fact that they were part of the civil commercial dispute procedure, rather than because of a selective evaluation of their importance at the initial stage of transition processes. While the amount of education and training received is certainly very important for the future strength of the IP system in the transitional countries in the region, it should be made rather clear that the civil courts take much longer to clean the streets of the pirated and counterfeited goods than it takes the enforcement agencies. This is not to propose that the education of this segment of the judicial system is put on hold. To the contrary, due to the fact that the judges received no intellectual property education at their formative education stage the training is extremely important and will be sorely needed when the civil litigation starts to a greater extent in more complex intellectual property disputes, other then pure enforcement. Misdemeanour Courts There are several potentially great features of the misdemeanour courts in the countries that have such a system, and most of the countries in the region do have it and the system does have the jurisdiction over the intellectual property matters. It is a system that is theoretically simple and fast, it is a notch above the administrative decision as it pertains to the judicial system and would deal with the lower complexity and weight intellectual property violations. At the same time it is in the most countries under-funded and understaffed, with even less resources for training and specialization. As a consequence its decisions often run into the prescription (statute of limitations) terms and if decided timely the decisions are unfortunately often incoherent and based on the poor reading of the intellectual property laws, therefore making bad practice and developing impunity feeling on behalf of the infringers. However, as the system is already there and does have clear advantages, it is this Assessors opinion that the intellectual property enforcement system should take advantage of its existence and through a reform achieve its full systematic functionality. One of the additional obstacles for a meaningful adjudication of IP infringements under the misdemeanour court system is the fact that most of the countries actually prescribe the offences twice, as a misdemeanour and at the same time as a criminal offence. This leads to the uneven criteria on what would constitute the misdemeanour and what would constitute the criminal
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CARDS Regional Intellectual Property Rights offence; and does not result in the optimal utilization of either system. Without attempting to resolve this doctrinaire issues within the realms of this Assessment it should be stated that such an analysis would be beneficial before starting any funded program of reform and education within the misdemeanour court system. Criminal Courts The education of the criminal judges is of paramount importance for the meaningful adjudication of criminal intellectual property offences. Once the countries of the region did decide to criminalize comprehensively the intellectual property infractions it became apparent that the university legal education that does not provide for intellectual property training couldnt provide enough knowledge for reaching successful results within the judicial system. Unfortunately, this has resulted with widely divergent practice developing, further the court practice develops. While some courts in a given country might think that intellectual property does not deserve a lot of attention a minority might be starting to realize that the future of their countries might in part depend on the utilization and exploitation of the protected intellectual property. Naturally, it is highly undesirable that the criminal courts hold such divergent views and reach correspondingly different decisions and pronounce divergent punishments for the same or similar violations. As there is no doubt that the inclusion of the intellectual property within the objects whose violations is protected by criminal law and its systems of sanctions is a highly important civilization watershed for the transitional countries, and having in mind the importance of the quality judicial work in the filed of criminal law, there should be no effort spared to improve this situation. Accordingly, the judges that sit in the criminal courts should also get the attention and education that their colleagues in the commercial or general courts are getting in respect of the intellectual property. The same prominence given to the civil law judges should be given to the specialization of the criminal court judges as well. Public Prosecutors In many instances in the regions the public prosecutor offices were widely perceived as one of the weakest links in the intellectual property rights protection and enforcement system. As a force with potential political impact, potentially useful for various political interests in the early stages of transition the public prosecutors (state attorneys) were regretfully not always supported to be fully independent. Only once the countries stabilised on their transitional paths did this situation change in favour of depoliticizing of the public prosecutors and their independence. As the legal systems of the post communist countries in the region, prior to the transitional overhaul of legislation did not provide for criminal protection of intellectual property rights, the public prosecutors were largely unaware of
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CARDS Regional Intellectual Property Rights their role in the intellectual property enforcement. Once the criminal codes were modified to fulfil the TRIPS requirements the cases were slowly trickling had suddenly the prosecutors who never encountered the intellectual property rights before, neither in their university education, nor in their legal practice had suddenly to grasp both the basics and the intricate finesse of the intellectual property arguments. The imminent result was largely unsuccessful criminal intellectual property enforcement initially, following by the slow improvement in more developed countries in the region. At the same time, the less developed countries in the region are only now facing this stage in the intellectual property rights enforcement and are likely to pass the initial stage with the same mixed results. In practice, the prosecutors most often feel largely helpless faced with the judges who are learning their intellectual property law in the courtroom and the defendants who are using every procedural and substantial law means of delaying the verdict or getting acquitted. Only once the office of a State Prosecutor (highest ranking prosecutor in a country) displays a determination to act consistently and provides guidelines for the deputy public prosecutors it can be expected that the first results in intellectual property enforcement will start to show. Backed by consistent cross-trainings, the prosecutors will develop common standards with the enforcement agencies leading to the clear overview of the criteria under which to act. It has to be said that often a clear understanding emerges at this point that criminal enforcement is the most suitable for of enforcement of the intellectual property rights at the initial stages of transition, and the public prosecutors then emerge as very important players in the enforcement system. Attorneys at Law Attorneys in private practice are now practicing in every country in the region. In most of the countries the specialization of the law firms begun only recently, and there are very few offices that are not at the same time patent agents firms, which specialize to any serious degree in intellectual property. As a consequence not much specialized advice is available to the local right holders or infringers. This leads to lengthening of the disputes and resorting to the judicial procedures in the situations where better-versed practitioners might find the standard ways to break impasse without resorting to judicial remedies. Continuing legal education is almost non-existent as educational concept in practically all countries in the region. Anecdotal episodes referring to the attorney who were referring to the corporate seals under the term trademark or to the driving licenses under the term patent abound while judges are interviewed. Obviously, almost total absence of intellectual property education at the law schools, followed by the lack of the continued legal education
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CARDS Regional Intellectual Property Rights contributed to the general lack of understanding of the intricacies of the intellectual property law, at best. It would be necessary to work with the local national and micro-regional Bar Associations in order to reach out to the counsel and provide them with intellectual property training. As the introduction of the continuing legal education might prove to be too radical departure from the traditional roles of the Bar Associations to be undertaken solely for the cause of intellectual property, it might prove to be more effective to work with the private legal conference organizers and offer them incentives to introduce intellectual property rights training programs to the conferences visited by the lawyers in general, and the attorneys at law in particular. Patent and Trademarks Agents Patent and trademark agents are, together with their national intellectual property rights offices among the more developed parts of the system. However, although on the individual level it is possible to find quality of services comparable to the highest global standards, total absence of the Agents Chambers in all of the countries in the region prevents the standards to be more even as it allows some agents with lower professional standards to compete on the even level with more scrupulous and higher-standard providers. Arguably, the existence of the Chambers would set the self-policing of the profession and would weed out the players who do not obey the internationally accepted standards. Various situations of the conflict of interest between the local intellectual property offices and the agencies have been recorded, as well as the cases of disloyal competition between the agents, and in particular between the agents incorporated in commercial companies and those working within the law firms, whose marketing activities are strictly regulated in all of the countries of the region. Private Investigators Private investigators exist as a regulated activity in most of the countries in the region. Having in mind the potentially beneficial role of an investigator in linking the rights holders, attorneys and enforcement agencies it is to be recommended that the existing investigators be offered cross-trainings with the other institutions in order to facilitate their specialization in the intellectual property field. Only one country has at the moment of preparing this Assessment report an investigator specializing in the intellectual property rights enforcement. Sworn Court Experts The absence of the listed court experts for more complex or modern fields, such as informatics, media, complex architectural issues and other, might
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CARDS Regional Intellectual Property Rights hamper the development of the efficient litigation and criminal prosecution. If there are some experts listed on the official lists, often their insufficient number leads to the situations where the few available experts might all be unacceptable to the parties in dispute for various reasons and will be opposed from one or the other litigant. Therefore, the scrutiny of the court expert lists is recommended and it is further suggested that the training courses for the deficient expert fields are organized. At the same time, the procedural rules allowing the courts to appoint the experts ad hoc should be examined and liberalized. Also, the judges should receive proper training and guidelines in which situations the expert opinion is not appropriate, when the judges, together with their jurors might determine the issues of similarity without the court experts. In the field of criminal prosecution, the investigation stage rules should be reexamined in order to properly evaluate the role of experts in the investigative stages of the proceedings. Namely, it does not seem generally opportune to require expert witnesses to analyse the infringing goods in the situations when even an average merchant can point to the counterfeited goods. The attitude that expert witness is necessary both at the investigative and trial phases of the proceedings unduly slows down establishing of the facts which should be established at a trial phase. Industry Associations Besides the policy work in improving the legislative situation in a given country and making the administration aware of the problems related to the intellectual property rights infringement, the industry associations might be instrumental in organizing the practice related cross trainings. Their accumulated experience makes them one of the most valuable partners to governments in fighting the intellectual property rights infringements and improving the intellectual property system. It is therefore, strongly recommended that CARDS Programme, during its implementation try to locate and identify the existing local and international industry associations and develops working relations with them. If the association is found to be not aware of the intellectual property issues within its field of activity, it is recommended that they are included in to the trainings as the trainees. Where such awareness exists the associations should be included as trainers. Where no associations are found to operate it is suggested that the modalities for their founding are examined and the founding off such associations is supported. Chambers of Commerce The role of the Chambers of Commerce and the modalities of their operation are under discussion in some of the countries in the region. There are many proponents insisting that the old models of obligatory membership are
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CARDS Regional Intellectual Property Rights abandoned, thereby forcing the Chambers of Commerce to reorganize into providing their members with better-tailored and more efficient services. As these discussions did not yet result with the final role of the Chambers of Commerce being defined, it is hard to recommend any specific action on their role in the CARDS Programme on intellectual property rights. Generally, it should be examined on the case-to-case basis whether any Chamber of Commerce has interest and/or capacity to get involved in the intellectual property education programs. It should be said that so far in the transition the Chambers of Commerce did not show great interest or capacity to meaningfully contribute to their members in the intellectual property arena. Competition Authorities Competition authorities in the countries in the region are not yet strong institutions in their own fields. They do not have a role in the intellectual property enforcement, although their role in broader intellectual property system remains tied to the registration, or exemptions of the contractual licenses containing certain intellectual property law elements. However, as their role is not tied to the intellectual property enforcement in the strict sense, and the establishment of unfair competition laws in the transitional countries is at least as difficult as that of the intellectual property laws, their role will not be specifically analysed here.
Integrated Intellectual Property Rights Related Data Systems

