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Intellectual property is an exclusive property but is confined in terms of territory - the rights are applicable within the territory of the appropriate state if the latter has legalised these rights in her internal legislation. This peculiarity of the intellectual property rights determines the potential danger of abuse of the principle of free movement of goods according to Art. 30 of the Treaty, if the rights of intellectual property in the different states are legalised in a different way and their protection in some countries is at a low or insufficient level. This makes it necessary to harmonise legislation in this field of the individual states and to ensure equal treatment and hence free movement of goods and services in a common market which Bulgaria wishes to join in future.

The efforts for the harmonisation of legislation in the field of intellectual property outside the framework of the EU are no less ambitious and effective and Bulgaria, by its membership in the World Organisation for the Protection of the Intellectual Property of the UN, is taking part in this process. In recent years the negotiations within the framework of GATT also contributed to this process and Bulgaria which has expressed its wish to join the WTO (and of TRIP'S) and is negotiating in this respect. By becoming a member Bulgaria will adopt the high standards of legal protection envisaged in this international agreement. Bulgaria is a member of the major international agreements in the field of the protection of the intellectual property, namely:

- the Paris convention for the protection of industrial property;

- the Bern convention for the protection of literary and artistic work;

- the universal convention on copyright;

- the Madrid agreement on international registration of trade marks;

- the treaty of patent co-operation;

- the Lisbon agreement for the protection of names of origin and their international registration;

- the Madrid agreement on persecution of false or misleading indications of the origins of goods;

- the Budapest treaty of international recognition of the depositing of micro-organisms in connection with the procedure of patenting;

- the treaty of Nairobi for the protection of the Olympic symbol.

The National Assembly of the Republic of Bulgaria has ratified the Treaty for the protection of artists-performers, producers of sound recordings, and broadcasting organisations (S.G. No. 39/28 April 1995) and the International convention for the protection of artists-performers, producers of sound recordings and broadcasting organisations (S.G. No. 39/28 April 1995), as well as the Hague agreement for international registration of industrial patterns (S.G. 83/11 October 1994).

The participation in these international agreements, which, by virtue of Art. 5, par.4 of the Constitution become part of the domestic legislation of the country, is a prerequisite and testimony for harmonisation of the national legislation in this field with the international standards for legal protection of the objects of intellectual property.

In 1993 the National Assembly adopted two fundamental laws - the Patent Law and the Copyright Law. With the adoption of these two laws the legal protection of inventions and of objects of copyright (and neighbouring rights) was introduced into the country which is adequate to the international standards (incl. that of TRIP's). The two laws (which as drafts were discussed with experts from WIPO) were highly evaluated by the organisation, and the Patent law was highly evaluated by experts of the German Patent Office.

The major legislation for the protection of the objects of intellectual property are:

- the Patent Law of 1993 (S.G. No. 27/2 April 1993)

- the Law on Copyright and Neighbouring Rights of 1993 (S.G. No.56/1993)

- the Law on Trade Marks and Industrial Patterns of 1967 (S.G. No. 95/67)

- Instruction on the application of the LTMIP (S.G. No. 26/1969).

- Rule on the representatives of industrial property (S.G. No. 65/1993)

- Rule on the secret patents (S.G. No. 81/1993)

By ratifying the EA, Bulgaria has assumed the obligation by the end of the fifth year from the date of entry into force to reach a level of protection of intellectual property similar to that in the EU. An obligation was also taken to join the Treaty for the protection of artists-performers, producers of sound recordings and broadcasting organisations, the Protocol to the Madrid agreement, and within five years from the date of entry into force to apply for joining the Munich convention (The European Patent Convention).

