"Intellectual Property in the system of customs regulation"
Ensuring adequate protection of intellectual property rights in any country - a guarantee of implementation of the major human rights. Today in the field of intellectual property identified two key challenges: the fight against the spread of counterfeit products and harmonization of Russian legislation with international law.
This subject was covered Roundtable "Intellectual Property in the system of customs regulation", organized by the Bar association Customs & Corporate Lawyers (participating company Customs & Corporate Lawyers) and the Working Group on Intellectual Property of the Expert Council on customs regulation of the State Duma of the Federal Assembly of the Russian Federation, held in December 2009 in Moscow, at the First International Forum on intellectual Property Expopriority-2009.
Moderator of the round table - Head of the Working Group on Intellectual Property Expert Council on customs regulation of the Committee on Budget and Taxes of the State Duma of the Federal Assembly of the Russian Federation Oksana Kurochkina opened the meeting by reviewing relevant topics relating to issues of protection of intellectual property.
The topic of discussion was the fight against counterfeit goods in the customs legislation; prospects for the protection of intellectual property after the entry into force of the Customs Code of the Customs Union; problems of protection of intellectual property in the export of products; other topical issues of legal regulation of the international movement of goods, including intellectual property.
With information on the work of the Customs Service of Russia for the protection of intellectual property by the representative of the department to monitor the movement of goods containing intellectual property and information resources UTOVEK FCS of Russia Oleg Ashurkov. He elaborated on how the rights holders themselves can deal with the violation of their intellectual property rights.
"Any right holder when moving goods across the customs border, if it violated his rights, may apply to the Federal Customs Service of Russia that the Customs Service has taken steps to prevent release of goods which, in the opinion of the authors, are counterfeit. In this case, the right holder shall be responsible for applying.
Currently, the most pressing and topical issue is protecting the rights of copyright holders in the Customs Union of Belarus, Kazakhstan and Russia.
The Customs Code of the Customs Union in terms of intellectual property are three national registry, and there would be one registry of intellectual property, which will protect the intellectual property rights on the entire territory of the Customs Union.
To date, it is necessary to harmonize national legislation of the Union governing the protection of intellectual property.
Now the Federal Customs Service of Russia is developing a law under the working title "On Customs Regulation", which will be fixed that was not included in the Customs Code of the Union, as it is related to the conduct of national legislation. It is primarily a question of law enshrines the principle of ex officio (ex officio action)".
Roundtable participants noted that the majority of counterfeit goods entering the territory of Russia from the countries of Southeast Asia, mainly from China. To avoid problems, it is necessary to reach an understanding on intellectual property is to China Customs. How, then, to achieve international cooperation in the fight against counterfeit goods? Today, China is duplicated almost all well-known brands, and the experts have recently noted the high quality of counterfeited products. Here's what it said Oleg Ashurkov: "With China we have priority customs cooperation, a joint working group. Negotiations are extremely difficult, even with Olympic symbols.
With China signed an agreement on intellectual property, which is fixed the exchange of information in the field of suppression of exports and imports of counterfeit goods. Federal Customs Service of Russia is also working closely with the European Union, the United States Customs Service. The question of rapid exchange of information with international organizations".
About how to protect owners of their rights, and the role of the Federal Institute of Industrial Property in the protection of intellectual property told Robert Vaskanyan. He pointed out that there are serious concerns about the Customs Union. Necessary when creating Customs Code of the Customs Union to take into account the experience of European countries, creating a single mark on the territory of the Customs Union:
"In every country there is a national register of trademarks and many trademark registered in each country for different owners. The question arises - how to solve the problem of the collision of similar goods in the markets of these countries (Russia, Belarus and Kazakhstan)?
Rospatent carries out the examination on the national fund of trademarks in their respective countries, without taking into account the funds of other countries, whether Belarus and Kazakhstan. They work on their registries and make lawful decisions in terms of national legislation. Therefore, there may be conflicts between trademarks, registered in the three countries".
On the establishment of the Customs Union and the introduction of the Customs Code of the three countries: Belarus, Kazakhstan and Russia with a detailed story by the Chairman of the Expert Council on customs regulation of the Committee on Budget and Taxes Russian State Duma Nariman Kutlubaev.
"The issue of the integration of the former Soviet Union is, perhaps, ever since the collapse of the Soviet Union. Now, after the establishment of the Customs Union, there is a common market, a single economic area with a population of 180 million people. Now that attracts investment in one of the three countries, the investor does not look at the market of a country, but on the whole gigantic market from Brest to Khorgos in the Customs Union. It is not yet fully understood by all, but part of the most far-sighted investors have realized what was happening, and now they are reviewing their business strategies based on the total market. Of course, there is some legal uncertainty, including in the field of intellectual property protection. And here there is a problem in the so-called "parallel imports". And it needs to look for solutions and compromise between the interests of rights holders, consumers and the state".
Continuing the work of the round table, Oksana Kurochkina invited to discuss and present the problem of protecting the rights of intellectual property in the export product. According to the head of the group, there are currently underestimation of intellectual property as an economic category, and at all levels, from the individual economic entities to the state executive bodies.