Absence of the accessible electronic databases from the everyday intellectual property management and enforcement work of the involved institutions significantly hampers, or even disables efficient intellectual property rights enforcement. For example, in the situation when a customs officer does not have instant access to protected rights and pertinent right holders and their representatives data, any effective enforcement action will be hampered. The same might hold true for the access to the customs data for the police officers gathering information for a raid. Following information systems, including but not limited to those listed, should be made available and possibly made compatible and integrated for the purposes of enforcement activities, with various degrees of accessibility for the various institutions: (i) (ii) (iii) Intellectual property rights registration databases of the national intellectual property offices; International registrations data (ROMARIN, ESPACE etc.); Commercial companies registration databases, usually with the judicial system or with the Chambers of commerce;
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(iv) (v) (vi) (vii) (viii) (ix)
CARDS Regional Intellectual Property Rights Customs databases, especially when in conformity with the World Customs Organization standards; Police databases, when applicable; Internet WHOIS data for gTLDs and ccTLDs; General Internet searches; Proprietary business databases available to the public for the compensation; Judicial and administrative decision on intellectual property rights databases.
In absence of integrated systems the local institutions should be made aware of the existing non-integrated data systems, obtain their subscription funds from their budget, (with or without assistance of the international community), and be trained in using them. In absence of the searchable web sites, traditional publication of judicial and administrative decisions is essential. Therefore, it is recommended that the CARDS Programme implementation allocates funds for the subscriptions and for training with the work on the databases, as well to examine possible data integration projects for the countries in the region.
Projects for Intellectual Property Rights Related Statistical Data Organization

Social invisibility of the intellectual property related benefits lamented above is very much connected with the difficulty in obtaining the statistical data on local industries based on intellectual property. It is almost impossible to obtain an estimate of the economic weight of the entertainment industries in any country of the region. Therefore, the revenue realized by the performing artists, or discography industries in the countries of the region, while it might even be important such as in Croatia, remains imperceptible to the politicians and to the public at large. Therefore, it is recommended hereby that the assistance within the CARDS program is provided to the national statistical institutions of the countries in the region, or to the similar appropriate institutions, which will develop the programs for measuring the relevant economic data on the intellectual property rights related industries within the national and regional economies. The knowledge on such measurements from the developed countries in the EU would ideally be transferred to the local statistical offices, enabling them to establish their own statistical methods for tracking intellectual property related industrial income.
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CARDS Regional Intellectual Property Rights Another proposal for improvement of the statistical data availability is related the general reorganization of the judicial procedures, including those statistical. The judges in Macedonia have made a very sensible proposal which would enable statistical tracking of the number of intellectual property related matters and their tracking in time during the various steps of judicial procedure. Namely, it was proposed that intellectual property rights related matters are assigned a specific code within their regular docket numbers. In such a way the IT systems of the courts dealing with it would be able to distinguish the intellectual property matters from other regular litigation matters and provide improved statistical tracking properties for the intellectual property related matters.
Transparency of the Data Related to the Intellectual Property Rights Infringements

It is essential to insist on the availability and accessibility of the enforcement related data collected by the enforcement agencies to the intellectual property rights holders whose rights are infringed. In transitional countries the enforcement agencies do not necessarily have high standards of democratic transparency to their citizens and they might tend to extend such attitudes to the constituency of the rights holders whose rights are infringed. The enforcement agencies should be trained to understand that such data does belong to the right holders even during the stages of investigation and that such data might prove essential for the right holders to work on breaking down the international counterfeiting chains. At the same time, the enforcement agencies and judicial systems should be made aware to require additional data from the rights holders, as they may hold pieces of information vital for the investigation of a local infringement.
Proposals on Intellectual Property System Reform