Bulgaria has alraedy joined the Treaty for the protection of artists-performers, producers of sound recordings and broadcasting organisations. Bulgaria is also member of the Madrid agreement and the accession to the Protocol to the Madrid agreement (which has not yet come into force) will not require changes in the existing internal legislation. The Protocol to the Madrid agreement aims at making the agreement itself more attractive for the countries that are not yet parties to it by abolishing (or giving alternative solutions) of some of the provisions, which are arguable. For instance, the Madrid agreement foresees the possibility a given mark to be registered in the International Bureau only after it is registered in the country of origin. The Protocol envisages that an international registration can be done upon application for registration in the country of origin. The protocol foresees that the application for registration be considered valid (for the purpose of an international registration) when it is deposited in a body of the contracting organisation and not only in a body of the contracting country thus envisaging the possibility for international registration of marks of the community (i.e. of marks applied for registration or registered according to the Regulation on Marks of the Community (EU) No. 40/94 of 20 December 1993). The territory of application of this regulation (the member states of the EU) is considered a territory of a contracting party and the validity of the international registration is in force throughout it when the member state of the Protocol to the Madrid Agreement has indicated this territory in the registration. In this way a connection is realised between the Regulation on marks in the Community and the Protocol of the Madrid Agreement. The Protocol deals with the notions of national and international registration also in the cases of registration substitution considered in Art. 4 of the Madrid Agreement. The Protocol of the Madrid Agreement admits reserves by the ratifying states on Art. 5, par.2, sub-par."b" and "c" and continuation of the refusal of registration between 1 year to 18 months, i.e. lengthening of the period of expertise by the national patent body. The protocol limits the dependence of the international registration on the basic application or registration envisaged in Art. 6 of the Madrid Agreement and provides for a possibility to transform the international registration into national or regional application in the cases of annulment of the international registration. The amendments foreseen in the Protocol to the Madrid Agreement are in the interest of both the applicants (incl. the Bulgarian applicants who register trade marks pursuant to this Agreement) and of the national patent offices, the joining of Bulgaria would be in the interest of the country. The question should be discussed by the Patent Agency and the Foreign Ministry, which should come up with a specific proposal.

Accession to the Munich Agreement is not a unilateral act of the Bulgarian party. The Republic of Bulgaria can make the necessary steps in this direction but the final decision remains with the member states of the European Patent Convention. In 1994, the European Patent Convention concluded agreements for the extension of the applications for European patents (the so-called extension agreements) with Lithuania and Slovenia. Such agreements have been concluded with Romania and Latvia too (albeit not ratified by the parliaments of these countries) and a similar agreement has been proposed to Bulgaria. In similar agreements the EU sees a first stage of the accession of the associated states to full membership in the European Patent Convention. The signing of a similar convention must be discussed seriously by the competent bodies and, should they find it appropriate, a text must be proposed for ratificationt taking into account the interests of the local applicants and industries. For instance, special attention should be given to the question of whether by issuing a Bulgarian patent on the basis of a European patent, the Bulgarian Patent Agency should require a translation not only of the patent claims but also of the description of the patent. A description in Bulgarian, which serves as an interpretation of the patent claims, would offer to the Bulgarian inventors and eventual users of the patent more complete information about the real scope of protection and the level of invention. In any case, Bulgaria should strive at full participation in the European Patent Convention and, should the signing of an extension agreement be considered a necessary stage in this process, the latter should be signed in keeping with the principles of equality and taking into account the interests of the local patent applicants and users.

Annex XV to the Interim Agreement provides a list of Community legislative acts which are considered crucial for the harmonisation of laws protecting intellectual property of the EU member states, with which the internal legislation of the Republic of Bulgaria should be harmonised. After the signing of the EA, the European Council adopted some regulations and directives which are part of the so-called legislation on a community level in the field of intellectual property, which should also be taken into consideration and therefore be considered in this paper. In so far as the legislation explicitly listed in the EA (respectively in the Interim Agreement) has a mandatory nature for Bulgaria as a contracting party, they will be given priority in the present paper.

1. First Directive of the Council 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

The Directive refers to trade marks and services marks and it introduces the following basic principles for protection of this object of intellectual property:

- recognition of the legal protection of the registered trade marks, i.e. recognition of the fact that a registration of the mark in an authorised office in any country induces legal effect;

- legal definition of the trade mark;

- definition of the absolute and relative grounds for refusal and annulment of a given sign as a trade mark;

- definition of the scope of right over a given mark;

- regulation of the restriction and termination of the right on a mark;

- introduction of the obligation for use of the mark by the registered owner or licensee (legal consequences from non-use of the mark);

- regulation of the free disposal with the right on a mark (transfer, concession of licence)

