Jurate Paulauskiene LAW BASICS.Indd

SCIENCE ECONOMY COHESION EUROPEAN UNION

Creating the Future of Lithuania UNIVERSITY OF APPLIED SOCIAL SCIENCES

SMK University of Applied Social Sciences

UNIVERSITY OF APPLIED SOCIAL SCIENCES JURATE PAULAUSKIENE

LAW BASICS UNIVERSITY OF APPLIED SOCIAL SCIENCES AND INTELLECTUAL PROPERTY LAW

UNIVERSITY OF APPLIED SOCIAL SCIENCES

COURSE HANDBOOK Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

SCIENCE ECONOMY COHESION EUROPEAN UNION

Creating the Future of Lithuania UNIVERSITY OF APPLIED SOCIAL SCIENCES

SMK University of Applied Social Sciences UNIVERSITY OF APPLIED SOCIAL SCIENCES

Jurate Paulauskiene

UNIVERSITY OF APPLIED SOCIAL SCIENCES

LAW BASICS AND INTELLECTUAL PROPERTY LAW Course Handbook UNIVERSITY OF APPLIED SOCIAL SCIENCES

Klaipeda, 2015

1 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Course Handbook

Approved by the decision of the Academic Board of SMK University of Applied Social Sciences, 5th November 2014, No. 6

The publication is financed within the project “Joint Degree Study programme Technology and Innovation Management preparation and implementation” No. VP1-2.2-SMM-07-K-02-087 funded in accordance with the means VP1-2.2-SMM-07-K “Improvement of study quality, development of Internationalisation” of priority 2 “Lifelong Learning” of the Action Programme of Human Relations Development 2007 – 2013.

ISBN 978-9955-648-34-5

2 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

This methodological handbook is designed for high school students of law basics. It has been prepared in accordance with the approved program of study, seminars, tests, independent study plans, in accordance with the Constitution and the latest normative legal acts. During the studies, using the comparative legislative approach, students will be able to apply their knowledge of law. The handbook contains theoretical issues and practical tasks in accordance to the subject program. For students, it is important not only to obtain theoretical knowledge, but also to consolidate it and be able to put it into practice. Therefore, there is no coincidence that the practical exercises follow the presented theory in order to help students to better master the subject topic. In each case, students are able to assess the legal situation, properly select and use the necessary normative act in order to analyse and sole the situation (practical tasks). Solving practical tasks will help students gain professional competence in the areas of law - they will be able to understand and assess the actual legal situation, make the most optimal solution and provide a reasoned conclusion. The goal of this teaching tool is to make sure that the future specialist would acquire legal literacy along with the qualification degree, which would allow them to take a proper position in the civil society. Knowledge of law basics will help the specialist in the various areas of economic activity as all important relations connected with the organisation of business and company management are regulated by law. Therefore, only knowing the legal standards it is possible to make reasonable and appropriate decisions. The presented list of references is not exhaustive. In preparation for seminars and mid-term tests, students are required to double check if the legislation is not repealed or amended; they also can independently choose additional literature needed to analyse a particular theme.

“The essence of law studies is the ability to find truth and justice.” (R. Simasius)

3 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

CONTENT

1. The Main Concepts of Law (Fundamental Rights) ...... 5 1.1. The Origins and Development of Law ...... 5 1.2. Law and Morality ...... 11 1.3. The Subjects of Law and Legal Relations ...... 12 1.4. Legal System ...... 16 1.5. The Concept of Legal Relations and their Attributes ...... 19 1.6. Legal Behaviour. Definition and Types ...... 23 1.7. The Violation of Law and its Composition ...... 24 1.8. The Concept of Legal Liability ...... 26 1.9. The Purpose of Law and its Social Functions ...... 29 1.10 The Sources of Law ...... 30 2. The Main Divisions of Law ...... 32 2.1. Constitutional Law - the Centre of Legal System ...... 32 Independent Tasks for Group Work ...... 43 Comprehension Tasks ...... 54 2.2. Civil Law ...... 56 Comprehension Tasks ...... 62 2.3. Labour Law ...... 64 Comprehension Tasks ...... 67 2.4. European Union (European Community) Law ...... 73 3. Intellectual Property ...... 76 3.1. The Concept of Intellectual Property ...... 76 3.2. Copyright ...... 78 3.3. Related Rights ...... 80 Comprehension Questions, Practical Tasks ...... 81 3.4. Patent Law ...... 83 Independent Comprehension Tasks ...... 84 3.5. The Concept and Attributes of Trademark ...... 85 3.6. Trademark Protection ...... 88 3.7. The Legal Regulation of Trademark ...... 90 Independent Comprehension Tasks ...... 90 3.8. Legal Liability for Trademark Violation ...... 93 3.9. Names of Legal Entities ...... 95 Practical Tasks ...... 95 3.10. Geographical Indications ...... 97 3.11. Protection against Unfair Competition ...... 99 Practical Tasks ...... 100 References ...... 101

4 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

1. THE MAIN CONCEPTS OF LAW

1.1. The Origins and Development of Law

Psychology, Sociology, Economics, Political Sciences, Education - these are sciences that investigate the theory of human relationships in society. They are also called Social Sciences. Law - one of the most important and basic social sciences. Law Science (Jurisprudence) investigates the state and legal phenomena. The research objects are the origin and development of the state and law, the forms of the state and legal features, their functions, the sources of law, law norms and legal relations, their offenses and the types of legal liability, and the types of law enforcement and legislation.

Illustration 1. Lady Justice – The patron of justice (Source: Wikipedia)

Both earlier and in modern day’s law was and is still defined differently. The concept of law is different due to the specifics of the legal system, its features, the interests of individuals and other factors (e.g. the origins and power of law are interpreted differently by the secular and religious authorities). Law is separately defined by the state, church, and religious communities. Its definition also depends on territory (space) (e.g. Lithuanian law, French law, British law, US law, etc.). Therefore, there is a variety of legal concepts in the world. In addition, the law-making process also varies - laws can be accepted in parliaments, referendums (e.g. in the form of laws), courts (in decision-making, resolutions), at international conferences and negotiation halls (UN General Assembly) or defined in one-person-led institution, for example, 5 May 1938 the Constitution legitimised the coup led by A. Smetona in 1926. Professor Mindaugas Maksimaitis first tried to reveal the origin of the term law - comparing 'law' to the term "straight." Linguist Kazys Buga proved that the term 'law', like 'truth', is derived from the words 'straightness' and 'straight'. Therefore, it follows that law is like a straight line, where neither rights arise over the duties or duties - over rights. Therefore, this is the balance and straightness, straight line.

5 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Illustration 2. The goddess of justice Themis (Source: Wikipedia)

Talking about law, its origins, let us be reminded of the symbols of LAW... Why is the Greek goddess of justice Themis depicted blindfolded, holding a sword in the right hand, the scales in the left hand, and pressing with her left foot a book with a snake? Let's try to figure out the meaning of those components. "Ligament on the eyes - a symbol of impartiality. Scales - an ancient symbol of justice and moderation. The Scales of Justice weighed the good and evil deeds which people did in their life. The drooping of the side of the scales determined the posthumous human life. The scales - the symbol of law, because they represent the essence of the law - a straight line between personal rights and duties. Since the scales do not adequately reflect the character of law, they were supplemented by a sword, which makes law a compulsory virtue to everyone, and the sword - is a symbol of retribution for committing evil." (Wikipedia). No social phenomenon occurs naturally, its rise is determined by the emergence of a variety of circumstances. According to prof. A. Vaisvila: "Law is not only a process, but also a cultural phenomenon. Culture - is a human creation, and creation is the manifestation of the spirit in visible forms - in practical human behaviour giving that behaviour legal form. Law, using its tools, supervises if human rights and obligations are in balance, provides a means for non-compliance with these proportions. Such tool as law is created to contribute to human security, certainty, the opportunity to feel safe and protected." Law did not appear by itself, it evolved and developed in conjunction with the society. "Law examines the man-made and created reality, in order to manage its means of protection of human rights and the implementation process. Law seeks to determine how out of the biological, psychological, economic, and human interests a legal reality arises. Law, or law order, as the reality of social relationships (behaviours) regulated in some way, appears from the opposite reality: biological, psychological, social human interest, and is there so that in the process of making standards and combining those interests, would protect them, implement, and finally, would socialise them so that the implementation of the benefits of one person does not lead to the restriction of liquidation of the interests of another person." (A. Vaisvila)

How could one answer the question – what is law?