Should the aim of the CARDS Programme also include some points of reforming the intellectual property system and the scope of such changes would allow it, following are some of the points which appear to decrease the quality of the systems in most important ways. The proposals below are draw to address the outstanding problems. Abolition of Administrative Courts Jurisdiction in Intellectual Property Rights Appeals One of the most significant single problems detected for the purposes of this Assessment in the most of the countries in the region is inadequate appellate instance for the administrative intellectual property disputes and the appeals to the local Intellectual Property Offices. This issue is closely related to the
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CARDS Regional Intellectual Property Rights below outlined issue of the intramural appeals boards introduction proposal. However, for the purposes of clarity and for the maximum impact this problem is presented as separate from the below proposal. The legal system of former Yugoslav federation contained, as one of its distinct features, strong division between the administrative and regular judicial systems. The administrative bodies decisions were tried in the administrative procedure under a separate Administrative Procedure Act. The appeals to the decisions of the administrative bodies could not be appealed to the regular courts and instead a separate Administrative court was set up outside of the regular judicial system for the purposes of reviewing the appeals generated from the administrative decision system. Traditionally, this court did not take full jurisdiction and would not evaluate the merits of the cases they were deciding on. This court would typically review only the procedural aspects of the appealed cases and would remand the matter for retrial to the lower administrative agency. Needless to say, when the intellectual property offices were set up in the former Yugoslav federation successor states and they started working as administrative agencies the appeals to their eventual final decisions were to be filed to the Administrative courts of the respective countries. The Intellectual Property Offices in general, at present, decide in the first and second instance, which is final. However, the recourse to the Administrative Courts is generally possible making the Administrative court a de facto final instance. Unfortunately, the Administrative courts did not feel either interested, not qualified to look into the open issues of the appealed decisions of the intellectual property offices. Instead, they simply reverted to their usual practices of nullifying on the procedural grounds, regardless of the contents of the appeal and remanding to the intellectual property offices for retrial on the merits. Needless to say, the intellectual property offices did not like at all to be reversed from their original decisions and would normally always just reaffirm their original positions. This practice, over time, resulted with a significant number of plainly inconsistent, wrong, and/or harmful decisions being set and truly unhelpful practices developing within the administrative case law being built by the offices. In the opinion of this Assessor this practice must be changed as soon as possible for the benefit of the local intellectual property systems and for the benefit of rights holders. There are basically three ways out of this situation. First conceivable change would be to train the judges of the Administrative courts in intellectual property so that they feel enabled to take the full jurisdiction of the intellectual property matters that are appealed to their court. However, having in mind the complete absence of any knowledge of intellectual property law in their ranks it appears that this approach might not be successful for longer periods of time. Besides, even if trained properly it would be hard for such intellectual property administrative judges to change the practices of their court and plunge into full jurisdiction deciding in their
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CARDS Regional Intellectual Property Rights specialized field abandoning the general approach and the traditions of the Administrative courts. Therefore, and in accordance with the principles of concentration and specialization elaborated further bellow, this Assessor proposes that the jurisdiction for appeals on the administrative intellectual property matters are completely taken away from the Administrative courts and are given to the specialized intellectual property courts in all countries. However, this approach might require legal tinkering of Constitutional magnitude in some cases and might also take rather long to implement. However, this is probably the most appealing and best-suited solution of the problem of mushrooming inconsistencies and wrong decisions multiplying in the CARDS countries. However, in light of the possible oppositions to this approach by the traditionally minded lawyers who would have to devise the necessary changes of jurisdiction within the constitutional and judiciary systems, without fully understanding the need for this exercise, it is probably best to resort to a third approach which this Assessor considers temporary solution on the way of eliminating completely the intellectual property jurisdiction form Administrative courts and giving the jurisdiction to the specialized intellectual property courts within the regular judicial system. Such a solution could be best described as introduction of specialized, independent appeal boards for the appeals to the decisions of the intellectual property offices. While such boards would work within the infrastructure of the intellectual property offices they should remain independent by the means of separate funding and staffing policies. This would not mean that the examiners could not sit as members of the appellate boards, but their role should be defined in scrupulous preservation of conflict of interest rules and might be necessary to have an examiner sitting on a panel only with two members who are not examiners. There are models of successful intramural appeals boards in the recent EU experience and these should be made available to the local intellectual property communities for consideration and implementation. Intramural appeals At present, one of the important problems of the intellectual property protection systems in the region is absence of consistent case law in general and the corresponding absence of legal consistency as a consequence. This situation is especially evident on the level of granting of trademark rights in most of the countries in the region. The Intellectual Property Offices themselves did not hesitate to build up widely divergent and sometimes completely contradictory case law. Such an intolerable situation developed for several reasons. Partially, the absence of publication of first and second instance decisions, except for the publication of the decisions on granting of the rights, is to blame as a chief reason. However, sometimes the instances of mistakes made out of wrong interpretation of the law, sometimes the opportunism towards a particular mainly domestic applicant, or conceivably
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CARDS Regional Intellectual Property Rights even a corruption are causes for the divergent case law. This situation has to be addressed and remedied. Such wide ranges decisions are even exacerbated on the appellate administrative level to the first instance decisions by the examiners and legal departments of the national intellectual property offices. For the sake of more clarity, it should be repeated here that the Intellectual Property Office in general at present decide in the first and second instance, which is final. However, as stated above, the recourse to the Administrative Courts is generally possible making the Administrative court a de facto final instance. It requires an effort of unification for the sake of more predictability in the decisions on appeals with the Offices. However, the greatest benefit is to be expected from the emergence of consistent legal practices in respective countries. One of the most direct and at the same time most systematic approaches to remedying this situation would be introduction of public, transparent and published appellate decision making process within the intellectual property offices themselves. Of course, should any individual country decide so, specialized courts might take this burden of the offices when their structure is too light for introduction of the intramural appeal processes, or when it is deemed that more independence of the appellate instance is desirable for various reasons. Such a situation emerged in Macedonia when the legal regulations introduced an independent institution in the role of appellate board. At the same time the formation of this board is hampered that there is no budgetary provisions securing the payment for the members of the board, as all the proposed experts have turned the offer to be appointed down in absence of reimbursements for their work. Conceivably, this proposal to improve the appellate decision process would somewhat alleviate the gravity of the above described problem in connection with the jurisdiction of the Administrative courts. Presumably, the improved quality of the appellate decisions from the upgraded intramural appeals process would eliminate some of the appeal to the de facto final instance of the Administrative courts via the administrative claims. Decentralization Although the countries in the region are very different from each other in terms of their political and administrative histories and almost incomparable to each other in this respect, it should be noted that due to the lack of resources and the relative economic weakness of their non-metropolitan areas, have an undesirable concentration of the few available resources in the metropolitan areas. This asymmetry requires careful addressing in order to achieve the productive balance. As soon as the first steps of economic improvement spread to the periphery of a country the intellectual property infringements are likely to start appearing in the provincial parts of the country. This requires institution building in the provincial parts of the country as the intellectual
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CARDS Regional Intellectual Property Rights property infringements has to be tackled there to the same extent as in the capitals in order for the system to remain efficient. Having in mind that each country is truly different from each other it is up to every country in the region to make a decision as how they see the most efficient system to be built up territorially. In other words, in order to achieve any meaningful level of efficiency the resources must not remain limited to the capitals but have to be spread to other parts of a country. As it is not possible, at lest initially to cover the entire territory each country must consider the balance of centralization and decentralization it deems will bring about the best results in combating intellectual property violations. Smaller countries with a simpler ethnical population distribution might wish to centralize in the capital, while those that have more diversified territorial or population distribution might want to distribute and diversify the territorial jurisdictions of their institutions at the same time avoiding to multiply such centres too much in order not to wear too thin the resources they will be able to employ for the purposes of intellectual property rights enforcement. Specialization and Concentration It is essential for any functioning intellectual property system to become fully operational to have personnel with adequate knowledge at the appropriate positions. In transitional countries, where almost no educated lawyers ever received specific intellectual property training it is clear that the functioning of the system cannot be taken for granted without significant investment in educating its participants. Therefore, the judges, public prosecutors, attorneys at law, police inspectors, market inspectors all need to receive various amounts of training in order to understand the basics of the intellectual property laws and to apply them in the spirit compatible with the legislators intent. In other words, it not enough to presume that, because the institutions and the legislation exist, that the intellectual property system will be successfully functioning. Unfortunately, the participants in the system will have to receive significant education in order to enable the full functionality to take place. Further disadvantage seems to be that many individuals do not fully realize that it is not beneficial for them to continue receiving trainings in various legal fields, but that the their professional profiles should be specialized in order to be meaningful in the complex realities of the modern economies. Many older professionals seem to be reluctant to specialize in any field, least of all in the field of relative complexity and novelty such as intellectual property law is. This attitude further disables them from realizing how truly complex intellectual property protection can be in the cases of patent law, for example, and they remain convinced that they have learned enough after a few initial trainings in the intellectual property, thereby disabling themselves in gaining true insight in the intricacies of intellectual property law. Therefore, it should be strongly stated that only the specialized experts would be truly efficient within the functioning intellectual property system. This has to be achieved
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CARDS Regional Intellectual Property Rights through systematic education of the responsible individuals at the existing institutions and by adequate trainings at the university level for the future entrants in the system. As the educated resources in transitional economies and in smaller countries in general, might be rather scarce it is essential that the resources are properly grouped, or concentrated, in the right institutions that will allow for their full and optimal exploitation. As the inter-institutional linking and operability is a condition for the functioning of the successful intellectual property protection system it is important that all the institutions at a geographical location within a country are staffed with the properly specialized people and that a right balance is struck between the number of such locations within the country and the territorial distribution requirements of a given country. In other words, in a small country it might be better to have a single central location of this type having the jurisdiction over the entire country, while in the medium sized countries there might be necessary to have two or more locations having the proper concentration of specialized staff. In practice this is to propose that territorial jurisdiction for intellectual property matters is concentrated in the least number of instances so that such centres contain all jurisdictions, civil, criminal, misdemeanour and administrative. This will further enable cross-fertilization of knowledge in everyday contacts of the participants, as well as their simpler training at a reduced number of the locations. If this jurisdiction concentration is properly conducted a single urban centre will have the concentrated jurisdiction where the jurisdiction from the other cities, which also might have criminal and civil courts, will be transferred. It makes no sense to spread the jurisdiction in intellectual property matters too thinly, to all the locations that have criminal courts for instance, as this will disable any specialization of the judges.
Institutional reorganization
Governmental Coordinating Body
The broader analysis of the intellectual property rights situation in all of the countries in the region would show that although the political perception of its importance, primarily related to the legislative background for the intellectual property rights protection, and to some efforts over its enforcement, the perception of the actual social importance of having a strong intellectual property rights systems is not the privilege of any Government in the region. In other words, while the Governments in all five CARDS countries have understood that intellectual property rights protection is one of the unavoidable conditions of their further integration of the region in the European integration processes, virtually none of them have displayed true
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CARDS Regional Intellectual Property Rights understanding of the social importance of intellectual property rights for their societies. This means that, while lip service is being paid to the intellectual property rights importance the governments do not try to develop their own coherent standing on the issue, nor are they capable of developing proper strategies that can turn the domestic intellectual property rights resources into an asset for their countries. While it is abundantly clear that the former communist countries should rely on the resources of their educated work forces by creating the context for the human creativity and ingenuity as an important resource, this has not happened. In this Assessors view, this is so because the Governments have perceived only the value of the material assets that went into the transition processes, such as privatization, and have simply continued to omit the protection of the immaterial goods such as intellectual property rights from their political agenda. To remedy this situation, and absent the possibility to educate the Governments by systematic training in intellectual property rights protection, it is necessary to raise the visibility of the issue by other means. One of such is by creating the bodies which will report to the Governments in clear terms on the possible development of the strategies and the possible particular steps to be undertaken in order to optimize the intellectual property rights systems in a country which would lead to the more successful macro-management of the intellectual property resources in their respective countries. Such bodies would be comparable to the situation in some highly developed countries, such as Japan, which several years ago encountered a situation in which the newly elected Government has appointed a body composed of intellectual property experts and have required them to come up with an analysis and practice oriented steps to be recommended for improvement of the intellectual property system in the country. Such a body was formed within several weeks and did develop a list of recommendations for implementation within the thirty days from its appointment. It is this Assessors opinion that it is necessary, in order to achieve proper positioning of the intellectual property issues within the systems of modern governance in the transitional countries of the region, to devote more focused attention of the state administration to the topic. Ideally, this would be achieved by setting up of a permanent or temporary bodies, whose sole purpose would be to monitor the intellectual property system development, devise the intellectual property rights system development measures and recommend the steps to be undertaken in order to optimize the maximum exploitation of intellectual property resources within the regional transitional economies and the societies as a whole. In practice, this would mean appointing the local intellectual property experts from academia, public institutions and private practice to the body, who would in turn select their
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CARDS Regional Intellectual Property Rights priorities for reforming and/or upgrading of their local intellectual property protection systems. It is worth mentioning that the FYR Macedonian intellectual property community devised such a body, called Governmental Coordinating Commission on intellectual property. Representatives of various state institutions recognized private practitioners and professors take part in the workings of the Commission that serves as an initiating point for legislative changes, intellectual property system devising board, which then presents its decisions to the Government. Serbia has also devised a similar body, with somewhat narrower focus, called Commission for Antipiracy. One of the first aims of such a body would be to try to achieve that the Government organizes a full session of all Ministers devoted to intellectual property rights issues and the national intellectual property strategy building. Members of academia, research institutions, enforcement agencies, private practice and general intellectual property experts would ideally be invited to testify on the issues of the intellectual property system in the country and recommend strategically and tactical implementation points to the Governments and to the Prime ministers in the countries which would adopt this approach. This approach would hopefully elevate the intellectual property issues to the level of higher visibility that they presently hold, refocus the political aspect these issues hold from the solely integration issues to the broader national interest and advance the position the intellectual property rights hold within the spectre of national interests in the transitional countries. Arguably, only once this higher stage of interest in the intellectual property issues is achieved through the political attention, will the intellectual property become truly integrated in the social tissue of transitional countries of the region. Such an empowered Government would then be able to rely and utilize its resources to the full and would take the complete benefit of having the national Intellectual Property Office organized as an intellectual property hub, and serving for efficient practical implementation of the policies devised by the Governmental advisory body and adopted by the Governments.
Intellectual Property Offices