The Bulgarian Law on Trade Marks and Industrial Patterns (LTMIP) corresponds to the basic principles of Directive 89/104/EEC. According to LTMIP, the exclusive right on a trade mark originates with the registration of the mark in the Patent Agency. The criteria for the assessment of a given mark as a trade mark valid for registration are compatible, although, in the LTMIP they are not divided into absolute and relative restrictions for registration. The practice of the Patent Agency has, however, evolved through the years and some of the restrictions for registration of marks listed in Art. 4 of the LTMIP have become "relative", i.e. they are "inapplicable" under certain conditions. The LTMIP lacks in relevant provisions concerning the limitation and termination of the right ensuing from the behaviour of the bearer of the right. There is no regulation of the collective and certificate marks.

A working group of the Patent Agency is presently preparing a draft of a new law on trade marks which will be fully in line with the new trends in the development of similar legislation in the industrial states, including the EU. The draft will be ready by the end of 1995 and, once coordinated with all interested bodies, it will be presented for approval to the Council of Ministers and, subsequently, to the National Assembly.

2. Directive 97/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products.

The Directive gives legal definition of the notions, "semiconductor", "topography" and "commercial use". It introduces the obligation to give legal protection to the topographies in so far as the latter are product of intellectual efforts and are not in common use in the semiconductor industry. The right is granted alternatively by registration or first use, defining the range of persons who are entitled to register and protect the topography of semiconductors. The period of protection is set at 10 years beginning either from the end of the calendar year in which the topography has first been used in trade in any part of the world or, under the registration scheme, from the end of the calendar year in which the application for registration has been filed. Within the registration scheme, the right originates from the date on which the application has been filed.

There is no legislation in Bulgaria on the topography of semiconductors, i.e. this product is not legally protected. It is advisable to adopt a special law on the protection of the topography of semiconductor products, and the protection is granted through registration by the Patent Agency. The Patent Agency should prepare such a draft law and should present it to the Council of Ministers for approval and submission to the National Assembly.

3. Council Directive 91.250/EEC of 14 May 1991 on the legal protection of computer programmes.

The Directive binds the Member States to offer protection through copyright over computer programmes, similar to literary works in the sense of the Bern Convention. The Directive defines the author of any computer programme as a natural or legal person, and recognises the possibility of co-ownership of the copyright. The scope of the copyrightright is also defined, as well as the restrictions of the exclusive right. The period of protection is set at 50 years after the death of the author or of the last living co-author, and 50 years after the first release in the case when the author is a legal person. In Bulgaria, computer programmes are protected by the Copyright Law and related rights. Like Directive 91/250/EEC, the Bulgarian CLRR recognises as reproduction of a computer programme, with all the ensuing consequences, its:

a) loading;

b) screen display;

c) execution;

d) transmission on a distance;

e) storing in the memory of the computer;

f) translation;

g) modification.

Similar to Directive 91/250/EEC, Art. 71 of the CLRR describes in detail the rights granted to a person who has lawfully acquired the right to use a computer programme, i.e. what he/she can do without the knowledge of the copyright owner and without additional payment. The provisions of the CLRR are adequate both with regard to the period of protection and the retroactive validity of the law concerning programmes created before the entry into force of the law.

At the present stage, the legislation concerning computer programmes in Bulgaria corresponds to the level of protection in the EU.

4. Regulation 1768/92/EEC of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products.

The Regulation provides additional protection for patented pharmaceutical products. The validity period of the patent has been extended by the amount of time necessary to obtaining a marketing licence from the competent authorities decreased by 5 years, i.e. this provides for a longer patent protection whereby the normal 20-year period of validity of the patent may be extended to at least 25 years.

The patent law provided legal protection to pharmaceutical products for the first time ever. The possibility to extend the term of this patent ( now it is valid for 20 years) by the amount of time necessary to market the products has is not foreseen in the Patent Law. It is necessary to draft an appropriate normative act (or proposal for amendment to the Patent Law) which will provide additional protection to the patents of medical products. Such provisions would favour the owners of pharmaceutical product patents and would partly compensate the pharmaceutical companies for the losses they incur in developing expensive innovations. Such patent owners do not make full use of the exclusive rights provided by the patent because of administrative restrictions and formalities determined by the protection of the public interest and health. Similar provisions will also be in the interest of the local pharmaceutical industry. The Patent Agency should make a proposal for the introduction of a supplementary protection certificate for medicinal products.