This is a question that does not have a definitive answer. The concept of law in different eras has been interpreted differently in different countries. In every society there are specific social

6 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW relationships that are regulated differently, i.e. such regulatory norms which depend on the needs of society are being created. During the entire period of civilization the concept of law has been changing. Was the primitive communal society in need of law? It had a unique system of social regulation, which matched the living conditions of society living in that time, its needs, and level of development. In this society, the force had priority, the whole community approval for one individual (the commander), and the public social regulation system consisted of customs and moral norms. Customs were based on religion, they were mandatory to all members of the public due to fear of the various punishments. Customs were flexible and could be applied to different situations. In the primitive society, order has been maintained via moral norms and customs. According to A. Vaisvila, legal regulation should be considered as a catalyst for two factors:

1. “Material - the emergence of surplus production, personalisation of property, 2. Ideal - the autonomy of the individual as a whole, the individual's need for autonomy, social separation and social necessity to ensure the protection of his or her interests."

Morals and customs were elements of the establishment of the legal system. Members of the public should have realised themselves what is legal and what is illegal, their behaviour had to be consistent with the existing customs, religious canons and moral norms. The formation of social relations, complexity of social life, began to form the first written sources of law. These sources were formed from customs, and other rules of behaviour acceptable to the public, thereby providing a benefit to society and other rules of conduct. Each stage of historic development reflects its production public relations, values and guiding principles of social development. Gradually countries formed their legal system for social life. Thus the answer to the question - what is law? - is associated with a particular country and its traditions of legal system, is also associated with the public which has mutual relations regulated by law. The first public political system was dominated by customs, traditions, various prohibitions, moral norms and rules, and individual's authority force. Law was absent and was not needed, but a certain order and organisation still prevailed. Customs were being formed during a long time and because of their multi-application under certain circumstances become suitable for all rules of conduct. Later, at the formation of states, these rules became law (the binding nature of codes of conduct). In ancient Rome, yet, it was so rightly stated: Ubi societas ibi jus, i.e. Law is where society is.

Discussion questions. • What is the state? • What are the signs of the state?

In summary it can be said that the establishment of law and its development path has been very long and complicated. Establishment of law is associated with the emergence of a variety of economic and social changes. Law did not just happen suddenly out of nowhere. Everything evolved gradually in accordance with present customs, traditions and various rules. As long as public relations were not complicated, customs were completely sufficient. But later the importance of customs declined and they were pushed away from life by other sources of law. This resulted also due the fact that unwritten traditions led to abuse by officials and officers who had been instructed to supervise legal requirements. With the emergence of the state, public relations were regulated by the binding rules of conduct, violation of which was the subject to abuse (law norms). The first law acts regulated and defended only the individual commands of the rich. Later, in the slavery political

7 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW system, the first written laws regulating different types of social relations appeared. Remember - it is the Hammurabi law (acquis, released in Babylon eighteenth century B.C.), found in 1901-1902. The Code of Hammurabi, the laws of Hammurabi (Lat. Codex Hammurabi - Hammurabi Code), the set of rules by Babylonian ruler Hammurabi (Hammurabi), the world's oldest acquis and one of the best-preserved monuments of Mesopotamian culture. The law that was written on stone consisted of about three thousand lines. The Code regulated many areas of life of Babylonians. The refurbished stone that was split into 3 parts stands at the Louvre (Paris, France).

Illustration 3. The Code of Hammurabi (Source: Wikipedia)

Ancient Mesopotamia (between the Tigris and Euphrates rivers - 4-3 thousand years B.C.) was one of the most important international trade centres in the ancient world. The most significant document of Mesopotamia - the Hammurabi law by the Babylonian ruler. It is considered the beginning of law. The acquis contained the law of talion - "a tooth for a tooth, an eye for an eye." The acquis clearly identified social groups, and so their legal status was determined very differently. The status of free and slaves differed mostly. A free man in Mesopotamia was considered a full-fledged member of society. The law limited the status of a slave, their situation, their complete lack of rights. Slaves were to be purchased, sold, pledged, given as a gift, loaned, or inherited as an object. Slaves were only objects. The entire population was divided intoamelu (just people or “gentlemen”), and mushkenu (small person or “commoner”, “poor man”) in the Code of Hammurabi. In some cases the acquis particularly protected the interests of mushkenu. However, determining the responsibility for the attempt on the life or health of free amelu was more valued.

The Manu law.

Released in India in the II century B.C. It's a set of various, sometimes unrelated, instructions to a devout man who performs his dharmas - social, religious and moral duties. The basis for slavery in India were wars, borrowers’ slavery, selling oneself into slavery and punishment for crimes. The slaves were sold, given as a gift, or left to heirs. Slavery was patriarchal in nature. Both local inhabitants and strangers (Aryans) could get into slavery. However, the legal situation of the Aryan slaves was special: they were slaves until they worked off their value (prisoners of war) or paid their debts (debtors); it was easier for them to be bought off. One had to pay a fine for selling an Aryan

8 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW teen into slavery. Each article of the Law stated exactly what awaited the offender and his relatives in this life and in the afterlife. The most serious crimes were the ones against religion and private property. (Wikipedia)

In ancient Rome, all citizens ought to be aware of law. Children at school memorised the XII tables of law.

Illustration 4. XII tables of law (Source: Wikipedia)

For that purpose, 450 years B.C. the law of XII tables was composed in Rome. This is a short set of rules and prohibitions, written on 12 copper plates, which were put on display in the town square. Until now tribute is given to Roman law as it gave the basis for the development of law. It would be very difficult to say what the dynamics of law development would have been without Roman law. Feudalism changed the slave society system and lasted in Europe for more than 1,000 years. When the society broke down into different classes with conflicting interests, customs lost their nature as not all members of the public voluntarily complied with these rules. Therefore, a special mechanism to regulate the interests of the whole society, protect and defend it was created due to which the state was born. In order the rich class of the society would protect their property, they had to create such rules of conduct, which would express only their interests. Therefore, the exclusive part of the public created a set of unique new social regulation rules - now called the law. The most notable of the time is the Carolina acquis named after Germanic Emperor Charles V that was in force from 16th to 19th century. The Carolina acquis was the most horrible law of feudal era, which considered the crimes of God desecration, sacrilege, perjury, rebellion against the government as the most serious ones for which awaited death penalty, prison, and other penalties. Acquis declared equal justice for the rich and the poor but for the purposes of criminal responsibility social situation and the caste of the offender and the victim were taken into account. Tsar Peter added the Sophia statute, which was the first set of Russian law and had been in effect in Russian since 1649, with new maritime and military decrees and statutes. Through them the Tsar tried to put an end to arbitrariness of nobility, stressing that any person in Russia is first of all the subordinate of tsar and servant of the state. Lithuania of XIII century was dominated by church canons and traditions. The first written sources are dated to the end of the XIV century. In 1468 by the order of the Duke Kazimieras the Kazimieras's Code was released. This was the first source of the customary law codified in

9 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Lithuania. Later the norms from this acquis were included in the Lithuanian Statues in 1529, 1566, and 1588. At the time, the law of Lithuania defended the rights of feudal, and the power of noblemen prevailed. The illustration respectively presents all three Lithuanian Statues.

