Legal protection of copyright and related rights in Kosovo
Intellectual property, respectively author’s right is increasingly being shown as an impactful factor in the market economy and economic development of the country, hence respect and enforcement of copyright is very important. In addition to the economic development, copyright enforcement also affects the stimulation of the creative and cultural creativity.
Copyright and Related Rights Office carries out its activities based on the legislation on copyright and related rights, as well as other legal and sub-legal acts in force. It must be noted the fact that the protection of copyright and related rights, is not included in the powers of the office. Office plays its role in the process of developing the system of protection of copyright and related rights through licensing and supervision of associations for collective administration of rights, raising awareness, providing training and educational information related to the enforcement of copyright as well as establishing relations of cooperation with sister offices from the regional countries and the EU.
With the establishment of legislation for the protection of copyright and related rights, we can say that it is also created a suitable environment where the right holders through legal mechanisms can protect their rights. In this context it should be mentioned the Law on Copyright and Related Rights, the Law on Customs Measures for Protection of Intellectual Property Rights, the Criminal Code of the Republic of Kosovo and the Law on Market Inspectorate.
Below, we will make an explanation of the measures of protection that the right holder can use in accordance with the law in force mentioned above.
1. Law on Copyright and Related Rights
Chapter XI, respectively, subheading (B), the Law on Copyright and Related Rights, provides provisions for judicial protection in case of infringement of copyright and related rights.
It is good to mention the fact that the law provides for the acceleration of judicial proceeding concerning the infringement of copyright and related rights. The court is obliged to appoint the first hearing session not later than within three (3) months from the day the claim is
accepted.
In the frame of judicial protection, in case of violation of rights the right holder may seek protection of rights through these legal remedies:
1.1. Lawsuit
Law on Copyright and Related Rights, namely heading B, clarifies precisely the judicial protection, the procedure of raising the claim and the requirements that the right holder may include in the lawsuit.
The holder of copyright, when considering that his right has been infringed, has the right to raise a claim in the competent court which decides on the processes related to the infringement of copyright and related rights.
Through the claim, the right holder may request the competent court findings of the infringement of rights.
If copyright is violated constantly, then the right holder can ask the court to issue a ruling prohibiting the continuation of the infringement and repeated violations of copyright in the future.
By raising the claim, the right holder has the right to ask the court to give the order for removing from the market, and destructing all goods that are created as a result of an infringe of copyright, as well as materials and tools that are used to create goods that infringe copyright.
If the right holder has suffered material injury, due to violation of copyright, then the right holder can ask the court to be reimbursed for lost profits or special indemnity.
In addition to material damage, the right holder could be caused also the non-material damage which means the violation of the moral rights, for which the right holder has aslo the right to seek compensation.
1.2. Preliminary Measures
Based on Article 184 of the Law, the right holder has the right to ask the court to undertake preliminary measures of protection, if he presents evidence that his exclusive rights have been violated, and it is likely to risk the indemnity. Then, the holder is entitled to ask the court to temporarily seize movable and immovable property and to block defendant’s bank accounts.
As a precaution that can be taken by the court under Article 184, paragraph 2, is the seizure of financial bank documents or commercial documents of the infringer.
It is important to note that based on article 184, paragraph 4, the proceeding related to precautions is enforced within three (3) days after filing the request.
1.3. Provisional Measures
These measures may be ordered by the court, when the right holder at his request, presents evidence that his right is violated, or there is a high risk of infringement. Under Article 185, paragraph 1, point 1, the court may take provisional measures which include deterrence of expected infringements or deterrence of the continuation of infringement.
The right holder may ask the court that as a provisional measure, to order the seizure or removal from circulation of goods suspected of infringement of a right, and the removal from circulation of the materials used to create the goods suspected to infringe copyright.
The procedure for taking provisional measures by the court is quick, particularly those are
taken seven (7) days from the date of filing the lawsuit.
1.4. Providing evidence
Law on Copyright and Related Rights, Article 186, entitles the holder the right, who has evidence-based that his right has been infringed, and there is a potential risk that the evidence of infringement can be destroyed or later will be impossible to be obtained, to ask the court to provide the evidence.
Measures to be taken to preserve evidence include sampling, the physical seizure of infringing goods, inspection of sites, inspection or seizure of documents, examination of witnesses, appointment and examination of experts.