5. Regulation 2081/92/EEC of 14 July 1992 on the protection of geographic indications and designations of origin for agricultural products and foodstuffs.

The Regulation is part of the Annex on intellectual property, although it is part of the agricultural policy of the EU. It is not included in the section on "Intellectual, Industrial and Trade Property" of the EU White Paper. It is limited in scope - it refers to designation of origin and geographic indications only for certain agricultural products and foodstuffs, such as: beer, natural mineral and spring water, non-alcoholic beverages of plant extracts, confectionery and paste products, rubber, resins and essential oils. There is a possibility to register the geographic indications of these products with the EU Commission. For registration to be permitted, the signed product should meet certain conditions listed in its specification. There is also a possibility for opposition by interested third parties. Parties which are not members of the EU may also, at certain conditions, apply to the Commission for registration of their own geographic indications and designations of origin. The regulation reproduces (in a limited manner) some elements of the Lisbon Agreement for protection of appelations of origin and their international registration. Well-known are the differences in the approaches concerning the protection of this object between the Member States of the EU, exemplified by the fact that only Portugal, France and Italy are parties of the Lisbon agreement.

The Republic of Bulgaria is a party of the Lisbon convention while the LTMIP explicitly regulates the appelations of origin. The protection refers to all types of products which owe their specific properties or peculiarities to the geographic environment including natural conditions or production traditions of a given country, or region whose geographic name is the appelation of origin for the product. In the draft of a new LTMIP the provisions of this object will acquire a more detailed nature, i.e. a conclusion can be made that the protection of this object of intellectual property is at a higher level than that in the EU.

It is recommended that the Ministry of Agriculture examine carefully Regulation 2081/92/EEC with a view to the protection of some Bulgarian products (mineral water, ether oils) by registration with the EC Commission.

6. Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

The Directive obliged the member states to foresee the right to permit or prohibit rental and lending of originals and copies of authors' works. "Rental" means a possibility to use for a certain period of time for direct or indirect commercial profit, and "lending" means a possibility to use for a certain period of time but not for direct or indirect economic or commercial profit when the use is effected by places with public access.

The bearers of the right to rent or lend are the authors, film directors, actor-performers, producers of audio-recordings and films.

The cession of rights of the actor-performers taking part in films is provided by special regulations. The possibility is provided when an author or actor-performer has ceded or transferred his right to rent or lend audio-recording or original or copy of a film to retain his right to a fair remuneration. The right to rental or lending can be given to a collective organisation for protection of copyright which represent the author or the actor-performer. The member states can restrict the exclusive right of lending provided the authors receive a fair remuneration. Its size is determined freely by the member states taking into consideration cultural traditions and objectives. Hypotheses are provided whereby rental, lending, distribution and reproduction of authors' works is considered legally transferred. The directive foresees exclusive rights of the actor-performers on transmission and distribution of their live performance, of audio-recording or video-recording of the performance and reproduction of the recordings on audio or video carriers and their distribution. The right to distribution is exhausted in the Community when the first sale of the carrier is realised by the bearer of the right or with his permission.

The period of validity of the rights according to Directive 92/100/EEC corresponds to the periods provided in the Bern convention and the Treaty for protection of related rights.

The provisions of LCRR of 1993 correspond to the level of protection provided in Directive 92/100/EEC. In par.2.4 of LCRR is defined the notion "distribution of the work" and it includes "sale, exchange, donation, rental or lending, exportat and import of originals and copies of the work". Art. 18, par.2 of LCRR, which regulates the exclusive rights of the author to use the work, defines the use and lists the following actions which are considered use of the work:

- reproduction of the work (fixing of the work or part of it onto a material carrier, irrespective of the form, in one or more copies),

- distribution of the work (par. 2.4 of the additional provisions quotes the definition cited above);

- public presentation and public performance of the work;

- wireless broadcasting of the work

-transmission of the work by cable or other technical meaning; ;

- public representation of pieces of fine art and of pieces, created by photographic or analogical way;

- translation of the piece in other language;

- modifying the piece;

- creation of architectural project by construction or implementation of the object, it is meant for.

