Developments in Estonian Intellectual Property Law: Some Issues Concerning Copyright and Related Rights
| Author | Heiki Pisuke |
| Position | Professor of Institute of Law, Visiting Professor of University of Tartu, Adviser to Estonian Minister of Justice |
| Pages | 166-171 |
Page 166
The purpose of this article is to provide an overview of Estonian legislation pertaining to copyright and related rights, and its perspectives. The article aims to show the role of copyright in the Estonian cultural and legal tradition from a historical point of view and describe the main trends of development in Estonian copyright and related rights legislation, which are mainly based on international developments. The main emphasis in the article is on the aspect of "law in law books". Implementation, enforcement and case law, which in practice are as important as legislation, constitute a topic to be dealt with in a separate article.
In order to be able to answer the question of whether copyright is established in the Estonian cultural tradition and whether the society is psychologically ready to comply with international copyright principles as well as to understand the essence of piracy, a brief historical overview is necessary.
The first Copyright Act in the world was enacted in England in 17101. In 1710, Estonia became part of the Russian Empire. The first few articles on authors' rights in Russia were enacted as part of the Censorship Act as late as in 1828. In an Act of 1830, the concept of author's right was recognised as a property right, but it was only in 1887 that the corresponding provisions were transferred from the Censorship Act to the Property Act, which formed part of the Civil Code2. The 1911 Copyright Act of the Russian Empire, also enacted in the Baltic provinces, was one of the most modern Acts in Europe at the time3.
During the whole period of the independent Republic of Estonia (1918-1940), the Copyright Act of the Russian Empire of 1911 was in force. In the thirties, a draft Copyright Act was prepared based on the German model although it was never adopted4. Legal research in the field of copyright was very modest.
In 1927, Estonia became party to the Berne Convention for the Protection of Literary and Artistic Works (Berlin Act of 1908)5. However, this was a political decision that was not widely supported in cultural circles or by cultural industries. The Estonian public at the time was not ready to accept international principles of copyright protection and favoured the free use of foreign works. In order to support local authors, a special fund - Kultuurikapital (Cultural Endowment Fund) - was created in 1925. The Cultural Endowment Fund provided support to writers, composers, artists and other creative people in the form of monthly stipends and pensions and enjoyedPage 167great popularity. Copyright was regarded as somewhat less important at the time.
In 1932, the Eesti Autorikaitse Ühing, EAKÜ (Estonian Authors Protection Association) was set up aimed at the collective management of authors' rights. The EAKÜ had agreements with several similar organisations in other countries.
After the occupation of Estonia by the Soviet Union in 1940, the Soviet copyright legislation and doctrine were in force until the restoration of Estonia's independence in 1991. Before the adoption of the Copyright Act of 1992, the provisions on copyright were included in Part IV of the Civil Code of 1964. In 1973, the USSR became party to the Universal Copyright Convention (UCC) signed in 1952 in Geneva6. Estonia was bound by the UCC until re-establishment of its independence on 20 August 1991. It is the official position that agreements to which the USSR or the Estonian SSR was party are not automatically valid in the re-established Republic of Estonia. The Ministry of Foreign Affairs officially announced that Estonia is no longer party to the UCC7. Accession to this convention was never seriously discussed.
Estonia has a constitutional basis for the protection of copyright. Section 39 of the Constitution of 1992 reads: "An author has the inalienable right to his or her work. The state shall protect the rights of the8 author."9
This wording of the constitutional clause concerning the protection of intellectual property has brought about some criticism in Estonian legal literature10. For this reason, the Committee for the Legal Expert Analysis of the Constitution, set up by an order of the Estonian Government in 1996, has proposed that this clause be amended as follows: "An author has the right to his or her work. Such right shall be protected by law."
Another constitutional clause, § 25 of the Constitution, serves as a guarantee for authors: "Everyone has the right to compensation for moral or economic damage caused by the unlawful action of any other person." According to the Committee for the Legal Expert Analysis of the Constitution, this section also needs amendment. The new proposed version is as follows: "Everyone has, in the cases and pursuant to the procedure established by law, the right to compensation for moral or economic damage caused by the unlawful action of any other person." The new version restricts the possibilities to demand compensation for moral damage only to the cases directly established by law. As the current Copyright Act includes provisions on compensation for moral damage in the case of copyright infringement, this amendment does not affect copyright protection.
The provisions of an international agreement signed by the Republic of Estonia may have direct effect if the national law is contrary to the agreement. In such case, the provisions of the international agreement which form part of the Estonian legal system are directly applicable (§ 123 of the Constitution; § 2(2) of the Copyright Act).
The currently effective Copyright Act (CA) was passed on 11 November 1992 and entered into force on 12 December 199211. Several implementation Acts were adopted by the Government based on the Copyright Act12.In January 1995, amendments were made to the Criminal Code (§ 136) and the Code of Administrative Offences13.Section 1843 of the Code of Administrative Offences established administrative liability for infringement of copyright or related rights. On 21 January 1999, the Copyright Act, Code of Administrative Offences, Criminal Code, Consumer Protection Act and Customs Act Amendment Act was passed and entered into force on 15 February 199914. Besides the aforementioned general copyright legislation, several provisions concerning copyright can be found in the Broadcasting Act (1994), Advertising Act (1998) and Industrial Designs Protection Act (1998).
On 26 October 1994, Estonia rejoined the Berne Convention in its last revision, the 1971 Paris Act15.Compared to 1927, national implementation of the re- accession decision was easier, although not unanimous. The first accession Act passed by the parliament on 6 April 1994 was not proclaimed by the President and only the second Act passed by the parliament on 18 May 1994 became law16. There was no major debate in the question of joining as such, rather about the retroactive protection of foreign works after accession17. The Berne Convention is administered by the World Intellectual Property Organisation (WIPO). Estonia is a member of the WIPO since 5 February 199418.
In 1991, the Estonian Authors Association (Eesti Autorite Ühing, EAÜ) was established as a legal successor to the Authors Protection Association of 193219. There are several other organisations uniting holders of copyright or related rights but their activities are still in the initial stages.
The Copyright Act of 1992 is the first Estonian Copyright Act in the history of Estonia drafted by Estonian lawyers. It is based on the 1971 Paris Act of the Berne Convention and the WIPO's model copyright law. At the time of its passage in 1992, the Act complied with all international and a majority of European Union standards. The Act provided protection for computer programs and collections of data (databases). Authors were granted a broad catalogue of personal (moral) rights and economic rights, including rental and lending rights. No exhaustion wasPage 168applied to the distribution right (including rental right) held by the author of a computer program, audiovisual work or a fixation of a work on a phonogram. The economic rights of an author may be assigned or an exclusive or non-exclusive licence may be granted20.
As the Act contains a special chapter on related rights (Chapter VIII), it was drafted in compliance with the 1961 Rome Convention (International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations).
However, at present the Copyright Act no longer com- plies...
To continue reading
Request your trial