Court conducts proceedings concerning the provision of evidence within seven (7) days after filing the request by the right holder.
2. Law on Customs Measures for Protection of Intellectual Property
Within its mission, Kosovo Customs is responsible to protect the author’s rights in order to protect the legal economy from unfair competition.
Kosovo Customs based on the law on Customs Measures for Protection of Intellectual Property Law Name 03-L / 170/2010, and the Administrative Instruction 07/2010, is responsible for the protection of intellectual property rights for goods entering or leaving the territory of Kosovo, at the request of the right holders and the administration of requests for action, under the protection of intellectual property.
According to the law on customs measures for protection of intellectual property, respectively Article 4, when the right holder has sufficient evidence for suspecting that goods infringe his right, he has the right to submit the request for action by customs.
The submission and processing of the request is clearly given in article 4 stating that the request for action shall be made in a form prescribed by the Customs. The request must contain all the data in order to make possible to recognize goods more easily.
On receiving the request for action, Customs will review the request submitted by the right holder and shall notify the applicant within 30 days. If refused the application for action, the Customs shall give written reasons for it.
It is important to note the fact that Customs act according to the official duty (ex-officio), when the customs office considers that the goods are suspicious of infringing the right of intellectual property.
Goods infringing intellectual property rights will not:
be allowed to enter into the Customs territory of the Republic of Kosovo;
be released for free circulation;
leave the Customs territory of the Republic of Kosovo;
be exported;
be re-exported;
be placed under a suspensive procedure; or
be placed in a free zone or free warehouse
3. Protective measures the right holder can take under the law for the Inspectorate and Market Surveillance :
Market Inspectorate of the Republic of Kosovo is responsible for overseeing the implementation of legislation in the field of consumer protection, products security on the market as well as for the protection of copyright and related rights in the market.
According to the law on the inspectorate and market surveillance, inspectorate competence among others is to oversee the protection of copyright and related rights in the market.
The holder of the copyright has the right to ask the market inspectorate, to inspect the market and in case he suspects that his right has been infringed, he may ask the inspectorate to confiscate and remove from the market goods which infringe copyright.
4. Criminal Code
Criminal Code of the Republic of Kosovo foresees as a criminal act the infringement of copyright. Specifically, it sets out the actions which are recognized as infringement of the copyright and determines the types of sentences and their duration in case copyright is infringed.
If the right holders have evidence-based that their rights have been infringed, are entitled to turn to the police and prosecution authorities, for seeking prosecution against infringers of the rights recognized by the law on copyright and related Rights.
4.1. Under Article 296, Copyright Infringement actions are considered:
1. Whoever, under his own or someone else’s name, presents or in another way communicates to the public the work protected by copyright or one’s presentation, either in whole or in part, shall be punished by a fine and imprisonment of three (3 ) months up to three (3) years.
2. Whoever using the work protected by copyright or one’s presentation, deliberately does not mention the name, pseudonym or mark of the author or performer when required by law, shall be punished by a fine and imprisonment of up to one (1) year.
3. Whoever changes, distorts or in another way damages the work protected by copyright or one’s presentation, and presents it in that form or in another way communicates it to the public, shall be punished by a fine or imprisonment up to one (1) year.
4. Whoever presents or otherwise inappropriately communicates it to the public the work protected by copyright or one’s presentation, which is prejudicial to the honor and authority of the author or performer, shall be punished by a fine or imprisonment of up to one (1) year.
5. Whoever, without authorization, uses the work protected by copyright or the subject of the issue related to these rights, shall be punished by imprisonment up to three (3) years.
4.2. Circumvention of technological measures
1. Whoever commits the offense of circumventing any of the technological effective protection measures or the removal or alteration of electronic rights for data management, as provided in the provisions of the law on copyright and other related rights, shall be punished by imprisonment up to three (3) years.
2. Items and equipment for their production in paragraph 1 of this Article shall be confiscated.
These offenses are punishable by imprisonment of three (3) months to three (3) years, and under certain circumstances where the perpetrator intended economic benefit worth over 50,000 Euros, penalty is provided by six (6) months to eight (8) years of imprisonment. The Code also provides for the confiscation of items obtained by the commission of offenses under Article 296.