Most of the countries in the region decided during the Nineties to integrate the intellectual property rights administration in a way which centralized the jurisdiction over all fields of intellectual property rights, i.e. both industrial property and copyright and neighbouring rights administration and oversight into a single institution. This means that the former Patent and Trademark Offices took over the copyright and neighbouring rights competences from the other branches of government and merged it into the newly created intellectual property offices. Only two countries in the region, namely Albania
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CARDS Regional Intellectual Property Rights and FYR Macedonia decided for the time being to remain with the traditional division of competences between the industrial property rights and copyrights and neighbouring rights. In both cases the jurisdiction over copyrights and neighbouring rights belongs to the respective Ministries of Culture. This Assessor examined the general merits of each solution found in the field and concluded that a general preference should be in favour of merged intellectual property offices rather than divided jurisdiction shared between the ministries and the intellectual property offices. Namely, in the conditions of transitional economies in the countries with relatively small markets and populations it appears favourable to achieve certain concentration of expertise at the most competent institution in field, which is regularly intellectual property office in any given country. The culture of industrial property rights protection and enforcement is fully compatible with the copyrights and neighbouring rights protection and enforcement and, if properly integrated and managed should enhance each other in an institution entrusted with protection of both. A possible danger in such a merger might be a clash between the technophile culture of a patent office resulting with the disdain for the officials who do not have a privilege of working with formal protection and whose roles might have become seen as less important than of those working with formally examined and granted rights. However, if properly managed and achieved, over short time the cultures should blend to the benefit of the respective countries, which will obtain an intellectual property expert hub, which will seamlessly deal with WIPO, and be at governments disposal for the administration of the intellectual property rights. It should be stated that in the present situation in both FYR Macedonia and Albania the Ministries of culture who are competent for the copyright and neighbouring rights protection do not have proper contacts with the WIPO, and the one in Albania does not have particularly developed working relations with the local Industrial property office. Needless to say, such a situation does hamper the perception of the institutions as sufficiently enabled to exercise their proper jurisdiction. In addition, such a situation might lead, or possibly does lead in Albania, to the institutions being exposed to the influence of special interests, such as collecting societies creating the copyright and neighbouring rights collective collecting environment. Ever since the industries that rely on copyright and neighbouring rights protection, such as the software and entertainment industries, became some of the leading industry groups in most of the developed economies, and the overall intellectual property rights protection system is governed by TRIPS Agreement in addition to the traditional Paris and Berne Unions, there is no prevailing reason to keep the industrial property rights separated from the copyright and neighbouring rights administration and management. This should especially hold true in the transitional economies, some of which, due
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CARDS Regional Intellectual Property Rights to their recently achieved independence did not have institutional traditions and did not need difficult reorganizations of the existing personnel. If the above general recommendation might apply to Albania easier, it should be said that the results in FYR Macedonia are more visible and that the Department for the copyright and neighbouring rights of the Ministry of Culture actually did achieve satisfactory standards of copyright and neighbouring rights administration. The personnel of the Department were ambivalent about the possibility for institutional change such as merger with the industrial property office when asked whether it would be recommendable to change the present situation. Their position was that it would be preferable to elevate the current Department for copyright and neighbouring rights to the level of a Sector within the Ministry. At the same time, all of the independent experts consulted for the purposes of this Assessment were in favour of such a merger and the intellectual property office apparently already drew such a proposal at an occasion of an earlier administration restructuring and it did not change their position since. An additional point of consideration should be the possibility to further change the role of the national intellectual property offices into the local intellectual property hubs, as proposed above. Although this would require certain management challenges and the change of culture of such institutions, which imply changing of the hiring policies such as employing enforcement experts and similar, the potential benefits in terms of the concentration of resources are great and should be considered. Such intellectual property hubs would increase their countries systems efficiency and would ultimately lead to better result in the intellectual property enforcement and to the improvement of the intellectual property role in their economies.
Seized Goods Warehousing

A common problem has been detected in all of the countries in the region, concerning the safe deposit of sequestered goods following the intellectual property enforcement raids. Namely, even in the case of ex-officio prosecution, whereby the state prosecutes the infringer the problems exist with the safeguarding the seized goods pending the prosecution. Similarly, in the case of the injunctions in the scope of litigation, it is difficult to find the deposit that will satisfy the evidence safekeeping requirements. Keeping in mind the slowness of the judicial systems, such deposits could incur significant costs to the plaintiffs or injured parties in the lengthy proceedings of e.g. up to five years. Accordingly it is proposed that the countries which have introduced strong criminal protection of intellectual property rights with the official prosecution, to be provided for budget funds, securing the warehousing of the seized goods. Such warehouses would be free for the enforcement agencies to use and would be repaid to the state budget by the infringers upon the completion of
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CARDS Regional Intellectual Property Rights the proceedings, or by the state in the event of the acquittal. The civil plaintiffs would also be able to use those under the monetary arrangement with the budget and would also be reimbursed by the infringers upon their success or would have to pay for the costs in the event they do not reach a successful decision.
Institution Weaknesses and Political Interference

Recent example of the merger of the Croatian State Intellectual Property Office with the State Institute for the Standardization and Measurements, apparently with the budgetary savings in mind, and fortunately subsequently aborted, shows very clearly the weaknesses of the institutions relevant for the intellectual property rights administration in the countries of the region. As it appears, the overnight change of the Croatian legislation leading to this atypical solution was made without either any consultation with the institutions themselves, or with the appropriate experts in the field. As a consequence it lead to the quarterly halt of most of the activities and planned official travel by the personnel. Although the disastrous results might have been mitigated by the better management of the situation, it remains apparent that the institutions are weak, and are perceived as such by the politicians who do decide on their fate, thereby influencing the strength of the intellectual property rights system in their countries. Having in mind that many of the intellectual property offices hold the potential to be self-sustainable administrative bodies, they hold an additional attraction for the Governments to have a bigger number of contributors to the budget by among the administration agencies. This situation should be properly addressed, as the offices either attempt to diminish the full scope of their sustainability and income from the Government by keeping the profile as low as possible, or simply surrender their bargaining position stemming out of the income they realize and thereby abandoning the measure of independence they might have, as a conclusion leading to the further weakening of their positions. At the same time, the only country of the region that adopted the atypical solution of having unified intellectual property ad standardization and measurement institutions, which is Bosnia and Herzegovina, should have effectively abandoned this position with December 2003. This change, unfortunately, has been delayed due to the political reasons. Namely, in spite of the law ordering the split between the institutions, the practical implementation has been hampered on the entity level politics, with Republika Srpska opposing the change as its request to move the measurements office to the city of Banja Luka has been met with the opposition from the BiH Federation, which prefers its move to Lukavica, closer to Sarajevo but still in the Republika Srpska territory. The breakthrough in de-merging of the
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CARDS Regional Intellectual Property Rights intellectual property institute of Bosnia and Herzegovina appeared to have arrived at the time of writing of this Assessment report, but not with the entirely satisfactory result. Although apparently de-merged, its unresolved physical location at the time of writing of this report, and the political bargaining that has caused it, only confirm the difficulties the institutions are facing. These examples show very clearly the practical problems of reforms being implemented in Bosnia and Herzegovina, where the intellectual property is unfortunately not an exception and here remains a hostage of the broader political impasse resulting from the Dayton Agreement political structures, such as entities. The problems with this issue continued even after the visit to Bosnia and Herzegovina as the Assessor was informed that the decision was taken that the newly separated Office itself is to be moved to Mostar. Needless to say, after the human resources were slowly formed in Sarajevo over last decade such a move could bring further efforts to be repeated in order to achieve the initial phase of operability. At the time of writing of this Assessment report it was not clear whether this decision will be modified or not. The problems with employment and hiring of the necessary staff that is making problems in the operations of the Intellectual Property Office of Serbia and Montenegro could also be ascribed to the political difficulties and is somewhat symptomatic to the situation in the region.
Corruption
Although it might be a general problem of transitional countries, higher levels of corruption in intellectual property filed are hard to verify in a general Assessment such as this one. Although it might be different on a country-tocountry basis, it is almost certainly different within the institutions of each country, and it will be different at different point of time in each institution. When asked about the corruption, most of the interviewees acknowledged it as a problem, but did express reservation in discussing it. With the exception of Bosnia and Herzegovina, where the bodies of the international community exercise oversight over the judges appointment and functioning of various state institutions, not all countries in the region appear to have anti-corruption programs. Macedonia has recently introduced one, and many people complain that such agencies become hostage of the more corrupt parts of the societies that take advantage of these mechanisms to intimidate more honest segments through dragging them into procedure of checking. Croatia also has such a program but it did not yield outstanding results, at least these were not made visible to the general public. Therefore, this issue should be best dealt through separate programs, not inextricably linked to the intellectual property programs such as CARDS. It
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CARDS Regional Intellectual Property Rights does remain important, however, to acknowledge that the problem of corruption might exist within the realms of the institutions that deal with intellectual property rights. Sometimes, the appropriate institutions do conduct the necessary investigations, as in the case of the Croatian Intellectual Property Office. However, the reaction time might be rather long and it would preferably be shorter time in the conditions leading to the later phases of the transition period.
(iii)
PROTECTION OF UNDISCLOSED INFORMATION
The regulations covering the field of protection of undisclosed information remains a rarely used and even less studied field of the regional legal systems. It should be stated that most of the local experts could not direct this Assessor towards the applicable laws, regulations or any relevant practice in this area in any countries of the CARDS Programme. Therefore, for the purposes of this Assessment the applicable regulations were discovered and examined in haphazard manner at best, using the World Trade Organization Working Party Reports as a starting point, however noting that the field practice further differs from those Reports. The field of protection of business secrets or trade secrets does have potentially special role in the transition economies due to the relatively lower level of costs necessary for achieving and maintaining protection of this type, especially in light of the huge costs and the complexities associated with the patent protection. It is true at the same time, that the formalities of marking the trade secret or business secret appropriately and maintaining its confidential status through the non-disclosure agreements (NDAs) also requires a certain amount of discipline, not inherent to the typical transitional business attitude, but its affordability should actually help introduction of the protection of non- disclosed information, thereby successfully further transforming the transitional economies of the region. In the successor countries of the former Yugoslav federation this field is known under the legal term protection of business secret, and it does have a scant legal history stemming our of the former federation legal system. However, it appears that this field of law did not receive any development since the break-up of the former federation and it further appears that no practice is developing whatsoever in this field. Most of the individuals interviewed in this respect would even have problems understanding the overall concept of the protection of the undisclosed information and its underlying legal logic. In Albania, it appears from the interviews, in spite of its joining of the WTO and the TRIPS Agreement, no one, including the foremost local practitioners and responsible experts of the Ministry of Justice could point to the body of law regulating this issue.
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CARDS Regional Intellectual Property Rights Naturally, the countries that have relevant local pharmaceutical industries, such as Croatia will face certain difficulties in introducing the protection of exclusive clinical trial tests data, facing the resistance of the local industries that might be more or less interested in maintaining the free access to lucrative generic pharmaceuticals market, without having diminished choice of such products through the data exclusivity provisions. However, it should be considered that the time for adjustment of the legal systems through the lengthy transition periods in the countries in the regions has been sufficient for the industry restructuring and it is to be hoped that such industries did take this time to adequately restructure their manufacturing programmes. Therefore, in light of the situation described above, it is recommended that a special attention is paid to the field of the protection of undisclosed information under this CARDS Programme. This would comprise addressing the legal education at the university level in this respect and special trainings for the Judiciary and for the Bar in this respect. Specific seminars should be organized for the business community in this respect as well, either within the realms of other trainings or in cooperation with the local chambers of commerce and industry associations. In respect of the data exclusivity protection for clinical trials data, it should be stated that Croatia is about to introduce this type of protection at the time of preparation of this report, stemming out of its TRIPS obligations and enhanced by its recent ratification of the bilateral memorandum with the US on the protection of intellectual property. Rather intense public debate is conducted and the public is trying to grasp the mechanisms of such protection and its possible implication, while the local pharmaceutical industry appears to be hoping for a delay of the introduction of such protection. At the same time other countries in the region did not report any activity in this respect.
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CARDS Regional Intellectual Property Rights Country Specific Remarks After having considered his findings, this Assessor has decided that most of the recommendations to be drawn apply generally to the whole region, regardless of the significant differences between the countries of the region. Accordingly, the majority of the report is focused on the above general recommendations. However, for the sake of clarity and addition practicability of the recommendations here below some additional remarks will be stated, followed by a short summary of possible actions beneficial to specific countries. Each of the countries has its own specifics in respect of the intellectual property protection system development.
Albania
Albania achieved and has completed a phase that might be termed initial, in build-up of the intellectual property protections system. This is to say that the institutions have largely been put in place and legislation drafted none of those has been much used, and they have not been thoroughly tested at all. With the notable lack of the Police and apparent lack of Customs involvement in the intellectual property protection other institutions appear to have full awareness of their role in the system and they are aware of the limited experience they themselves have in the field. They also appear to be aware of the fact that the system is not integrated and that the institutions still have to link up and find the modalities of efficient mutual cooperation for the benefit of the rights holders. This Assessor holds that a lot of effort will be necessary to achieve the full functionality and integration of the system and that the strengthening of the local market and the local presence of the rights holders will reveal the shortcomings of the existing institutions and require great efforts for the system to become functional. Recommended Actions: Police, Customs and administrative agencies empowerment for intellectual property enforcement. Joining of the copyright oversight jurisdiction with the intellectual property office. Joint cross-trainings. Judiciary Training. Introduction of Industry Associations into intellectual property work. Jurisdiction redefinition in respect of the copyright jurisdiction being concentrated as other intellectual property rights already are. Introduction of the specialized departments across all of the institutions involved in intellectual property enforcement.
Bosnia and Herzegovina

