Alexandru-Laurențiu Mihai*
Abstract
Infringement of public policy and acceptable principles of morality is an absolute reason for refusing to register a trademark. The article aims to identify certain standards in establishing the content of public policy and acceptable principles of morality and to analyze a series of controversial decisions of the Court of Justice of the European Union in this matter. Given the dynamic nature of morality, it is often difficult to appreciate whether a trademark infringes the acceptable principles of morality.
*Avocat junior în cadrul SCA Stoica & Asociații. E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
Nicoleta Rodica Dominte1
Abstract
In this article, we will outline an analysis regarding the use of the phrase „spiritual good” in philosophical language to designate the idea in the realm of copyright. The analysis will have a legal dimension, followed by a metaphorical one in order to understand. We will consider the dichotomy idea – artistic expression that underpins the act of intellectual
creation; the idea does not benefit from copyright protection, while the original expression of the idea is protected. In this construct, if the work is considered an incorporeal good, could the phrase „spiritual good” explain the abstract reality of the idea, which is the basis of the creation of a work?
1 Conferențiar univ. dr., Facultatea de Drept, Universitatea „Alexandru Ioan Cuza” Iași, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
Sonia Florea**
Abstract
On the 1st of April 2022, the Law no. 69/2022, implementing the Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market, introduced in Romanian legislation new rights related to copyright for the reproduction and making available to the public of press publications of publishers established in a Member State in respect of online uses by information society service providers.
The introduction of the new press publishers rights at the level of the EU legislation was heavily opposed, having in view, inter alia, the negative experiences in enforcing similar national ancillary rights in Germany and Spain, prior the adoption of the EU Directive. This Study analysis the EU legal provision and its implementation in Romanian legislation,
questioning if the purposes of the press publishers rights, as envisaged by the European legislator, may be attained by the new legal instrument. The Study argues that a legal solution that tends to create sources of revenue for the publishers in order to ensure the freedom and pluralism of the press, allowing the effective exercise of the fundamental right to freedom to receive and impart information, in order to make sound decisions in all aspects of life deserves support. In view of the lack of public debates in the Romanian society related to the proposed press publisher's rights, its framing, enforcement mechanisms and impact, the implemented legal provision needs detailed analysis and explanations, in order to understand what is at stake and, most importantly, how the right should be enforced in order to attain its legal purposes.
The first part of the Study will focus on the details of the boundaries of the new related rights for press publishers, granted for the online use of their press publications by information society service providers, namely, the exclusive right to authorise or prohibit the reproduction of their press publications and the exclusive right to authorise or prohibit the making available to the public of their press publication. The Study will examine who are the beneficiaries and the addressees of the rights, what is the object of protection, what is the scope of the related rights, in particular, the exceptions and limitations for citation and the reporting of current events, that ensure the exercise of the fundamental right to access to information. The Study argues that difficulties may arise in practice in delineanting the press publishing rights and the exceptions to it, in view of the fact that news and press information, simple facts and data are excluded from copyright protection and that the exception or limitation in case of reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or other subject-matter of the same character, to the extent justified by the informatory purpose, is also provided by the law.
The second part of the Study will question if the legal provision creates further uncertainties in the digital marketplace, due to possible overlaps and conflicts with other intellectual property rights already enjoyed by journalists and by press publishers, with competition law and unfair competition law provisions. The Study argues that the legal provision complicates further the process of rights cleareance, with the result of increasing costs for the involved rights holders and, subsequently, for the users. The third part of the Study will examine how the new related rights were implemented in other national legislations, how were they enforced and what were the achieved results. The experience in enforcing the press publishers rights in France reveals that legal instruments provided by competition law for sanctioning the abuse of a dominant position on the market are needed in order to enforce the publishers rights. The last part of the Study opens the perspective on the proposals of the Digital Services Act which aims to regulate a digital space where the fundamental rights of users are protected and to establish a level playing field for businesses. The Study argues that European press publishers need to further adapt their business model to the predominant economy of online marketplaces, social networks and content-sharing platforms. The problems that remain unsolved are related to the role and responsabilities of the press in a democratic society, also, the fundamental education of users in the context of a platform-based economy, namely, their ability to think critically, to check and discern between real and fake news, also, their quest and need of solid and substantive, quality press information, which is the base of an informed and reasoned decision.