Illustration 4. Thee Three Statutes of Lithuania (Source: Wikipedia)

A significant impact on the development of law was made by the XVII-XVIII century revolution in England, North America and France. The written constitutions came under the influence of the revolutionary processes in recent times. Constitution - is the most important institute of the establishment of democracy, the outcome of the fight against the absolute. The world's first written constitution was adopted in the United States in 1787 that is valid up to date. The Declaration of the Rights of Man and of the Citizen was adopted in 1789 during the Great French Revolution. This declaration allowed the provision "it is allowed to do everything that the law does not prohibit" which is still the guarantee of human freedoms. In 1791 the French Constitution established the constitutional order - the principle of separation of the three powers - legislative power, executive power, and the judicial power. The formation of law is a long and complex process that depends on each stage of political and economic development, and the level of scientific development. The process is continuous; therefore, law is constantly evolving.

Discussion questions. • What is law? • Can society exist without specific rules? • What is law for? • Describe the role of law in the process of regulation of human relations. • What came first – the state or law? • Can the state exist without law and law without the state?

The answers to the discussion questions are very simple and self-evident, because no society can exist without some rules (standards), but the value of these norms, regulating public relationships is very uneven. Particularly important is the role of law. Throughout history, people showed

10 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW interest in law, the origins of its occurrence, and the origin. For the same reasons, economic and social rights were created in conjunction with the state, the transition from primitive mankind regime to civilization.

1.2. Law and Morality

Certain rules that are adopted by the society govern the behaviour of the members of the public. At work, at home, in the family, relationships between people are regulated not only by law but also by moral values (morality). Morality through its principles and norms also put on people certain requirements. Morality makes us behave legally, follow the usual rules, guides people to voluntarily choose appropriate behaviours, and avoid legal violations. Judging from the moral norms, actions can be immoral, negative, correct, objectionable, or unfair. "Moral norms are acceptable rules of behaviour that have been formed in the society and orient people to voluntarily choose noble, meaningful deeds, and refrain from inappropriate actions." (A. Vaisvila) Law and morality are closely related. A person holds on moral norms because it is required by the human conscience and one's inner beliefs. According to S. Šedbaras, "a man keeps the law not only because it is required by one's own inner voice, but also of fear of sanctions under legal norms. Therefore, law and morality are ways to regulate human behaviour. Law is the external regulatory measure of human behaviour, whereas morality is an internal, one's own perceived behavioural standard." Common moral principles are expressed in principles. Morality principles are different ethical categories such as, love, pain, sorrow, humanism, love of one's neighbour, love of one's own country, respect for the elderly, honesty, freedom, equality and so on. Moral norms guide a person how to handle a particular situation, reveal the principles of moral content, and determine direction for human behaviour. Human behaviour, corresponding to the norms of morality, shall always conform to the values of the public. Moral and legal norms are closely related concepts, but not all social relations can be regulated only by morality. Why? This is because of the existence of such specific relationships that can be only regulated by law.

Discussion questions. • Could work relations be regulated by morality and by what level? • Could moral norms regulate family relationships? • What norms regulate traffic matters, land, or property matters?

Quite a number of moral requirements are based on legal requirements. E.g. a lie that is regulated by moral and legal norms. Could you describe it?

In conclusion it can be said that keeping both moral and legal norms is the moral duty of every person. A person should always listen to their voice of conscience.

Law and morality are closely related to each other, they influence and lead each other. They are connected by the regulation of human social behaviour, they are often of the same content or have the same goal (express and combine the interests of people).

11 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Table 1. Moral and legal norms

Moral norms Legal norms 1. Origin Appeared before the creation of state, they Appeared together with the creation of state. They were present in the primitive society, most of are issued by the state and only then they are required the society members became aware of them to be followed by everyone. and so they were a regulator of their daily life. 2. The degree of detail They establish only general requirements for They are strictly formulated, defined and set specific human behaviour, duties (do not steel, do not requirements for one‘s behaviour. lie, do not murder) 3. The period of validity Are constantly valid, have indefinite life, The date of coming into force and the expiry dates should be always followed, and are in people’s are set by the state. conscience. 4. The form of expression Legal norms are set in the official normative acts of Moral norms lie in people’s minds. the state. 5. The matter of regulation The matter of regulation is more specific than of Moral norms regulate more general areas of moral norms. Legal norms set rights, duties, and social life (e.g. love, friendship). responsibilities of the relationship parties, and ensure their implementation. 6. Means of ensuring execution of the norms. Moral norms depend on the human consciousness, inner conviction. The authority of the For failure to comply with the applicable laws the force, public opinion, self-control, self- state takes coercive measures. discipline, fear of being condemned - are the guarantee of compliance with these standards.

(Source: prepared by the author)

1.3. The Subjects of Law and Legal Relations

These are not identical but very close concepts. Legal entity (the participant) is a broader concept because there may be cases where a particular person, although being a legal entity cannot be the participant of some certain relations (e.g. a minor cannot participate in the elections, or acquire property). "Legal entity is only an implicit (potential) subject of legal relations, which can never and should not become the subject of specific relations" (A. Vaisvila).The entity or participant of legal relations is the legal entity being protected by law provided rights and obligations in respect to each other. A specific person or organisations must have legal personality in order to become such a relations entity. It is a complex concept, which consists of two structural elements:

• Capability • Capacity

12 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Capability – an individual's ability to have certain rights and responsibilities. Legal capacity - is a law given to the person to have a permit to acquire subjective rights and duties. This authorisation is granted to a person at birth, and it is valid for all human life. The Constitution Article 18 grants this for all the people of Lithuania: "Human rights and freedoms are given with birth." This is the basis of equality of all persons. Legal capacity occurs after the birth of the person (e.g. the right to life), and disappear after the death of a person, the legal capacity of a legal entity arises from its establishment or from the date of registration. The essence of the legal capacity is related to the authorisation of acquiring a subjective right. Therefore, unlike the subjective law, legal capacity is characterised by:

• it is inseparable from one's personality, it is impossible to deprive or limit a person of legal capacity as a general human right to a subjective law; • it does not depend of gender, age, profession, nationality, social status, nor the living address; • it cannot be passed on nor delegated to someone else; • by subjective law it is antecedent; • subjective law is specific whereas legal capability is abstract as an authorisation to acquire not a general but particular legal right; • Subjective right can be lost due to breach of obligations and legal capacity cannot be lost because it is not the subjective right itself but only its possibility.

Universality is a sign of legal capability. This means that the state government from the very beginning recognises one common feature for its citizens - an authorisation to acquire the relevant rights and obligations, and thus promotes the cultural activity of the person. According to Professor A. Vaisvila, "legal capability - is a permanent and necessary civil status of each personality, which includes personal rights acquisition, possession legal premise, and the legal prohibition of discrimination." This principle is recognised by all countries in their national law. Legal capability - is a social relationship between the individual and society. Legal capability is acquired upon our birth and together with it we become the creators of our rights.

There are the following types of capability:

• general • sectorial • special

General capability – it is principle permission to have any subjective right not prohibited by law.

Sectorial capability – it is a specialised permit to acquire rights of certain branches of law, e.g.: marriage, work, elections.

Special (official, professional) legal capability – "This is an authorisation to acquire such rights, which require special education and talent from a person (e.g. a judge, prosecutor, lawyer, doctor, scientist, artist, musician, etc.). The legal capacity of organisations, legal entities also is special" (A. Vaisvila). Specialised legal capability is characterised by the fact that a person can lose it if it fails to comply with certain obligations (deprived of the right to do a certain job to perform certain duties).

Relations participants who already have specific rights and fulfil their legal obligations also appear in legal relations.