Bosnia and Herzegovina is striving to overcome the burdensome state structures, which were established by the Dayton Agreement in all fields of
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CARDS Regional Intellectual Property Rights administration, not limited only to the intellectual property protection area. The consequence of having two political and administrative entities on a single state territory is bound to hamper the efficient intellectual property protection system and it does, together with slowing down the functioning of the state in all other areas. The need for achieving common standards and cooperation within the whole state territory is significantly hampered and the wealth of related problems keeps pushing the intellectual property agenda behind on the list of priorities by the political forces. Lack of specialized education reduces significantly the clarity and efficiency of the institutions entrusted with the enforcement of the intellectual property rights and the resources are spread very thinly over the vast number of the institutions created to satisfy the Dayton Agreement state administration on the community, entity and country levels. Even though CARDS contact persons in the field and the Assessor himself before and during the visit to Bosnia and Herzegovina made effort towards meeting custom personnel experienced in the cross border enforcement of intellectual property rights, the subject meeting was not held at the time. Form the assessors point of view there are two main reasons for that; other commitments of the staff who has some experience in similar matters and the fact that customs involvement in enforcement was still in its developing stage. Nevertheless, one of the officers of the Customs office provided, at least over the phone, very useful information regarding customs previous role in similar matters. The legal basis for cross border enforcement of intellectual property rights lies with Article 147 of the Industrial Property Law of Bosnia and Herzegovina. At the proposal of the owner of rights (ex officio procedure is unfortunately still not available), the custom authorities may order for the infringing goods to be seized, excluded from trade or destroyed, provided that the rights owner lodges a deposit for possible damages and initiates appropriate procedure to justify the measures taken. More detailed provisions of these proceedings were to be defined in the special accompanying legislation. However, although the obligation of enacting the mentioned regulation exists over 2 years, they have still not been enacted. Obviously the lack of awareness of intellectual property rights in governmental structure hampered further detailed regulation of these issues. The situation is rather alike to the one in Croatia preceding the present breakthrough, where it took almost four years and significant pressure from practitioners, experts and business circles for the regulation to be finally enacted. Even on the basis of such a weak legal infrastructure, the customs office of Bosnia and Herzegovina played its role in several cases mostly referring to trademark infringements. The case that definitely lured the attention of professional circles and the media was production of British American Tobacco counterfeits in Herzegovina, where the customs participated in preventing their export to the neighbouring countries. However, such cases were and still are very rare in everyday practice. The main reason, legislation
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CARDS Regional Intellectual Property Rights shortcomings, is supported by the lack of financial and technical logistic. On the other hand the staff, at least officers we managed to get in contact with, showed considerable enthusiasm for better understanding of the subject matter, possible interdisciplinary trainings, cooperation on national and regional level. The Assessor feels that with a proper legal framework and adequate support from the international community, the cross border enforcement improvement would surely be visible in the near future. Some Recommended Actions: Major legal system realignment and jurisdiction overhaul underway and not clear whether the changes will be beneficial in respect of the jurisdiction transfer for intellectual property from the Cantonal to the Communal Courts. Situation in a flux, hard to predict the outcome. Intense trainings necessary on all levels. Police, Customs and administrative agencies empowerment for intellectual property enforcement. Activating the copyright oversight jurisdiction with the intellectual property office. Joint cross-trainings. Judiciary Training. Introduction of Industry Associations into intellectual property work. Introduction of the specialized departments across all of the institutions involved in intellectual property enforcement
Croatia
Croatia appears to be ahead in terms of experience in combating the intellectual property infringements on the practical level in respect to the region. It has passed the initial phase of institution building, it has achieved the TRIPS compliance and very recently, it harmonized its intellectual property laws with the acquis communautaire. Its significant problems lay in the field of judiciary and public prosecution of its comprehensive criminal intellectual property protection. Due to the early presence of the rights holders on the local markets the institutions have been tested and have gained significant experience. The institutions have begun to realize that they have to improve their efforts in linking up and achieving efficient interoperability. The phase of the specialization within the institutions, by means of setting up separate intellectual property departments has begun. Croatia did manage to give some elements of institutionalization of the intellectual property jurisdiction within its competent institutions, i.e. the IP departments have been founded at the Ministry of Interior, at some courts etc. However, other institutions such as public prosecutors, communal courts and others are slow in institutionalizing specialization of their intellectual property functions, thereby endangering real progress towards the full systematization of the intellectual property protection. Some Recommended Actions: Specialized training, increased rights-owners involvement in enforcement and trainings. Legal education reorganization. Introduction of the specialized departments across all of the institutions
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CARDS Regional Intellectual Property Rights involved in intellectual property enforcement. Introduction of the specialized departments across all of the institutions involved in intellectual property enforcement, especially State Attorney office, Communal State Attorneys Offices in Split, Rijeka, Osijek and Zagreb.
Former Yugoslav Republic of Macedonia