* Articolul a mai fost publicat în volumul „Provocările dreptului de autor la 160 de ani de la prima lor reglementare legală în România”, Ed. Hamangiu, București, 2022, pp. 393-431.
** Sonia Florea este Doctor în Drept și avocat în cadrul Baroului București. Autoarea poate fi contactată la adresa: This email address is being protected from spambots. You need JavaScript enabled to view it..
Ana-Maria Marinescu*
Abstract
Law no. 69/2022 regarding the amendment and completion of Law no. 8/1996 on copyright and related rights, republished, with changes and additions, was published in M. Of. no. 321 dated 1 April 2022 and entered into force on 4 April 2022. The main purpose of the draft law was on to implement into the national law the EU Directive 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC1 (to be referred to from here on the Directive 2019/789) and of the EU Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC2 (to be referred to from here on the Directive 2019/790), ensuring in this way, according to the EU law, the legal security to the copyright and the related rights field, an enhanced degree of protection to rightsholders and providing guarantees to users for further development of their business in the creative sectors.
Secondarily, the project to amend and supplement the Law no. 8/1996 aimed to remedy some problematic or non-compliant aspects of Union law and practice, for example the distribution of digital private copy remuneration among all categories of rights holders, including authors of written works and the inclusion of written works publishers as members of collective management organisations for the distribution and payment of private copy remuneration.
The process of amending and supplementing the law lasted more than two years and was subject to numerous consultations and proposals from all the factors involved, sometimes also critics, being well past the deadline set for the implementation of the two previously mentioned directives, respectively 7 June 2021. The study considers the review and analysis of the main changes and additions brought by Law no. 69/2022, for example: the definitions provided for in art. 21; out of commerce works regulated in art. 91;
differentiating between economical rights of cable retransmission, retransmission, public communication and making available to the public; the appropriate and proportional remuneration provided for in art. 401; the remuneration due from the actual use of the work provided for in art. 44 para. (11); publishers and press publishers; non-exclusive licenses for non-commercial purposes granted to cultural heritage conservation institutions for the reproduction, distribution, public communication or making available to the public of works or other protected objects that are out of commerce and present in the permanent collection of the institution, even if not all the rights holders covered by the license have mandated the collective management organisation according to art. 1284; rights of members in relation to collective management organisations; publicity measures regarding the possibility of granting licenses for works or other protected objects in accordance with art. 1284; patrimonial rights subject to mandatory, extended and optional collective management; obligations imposed on collective management organisations, including issuing tax invoices to users, which will be sent to users through the national RO e-Invoice electronic invoice system [art. 162 letter t)] or the limitation of penalties or of non-payment remunerations calculated exclusively with the application of legal interest; deadlines for implementing legal provisions etc.
The conclusions of the study will highlight, among other things, the need to continue the legislative efforts in order to amend and supplement Law no. 8/1996, which still contains aspects that create numerous problems in practice and its republication, because the law has become an extremely difficult and technically material to follow and understand, including for specialists. At the same time, the study will highlight a way to improve the entire system of copyright and related rights in our country, namely the adoption of a law on collective management and collective management organisations, separate from Law no. 8/1996, taking the German model as an example, an aspect that would strengthen the position of collective management and collective management organisations.
*Ana-Maria Marinescu este Doctor în Drept de Autor, titlu obținut în cadrul Universității „Nicolae Titulescu” din București, Director General al organismului de gestiune colectivă „Societatea Autorilor și Editorilor Români de Opere Științifice – PERGAM”, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it..
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