13 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Prof. N. I. Matuzovas defines the following differences between the concepts of Legal relations of legal entities:

• A specific citizen, as a permanent legal entity, cannot be also the subject of legal relations. • The infants, the mentally challenged, are legal entities, but they are not subjects of many legal relations. • The legal relationships is not the only form of implementation of individual's rights.

The participants (subjects) of legal relations can be both natural and legal persons, the State. These persons must be characterised by subjectivity - be sueable and capable. Nevertheless, capability is not enough for a person to be a participant of legal relationships; the person should also be capable.

Capacity – it is individual‘s capacity through their actions obtain specific rights and perform the obtained rights and obligations, implement them and take responsibility for their actions. Legal capacity means that a person is not only authorised by law to acquire any legal subjective rights, but it is also a personal spiritual, intellectual, and physical ability to create and implement one's own rights not forgetting to perform one's own obligations. Legal capacity depends on the person's age and mental state. Legal capacity is different in different fields of law. The legal capacity is obtained by a person when he or she reaches the age of 18 years. Children up to 14 years of age and also mentally challenged people do not have full capacity, though, they may have some rights, and they cannot use them by themselves. It is essential that they are represented, taken care of and looked after by someone else. These individuals are protected by law on behalf of their appointed representatives.

Capacity by acquisition of the nature of rights and duties can be divided into:

• legal • covenantal

Legal capacity – it is an individual‘s capability to perform duties set by legal norms (e.g..: military service).

Covenantal capacity - individual's ability by his or her own actions create a civil transaction, acquire the rights and carry out the duties it brings.

In terms of legal liability, one could also distinguish a delictual capacity (Lat. delictum - offence, error). "Delictual capacity is an individual's ability set by the legal norms to guarantee the use of their personal rights by their assets and compensate the damage caused by the use of the rights of others" (A. Vaisvila)

In terms of volume capacity can be:

• Complete - when a person reaches adulthood, is mentally healthy and his or her activity is unrestrained by court judgment. • Partial – from the 14 to 18 years of age. • Restrained - when an individual's ability to acquire certain rights are restricted by a court judgment or order (drug addicts, alcoholics).

14 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW For example, in the civil law, when a person reaches the age of majority, i.e. 18 years of age, capacity comes to it's full. Minors have limited capacity, they cannot perform the all the actions in full extent (sign contracts, marry, participate in elections and so on). In criminal law, responsibility is from the age of 14 (for serious offenses), the administrative responsibility starts from the age of 16, and the disciplinary responsibility starts when a person is employed and signs a job agreement at the age of 16. Individuals, being the participants of various relationships, can hold rights and carry out duties following the legal norms regulating those relationships. For example, a legal entity is related to legal capability and the subject of legal relations is also related to capacity. Exceptions include custody, guardianship, and mediation services. The most important in legal relations is the performance of one's duties because that is the only way to ensure the rights of other participants of legal relations. "Incapable person is not considered the subject of legal relations only because he or she is not able to perform duties which are required to legalise one's own rights in society and also guarantee the implementation of rights of other participants of legal relations." (A. Vaisvila) But if there are other persons (guardians) or state that voluntarily undertake to fulfil the obligations arising from the exercise of the rights of the incapable person, then this person can become the subject of legal relations.

When a legal entity originates rights and obligations, then the legal entity becomes the subject of legal relations. The legal entity must always have rights and obligations because rights cannot be without obligations; therefore, the minors and the mentally challenged can become the legal entities of legal relations only on the basis of their representation.

The types of subjects of legal relations. The subjects of legal relations are divided into: • Individual – natural persons • Collective - these are legal persons and companies that do not have the rights of legal entities. • Natural persons – these are the citizens of Lithuania, foreigners, people who do not have citizenship (stateless person) or those who have dual citizenship.

The subjects of collective legal relationships can be: • state; • state authorities; • public associations, including religious associations, political parties; non-governmental organisations.

A legal entity may be organisations and institutions, which: • have a separate property; • may obtain on their own behalf the property rights and moral rights and also have duties; • may sue and be sued in court or arbitration.

Capability and capacity of a legal entity occurs when a company is registered at the Register of Legal Entities (if the articles of association must be registered, then the capability of legal entity occurs from the moment or registration). The subjectivity of state institutions is special in that they exercise state given power - have the right to give other legal entities mandatory commands and their execution is ensured with legal violence. Their subjectivity (competence) is set by the state with special legislation (usually by laws). State authorities can be the subjects of criminal, administrative, civil, procedural and other relations.

15 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 1.4. Legal System

Norm in Latin means the limit, measure, managing spring, a rule, and example. Behavioural norm - this is the standard of human relations, a scheme, a matrix, an allowable limit of conduct covering a permit and prohibition. Social norms - these are the rules of conduct that are designed to standardise (adjust) the relationship between people and the execution of which guarantee the relationship between the participants of mutual benefit, as well as the impact of state or public means. Social norms are created by state or a specific organisation, a group of people in order to implement purposes of a particular organisation, group of people or society. All social norms are characterised in that they are designed to regulate the behaviour of people, protect all human rights and lead to the actual implementation of those rights. Different social norms do it in different ways. Social norms are divided depending on who they are determined by and in what ways their execution is guaranteed. Social norms are divided into: the law, morals, customs, and norms of public organisations. Legal norms of social norms as a whole is in a dominant position.

Discussion questions: • In what ways is the legal norm distinctive? • Why are we bound to keep the legal norms?

A legal norm - this is required for everyone, formally defined (i.e. established by laws), a general rule of thumb that establishes the rights and obligations of the participants of social relations, and the implementation of which is guaranteed by state coercive punishment.

Failure to comply with the rules results in state coercive measures, so all intentionally keep the law as they know that in the case of their violation, they will be subject to various sanctions (fines, warnings, reprimands, dismissal, disqualification, administrative arrest, imprisonment and punishment, etc.). Other social norms exist in society; we deliberately follow them or not but their violation or failure to comply with them does not bring coercive measures by state. It all depends on people's awareness, cultural, and moral principles. Bad behaviour could be condemned by society or disciplined and only in exceptional cases the state may impose sanctions.

For discussion.... Could you give examples and support their defence with arguments?

In legal theory the following concepts are distinguished:

• Legal system (Lithuania, the Great Britain, the USA and so on.). It includes both the legislation and the legal system, its implementation and enforcement and other legal phenomena. • Legal system. This is a part of a legal system. Legal system - this is actually existing law. Law cannot exist without a system. It is a complex phenomenon, which consists of a system of legal norms, legal ideas, principles of laws, application of laws, law-making, and legal science. Any system is characterised by the fact that it must consist of at least two elements which are

16 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW connected by a specific relationship. The legal system is not limited by legal norms. • The system of legal norms. This concept is narrower referring only to the internal structure of legal norms. All legal norms according to their subject matter and method are organised into interrelated institutes, legal subsectors, and legal sectors.

