Университет Грузии, Грузия
Участник первенства: Национальное первенство по научной аналитике - "Грузия";
Открытое Европейско-Азиатское первенство по научной аналитике;
The development of an effective system of state management and protection of intellectual property should be one of the main priorities of the Government of Georgia. Chapter 9 of the DCFTA deals with intellectual property issues. It is necessary to carry out relevant measures aimed at protecting intellectual property in Georgia to provide its proper and efficient functioning. One of the key issues is the elaboration of an effectiveenforcement mechanisms.
It is necessary to create in Georgia a national council for support andprotection of intellectual property, control of counterfeiting and piracyandto carry out relevant actions aimed atpublic consciousness.
The National Council forIntellectual Property Support and Counterfeit Control, at the given stage, should mainly carry out such functions as: 1) Developing an action plan and programs for the intellectual property supportandagainst counterfeiting and piracy; 2) Formulation of the National Intellectual Property Strategy and facilitation to its Execution Measures; 3) Coordination and support of government activities based on international and European initiatives in the field of intellectual property support, counterfeitand piracycontrol; 4) Analyzisand systematization of statisticaldata on counterfeit; 5) Coordination of awareness raising activities on issues related to intellectual property within Georgian society and initiation ofinformation campaigns, their support and implementation of these activities.
As for the organizational structure of the Council: the relevant working groups should be necessarily represented there accordance tospecific directions. The Council may presumably includethe following working groups: 1) Strategies, programs and action plans; 2) Analysis, statistics and joint operations; 3) Border, anti-counterfeit and anti-piracymeasures; 4) Coordination and implementation; 5) Arbitration, representation and execution; 6) Informational provision; 7) State procurement and material reserves, trade and industry; 8) Agriculture and food; 9) Labor and health care; 9) Art specimens, social-cultural rights protection; 10) Public consciousnessdevelopment; 11) Prevention and monitoring.
Keywords: Intellectual property, public administration, DCFTA, law regulation, economic development, contraption.
The development of an effective system of state management and protection of intellectual property should be one of the main priorities of the Government of Georgia. Significant steps have been made in this direction in scope of such governmental programs as: "Freedom, fast development, well-being" (government program 2016-2020) and "For Strong, Democratic, United Georgia", which was adopted in 2015.
In this paper, under the notion of "intellectual property rights" we consider at minimum the following rights: copyright, copyright-related rights, database creator’s “sui generis” rights, semi-conductor product topology creator’s rights, rights arising from trademarks, rights related to design, patent rights, including rightsarising from the additional protection certificate, geographical indications, rights related to utility models, rights arising from the of plant varieties, trade names.
Chapter 9 of the Deep and Comprehensive Free Trade Area Agreement (DCFTA) between Georgia and the European Union deals with intellectual property issues. Specifically, Article 150 of the Agreement aims at: (a) Promoting the production and commercialization of innovative and creative products between the parties, and (b) achieving the adequate and effective level of protection and enforcement of intellectual property rights.And in accordance with Article 190, Parties reaffirm their commitments to the TRIPS Agreement, in particular its Part III, and provide the measures, procedures and actions stipulated by Part III which are necessary for the purpose of enforcing Intellectual Property Rights. The supportive measures and actions must be effective, proportionate and should be used in such a manner as to avoid creation of barriers to legitimate trade and the established safety measures should not allowthe supportive measures to become abusive.
The priority of this approach is due to the fact that it is closely linked with the country's economic growth and development. However, losses caused by counterfeiting and piracy, damage to goods and commodity markets, is important for the country's economy. This is why it is necessary to carry out relevant measures aimed at protecting intellectual property in Georgia to provide its proper and efficient functioning.
At the present stage, one of the key issues is the elaboration of an effectiveenforcement mechanisms.Specifically, the issues of civil enforcement by which the party provides (even before the case proceedings) that the competent court may, on the basis of the request of the Party (which has provided the relevant evidence that the intellectual property rights had been violated or mightbe infringed) use immediate and effective Preliminary Provision measures for maintaining appropriate evidence relating to possible infringement of rights, in accordance with the principle of confidentiality of information.
