Book Review: Cambridge Handbook of Intellectual Property in Central and Eastern Europe

Baba Yaga enjoying the fruits of privatisation image source: Reddit

History has thrown a lot at Central and Eastern Europe. In the last 200 years, this region saw the fall of the Austro-Hungarian empire, endured continued regional conflicts, gave Communism a go, and experienced some of the most violent economic transformations known to man. In addition, it too suffered the Great Depression and two World Wars, and is currently occupied by the more familiar tasks of coping with globalization, digitalization, and EU harmonization.

Steeped in history and ideology, Central and Eastern Europe is a prime candidate for comparative law studies. Cambridge Handbook of Intellectual Property in Central and Eastern Europe is a mind-expanding and necessary book that attempts to make sense of IP on the other side of the Berlin wall, one country at a time. This vibrant collection of 20 essays by experts from a wide range of backgrounds tackles topics such as incentivising creation when private property ownership is prohibited, implementing ambitious author's rights in legal systems that lack IP case law, and coping with fellow EU members and their policies. They gracefully confront our default Western-centric mindset. On a more fundamental level, this book is, according to editor Prof. Mira T. Sundara Rajan, about the "inevitable goal" of "history" and "humanity" to "promote the growth of what is valuable". 

The essays vary widely in style and scope. Although a few chapters are quite technical, this book provides rich insights on the history and politics of Central and Eastern Europe that could be intriguing for non-lawyers as well. 

Chapter 1 is a general introduction by the editor.

Chapter 2 describes the patent system in pre-1989 Czechoslovakia. Although Czechoslovak patent law has been somewhat “forgotten” in the past three decades, it would be a mistake to assume there was no developed patent system there before the fall of Communism. Before 1989, patent law disputes frequently occurred and were properly litigated in court, and there was never a formal compulsory license granted in Czechoslovakia. 

Chapter 3 is about the development of Hungarian Copyright Law from 1794 to 1884. It introduces the external and internal, social, political, and economic needs that shaped this body of law, from the influence of German Urheberrecht to French droit d’auteur that appeared through Austrian channels. 

Chapter 4 fast forwards a few decades to narrate moral rights and cultural aspects of Hungarian Copyright Law in the 20th century, covering topics such as socialist copyright law and the changes that came with Hungary’s later EU accession. It outlines an interesting connection between the moral rights of authors and the struggle to overcome political oppression. 

Chapter 5 chronicles Poland’s struggle with the concept of copyrightable work. The Polish concept of copyrightable work expanded and contracted several times in the 20th century, and the author predicts Poland will be forced to embrace an ever-expanding definition in the future. This is contrary to common sense and the social “feeling and understanding” toward the protection of intellectual property in Poland.

Chapter 6 compares the concept of originality in EU, US, and Lithuanian copyright law, which preserves under its “subjective test” for originality some remnants of the droit d’auteur systems. Lithuanian law applies a more objective test for works produced through the application of new technologies. 

Chapter 7 analyzes Itar-Tass Russian News Agency v. Russian Kurier, a landmark choice of law and copyright case filed in New York shortly after Russia’ accession to the Berne Convention but before its admission to the World Trade Organization. The facts concern copyright infringement by a New York-based Russian language newspaper that mostly reprinted articles published by other papers. 

Chapter 8 outlines issues in communication to the public under various EU directives from the perspective of Austrian and German copyright law. It focuses on article 3 of the InfoSoc directive and offers an evaluation of current ECJ jurisprudence on this subject.

Chapter 9 discusses collective management of copyright in Hungary. In Central and Eastern Europe, collective management was exposed to strong government intervention such as coerced liquidation, confiscation of assets, and the establishment of a government entity for collective management. CMOs in Hungary face many familiar issues such as transparency, accountability, and fragmentation of their repertoire that occurred during the country’s transition into a market economy.

Chapter 10 examines two familiar copyright concepts, exceptions and limitations, in the context of copyright theory and practice in the Czech Republic. Exceptions and limitations are meant to resolve the conflict between the private interest of rightholders and the public interest promoting certain reasonable allowed uses. However, these benefits have not found their way into into Czech legislation and case law due to unavailability of precedent in courts of lower instances and a three-step interpretive test that restricts the application of exceptions and limitations. 

Chapter 11 focuses on the legal and technological issues involved in the digitization and use of cultural content, from the perspective of powerful Czech public cultural institutions. It includes an interesting discussion of the new phenomenon of exclusivity being granted over digitized cultural heritages. 

Chapter 12 is about the treatment of author’s moral rights in Georgia. Georgia’s moral rights standards meet and exceed those required by major international copyright treaties, but they are currently not adequately protecting authors due to a scarcity of social awareness, court cases, and academic resources. 

Chapter 13 attempts to demonstrate that performer’s rights as we know them today were born amid intellectual discussions in Central Europe, which continued in Austria-Hungary’s successor states. The essay focuses on the influence of philosophy, political economy, and recording technology. 

Chapter 14 is about the implications of the Digital Single Market for film and television distribution in the Czech Republic. Full cross-border access to online content is opposed by audiovisual producers and distributors, but this essay contends that the DSM is an inevitable reality and negative effects can be mitigated.

Chapter 15 is a case study on copyright reform in Lithuania, an example of a small, growing post-Soviet country that is unrepresented and little heard in EU-policy making processes. The EU copyright reform is only relevant to some extent to small countries like Lithuania; better legal education and access to more affordable legal advice are more urgently needed. 

Chapter 16 proposes solutions to copyright problems in cultural heritage, in the context of digitization and new economic interests in Hungary's book industry. This essay explores various responses to modernization, and urges the grant of effective tools for public institutions. 

Chapter 17 examines the history of compensation for employee innovation (patents) in Czech Republic and Slovakia in the 20 century. While there seems to be no real correlation between the scale of innovation and protection for employee innovations, there are also compelling reasons to offer financial incentives. Detailed statutory guidance is unlikely to be the solution. 

Chapter 18 provides a thorough overview of intellectual property rights in Albania. Trade mark is the most used form of intellectual protection there, and the chapter includes an analysis of the "B-52 Energy Drink" Trademark Case. 

Chapter 19 discusses the current system of geographical indications (GI) protection, an EU agricultural policy success story. On average, products with a GI are sold at a price 2.3 times higher than that of a comparable non-GI product, and the label also offers a very high level of legal protection while safeguarding tradition and nostalgia. 

Chapter 20 is a lengthy survey of legal protection of traditional knowledge and cultural expressions of the indigenous peoples of the former Soviet Union, an extraordinary land mass that stretches from the Caucasus mountains, the Urals, and the deserts of Central Asia to the Bering Sea. Everything from traditional arts and crafts to shamanic rituals and herbal medicine needs protection, and intellectual property laws in former Soviet republics have long way to go to to meet the goals of the UN Declaration on the Rights of Indigenous Peoples. 

Available from Cambridge University Press in hardback - £160
Published: 13 June 2019
472 Pages
262x188mm
ISBN: 9781107156364
Also Available in Ebook