Justice Ministry: Intellectual Property Playing Field Is Not Slanted
Justice Ministry spokeswoman Kaisa Lutter has responded to claims from an intellectual property lobby group that the country could do more to crack down on rights violations. On the contrary, she told ERR News, the ministry's current efforts to codify the sphere are focused on a balanced mix of measures.
How does the Justice Ministry plan to respond to the BSA (The Software Alliance) letter?
The BSA's letter brings out problems that can be summed up as follows: the legal framework must ensure effective protection for rights. The Justice Ministry has always been interested in and is constantly working toward ensuring that the possibilities of legal protection are effective. On the other hand, the legal system must be universal and ensure a balance between the rights and obligations of parties. All these questions are already being dealt with as part of the ongoing codification of intellectual property and revision of the Penal Code, which began last year.
What is the most effective way to safeguard rights and enforce obligations?
In general, Estonian justice system works more effectively with administrative enforcement than punitive measures. In a misdemeanor procedure, an individual can only be punished once for one offense, and a subsequent violation means a new procedure would have to be launched. But with administrative measures, a person can be fined until they desist, without starting a new proceeding.
The BSA also said civil law statutes are too weak in this area. What is the situation?
With regard to civil action, the discussion has centered mainly on the amount of compensation and the possibility of legal persons receiving sustaining non-monetary damages injury. The Ministry of Justice is of the position that Section 127 of the Law of Obligations Act [the country's basic framework law for relations between contractual parties] allows for a fair indemnity to be applied, one that is defined under the WTO's TRIPS agreement as adequate. Plus, under Estonian law, injury that the European Court views as non-proprietary damage, meaning injury to reputation, can be qualified as monetary losses - revenue forgone - and it can already be enforced now.
The average time of a court proceeding is around 280 days, and provisional protection can generally be secured in two business days. Thus judicial procedure is adequately fast and rights holders can protect their rights in court very well.
Is Estonian law slanted toward the consumer and away from rights holder, as BSA claims?
Estonian law is not slanted toward the consumer; free use is generally limited solely to personal use and for academic work. The restrictions on free use are clear. The legal system will become even clearer. The purpose of codification and revision of the Penal Code is to distinguish material violations from immaterial violations and to institute smart legal protection. That means protection that prevents and deters future violations.
CORRECTION: See above.