Legal system ↓ The institute of law ↓ The subsector of law (The connector of several legal institutions) ↓ Legal sectors (The system of the institutes of law and the system of subsectors)

Substantial law branches Process branch of law Constitutional (state) Law Constitutional Procedural Law Administrative Law Administrative Procedural Law Civil Law Civil Procedure Law Criminal Law Criminal Procedure Law Marriage and Family Law Arbitration Procedure Law Finance Law Labor Law Organic Law Land Law Commerce Law International Law Other

Illustration 5. Legal system Source: created by author Illustration 5. Legal system

Branch of law - a whole (system) Source:of legal created norms, by whichauthor regulates the quality of specific social relations. Branch of law - a whole (system) of legal norms, which regulates the quality of specific social relations.In order for a branch of law to occur the following things are needed:

• certain In order types for a ofbranch public of law (later to occur - legal) the following relations things must are form needed an: integral complex in terms of quality; • •thecertain examined types ofrelations public (later of separate - legal) relationslaw branches must form should an integral differ from complex other in terms branches of that regulate relations; quality; • there should be the need to regulate homogeneous relations. • the examined relations of separate law branches should differ from other branches that For example,regulate therelations; civil law is a branch of law; the family law is a subsector of civil law (the III book of the• Civilthere Code should of be the the Republic need to regulate of Lithuania); homogeneous the formation relations of marriage is a family law institute that For includes example, affinity the civil law.law isAll a branch branches of law; of thlawe family differ law in is two a subsector key segments of civil law - these (the III are book the object (matter) of legal regulation - what and what relations are regulated by the branch of law and of the Civil Code of the Republic of Lithuania); the formation of marriage is a family law institute method (in what ways relations are regulated - imperative and civil methods). that includes affinity law. All branches of law differ in two key segments - these are the object

17 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Table 2. Classification of Legislative Branches

Branch of law Description The main sources of law Constitutional An independent, the most important branch of law, the kernel Constitution, constitution- law of legal system, which develops on the basis of other branch- al laws, laws, presidential es of law. Regulates the most important social relations: the decrees, resolutions of the state and government organisation, establishes the status of Government, local self- a legal entity in state, determines the form of government, government legislation and and establishes the types of ownership, political and electoral other legislation. system, foreign policy and national security. Criminal law Regulates the relations between the state and citizens. Crim- Criminal law inal law norms prohibit acts that are called crimes and criminal offenses and establishes penalties for those offenses. It also provides for the circumstances under which criminal liability does not arise (self-defence, necessity of defence, etc.). Criminal Sets the criminal investigations and proceedings in court. Criminal procedure law procedure law Administrative Regulates the state management (establishing of public Public Administration Act, law authorities and their operating procedures, and principles). the statutes of the state in- Sets the acts that are considered administrative offenses and stitutions and others. establishes penalties for those offenses. Code of Administrative Offences (CAO) Administrative Governs the order of administrative disputes at courts. Administrative Proceedings procedural law Act (LAP) Civil law Regulates the property relations of the participants with The Civil Code (CC). equal rights, as well as some personal non-property relations (authors’ rights, honour and dignity, etc.). Subsectors: Contract law, Property law, Family law. Civil Sets the order for civil litigation in court. Code of Civil Procedure procedure law (CCP) Labour law Regulates social relations that occur on the basis of the em- The Labour Code (LC) ployment contract (employer and employee rights and responsibilities, working time, rest time, collective labour relations, occupational safety, and wage). Finance law Regulates the relations arising from the state budgeting, its State Budget Act, separate use, setting and administering taxes tax (income, profit, etc.) laws, payment procedures. International Regulates the relations the participants of which are is a International treaties, con- law country or countries and international organisations. ventions and so on, decisions of international organisations (e.g. the UN resolutions). EU law Governs the European Union’s relations in overall policy, Founding treaties of the internal market, and free movement of persons, services European Community (EU and the distribution of capital. Deals with the powers of the Treaty, the Treaty of Paris in Member States in the field of legislation, the right of direct 1951; Treaties of Rome in effect in the European Community. 1957; The Maastricht Treaty in 1992, etc.)

Source: created by author

18 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Since society clearly reflects public and private interests, a more accurate distribution of rights would be to the material and process laws because it helps to avoid the low-level of interest in the division between public and private, and also it expresses the legislative branches of the mutual dependency relations. Branches of law are joined by legislative branches of the functions performed, where the branch of law complement each other, thus guaranteeing their functionality.

All branches of law are divided into: • Materialistic. Materialistic branches of law regulate the existing property management, usage, disposal relations between people and people groups, also, public administration, law enforcement and other relations. These are the Administrative law, Civil law, Criminal law, Constitutional, Family, Finance and others. • Procedural. They serve the materialistic branches of law; the materialistic norms are implemented on the basis of procedural norms. The procedural branches of law would lose their meaning without materialistic branches of law. The procedural norms set rules for the various legal settlements, crime and other offenses investigation and trial, and the punishment appointment procedures. These are the Constitutional procedural law, civil procedural law, Administrative procedure law, and Arbitration law.

Materialistic law branches interact with the procedural, they complement each other.

1.5. The Concept of Legal Relations and their Attributes

Legal relationships - these are relationships within the society that are regulated by legal norms, the participants of which acquire rights, duties and responsibilities. The general attributes of legal relationships are as follows: 1. Legal relations occur and function only on the basis of legal norms. No legal relationship can occur without legal norms as legal relationship can be only such a social relationship, which is supported by state and the resulting rights and duties of which are protected by state coercion. 2. Legal relationship is a form (way) of implementation of legal norm. Legal relationship is a functioning legal norm. 3. Legal norm is ideological, normative model of legal relationship, where the hypothesis of legal norms refers to the necessary conditions for the emergence of legal relationship, disposition - what rights and duties the participants of such relationship acquire, and sanction - the possible negative results. 4. Legal norms usually do not create the social relations themselves but rather provide them with a legal form and direction of values. Consequently, the legal relationships are the unity of social relationships and legal norms. 5. The state cannot arbitrarily change or freely create relationships with the use of legal norms. The state with the help of laws can only speed up the development of some relationships, give them more space or suppress, narrow them. 6. Legal regulatory mechanism consists of the legal norm and legal relationship, which are the constituent parts of a regulatory mechanism.

Each branch of law regulates different social relations, which have common features for all relations and special, attributable only to that specific law branch, i.e. law branches differ in subject matter.

19 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Legal relationship assumptions: the legal facts and their types. In order for the legal relationship to occur and function the following conditions should be met: • legal norm • legal facts • legal personality (capability and capacity as the legal attributes of the participants of legal relationships). Only if they are together, these three conditions make the basis of the emergence and functioning of the legal relationship. "Legal facts – these are specific circumstances in life, events that cause the occurrence, change or end of particular legal relations. When the state starts to regulate the relationship resulting effects (consequences), it can be stated that the fact is legal." (A.Vaisvila).

Legal facts, depending on their nature could be classified on different basis. According to human participation, legal facts are divided into: • events • actions

Events – are such legal facts which occur despite the participants‘ will and consciousness (nature disasters, flood, earthquakes, birth, natural death etc.). Actions or activities - these are such legal facts that depend on person‘s will, are caused and performed by people. Activities (not actions) – mean operation and absence of operation.

Depending on legal norms actions are divided into: • legitimate (retirement, registration of marriage, conclusions of various transactions), • illegal (bullying, thefts, murders).

Depending on the effects caused by the nature the actions are divided into: • legal facts giving rise to legal relations (contracts of employment, marriage, etc.); • facts which cause breaking or ending of legal relationships (promotion, transfer to another position, the company's liquidation, etc.); • facts which cause breaking or ending of legal relationships (the employee's death, dismissal, etc.). Legal status with respect to time are also assigned to legal facts (marriage, fixed-term employment contracts, etc.). Overlap of several juridical facts. Often there are cases when legal relations require several interrelated facts in order to occur, change or end (e.g. the formation of marriage, inheritance). The structure of legal relationships The legal relationship is composed of three structural elements: • the object of legal relationship • subject • content

The object of legal relationships – this is something on which the focus of rights and obligations of the relationship are, that cause the person to turn into a legal relationship. The object of legal relationships is something that the participants of the relationship can use. To be more specific - these are values that are sought by the participants to be obtained in order to implement their own rights. Those values can be material or spiritual.

20 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 1) Material values, most often the objects of civil property (purchase and sale, given as a present, etc.). 2) Personal non-material values (honour, dignity, freedom, safety, etc.). 3) Behaviour of the participants of legal relationships, various services, their results (household, service management and other areas). The results of spiritual works. This results in the protection of copyright legal relationship attributable to property relations. 4) Securities, official documents (bonds, bills, money, etc.).