The scope of rights, regulated by the Law of Copyright and Certain Related Rights (LCCRR) is broader than that of the Directive 92/100/EEC, which is not applicable for architectural projects and pieces of fine art.

The LCCRR stipulates that in transactions (sales, changes and grants), which lead to change of ownership of the original or copies of the work, the copyright expires with the first, in time, transaction. In case of leasing and renting, which does not lead to change of ownership, the right of the author to allow or prohibit the further (in order) leasing or renting, is preserved, which is explicitly stipulated in the LCCR. The LCCRR also envisages the right of remuneration of the performing artists and the directors of audiorecordings for secondary use of the piece of art. The period of the copyrights, under the LCCRR is in correspondence with the regulations of the Bern Convention and the Treaty.

In conclusion, it could be said that the LCCRR stipulates a level of protection adequate and in certain aspects broader in range than that in Directive 92/100/ECC.

7. Directive 93/98/EEC of 29-th October 1993 for harmonising the term of protection of copyright and certain related rights.

The directive stipulates a term for protection of copyrights on literary and art pieces of up to 70 years after the death of the author. The same term is stipulated for cinematographic and audio-visual pieces of art. For the related rights the protection term is 50 years.

For pieces of art, originating from non member states of the EU or by authors who are not member state nationals, the protection in the EC elapses on the same date as in the country of origin, but it can never exceed the protection term foreseen in the EC.

The term of protection of 70 years after the death of the author is not stipulated in any international treaties in that field. The Bern Convention envisages a protection term of 50 years granting the right to each of the parties to introduce prolonged protection term as well as to foresee the possibility for a given protection term not to exceed the term determined in the country of origin of the piece of art. The universal Copyright Convention stipulates a minimum protection term of 25 years after the death of the author; the Treaty stipulates a minimum protection term of 20 years and TRIP’s 50 years.

The LCCRR stipulates a term of 50 years after the death of the author. The question of prolongation of the legal term of protection from 50 to 70 years (for literary works and pieces of art) has to be discussed at the Ministry of Culture and by the concerned organisations. The solution of that problem is not a priority and we are of the opinion that for the time being the LCCRR needs no amendment.

8. Directive 93/83/EEC of 27 September 1993 for co-ordination of certain rules concerning copyrights and rights related to copyright applicable to satellite broadcasting and cable re-transmission.

The directive gives definition of "satellite", "satellite broadcasting", "cable re-transmission", "transmission" and "collective organisation". The organisations, broadcasting by satellite should have the permission for broadcasting by the owner of the copyright of the piece of art. The permission (the broadcasting right) can be received after contract only. Permission of the performing artists is required for:

- live satellite broadcasting;

- recording of unrecorded performances;

- playing of recorded performances.

The broadcasting organisations have exclusive rights on the broadcasting, the recording of the production and on reproduction of the records of their broadcasting. The member states may limit the rights allowing or prohibiting the broadcasting, for example, in cases of use of small pieces in announcing current news. The directive stipulates also exercising the broadcasting copyrights by collective organisation, except in cases when the broadcasting organisation itself has the broadcasting rights. Participation of mediating organisations in negotiations for cession of rights is stipulated, whose participation has advisory nature, as well as arbitration for disputes concerning cable re-transmission.

The LCCRR regulates the broadcasting organisations' rights over their programmes as related rights. On the other hand, the broadcasting organisations are users of foreign copyrights and for performing their activity they should have the permission by the author for using these rights. There are three categories of persons who should have permission - the authors, the performing artists, the recording directors, i.e. the same persons as those envisaged in Directive 93/83/EEC. The LCCRR explicitly envisages that when the programmeme sent by a radio- or TV organisation through signal to a telecommunication satellite is re-transmitted or re-broadcast, recorded, replayed or broadcast by other person, the permission of the broadcasting organisation which has performed the first broadcasting or transmission of the programme is required. The LCCRR lacks regulations for a mediator position in negotiations and arbitration in cases of disputes, therefore it is advisable that the Ministry of Culture and the Committee for Post and Telecommunications consider the creation of special norms in the existing legislation, having estimated the efficiency of the general provisions for settling of disputes in that specific area. The regulation of the rights and obligations of the broadcasting organisations in the LCCRR corresponds to the regulations in Directive 93/83/EEC, but the development of telecommunications and the complexity of the problem require constant monitoring of the development of international legislation in the field and prompt actualisation and amendment of the existing legislation in Bulgaria.

