The Sorainen Intellectual Property (IP) team in Belarus is pleased to share the first intellectual property news highlights of the autumn with you. Results of the work of the Judicial Board on IP cases at the Supreme Court and upcoming changes in IP legislation, as well as an update on parallel import legalization, are presented for your attention in the latest news review.
- Work of the Judicial Board on IP cases at the Supreme Court
- Upcoming changes in IP legislation
- Rules for performing phonograms without consent of rightsholders
- Update on parallel import legalisation
Work of the Judicial Board on IP cases at the Supreme Court
The Supreme Court published the statistics of the work in IP field for the first half of 2023. During that time the Board considered 75 IP cases. The majority of them were copyright and related rights disputes.
A breakdown of copyright and related rights disputes by category is presented below.
A breakdown of industrial property disputes by category is presented below.
You can find out more about the statistics by clicking on this link (in Russian).
Upcoming changes in IP legislation
On 28 July 2023 the Council of Ministers of the Republic of Belarus adopted the Regulation “On Amending Regulations of the Council of Ministers of the Republic of Belarus” No. 493 (the Regulation).
The Regulation was adopted to implement the provisions of the Law of the Republic of Belarus No. 243-Z dated 9 January 2023 “On Amending Laws on Legal Protection of Intellectual Property”. We mentioned this law in our previous news release (available here). The Regulation aims to ensure IP protection at the level of the Eurasian Economic Union (EAEU).
The Regulation covers:
1) Procedure for registering a licence, and other agreements on the use of the EAEU trademark (although so far it is not possible to register such a trademark)
2) requirements for applications for registration of the EAEU trademark; appellations of origin of EAEU goods (geographical indications); issuance of a Eurasian patent for an industrial design
3) transformation of an EAEU trademark into a national application, replacement of a national registration with EAEU trademark registration
Most of the provisions of the Regulation will come into force on 13 November 2023.
Rules for performing phonograms without consent of rightsholders
Previously, we described the framework for using IP in Belarus without permission of rightsholders or collective management organisations originating from states committing “unfriendly actions” with regard to Belarus. An overview of the relevant law can be found here.
In development of this topic, the following legal acts have been adopted:
1) Regulation of the Council of Ministers of the Republic of Belarus No. 649 dated 30 September 2023 “On Amending the Regulation of the Council of Ministers of the Republic of Belarus of No. 1609 dated 29 November 2011” (Regulation on Phonograms)
The Regulation on Phonograms established the amount of remuneration for the use of phonograms published for commercial purposes and performances recorded on such phonograms without the consent of rightsholders. In particular, the following types of phonograms use are covered:
- public performance of phonograms with the help of technical devices, used as sound accompaniment to:
– concerts, festivals, competitions and other events
– public catering (cafes, restaurants, bars etc.), trade, leisure activities (casinos, museums, exhibitions)
- transmission of phonograms on air, by cable broadcasting, through satellite broadcasting, as well as other communication to the public including via the internet and as part of radio programmes.
In addition, the Regulation on Phonograms introduces a new version of the rules for collecting, distributing and paying remuneration to authors or other rightsholders, as well as transferring the unpaid remuneration to the state budget.
The Regulation on Phonograms will come into force on 13 November 2023.
2) Regulation of the Council of Ministers of the Republic of Belarus No. 696 dated 18 October 2023 “On Using Specific Copyright and Related Rights” (Regulation)
The Regulation defines the procedure for drawing up and maintaining:
- a list of rightsholders of audiovisual works and collective management organisations (CMO)
- a list of the rightsholders of broadcasts/cablecasts
Thus, the use of audiovisual works (for example, films) and broadcasts/cablecasts of the respective rightsholders and CMOs included in the lists should be possible without their consent.
The Regulation establishes that proposals for the inclusion of rightsholders and/or CMOs in the lists and the justifications attached to them are prepared by the editorial offices of television media outlets and are considered by the board of the Ministry of Information.
Inclusion of the rightsholder and/or CMO in the relevant lists should be based on the following criteria in aggregate:
- the rightsholder and/or the CMO are entities originating from states committing “unfriendly actions” with regard to Belarus
- the rightsholder/CMO prohibited or did not consent to the use of the audiovisual work/broadcast/cablecast in Belarus
- the use of an audiovisual work/broadcast/cablecast is necessary to create conditions for increasing the level of information security, and/or developing the intellectual, spiritual and moral potential of society, and/or providing access to the achievements of world culture and events of modern life
At the same time, the Regulation provides for the possibility of excluding rightsholders and/or CMOs from the lists if they, their audiovisual works or broadcasts/cablecasts no longer meet at least one of the criteria described above.
In addition, the Regulation adopts the Provision on Remuneration for the Use of Audiovisual Works and Broadcasts/cablecasts, as well as the amounts of remuneration for the corresponding use.
Date of entry into force of the Regulation is 21 October 2023.
As of 20 October 2023, to our knowledge, the lists referred to have not been published.
Update on parallel import legalisation
Our previous news releases mentioned that at the beginning of 2023 the Belarusian government opened the country’s market to parallel import under certain conditions – an overview of the relevant law can be found here.
In early summer the parallel import legalisation saw a new round of development. On 3 June 2023, the Provision on the procedure for drawing up, determining and maintaining lists of the goods (or groups of goods) which are essential for the domestic market was approved by the Regulation of the Council of Ministers of the Republic of Belarus No. 365 (the Provision).
The Provision established that preliminary lists of goods will be drawn up by the republican state authorities and other organisations subordinated to the Government, while proposals can be submitted by other interested authorities.
Such proposals should justify including the specified goods in the list. The justification should contain a range of information, for example:
- need to import and sell goods bearing a trademark without the rightsholders’ consent
- absence or insufficiency of interchangeable (or similar) goods produced in Belarus
All proposals should be submitted to the antimonopoly authority (the Ministry of Antimonopoly Regulation and Trade), which will send summarised information to the Ministry of Economy, and the latter will send the information to the Commission on Industrial Policy subordinated to the Government.
As a general rule, lists of the goods determined by the Ministry of Antimonopoly Regulation and Trade should be posted on the official website of the regulator. However, information constituting a commercial, official or other kind of secret protected by law will be excluded from them.
As of 16 October 2023, as far as we are aware, the lists of goods described above have not been published.
Our international Intellectual property team is at your disposal, should you need advice on any legal issues you are facing.
Contact our experts:
Maksim Salahub, partner
Marina Golovnitskaya, counsel