"In terms of availability of inventions protected by patents, Russia as a whole is not among the leading position in the world, conceding, among developed countries, China and India. Share of our country in the sale of high technology products in the world market is only 0.3%, "- said Oksana Kurochkina.
The fate of the huge potential of technical solutions period of the former Soviet Union (previously - a third of the world total), designed at the time by copyright certificates, including virtually free of cast during the privatization of private firms, as well as inventions of recent years, is not defined. On individual statistics, the volume of protected intellectual property does not exceed 1%. Consequently, 99% of technologies, programs, products, etc. remain unprotected.
About how things work in the field of protection of rights of patent holders and the Russian Federation to the export of products, said the head of the Export Control of the Federal Agency for the Legal Protection of intellectual activities of military, special and dual purpose at the Ministry of Justice of the Russian Federation Andrey Shchetinin.
According to him, the problem really is acute:
"For example, the state corporation "Rosatom" currently privatize all of its businesses, including the part of the results of intellectual activity, which was created at the expense of the state - the Soviet Union, the successor of which is the Russian Federation. Rosatom, in turn, should exercise receipt of payments to the state budget from the share of intellectual property, which was used for the production of exported goods (about 200 billion US dollars).
Corporation "TVEL" sells fuel elements for nuclear power plants in India, China, and the money obtained from the use of intellectual property rights which belong to the Russian Federation, unfortunately, do not go to the state budget.
Another example: a Kalashnikov rifle, production technology by the Soviet Union simply "gave away" the socialist countries, friendly countries".
"The low level of legal culture, the problem of legal nihilism lead to the fact that we cannot always prove their case before an international court", - says Andrey Shchetinin. - "Unfortunately, there is no law of direct action, which in this case can be referenced.
As a result, a large portion of money that should be used for innovative processes for creating advanced technologies, the state does not reach the budget.
Today, global, Russia has only about 3% of patents. The Russian Federation is necessary to protect intellectual property rights not only at national level but also internationally. Raises fears of military defense mechanism, double and special purpose after the creation of the Customs Union".
At the end of the round table participants in the free form discussed other topical issues on this topic. In particular, the General Director of JSC "Interregional Agency of Intellectual Property" Alexander Maksimov asked whether the expanded powers of the FCS of Russia in terms of supervision and control over the movement of goods across the customs border, which contain the patents and industrial designs. According to estimates Maximov, due to the lack of this function, in 2008 the budget is not received 150-170 billion rubles.
"There is a strategy for the development of the CIS up to 2020, which is expected to expand the powers of the Federal Customs Service of Russia, including the protection of patents and inventions, plus tracking of human rights on the Internet", - said Oleg Ashurkov.
"I think it is necessary to expand the powers of the Federal Customs Service of Russia, given that the charges in the federal budget decreased. Rights holders are ready to turn these assets into economic circulation in the legal plane on the basis of license agreements, assignment of patents" - expressed his opinion Alexander Maximov.
We present in this connection, the question arose: due to what will be collected money in the budget?
As explained by Alexander Maksimov, in this case, the legislator has provided two forms of exercise of rights: the license agreement, the contract of assignment of a patent. In this case we are talking about rights management.
"We have to be very careful and balanced approach to such a proposal. In a crisis, the volume of collection of customs revenues fell due to lower volume of import of goods in Russia. Introduction abovementioned measures may adversely affect the volume of import of these goods in Russia and at the expense of the customs duties in the budget will be reduced, if it increased the tax base for the collection of customs duties. Get reverse result - expressed her opinion on the matter Marina Lyakisheva. - Half of the budget of the Russian Federation is formed not through license fees, but at the expense of customs duties on imported goods, import volumes that you want to cut, increasing the tax base. We already have an example of a dramatic (15-fold) reduction in import of cars with a significant increase in the size of customs duties".
For the participants of the meeting was also a rather interesting question about how to affect the protection of intellectual property approximation of customs clearance to the border of the Russian Federation?
"From the point of view of protection of intellectual property will not change anything, as defended and will defend. Of course, there are staffing issues and jurisprudence", - said Oleg Ashurkov.
The participants were also interested in whether the extended competence of the export control of the suppression of illegal use of protected intellectual property results not only created at the expense of the federal budget, but also to create citizens of Russia?
According to Andrey Shchetinin, prepared by the Regulation "On the Federal Service for Intellectual Property Protection", which will deal with the above issues.
Summing up the results of the round table, Oksana Kurochkina drew attention to the need to change society's attitudes towards counterfeiting:
"It is important to clearly understand: counterfeit - is theft of intellectual products. Internationally, many countries introduced the administrative and criminal penalties for consumers who knowingly purchase counterfeit goods. Should we go this way?"
Roundtable participants agreed that the majority of our population now lives below the poverty line and the purchase of counterfeit goods is not their fault. Consider the introduction of such responsibility to the public should be only when the state and be able to guarantee a high degree of protection of the population against the spread of counterfeit products by the public authorities it.
Today, under the auspices of the US European Union, Switzerland, New Zealand and other countries are developing anti-counterfeiting trade agreement, which provides for the responsibility of the consumer for purchasing counterfeit. Russia is still in the program is not involved.
Magazine article "Customs & Biznes. Revyu" № 01,2010.