The content of legal relationships The content is composed of the rights and obligations of the participants of the legal relationships. The term law has two meanings in this case: • Objective law • Subjective law According to A. Vaisvila: "in the concept of law it is important to distinguish the levels of objective and subjective law. Subjective law - legally possible behavioural measure permitting the individual (human) interests. This is the existing set of rights and legal power of legal entities. The subjective law - this is the type and extent of the conduct of a person, prohibited or permitted by law and protected by state coercion. Subjective law always is owned by a specific person and in most cases is obtained by his or her individual efforts. In accordance with the concept of democratic law: "subjective law - this is the specific person's behaviour sanctioned by the state to which the person became entitled performing certain duties to the state or other members of the community." (A. Vaisvila)

Since all theorists of law describe the subjective law in the same way, I follow the statements of prof. A. Vaisvila. "The structure of subjective law. It consists of the unity of three permits: a) a permit to behave in a way it is set in a legal act - to benefit from a public good; b) a permit to demand that other individuals in relation to the holder would withhold from some actions or would perform positive duties on his or her behalf; c) a permit to refer to a competent public authority which using state coercion would force the other part of the relationship to fulfil obligations needed to be carried out on behalf of the holder of subjective law according the law or contract - what is a legal claim." (A. Vaisvila)

Duty as the element of the subjective structure of law. Legal relationships implement the unity of rights and duties; therefore, their participants, having rights also obtain duties – they are the performers of those duties. Legal duty – "that is the required conduct of the participant of the legal relationships the goal of which is to implement the rights of the other participant of legal relations and on the basis of that legalise their own rights in the society" (A. Vaisvila).

Duty always consists of obligations: 1) to perform some specific actions on behalf of another person; 2) do not hinder other holder of rights to use the good he or she has rights for; 3) to cover damages made to other person's rights made during the process of using one's own rights.

Right next to the characteristics of subjective law, prof. A. Vaisvila identified the following attributes of objective law. Objective law is "a system of positive legal norms that set general rules of conduct for all legal entities (rights and duties)" (A. Vaisvila).

21 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

1. “Norms. Law, realising the purpose of social regulator, sets the general rules of conduct (called the law norms) of the members of society, setting the limits and boundaries of permitted and prohibited behaviour.

2. Universal applicability. Law is universally binding common set of rules of conduct. Legal norms express the will of the state and are required to everyone within all the national territory or entities associated with the state entities.

3. Formalisation and systematisation. The norms that form laws are specific rules of conduct that are formally expressed in legal acts. These common rules of conduct when they are expressed in the state legal acts become objective and take legal effect. Legal norms are applied for unlimited number of times during the whole time of their existence. They are not scattered or have end in themselves, they are consistent with each other, define each other and are closely interrelated, and constitute a system.

1. The nature of will. Legal norms always must express the person's will, i.e. person's will expressed in a legal norm should be guaranteed by state coercion. Competent state authorities, applying appropriate legal means ensure their universal applicability. If the legal norms are not ex- ecuted voluntarily, then the provided sanctions in legal norms should be applied. “

Types of legal relationships Legal relationships are variously classified. The following are the main legal relations and con- strued in accordance with the different types of classification methods. The legal relationships are most often divided into subdivisions: state (constitutional), administrative, civil, financial, labour, family and etc.

In respect of entities: • Legal relationships between individuals • Legal relationships between natural and legal persons (civil, commercial, etc.) • Legal relationships between citizens and the state (financial, criminal, administrative); • Legal relationships between countries (international relationships, diplomatic relationships).

According to the degree of specificity and the number of subjects of legal relationship are divided into: 1. Absolute. In such case of legal relationships only one party is established. All others must respect the party's existing law (e.g. property), not to interfere with its implementation. Absoluteness here means that this obligation is determined for each and every one. 2. The relative. In the case of relative legal relationships both parties are defined (e.g. the creditor and the debtor). The implementation of the rights of the participants of the legal relationships is associated with the specific duty of another participant.

According to functions legal relationships are divided into: 1. Regulative – this is such a function when people seek to gain rights, implement them and protect them (constitutional, labour, family, administrative, civil, etc.) 2. The relationships of coercive measures of state. They appear due to infringements of the legal norms (refusal to comply with an obligation), applying certain sanctions to the violator of legal norms. All relations resulting from the application of the Criminal Code, CAVL and some of the norms of the CC.

22 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

1.6. Legal Behaviour. Definition and Types

Legal behaviour – it is such a behaviour of individual that does not contradict the requirements of legal norms. Legal behaviour is characterised by following attributes: • behaviour does not contradict the legal norms; • behaviour that is acceptable or at least desirable by the society; • conscious individual‘s behaviour: the individual knows what and for what reasons they seek with their behaviour. These are the motives of behaviour – the reasons for action or passivity, the nature of behaviour – when the behaviour is purposeful or reckless, and the purpose of behaviour – what is sought by such behaviour.

Types of legal behaviour According to the extent of activity: • active steps: • Omission (passive) behaviour.

According to the motives of behaviour: 1. Conscious behaviour - the person consciously knows how they should act, know that their conduct is legal, that their behaviour support public order and peace. In this way, the mutual benefits are guaranteed for both parties of relationship (e.g. paying for buying the goods). 2. Marginal or limited behaviour - when a person is inclined to violate the law, but for some reasons their behaviour do not become an offense. The main reason that keeps from making the offense - generally are the fear of possible punishment, fear of being condemned by one's own family, group and others. Marginal behaviour is "intermediate" between legal and illegal status of a person. 3. Comformistic behaviour happens when a person does not understand the meaning of keeping legal norms, obeys them "blindly", and consciously does not really tries to understand that. This is adaption to the surrounding views and activities. Such behaviour is comformistic, when the person behaves in a particular way only because 'everybody' does so and because behaving "like everyone else" is beneficial as it helps climbing the career ladder. Such behaviour is known as comformistic (Lat. Conformis - similar, alike). 4. "Conformistic people - are people who do not have individuality and are depersonalised. The distinctive feature is the crowd syndrome i.e. "herd mentality"." A person does not have their own opinion, they just behave as others do in order not to be different. A person obeys the opinion of others and in such a way follows the legal requirements and helps to implement those requirements; therefore, social legal conformism is recognised as beneficial societal behaviour." (A. Vaisvila) 5. Social active behaviour – "this is the highest level of legal behaviour, which manifests itself in beneficial public activities that aim to establish the rule of law in human relationships and is not always positive in terms of legal rights (dissident activities, national liberation movements). Social legal activity is defined by high legal consciousness, deep legal certainty, independent thinking, self-determination to creatively use their personal rights, and to implement the resulting obligations." (A. Vaisvila)

Prof. A. Vaisvila defines active behaviour in the area of law by the following characteristics:

1. Active participation in the activities of volunteer organisations (political parties, unities,

23 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW movements, associations. 2. Active behaviour in legislation (participation in elections, considering planned laws, etc.). 3. Active participation in creating alternative public or state institutions also participation in their activities (municipal councils, committees, rights protection associations, various groups, etc.). 4. Amateur personal activity in the area of law (suggestions in the areas of law and politics, etc.). The opposite of legal behaviour is illegal behaviour.

1.7. The Violation of Law and its Composition

"Law violation - it is contrary to law, guilty activities of persons or organisations, which cause damage to citizens' rights protected by law or legitimate interests of the legal order in general" (A.Vaisvila). This is the traditional widely understood definition of the law violation. "Law violation - this is person's exercise of their rights, deliberately refusing to carry out statutory duties, the performance of which the law deems as necessary condition to legalise personal use of personal rights in society" (A.Vaisvila). The violation of law is characterised by the following features: • The subject of the violation of law may be only to individuals (citizens, foreigners), or their groups because the law violation is a conscious activity of people or groups. • The law violation may occur due to deeds (active action) or omission. • The law violation is illegal, i.e. contrary activity to law. • The law violation is an illegal act because it causes damage to individuals, organisations or the state.