Such measures may contain detailed descriptions of the goods or equipment, with or without sampling orin the case goods are produced by presumptive violation of law, or when necessary, seizure of all materials, tools/equipment used in the process of production and/orsale of such goodsand also of the related documentation.These measures shall be possibly carried out without listening to the other party, particularly in case whenany delay may bring irreparable damage to the rights holder or if there is a clear risk of destruction of evidences.
According to the existing practice, in Georgia, the distribution channels of counterfeit products include: open markets, fairs, internet shops, pharmacies, street fairs, small shops, etc.The high degree of counterfeit items influences the pricing mechanism, the market price determination, etc. High price indirectly confirms the product's authenticity.
Another aspect that has manifested itself in Georgian reality is a gray or parallel import whenthe original product is delivered without a sanction by a proprietor. Obviously, for the representatives of the rights holder, such unauthorized delivery is the undisputed case of the counterfeit.
As it was already mentioned, one of the key issues is the strengthening of state management in the sphere of intellectual property and the effective coordinationbetween the state governing bodies in this regard. Of course, private sector as well as media shouldnot be excluded fromthis process.
Practice shows that the share of counterfeit products in Georgia is ratherhigh and in accordance with the current tendency, the figurewill increase. Obviously, it is not directly related to ineffective work of law enforcement, customs, tax and other relevant structures, as the number of violations revealed by them is also increasing. In ouropinion, here we are dealing more with less effective management, because there is not fully comprehended thethreat, specifics and the extent of the spread related to the production, spreadingand sale of counterfeit products.We can discussthis topic not only in terms of itseconomicimpact, but moral and social impacts as well.
With regard to the abovedirection, itis also important to understand and evaluate the importance of the new and increasing role ofthe National Center for Intellectual Property (“Sakpatenti”) as of one of the state governing bodies, within theand anti-piracy and anti-counterfeit measures, as well as in definition of its functions withinthe activities aimed at coordinating the measures for enforcing the intellectual property rights.
Of course, the experience of international partners and more active cooperation with them should be taken into consideration in this context, which will facilitate to the development and effective managementof the capacities.
International experience shows that creation of a national collegial bodyrepresents quite a successful form of theintellectual property management, its protection and the fight against counterfeiting, which unitesdifferent institutions in an effort to design action plan and programsaimed against counterfeit and piracy, provides formulationof the National Intellectual Property Strategy and facilitatesto its enforcement activities, as well asgives support and coordination to governmental activities that are based on international and European initiatives.
Taking into consideration the above, it is necessary to create in Georgia a national council for support andprotection of intellectual property, control of counterfeiting and piracyandto carry out relevant actions aimed atpublic consciousness. The Council should be a consultative body, which supposedly shouldrepresentfrom13 to 21 different institutions. TheCouncil Boardshall be composed of both public and private sector representatives.
In our opinion, at the current stage, Georgian governmental sector may be represented in the Council by the following ministries, agencies and their respective structural units (see Table):
Table
Estimated Representation of the Ministries of Georgia and their Relevant Services / Structural Units in the National Council for the Protection of Intellectual Property, Contraption and Piracy
## | Ministry, State Agency | Job / Structural Unit | Note |
1
| 1.Ministry of Justice of Georgia | 1. Department of International Public Law, 2. The EU Department of Law, 3.Department of State Representation in Arbitration and Foreign Courts 4. Department of State Representation at the International Courts http://www.justice.gov.ge/Ministry/Index/389# | see departments
|
2
| Ministry of Labor, Health and Social Affairs | 1) Healthcare Department, 2) Derament of Labor and Employment Policy | see departments
|
3 | Ministry of Culture and Monument Protection of Georgia | 1. Department of International Relations, 2. Promotion, Regional Programs and Project Management Department Http://www.culture.gov.ge/getattachment/Public-Info/Structure/Structure-(2).pdf.aspx | see departments
|
4
| Ministry of Education and Science of Georgia | 1. Department of Strategic Planning and International Relations, 2. Economic Department | see departments