Macedonia, although it is sharing inter-ethnic difficulties with some other countries in the region was spared of the institution disintegration, which are brought by the combat operations, as it has happened in Bosna and Herzegovina and to some degree in Croatia. International assistance programs did help to bring about some remarkable changes, such as introduction of systematic intellectual property education at the law faculty in Skopje. General efforts in organizing the intellectual property protection system as an efficient and integrated systems is well reflected in the organization of an intellectual property protection coordination body aiming at assisting the Government with setting up the right priorities in the building up of the system and providing a practical oversight of the legislative and regulative efforts with the aim of crating consistency within the system. It should be said that the fact that such a commission has been founded at all shows an element of maturity in the approach to building up of the IP enforcement system. At the other hand, Macedonia still maintains the traditional jurisdiction of the Ministry of Culture in the copyright matters, which conceivably slows down the efficiency in copyright enforcement. This is coupled with the withdrawing of the jurisdiction of the market inspectorate for the trademark and copyright infringement, which actually did slow down the efficiency of the system in those fields. It would be probably recommendable that the jurisdiction is shifted to the local Industrial property office for the purposes of the administrative oversight of the collecting societies and to the market inspectorate for the administrative policing of the intellectual property infringements at the market. Some Recommended Actions: Following up the constituting of the intellectual property office appeals board, joining of the copyright oversight jurisdiction with the intellectual property office. Joint cross-trainings. Customs and administrative agencies empowerment for intellectual property enforcement. Return of the intellectual property jurisdiction to the Market Inspection. Joining the copyright oversight jurisdiction with the intellectual property office. Broad Judiciary Training. Introduction of Industry Associations into intellectual property work. Introduction of the specialized departments across all of the institutions involved in intellectual property enforcement, especially Police, Customs and Market Inspection.
Serbia and Montenegro
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CARDS Regional Intellectual Property Rights Due to the political process, which seems to be ongoing, Serbia and Montenegro have rather atypical political structure comparable to the situation in Bosnia and Herzegovina, only with more pronounced independence of its constituent parts. This is to say that with respect to the all similarities of the entities union in Bosnia and Herzegovina, the independence of Serbia and Montenegro respectively, is much greater and the cooperation less required by the constitutional Charter regulating the loose union. Having in mind that the intellectual property protection is one of the few areas regulated on the Union level, while its enforcement will be fully in charge of the constituent states level, the difficulties in achieving efficiency is notable in respect of the entire country. Having said this, it is understandable that the assessment of the situation should be actually conducted independently for each state. This assessment has addressed only Serbia as the enforcement institutions appertain to the state and not the Union. Having inherited former federal institutions, together with its own state institutions Serbia is, presumably, in better position to enable those institutions to function efficiently within the realms of the intellectual property enforcement requirements. Montenegro will have to invest greater efforts to achieve comparable efficiency and understanding of the intellectual property laws. Some Recommended Actions: Speeding up legislative developments hampered by the complex constitutional situation between the two constituent countries. Police, Customs and administrative agencies empowerment for intellectual property enforcement. Joint cross-trainings. Judiciary Training. Introduction of Industry Associations into intellectual property work. Introduction of the specialized departments across all of the institutions involved in intellectual property enforcement, especially Police, Customs and Market Inspection.
Annex to Assessment 3
VISITS AND CONTACTS MADE: This section of the Assessment 3 contains the overview of the institutions visited for the purposes of gathering information on the three topics to be covered. The prevailing number of institutions visited in each country is functioning within the enforcement field of the Assessment. Usually only the Unfair Competition institutions in each country are connected with the Assessment in the field of registration of the agreements containing elements
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CARDS Regional Intellectual Property Rights of intellectual property that have to be registered, and private practitioners and Ministries of Justice are visited with the purpose of establishing the situation in the field of protection of undisclosed information. It has to be emphasized that generally, towards the end of the Assessment period the visits to the Ministries of Justice have been omitted in order to spare some time in the already (too) tight schedules, as it appeared the Ministries of Justice do not generally have personnel that would be competent with the topics of the Assessment 3. It should be emphasized that the visits to each country were only to their capitals. This is to be seen as a disadvantage, in light of the pronounced differences in development between the capitals in the rest of the territories of respective countries in the transitional economies. Very often a precise assessment will be possible only after assessing the situation in all of the regional centres that might be entrusted with the intellectual property enforcement jurisdiction. Some countries have strongly pronounced regional differences, which might be reflecting onto their enforcement realities. Above all, two of the countries in the region are practically composed of highly independent or autonomous entities. Namely, Serbia and Montenegro are from the point of view of their constitutional charter, two separate sovereign countries, sharing only very few elements of legal system, one of which is intellectual property. However, the enforcement mechanisms are totally separated and for the purposes of this Assessment an additional trip to Podgorica, the capital of Montenegro should have been undertaken in order to properly assess the local enforcement situation. Similarly, somewhat less pronounced from the constitutional point of view, but exacerbated by their warring history two entities of Bosnia and Herzegovina, namely Republic Srpska and Federation of Bosnia and Herzegovina are highly autonomous and it is hard to asses the enforcement situation in the country as a whole without visiting Banja Luka, the capital city of the Republic Srpska entity and Mostar, one of the seats of Federation institutions. In this case, however, I had an opportunity to meet the Federal Minister of Economy who travelled to Sarajevo from Mostar to brief this Assessor, together with his chief Trade Inspector, so that a more complete picture might have been drawn of the enforcement situation at least in the Federation. Following is the factual overview of the meetings, followed by a list of the contacts gathered at the meetings and in the course of their preparations. This Assessor wishes to point our that, in order to be able to cover all of the institutions involved in the full functioning of the fields covered by the Assessment 3, it is necessary for the CARDS Program to establish a working database of such relevant contacts, which will serve as a base for building the interlinked relations necessary for the functioning of the integral intellectual property protection systems in the region. All of the contacts, together with their colleagues in the institutions they represent, will ideally get a chance to share common training and develop opportunities to work together with other institutions on the enforcement cases.
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CARDS Regional Intellectual Property Rights It is important to restate here that the fact that the duration of the Assessment 3 was shortened from twelve to six months effectively disabled not only the proper analysis of the legislative situation, because the sheer number of the laws applicable on the issues under Assessment 3, and the fact that many of those enforcement framework laws are not translated into English language, unlike the intellectual property laws remained simply inaccessible within the available time given. At the same time the limit of two working days given to this Assessor to visit all the relevant institutions in each country concerned with the fields under the Assessment 3 was simply insufficient. It is very difficult to schedule visits to all relevant institutions concerned with the intellectual property activities in fields under the Assessment 3 in each country in forty-eight hours and get the proper understanding of their functioning. Therefore, unavoidably some of the institutions that were slower to respond and/or were more difficult to locate and contact were simply omitted from the meeting schedule, hoping that they will be involved in the later stages of the CARDS program implementation. Following the meetings list for each country, brief notes are attached on the institutions omitted for the above cited or other reasons. The list of institutions visited and individual experts contacted in the countries of the region in scope of the Assessment 3 follows:
Meetings in Tirana, Albania

Thursday, January 29, 2004
9:30-11:30 General Directorate of Patents and Trademarks (Albanian Patent Office), Mr. Spartak Bozo, director
11:30-12:30 Judges Of Tirana District Court, Mr. Gjoni and Mr. Petku 13:30-15:00 General Directorate of Patents and Trademarks (Albanian Patent Office), Staff 15:30-16:30 Tirana District court, Judge Marjana Dedi 17:00-18:30 Prof. Dr. Xhezair Zaganjori, Judge of the Constitutional Court and Mr. Artan Hajdari, Attorney At Law, private practice
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Friday, January 30, 2004

10:00-11:30 Prof. Dr. Krenar Loloci 12:00-13:30 Ministry Of Economy, Competition Department; Head of the Department 14:00-15:30 Ms. Vjollca Shomo, Patent Agent in private practice 15:30-16:30 Ministry of Public Order, Police, Mr. Bajram Ibraj, Leader 16:30-17:30 Ministry of Judiciary, Mr. R. Dvorani Various institutions relevant for Assessment 3 fields intellectual property implementation were not contacted, among them: Customs, tax inspection, public prosecutors (state attorneys), and judicial training centre. Some of these institutions were not responding to our requests and some contacts were not obtained timely for scheduling the meetings.
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Contacts in Tirana, Albania

IP Office Mr. Spartak Bozo ALBANIAN PATENT OFFICE Council Of Ministers Zhan Dark Street 2, Tirana Tel/Fax: +3554234412 Bozods@albmail.Com Mr. Armand Zajmi Azajmi@albaniaonline.Net Ms. Sonila P. Elezi Tel: +355 4 364 387 Fax: +355 4 234 412 Albpat@adanet.Com.Al Ms. Diana Sinojmeri Cell: +355 (0) 68 22 25 808 Ms. Albana Laknori Patents Examiner Cell: +355 (0) 69 21 40 340 Alaknori@hotmail.Com Judges Mr. Gjin Gjoni Tirana District Court Blvd. Gjergj Fishta, Tirana Tel: +355 4 225 468 Ggjoni003@hotmail.Com Ms. Marjana Shegani (Dedi) Tirana District Court Boul. Zhan DArk, Tirana Tel/Office: +355 4 223 122 Ishegani@albmail.Com Mr. Martin Deda Tirana District Court Prof. Dr. Xhezair Zaganjori Judge Of The Constitutional Court Blvd. Dshmoret E Kombit Nr. 26 Tel: +355 4 230 932 Fax: +355 4 250 052
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CARDS Regional Intellectual Property Rights Xhezair.Z@Gjk.Gov.Al Professors Prof. Dr. Krenar Loloci Honorary Consul Of Canada Rr. Bulevardi Zhan dArk Kulla Jeshile Teknoprojekt Nr. 2; Ap./1 Tel: +355 4 257 274/5 Fax: +355 4 257 273 Kl@Lolocilaw.Com IP Practitioners Ms. Shomo Vjollca EUROMARKPAT ALBANIA Rr. Myslym Shyri P. 60 Shk1, Ap. 9 Tel/Fax: +355 4 229 316 Eshomo@Albaniaonline.Net Mr. Artan Hajdari LAW FIRM HAXIA & HAJDARI Deshmoret E 4 Shkurtit Street Building Sky Tower, Suite 143 Mail Address: P.O. Box 123 Tirana Albania Tel: +355 4 248 571 Fax: +355 4 248 570 Artan@Lawfirm-H.Com.Al Www.Lawfirm-H.Com.Al Ministry of Public Order Mr. Bajram Ibraj Leader General Director Of State Police Sheshi Skenderbej Nr. 3 Tirana, Albania Tel: +355 4 364 953
Fax: +355 4 256 852 Bibraj@Mpo.Gov.Al Mr. Yuli Hyka Yhyka@Msn.Com Competition Authorities Ms. Eldira Baraj DEPARTMENT FOR COMPETITION
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CARDS Regional Intellectual Property Rights Ministry Of Economy Bou. Zhan DArk 3, Tirana Tel: +355 4 364 668 Fax: +355 4 226 785 Ebaraj@Minek.Gov.Al Eldirabaraj@Yahoo.Co.Uk
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Meetings in Sarajevo, Bosnia and Herzegovina

