01. 07. 2013

ANEM PARTICIPATION IN PUBLIC DEBATE ON the DRAFT LAW ON SPECIAL POWERS

The Ministry of Education, Science and Technological Development, in cooperation with the Intellectual Property Office, conducted a public debate on the Draft Law on special powers for effective protection of intellectual property rights, in the period between  June 10 and July 1, 2013.

ANEM participated in this public debate with its written remarks and suggestions on the Draft Law. In its letter, ANEM stated its support to the desire to have the field of intellectual property rights regulated in a clear, unambiguous and systematic way. At the same time, however, ANEM as an association of media considers legal solutions in this area must be as such as not to interfere with the right to freedom ofexpression, whose care it is devoted to. As certain provisions of the Draft Law are introducing disproportionate restrictions on the right to freedom of expression and are very restrictive to the broadcasters, ANEM suggested that the provisions, relating to the media and to the powers of regulators, be exempt from the Draft Law and be re-developed, with the participation of experts and broadcasters, all in order to find a balance between two legitimate interests: the protection of intellectual property rights and the right to freedom of expression.

In its concrete remarks, ANEM pointed to the many shortcomings of the Draft Law relating: to the ambiguity and inconsistency of certain  provisions with other applicable laws, as well as European documents and standards in this area; to particular jurisdictions of state authorities and regulators that are disputable, or can jeopardize the freedom of expression or are non-compliant with other relevant laws; to the vagueness of the solution to have the issues that need to be addressed by this law be defined by by-laws of a competent state authority and regulator, which only undermines legal certainty and predictability for all persons falling under this law; to the disputed introduction of liability of operator for the content, although it has no effect on the content, being just an instrument in transferring the content; to the vagueness of the powers of a competent state authority and regulator to temporarily block, without a proper court order, certain content (temporary measure of prohibiting the broadcast, rebroadcast or interactive making certain program content available to the public) based on their arbitrary estimation - if there is "reasonable doubt" that copyright or related right has been injured; to the ambiguity of the provisions on converting temporary measures into final measure, which is not in line with media laws and European standards in the area of freedom of expression; to the right of the competent authority to permanently destroy, namely remove from distribution, the goods in situations when "reasonable doubt" that the goods are violating intellectual property rights; to the exclusion of liability  of a state authority for damage caused by improper seizure of goods, with exceptions; to the parallel proceedings before the court and competent authority, with long deadlines, without defining what constitutes "reasonable doubt"; to the ambiguous correlation of measures applied by the competent authority and those passed by court's decision, as well as a problem especially arising if the decision of the court and the body are opposite.

ANEM submitted its letter to the Intellectual Property Office on July 1, 2013.

Read ANEM written remarks and suggestions on the Draft Law here (available only in Serbian)