|
5
| Public Defender of Georgia | 1. Department of Civil, Political, Economic, Social and Cultural Rights Http://www.ombudsman.ge/en/about-us/struqtura/departamentebi 2.Prevention and Monitoring Department | see departments
|
6
| Business Ombudsmanof Georgia
| Georgian Business Oddsman’sOffice Http://businessombudsman.ge/ka/about-us/the-office-of-the-business-ombudsman-of-georgia | see the staff
|
7
| Ministry of Agriculture of Georgia
| 1) Department of Agriculture and Food 2) European Integration Department | see departments
|
8
| Ministry of Economy and Sustainable Development of Georgia | 1. Agency "Georgian Innovation and Technology Agency" 2. Investment Policy and Investment Promotion Department; 3. Department of Foreign Trade Policy; 4. Country Brand Development Service; | see the structure of the Ministry
|
9
| Ministry of Finance of Georgia | 1. Department of Tax and Customs Policy, 2. Investigation Service | see departments
|
10 | Ministry of Internal Affairs of Georgia
| 1) Joint Operations Center (Department) Http://police.ge/en/ministry/structure-and-offices/ertoblivi-operatsiebis-tsentri-departamenti 2) Border Police (Special Service and Law Enforcement Body, as a state subordinate agency http://police.ge/en/ministry/structure-and-offices/saqartvelos-sasazghvro-politsia 3) Information-Analytical Department Http://police.ge/ge/ministry/structure-and-offices/sainformatsio-analitikuri-departamenti 4) National Central Bureau of Interpol in Georgia (Department) 5) International Relations Department Http://police.ge/ge/ministry/structure-and-offices/saertashoriso-urtiertobebis-departamenti 6) Department of State Material Reserves of Georgia Http://police.ge/en/lepl/sakhelmtsifo-materialuri-rezervebis-departamenti | see the structure of the Ministry
|
11 | Chief Prosecutor's Office of Georgia
| Departments of the Chief Prosecutor's Office of Georgia Http://pog.gov.ge/geo/about/departments 1. Investigative part of the Chief Prosecutor's Office of Georgia; 2.Economic Department | see structure) |
12 | Ministry of Defense of Georgia | State procurement department Treasury of the Ministry https://mod.gov.ge/assets/up-modul/uploads/pdf/MoD-Structure-GEO_1.pdf | see structure of the Ministry
|
13 | National Intellectual Property Center "Sakpatenti" | Heads / Executives | see structure)
|
Obviously, the National Council forIntellectual Property Support and Counterfeit Control should include: NGOs for consumer protection, as well as national structures of media and information communications. However, we plan to discuss this issue together with other issues in the second part of the article.
In my opinion, the National Council forIntellectual Property Support and Counterfeit Control, at the given stage, should mainly carry out such functions as: 1) Developing an action plan and programs for the intellectual property supportandagainst counterfeiting and piracy; 2) Formulation of the National Intellectual Property Strategy and facilitation to its Execution Measures; 3) Coordination and support of government activities based on international and European initiatives in the field of intellectual property support, counterfeitand piracycontrol; 4) Analyzisand systematization of statisticaldata on counterfeit; 5) Coordination of awareness raising activities on issues related to intellectual property within Georgian society and initiation ofinformation campaigns, their support and implementation of these activities.
As for the organizational structure of the Council: the relevant working groups should be necessarily represented there accordance tospecific directions. The Council may presumably includethe following working groups: 1) Strategies, programs and action plans; 2) Analysis, statistics and joint operations; 3) Border, anti-counterfeit and anti-piracymeasures; 4) Coordination and implementation; 5) Arbitration, representation and execution; 6) Informational provision; 7) State procurement and material reserves, trade and industry; 8) Agriculture and food; 9) Labor and health care; 9) Art specimens, social-cultural rights protection; 10) Public consciousnessdevelopment; 11) Prevention and monitoring.
Proceeding fromthe above, it can be said that in the most cases it would be expedient if Georgian ministries are represented both in the council and in the working groups with two or more departments/ structural units. This is determinedby the Council's goals and functions. Obviously, the structure of the particular Ministry and the specificity of the tasks of the Council itselfshould be taken into considerationin this case. That is, the number of persons represented in the Council from the particular ministries may be varied(if thedeputiesare not deputy ministers, but at the level of departments and departments) and can significantly exceed the number of ministries represented. We however believe that the "extension” ofthe number of members of the council is not artificial, it is dictated only by the interests of the case and will only benefit the case.
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