The composition of law violation. Next to the concept of violation of law the concept of the composition of law violation is used. "This is the system of most typical and essential, objective and subjective elements, which cha-racterises a specific act as dangerous to the public and contrary to the law" (A. Vaisvila). These characteristics are sufficient that if the entity or individual that meets them would be prosecuted. ! Remember: only when there are all the constituent elements, it is considered that a person has committed an offense. If at least one of these characterises is absent, it is considered that a person did not commit the offense, it means that there is no evidence of his guilt.

Elements of the offense: • the subject of the offense • the object of the offense • the objective side of the offense (object features) • the subjective side of the offense (subject features)

1. The subject of the offense – means any person (natural or legal) who violated the law. A natural person should be capable, of a certain age, capable - able to understand the opposition towards the law of their own actions. 2. The object of the offense – these are the personal, social, material and other values protected by law that are being violated. 3. The objective side of the offense has the following attributes:

24 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW a) An act (action or omission); b) Results of the act (damage – real or possible, material or moral); c) Direct causal link between the act and the resulting consequences (outcomes). 4. The subjective side of the offense has the following attributes: a) the motives of conduct - incentives that resulted in the act of offense; b) objectives - means the result that is pursued by one's own actions; c) fault - the mental relationship of the offender with their offense, contrary to the law. Forms of fault: intention and carelessness.

Criminal Law (Criminal Code) divides intentional guilt into: a) direct, when a person intentionally performs acts opposite to law and consciously seeks the outcomes that could be brought by the specific actions; b) indirect, when a person intentionally performs acts opposite to law but do not desires for the outcomes brought by the specific actions. Carelessness – means a form of guilt when "a person provided that their actions or omissions may cause serious consequences to the public but carelessly hoped that they will be avoided."

Carelessness can be divided into: a) reckless trust b) negligence

There is no composition of the offense if a person commits the offense contrary to law being forced by irresistible physical force. The composition of the offense - means a conscious act that to some extent expresses the freedom of will. Types of offense Depending on the level of danger to the society the legal offenses are divided into: • Crimes. A crime means a threat to the public (act or omission), which is described in the Criminal Code and which is a threat to the very important values protected legally. The law provides criminal penalties for such crimes, the heaviest of which is imprisonment (imprisonment for life). • Violations. Violations - less hazardous acts to the public. Administrative, property, and disciplinary sanctions are provided for them.

The following offenses are considered violations: • administrative offenses - is contrary to law, guilty (deliberate or negligent) act or omission which causes danger to the state or public order, property, civil rights and freedoms, the established order for which the law provides administrative responsibility; • civil offenses – torts (borrower does not repay on time the debt to the creditor); • disciplinary offenses (institutions, the company's internal rules).

According to the nature, the offenses are divided into: 1. material, when a tangible material damage is done to the another person‘s (natural or legal) rights; 2. formal, when only the order is violated, there is no real harm done; however, there is a threat to such damage.

25 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 1.8. The Concept of Legal Liability

We all understand the responsibility as some kind of duties. Be responsible - means to be diligent. There are many definitions of responsibility, but responsibility must always be associated with the performance of duties. "Responsibility - means the perception of responsibilities to the state and the public" (A.Vaisvila). Many understand legal responsibility as the application of penalties of an offense. Prof. Stasys Sedbaras in his textbook "Administrative Responsibility" (2005), describes the legal responsibilities as an effective tool to ensure legal behaviour in society, decisively and effectively preventing breaches of law. People take the moral norms of morality, because of the demands of their conscience and their inner convictions. St. Sedbaras after summarising the characteristics of legal liability, provides a definition of legal responsibilities:

Legal responsibility - means on behalf of the state forced exposure on the offender, which aims to guarantee the established legal order by the legal norms, restore the balance of rights and obligations, which manifests itself by condemning the offender's behaviour and applying legal sanctions, due to which the offender faces negative moral personal, property, physical, and organisational consequences.

Task. In accordance with the given definition, specify the attributes of legal liability.

Legal liability has certain grounds, in the absence of at least one of them, one cannot talk about legal responsibility of the full extent. It is necessary to mention that in the case of legal liability, the offender must suffer negative consequences, they must feel that they are liable, meaning the real responsibility must be applied (e.g. an imposed and recovered fine).

Discussion question. If the offender is guilty of an offense is hiding, and any sanctions cannot be applied to them, what about the feedback of legal liability?

Table 3. The basics of legal liability

LEGAL LIABILITY Normative basis Factual basis Procedural basis (The legal act that provides (The offense) (Institutional procedural activity, inves- liability) tigating the violation of law, the objective of which is ensuring the fulfilment of a real variety of sanctions)

(Source: St. Sedbaras. Administrative responsibility)

The conditions for legal liability to occur (according to St. Sedbaras) In order legal liability to occur the following basis are needed: 1) legal norm 2) usage of subjective law 3) damage

26 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW The following conditions are needed for legal liability to occur: 1) legal norm; 2) guilty action (action, omission); 3) the subject of legal liability can be only the guilty person or organisation. Guilt is the subjective basis of legal responsibility. The person can be held accountable only for the offending act. 4) the act of applying legal liability that is the legal basis to apply the sanctions set in legal norms towards the specific rights of the specific offender.

! Only at the presence of all these four conditions, the basis to apply legal liability occurs.

Types of legal liability In legal theory, legal liability is divided into: a) criminal; b) administrative; c) civil; d) disciplinary; e) material.

Criminal liability is the strictest type of legal liability, applied only by courts for most danger law violations – crimes. Only after identifying an offense in the person's actions it is possible to pull them to justice. It is applied in accordance with the court judgment using such penalties as imprisonment, confiscation of property, the correction works, fine, suspension of some duties for some period of time. Here is one of the subjects - the state - acquires the right and duty to apply the penalties provided by law towards the victim, and the other subject of the relationship - the offender must carry out the given sentence. Criminal liability is of public nature, i.e. only the state can impose a sentence through the authorised institution that is court. ! Criminal liability causes criminal record with which the restriction of rights or re-tightening the criminal penalties can be related.

Administrative liability is applied for lighter offenses - offences of the administrative law that are identified in CAVL norms. It is used by state institutions - courts, various inspections, and officers. The main act of administrative liability - CAVL, which defines what actions violate any law and what administrative sanctions are applied. There are the following administrative penalties: warning, fine, collection of confiscation of the repayable object that was the instrument or direct object of the administrative violation, deprivation of a citizen special rights, administrative arrest, and removal from work (duties).

Civil liability is of property nature and is applied for the non-fulfilment or improper fulfilment of agreement prescribed duties as well as damage done towards the rights of another person or organisation (legal entity). Such sanctions are forfeits: a) contract provides a fine for not keeping contractual obligations or improper fulfilment (omit- ted due dates for keeping the obligations); b) interest, the amount paid for the failure to perform contractual duties on time calculating for each missed day, week, decade, etc.

Civil liability is applied by organisations or administration of an institution towards their own employees for violation of labour discipline. The Labour Code provides the following disciplinary

27 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW actions: warning, reprimand, dismissal from work.

Material liability employer's and workers mutual obligation to compensate the material damage caused by them breaching the employment contract.

The legal principles of liability Principles - "these are the basic ideas, methodological landmarks, which should be followed by public authorities and officials who have rights to apply legal sanctions." (A. Vaisvila). 1) The administration of justice; 2) The compensation of an offense; 3) Developing respect for human rights and justice; 4) Prevention activities against violations of law.

