A well coordinated text is feasible
Korte speech D.W.F. Verkade ter gelegenheid van een “conference dedicated to the 15th anniversary of establishment of the arbitration courts system of the Russian Federation and of the private law research center under the president of the Russian Federation, Moscow, April 25, 2007.”
Het congres stond in het teken van het nu volledig in werking getreden nieuwe Russische Burgerlijk Wetboek (waarbij Nederland met haar nieuwe BW van 1992 een belangrijke klankbordfunctie kon vervullen). Het gehele Russische nieuwe BW is in 15 jaar tijd gereed gekomen: Boek IV, over IE, was het laatste boek en trad dit jaar in werking. Verkade benadrukt het belang van een codificatie van het IE-recht in het Burgerlijk Wetboek en verwijst daarbij naar het ooit geplande Nederlandse IEForum en het uiteindelijk gerealiseerde IEForum.
“Mr. Chairman, Dear Professor Makovskiy,
May I first express my gratitude for having been invited to attend this magnificent conference. On behalf also of several colleagues from The Netherlands who have been involved in dialogue with the drafters of the Russian Civil Code, I would like also to express our congratulations to the organizers of this conference on the occasion of the 15th Anniversaries of both the Supreme Arbitration Court of the Russian Federation, and the Private Law Research Center under the President of the Russian Federation. And also: on the achievement of Part IV of the new Civil Code.
Between the Dutch jurists who have been invited to exchange ideas on the various Parts of the Civil Code, I am a modest member. Professor Ferry Feldbrugge, Judge Dr Wouter Snijders, and others, have been far more involved than I. I render to you their greetings and congratulations, and the same from the part of the Center for International Legal Cooperation (CILC), that implemented the Dutch-Russian cooperation programs together with the Moscow Private Law Research Centre.
My involvement has been restricted to Part IV, the Intellectual property part of your Civil Code. It was a great honour and a big pleasure to me, to be invited to discuss with the Russian scholars on three occasions during the past 10 years.
I would like to stress my threefold admiration for your Part IV.
First, of course, the fact that a modern legislation on intellectual property rights in a very broad sense has been enacted indeed. Part IV reflects of course the many international Treaties in this field.
Second, the fact that it has been incorporated in the Civil Code, and not in separate statutes. Although one might think that it would make no difference to have the same specific rules enacted either in separate statues or in the Civil Code, there are important differences indeed. Unlike the major part of other legislations in the world, your country has stressed the quality of intellectual property rights as a part of private individual rights – rights in non tangibles - by implementing them in the Civil Code. And, more important, your Civil Code has stressed the potential applicability of general principles of civil law on these rights, as far as the specific IP-rules in the Code do not indicate the contrary.
Third: By incorporating them in the Civil Code, at the same time the rules on intellectual property have been brought narrower to each other the rules on Patents, on Copyright and neighbouring rights, trade marks, etc. Of course there are big differences between patent rights, copyrights, trade mark rights, etc. However, many aspects of these rights can be organized in common rules for the separate IP rights, and, if this is possible, should be ruled in common rules. In the major part of other legislations in the world, with separate statutes for the various IP rights, this feature has been forgotten. Your Part IV, starting with Chapter 69, clearly shows that a well coordinated text is feasible and that intellectual property rights have sufficient features in common to make such a coordination fruitful. And, back to my 2nd point of admiration: It was certainly wise to transfer the whole matter to the Civil Code, withdrawing it from the eventual influence of different ministries, who might have difficulties to come to a common solution, as practise in so many other countries shows: including my own country.
As said, Chapter 69 of part IV shows that it is possible indeed to formulate general provisions on those rights, for instance as part of the patrimonium of the owner, transfer, pledge, succession, arrest and on the enforcement of those rights. Separate laws on intellectual property rights in practice often lead to unnecessary differences between provisions in fact regulating the same problem, causing confusion.
Your Part IV, chapter 69, has found elegant solutions for formulating general rules which apply on all or most intellectual property rights. Two examples more are: the provisions on the different kinds of licenses, and those on personal non property rights, which are in the Russian system extended beyond the area of copyright.
Part IV of your Civil Code strikes a beautiful balance between the concept of these rights as a part of private law in general and their special nature, linked to their international aspect. During its finalization in 2006, is has drawn immediately the attention in Germany. The German Association for Intellectual Property happened to discuss the desirability of a General Part, your chapter 69, in May 2006, at its annual Conference.
Your Part IV and particularly your Chapter 69 have achieved what has been approached, as of 1956, in The Netherlands, but thus far, 50 years later, still without result. It should have been our ‘Book 9’, but it is still under construction. Perhaps your Russian Federation achievement may cause new inspiration in The Netherlands, like it did in Germany.
Coming to the end of my comment, it is both funny and important to tell you that nevertheless some ‘Book 9’ is existent in The Netherlands, as of 2004. However, it is not a part of the Civil Code, but a website: www.IEForum.nl. It is a wonderful website. It is unofficial, it is sponsored by law firms, and supported also by University Professors and Governmental people. However: independent. Every professional in IP matters is reading it if not every day, at least once a week. Many professionals, including judges, are contributing to it, week in week out. All news on important court decisions, legislative steps in our country and at the EU-level are reported daily, preceded by witty introductions and nice illustrating artwork. It is great! You cannot read Dutch, but you can see the format and enjoy the illustrations, so link in to www.ie-forum.nl. I wish you to have a similar www.Part4.ru soon.
Thank you for your kind attention !”