Thursday, February 12, 2004
9:30-11:30 Institute For Standards, Metrology And Intellectual Property Of The Republic Of Bosnia And Herzegovina
12:00-13:30 Prof. Dr. Slavica Krneta And Mr. Iza Razija MeEvi, Sarajevo Faculty Of Law, IP Chair 14:00-16:00 Cantonal Court In Sarajevo - Judges Of Cantonal And Municipal Courts 17:00-18:30 Patent Agents Proti-TkalI Law Office Dragan MiUnovi, Attorney At Law
Friday, February 13, 2004

9:30-10:30 Ministry Of Foreign Trade And Economic Relations, Competition Authority
11:00-12:30 State Inspectorate of the Federation Of Bosnia and Herzegovina 13:00-14:30 Ministry Of Interior of the Federation Of Bosnia and Herzegovina 14:45-15:30 State Public Prosecutors Office of Bosnia and Herzegovina 15:45-17:15 Law Office ReIdovi, Attorneys at Law Various institutions relevant for Assessment 3 fields intellectual property implementation were not contacted, among them: Customs, tax authorities, judicial training centre. Due to the complex overlapping of the authorities on the state, entity and communal levels it was not possible to locate and or contact and visit all of the relevant players in the Assessment 3 fields in the given amount of time.
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Contacts in Sarajevo, Bosnia and Herzegovina

IP Office Institute For Standards, Metrology And Intellectual Property Of The Republic Of Bosnia And Herzegovina Mr. Alija Krdzalic Mob: +387 (0) 61 209 831 Mr. Nedim Kobasevic (Design) Ms. Lidija Vignjevic (Trademarks) Ms. Melika Filipan (International Trademarks) H. Cemerlica 2/7 (Zgrada Energoinvesta) 71000 Sarajevo Tel: +387 33 521 848 Fax: +387 33 652 757 Www.Basmp.Gov.Ba Judges Commercial Law Section of the Municipal Court in Sarajevo: Muhibic Amra Bikic Maida Tojcic Stojan Stanisi Radivoje Zaimovic Hakija Seniona 1, 71000 Sarajevo Tel: +387 33 445 932, 445 942 Cantonal Court in Sarajevo Covrk Dinka Milosavljevi Nevenka Dzafic Zlata Asceric Milica Njego Spomenka Mrkajic Mirjana Seniona 1, 71000 Sarajevo Tel: +387 33 445 932, 445 942
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CARDS Regional Intellectual Property Rights Professors Sarajevo Faculty Of Law Prof. Dr. Slavica Krneta Obala Kulina Bana 7 71000 Sarajevo Tel: +387 33 206 355 Assistant professor: Iza Razija Mesevic ir.mesevic@pfsa.unsa.ba IP Practitioners LAW OFFICE PROTI-TKALI Kosevo 36, I Kat 71000 Sarajevo Tel: +387 33 206 904 Fax: +387 33 444 140 Dprotic@Utic.Net.Ba Dragan Micunovic, Attorney At Law Trg Branilaca Sarajeva 10 71000 Sarajevo Tel/Fax: +387 33 201 5310 Law Office Residovic Ms. Mirna Milanovic Mirna_Milan@Yahoo.Com Mr. Dzemil Sabrihafezovic Ulica Koste Hermana 11 71000 Sarajevo Tel: +387 33 202 196 Fax: +387 33 213 990 Edinasab@Bih.Net.Ba Ministry of Interior Mr. Marko Pejic - Chief Inspector (Mostar) Mr. Camil Kreso Mehmeda Spahe 7 71000 Sarajevo Tel: +387 33 207 617 Competition Issues Ministry Of Foreign Trade And Economic Relations
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CARDS Regional Intellectual Property Rights Ms. Sena Hatibovic - Deputy Minister Musala 9 71000 Sarajevo Tel/Fax: +387 33 206 142 Senah@Bih.Net.Ba Senah@Hotmail.Com Prosecutors Office Ms. Meddzida KRESO - Deputy State Attorney Kraljice Jelene 88 71000 Sarajevo Tel: +387 33 612 158 Fax: +387 33 612 214 Tuziocbh@Bih.Net.Ba State Inspectorate Federal Ministry Of Economy Dr. Ante Starcevica Bb 88 000 Mostar Mr. Maid Ljubovic - Minister Tel: +387 36 312 191 Fax: +387 36 318 684 Fm-Trgo@Bih.Net.Ba Mr. Josip Basic Mob: +387 (0) 61 793 430 Domain Names UTIC - Univerzitetski Teleinformacioni Centar Univerzitet u Sarajevu Skenderija 70/I 71000 Sarajevo Tel: +387 33 667 830, 667 835 Fax: +387 33 213 773 Www.Utic.Net.Ba Ms. Aida Radielovic Mob: +387 (0) 61 275 054 Aida@Utic.Net.Ba
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Meetings in Zagreb, Croatia

March 5, 2004 Croatia March 10, 2004 March 11, 2004 March 11, 2004 March 12, 2004 March 18, 2004 March 19, 2004 March 31, 2004 State Intellectual Property Office Of The Republic Of
Ministry of Justice, Judicial Academy Customs Office Of The Republic Of Croatia State Attorney Of The Republic Of Croatia Judges Of The Commercial Court In Zagreb And High Commercial Court Of The Republic Of Croatia State Inspectorate Of The Republic Of Croatia Ministry Of Interior, Economic Crime Department Croatian Competition Agency
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Contacts in Zagreb, Croatia

IP Office State Intellectual Property Office Of The Republic Of Croatia Ulica Grada Vukovara 78 10000 Zagreb Tel: +385 1 6106 476 Fax: +385 1 6112 017 Www.Dziv.Hr Mr. Hrvoje Junasevic - Director General Ms. Antoneta Cvetic Antoneta.Cvetic@Dziv.Hr Ms. Jasna Kljajic Judges HIGH COMMERCIAL COURT OF THE REPUBLIC OF CROATIA Mr. Borislav Blaevic - President Mr. Josip Kos Berislaviceva 11 10000 Zagreb Tel: +385 1 4896 888 Fax: +385 1 4872 329 Josip.Kos2@Zg.Htnet.Hr COMMERCIAL COURT IN ZAGREB Ms. Dunja Kontic-Tripalo Ms. Drazenka Deladio Mr. Kresimir Puskaric Mr. Radovan Dobronic Petrinjska 8 10000 Zagreb Tel: +385 1 4897 222 Fax: +385 1 4920 871 Professors Prof. Dr. Igor Gliha Zagreb Faculty Of Law Trg Marsala Tita 3
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CARDS Regional Intellectual Property Rights 10000 Zagreb Tel: +385 1 4802 444 Fax: +385 1 4802 421 Igor.Gliha@Pfzgb.Tel.Hr Prof. Dr. Zoran Parac Zagreb Faculty Of Law Trg Marsala Tita 14 10000 Zagreb Tel: +385 1 4564 340 Fax: +385 1 4802 011 Zoran.Parac@Zg.Htnet.Hr IP Practitioners VUKMIR & ASSOCIATES Pantovcak 35 10000 Zagreb Tel: +385 1 3706 511 Fax: +385 1 3706 555 Vukmir@Vukmir.Net Ministry of Interior Mr. Ivica Cetina - Head Of The Economic Crime Department Mr. Ognjen Haramina - Computer Crime And IP Crime Department Ms. Mirjana Vukovic Ilica 335 10000 Zagreb Tel: +385 1 3788 628 Fax: + 385 1 3788 841 Competition Authorities Ms. Vesna Patrlj, Ms. Mirna Pavletic-Zupic Mr. Mario Markovic Croatian Competition Agency Savska Cesta 41 10000 Zagreb Tel: +385 1 617 6448 Fax: +385 1 617 6450 Agencija.Ztn@Crocompet.Hr Customs Ms. Tonka Jokic Ms. Iva Soic
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CARDS Regional Intellectual Property Rights Ministry Of Finance Customs Office Aleksandra Von Humboldta 4a 10000 Zagreb Tel: +385 1 6102 414/6102 333 Iva.Soic@Carina.Hr Carina@Carina.Hr State Attorney Mr. Dragan Novosel - Deputy State Attorney Mr. Jadranko Jug - Deputy State Attorney State Attorney Of The Republic Of Croatia Gajeva 30a 10000 Zagreb Tel: +385 1 4920 091/4920 093 Fax: + 385 1 4591 913 State Inspectorate Ms. Zdravka Tomicic State Inspectorate of the Republic Of Croatia Ulica Grada Vukovara 78 10000 Zagreb Tel: +385 1 6106 158 Fax: +385 1 6112 017 Zdravka.Tomicic@Dirh.Hr
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Meetings in Skopje, Macedonia