9. Regulation No3295/94 of 23 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods.

The Directive is applicable in the member countries since July 1, 1995. It introduces a procedure for detaining by the customs authorities of goods illegally bearing a foreign trade mark or being pirated pieces of art (pieces of art, violating the copyright). It is foreseen that, following a request by the owners of the copyright, the customs authorities shall detain under customs procedures (including not to allow change of the customs regime of goods, declared at the customs) goods for which there is information of being counterfeit or pirated copies. The detaining is possible within 10 working days (with a possibility to be continued for 10 more) during which the affected person should submit valid legal title for detaining, retaining, confiscation, or other action, of those goods. Under certain conditions the customs authorities are obliged to respond to such a request.The possibility is also envisaged for requiring the claimant to guarantee and insure the goods against possible damage caused by the importer (the owner of the detained goods, respectively). Explicitly is certified the obligation of the customs administration (under certain conditions) to submit information to the owner of the violated copyright about the name and the address of the importer or his mediator, or the exporter/producer of the goods, as well as about the quantity of those goods.

The Directive is issued with reference to the TRIP’s obligations for the introduction of customs measures against counterfeit or pirated goods.

This type of regulation is not known in the legislation of the Republic of Bulgaria its speedy introduction is not only a matter of harmonisation and implementation of the obligations under the signed international agreements, but also a matter of safeguarding of the local industry from unlawful competition of foreign pirate companies and protection of the right of the users. The introduction of adequate legislative regulation should be suggested by the competent authorities - Ministry of Trade and the Patent Agency, in co-ordination with the Customs Department at the Ministry of Finance.

10 The European Parliament and the Council of EC have made one proposal for regulation and two proposals for Directives in the field of protection of intellectual property.

As far as the texts of those Acts are still not finalised (the proposal for Regulations for creation of certificate for additional protection of plants is still not published) they can be no subject of a conclusive study within the framework of the present analysis. However, it should be taken into consideration that as far as the data bases are included in the matters regulated by the LCCRR, i.e. after issuing of the Directive for legislative protection of the data bases it should be analysed to what extent the regulations in Bulgaria correspond to the protection level in the EC - the existing legal regulations for industrial samples is obviously not harmonised with that in the EC. The LCCRR stipulates a term of 5 years for the protection of industrial samples (without a possibility for prolongation of the term). The Directive for legislative protection of industrial samples stipulates maximum term of protection of 25 years. TRIP’s stipulates a protection period of no less than 10 years. The protection term is only one of the problems of protection of that type of intellectual property. Much more important is the legal regulation of the criteria for allowing protection, as well as of formal requirements for the applications, the scope of rights, etc. The tendency in the Directive is toward minimising the formalities for application of the object. Sufficient criteria are foreseen for allowing registration and provision of protection: novelty and individuality. The draft new Law of Industrial Samples, prepared by the Patent Agency, considerably differs from the draft Directive of the EC. In case Bulgaria - not in compliance with the international tendencies - introduces restrictive requirements for legal protection of that object of intellectual property, this will create obstacles for the free movement of goods, which in the countries of the EC will be protected as industrial samples, while on the Bulgarian territory they will not have such protection.

It is recommended that the Patent Institution study carefully the draft Directive for legal protection of industrial samples and the draft bill on Industrial Samples to be in correspondence with the protection level to be introduced in the EC. Our national legislation in the field of intellectual property faces the requirement of offering protection level equal to that offered in the developed countries (including the EC), that is not to create for foreign applicants and authors unnecessary hindrances which are not justified from the standpoint of assumed international obligations, as well as from the standpoint of the local industry.

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