Thursday, February 19, 2004
09:00-11:00 Industrial Property Protection Office Of The Republic Of Macedonia, Officers Of The Ministry Of Culture In Charge Of Copyright 11:30-13:30 Appellate Court In Skopje, Judges Of The Appellate Court In Skopje Judges Of The Municipal Court In Skopje Judge Of The Misdemeanour Court 14:00-15:30 Prof. Dr. Mirjana Polenak-Akimovska, Prof. Dr. Jadranka Dabovic-Anastasovska Faculty Of Law Iustinianus Primus, Skopje 16:00-17:30 Polenak Law Office
Friday, February 20, 2004

08:00-9:00 Customs Office Of The Republic Of Macedonia
09:30-11:00 Ministry Of Interior Of The Republic Of Macedonia 12:30-14:30 Trade Inspectorate And Anti-competition Authority, Ministry Of Economy 15:30-17:00 Pepeljugoski Law Office
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Contacts in Skopje, Macedonia

IP Office Industrial Property Protection Office (With The Ministry Of Economy) Mr. Ramadan Ahmedi - Director Ms. Elizabeta Simonovska - Head Of Trademark Section Ms. Marija Kostovska - Deputy Head Of Department Ilindenska Bb, 1000 Skopje Tel: +389 2 3116 379 Fax: +389 2 31 16 041 Betis@Ippo.Gov.Mk Www.Ippo.Gov.Mk Ministry of Culture Mr. Aco Stefanoski Head Of The Department For Administrative Affairs Bul. Ilinden Bb, 1000 Skopje Tel: +389 2 3128 068, 3118 022 Fax: +389 2 3124 233, 3127 112 Ms. Sabina Sinan Head Of The Department For Administrative Supervision Matters, Inspector Bul. Ilinden Bb, 1000 Skopje Tel: +389 2 3118 022 Fax: +389 2 3124 233, 3127 112 Inspekcija@Kultura.Gov.Mk Judges Ms. Filimena Manevska President Of The Appellate Court Of Skopje Court Palace Bul. Krste Misirkov Bb, 1000 Skopje Tel: +389 2 3136 136 Fax: +389 2 3137 072 Ms. Mirjana Ivanova Bojadzievska Judge Of The Basic Court Of Skopje I St. V. Karangelevski Nr. 23/19, 1000 Skopje Tel: +389 2 3292 668 Professors Prof. Dr. Mirjana Polenak-Akimovska
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CARDS Regional Intellectual Property Rights Faculty Of Law Iustinianus Primus Blvd. Krste Misirkov Bb, 1000 Skopje Tel: +389 2 3117 244 Ext. 110 Fax: +389 2 3227 549 Jadranka Dabovic-Anastasovska, Vice Dean Junior Professor (Contract Law, Torts Law, Intellectual Property Law) Faculty Of Law Iustinianus Primus Blvd. Krste Misirkov Bb, 1000 Skopje Tel: +389 2 3117 244 Mob: +389 70 385 726 Jadranka_Dab@Yahoo.Com IP Practitioners PEPELJUGOSKI LAW OFFICE Mr. Valentin Pepeljugoski 23-3/3 Naroden Front St, 1000 Skopje Tel: +389 2 3211 005 Fax: +389 2 3211 004 Vpepelju@Unet.Com.Mk Www.Pepeljugoski.Com.Mk LAW OFFICE POLENAK Mr. Kristijan Polenak Ms. Tatjana Popovski Buloski Blvd. Koco Racin 30/2, 1000 Skopje Tel: + 389 2 3114 737 Fax: +389 2 3120 420 Kristijan@Polenak.Com.Mk Tpopovski@Polenak.Com.Mk Ministry of Interior Mr. Kiril Temelkov - Chief Inspector Dimirce Mircev Bb 1000 Skopje Fax: +389 2 314 3182 Mob: +389 70 330 247 Kiril_Temelkov@Moi.Gov.Mk Competition Issues Ministry Of Economy Monopoly Authority
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CARDS Regional Intellectual Property Rights Mr. GJORGI BAJLOZOV - Head Of The Unit Jurij Gagarin 15, 1000 Skopje Tel: +389 2 3093 518 Fax: +389 2 3093 519 Customs Mr. Daniel Monev Head Of Department (Tariff, Laboratory, Valuation And Origin) Ministry Of Finance Customs Administration Lazar Licenovski 13, 1000 Skopje Tel: +389 2 329 3924, 311 6188 Fax: +389 2 323 8471 Daniel.Monev@Customs.Gov.Mk Dan.Mon@On.Net.Mk Mr. Zlatko Veterovski Adviser Of The Director General Tel: + 389 2 3116 188, 3293 924 Fax: +389 2 3237 832 Zlatko.Veterovski@Customs.Gov.Mk
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Meetings in Belgrade, Serbia and Montenegro

Monday, February 23, 2004
08:00-10:30 State Intellectual Property Office Of Serbia And Montenegro 11:00-12:45 State Inspectorate of the Republic of Serbia 13:30-15:00 Ministry of Interior of the Republic of Serbia 15:30-17:00 Law Office Parivodic, Milojkovic & Trgovcevic,
Tuesday, February 24, 2004

09:00-10:30 Federal Customs Office of Serbia and Montenegro 11:00-11:45 Prof. Dr. Vesna Besarovic, Belgrade Faculty Of Law 12:00-13:45 Judges Of The II Municipal Court In Belgrade President Of The Commercial Court In Novi Sad Deputy District Prosecutor of the Republic of Serbia 14:00-15:15 Officers Of The Ministry Of Economy And Lawyers Who Participated In Drafting The New Law On Competition 15:30-17:00 Law Office Petosevic
213
Contacts in Belgrade, Serbia and Montenegro

IP Office Intellectual Property Office Of Serbia & Montenegro Zmaj Jovina 21, 11000 Belgrade Www.Yupat.Sv.Gov.Yu Prof. Dr. Slobodan Markovic - Director General Tel: +381 11 311 11 62 Fax: +381 11 311 23 77 Smarkovic@Yupat.Sv.Gov.Yu Ms. Ljiljana Rudic-Dimic Head Of The Copyright And Related Rights Department Mob: +381 63 310 792 Ljrudic@Verat.Net Ms. Branka Totic Assistant Director Tel: +381 11 635 062 Fax: +381 11 311 23 77 Judges Mr. Aleksandar Tresnjev Second Municipal Court In Belgrade Hadzi Milentijeva 5, 11000 Belgrade Tel: +381 11 3601 199 Fax: +381 11 3601 550 Tresnjeva@Yahoo.Com Mr. ivko Kiselicki Novi Sad Commercial Court Sutjeska 3, 21000 Novi Sad Tel: +381 21 51 466 Fax: +381 21 52 733 Danica@Uns.Ns.Ac.Yu Professors Prof. Dr. Vesna Besarovic Faculty Of Law Bulevar Revolucije, 11000 Belgrade Tel: +381 11 3241 501
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CARDS Regional Intellectual Property Rights Fax: +381 11 3221 299 Home: +381 11 430 243 SAP Deputy Team Leader SCEPP (Policy And Legal Advice Centre) Tel/Fax: +381 11 3281 507, 3281 669 Mob: +381 63 231 301 Vesna.Besarovic@Plac-Yu.Org Www.Plac-Yu.Org IP Practitioners DS PETOSEVIC Mr. Dragoljub Cosovic Mr. Predrag Mitrovic Kablarska 26, 11000 Belgrade Tel: +381 11 369 3247 Fax: +381 11 647 117 Petosev@Eunet.Yu PARIVODIC, MILOJKOVIC & TRGOVCEVIC Dr. Milan S. Parivodic Ms. Mirela Boskovic Beogradska 54, 11000 Belgrade Tel: +381 11 2435 845 Fax: +389 11 344 3362 Mob: +381 64 1576 036 Milanpar@Eunet.Yu Ministry of Interior Colonel Zoran Djokic Assistant Head Of The Criminal Police Directorate Kneza Milosa 101, 11000 Belgrade Tel: + 381 11 235 1450 Fax: +381 11 235 1978 Zdjokic@Mup.Sr.Gov.Yu Major Sasa Zivanovic Kneza Milosa 101, 11000 Belgrade Tel: +381 11 306 2000/ 31-52 Fax: +381 11 2351 978 Mob: +381 64 147 75 78 Savan@Mup.Sr.Gov.Yu
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CARDS Regional Intellectual Property Rights Competition Issues Mr. Branko Zugic Tel: +381 11 301 4442 Mob: +381 64 812 0131 Ms. Ljilja Pavlovic Mr. Rade Tasovac (All Of Them Participated In Drafting The Law On Competition) Customs Mr. Slobodan Nikolic Ministry Of Finance And Economy Customs Administration Head Of Customs And Legal Affairs Department Bulevar AVNOJ-A 155, 11070 Novi Beograd Tel: +381 11 311 7521, 269 0822 Fax: +381 11 699 722 Nikolics@Fcs.Yu State Attorney Mr. Jovan Krstic Deputy District Prosecutor Slobodana Penezica 17a, 11000 Belgrade Tel/Fax: + 381 11 360 1290 Jkrstic@Eunet.Yu State Inspectorate Ministry Of Trade, Tourism And Services Market Inspection Division Nemanjina 22-26, 11000 Belgrade Mr. Ljubisa Dimitrijevic - Assistant Minister Tel: +381 11 641 891, 361 4334, 361 3734 Ext. 1515 Ljubisa.Dimitrijevic@Minttu.Sr.Gov.Yu Ms. Vera Despotovic - Head Of Department Tel: +381 11 644 944, 363 1153 Fax: +381 11 643 277 Mob: + 381 63 232 343 Ms. Snjezana Stanojevic - Chief Of Section Tel: +381 11 643 028, 361 4077 Mob: +381 63 211 078
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CARDS Regional 2002 Assessmen Report - Intellectual Property

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CARDS Regional Intellectual Property Rights

The European Unions CARDS Programme