Signs of legal liability: 1) Contracts should be followed. A person must carry out the duties arising from the law. 2) Damage caused by the exercise of rights must be compensated. 3) The principle of legality. Legal liability applies only in respect of an offense under the law and in accordance with the process of law regulated procedures. 4) Feasibility principle: legal liability can be applied only if the objective truth is set - the fact of the offense and the circumstances surrounding it. 5) The principle of equity. Restoring the balance of offender's rights and obligations.

Implementation of this principle has some procedural features: a) It is not permissible to impose criminal liability for minor offenses. b) The law establishing the criminality or aggravating responsibility is not dated retrospectively. c) If the offense causes damage that can actually be restored (to return the stolen goods) then the applied sanctions must guarantee the recreation of such rights. If the offender did irreversible damage to the rights of another person, then legal liability (the sanctions) imposed shall be proportionate to the extent of the damage and meet legitimate activities matching the degree of danger to the public. d) Any person who has committed a violation of law, shall be liable only for their specific illegal conduct. e) One offense can take only one legal punishment (non bisin idem - no one is to be punished for the same offense for the second time). This applies only to criminal and administrative liability, as they cannot be applied together. (A. Vaisvila).

When the offense causes damage not to one but several objects and several rules of law are violated then legal liability occurs separately for legal norm. The principle of expediency requires that the applied sanctions and legal liability would match.This is the individualisation of punishment taking into account the level of the offense, the offender's personality and the circumstances in which the offense was committed.

Inevitable legal liability - that is inevitability of punishment of an offense. The principle of effectiveness of the legal liability. This is the legal responsibility of the legal effect on human consciousness and their effective behaviour. It deals with the legal liability of promptness. It argues that the legal responsibility will be the more effective if it appears as early as possible.

28 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 1.9. The Purpose of Law and its Social Functions

Law as social science also performs social function. The social purpose of law shows the objective pursued by the law (legal norms). The goal of social law is shaped depending on the changing social structure, social forces and the legal concept itself. There are two stages in the development of the purpose of social law.

1. Classic (meaning that the goal of law is the protection of the dominant social groups, their interests, diminishing the meaning of other social groups). 2. Democratic (protection of the interests of all social groups, coordination of opposite interests, keeping the social peace and coexistence, seeking for social compromise). Values that have existed earlier and do not depend on the state. Because of these values people make agreements between each other – that is the way to standardise people‘s conduct. The state does not set legal norms arbitrary but taking into account people‘s agreements and present values, i.e. it only validates society‘s view towards justice. In such a way, society, with the help of the state creates law. Here the relationship between the state and the law is resolved in favour of law. Here the law occurs and evolves out of real existing relations - it is recognised that the law is formed by the state (through laws) and actual human relations. The direct impact of the state to law can be defined as creative and guaranteeing. The state power is the driving force in the creation and development of law. Democratic state is interested in advanced law because only in the conditions of democracy the law can grow and develop, and is dynamic. Political regime makes a huge impact on law. At the authoritarian regime, the operation of law is limited and has narrow functions. Here, the law becomes an instrument of government to legitimise their authoritarian actions.

The social purpose of law is realised via social functions. The functions of law - legal ways to impact people's behaviour and actions. All functions of law are interrelated and form a system.

The following main functions of law are defined: 1. Regulatory function. Regulation – the main way of law influence on the relationships of the members of public. Law regulates the rights and obligations of the public participants. The content of this function is composed by legal imperatives – to allow (giving the right), prohibit, and obligate (setting the obligation). In a democratic society rights to use legal values is granted to a person, while also the right to require from others not to interfere with implementation of one's own rights but also the obligation is put that while using one's own rights be sure not to hinder the application of the rights of others, i.e. the principle of unity of rights and obligations is applied. Non-democratic state guarantees rights for some people at the expense of obligations of other people, thus, the regulatory function of law is expressed via asymmetry of the privileges and obligations. Regulatory function is realised combining opposite interests seeking social compromise.

2. The function of state coercion legalisation (or also known as a protective function). Legalising the state coercion seeks to ensure regulatory functions. The essence of the state coercion legalisation function is the imperative - punish. The main imperative of this function - to prohibit certain acts. State coercion legalisation function is found in both democratic and non-democratic states. Only in democratic countries, compared to totalitarian regimes, this feature is narrower in scope. Secondary law functions are also distinguished: informative, educative.

29 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3. Information. This function is related to publicity. Law shows to the participants of social relationships what negative effects will be felt if they fail to respect legal norms. Person needs to evaluate negative effects of their conduct, also threats to themselves and others. Human will is important in law (all human actions are performed with their will). It is very important to present the correct information not only in legal acts but also in educating people. It is necessary to provide timely, relevant information, so that they could select the information that is needed and important.

4. Educative function (also known as the function of prevention of violation of law). Law encourages people not to cause damage, make conclusions, and know what consequences may be caused by one or another kind of offense.

1.10. Sources of Law

In order for legal norms to become reality and carry out its functions, the law needs external expression. In foreign literature this is sometimes referred to as the legal form, in some cases - legal sources or form and sources. In order to rationally deal with this contentious issue, first of all one should keep in mind that the legal form has been provided for already formed public relations, the content of which the rights and obligations between parties, i.e., actual legal relationships, and they usually occur in the economy. The source of law means as the form of expression and consolidation of legal norms. According to prof. A. Vaisvila, legal form is perfectly described by certain characteristics: 1) The source of law expresses the norms established by the will of citizens and is determined by the current socio-economic base; 2) Establishes and guarantees the nation's political power; 3) Establishes the priority of democratic forms and first of all of the priority of the meaning of laws; 4) Establishes the regulatory drafting and adoption procedure of regulations. In wider perspective, the source of law is public relationships that need to be regulated and realised by the legislature. The legislator is aware that the whole of certain public relations, certain option of public behaviour must become generally binding rule and enact into the law. Then a legal norm is set or already existing living norms are sanctioned and in thus converted into law. In material perspective, the sources of law would be material, social and other living conditions of society, which allow issue or change, supplement legal acts or change the whole law system. Since the term "form" has many meanings, most of the authors consider legal norms and the source of law as synonyms, identical in terms and concepts as they are used as a way of expression of the will of the state, the determining method of legal instructions or the way in which the state government provides universal binding rules for conduct.

Prof. A.Vaisvila distinguishes the following meanings of sources: 1. The sources of law are the sources of law knowledge, i.e. all those matters that contain data of different ages, in order to learn of legal norms of one or another society, meaning: written texts of law, written customs, court cases, chronicles, and works of literature. 2. "Sources of law" - the various public interests, moral ideas and religious beliefs - are the sources of law in material respect. 3. "Sources of law are the fixed, forced legal norms" - is the sources of law in formal respect. The most important sources of law are legal customs, judicial precedent, and normative legal acts of state institutions. Legal custom - it is historically formed rule of conduct that formed due to the frequent repetition

30 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW and became state-sanctioned. Legal customs make the customary law. They originated in genera- ting economic relations because the state due to its primitive state still could not normalise their legislative activity. The most blatant examples of legal traditions are slavery and feudal law monuments, as 12 table’s laws, the laws of the Dragon. Customary law was based on barbaric, uncivilised behaviour rules, which in modern democratic states they do not apply in practice. Customs in civil and international law if they are applied in the cases established by law can also have a very narrow meaning of the source of law. In Lithuania customary law is not used, but there is one classic example, which speaks of the first steps in the formation of the government, it is the Prime Minister's appointment to office. Discussion question. Give an example of an existing legal custom in Lithuania. (Remember the formation of the Government of Lithuania.)

Answer. After the election, the winning political party (coalition) presents their candidate to the President to the post of Prime Minister. Why is this happening? This happens to ensure the cooperation of the Government and the Parliament in the preparation and adoption of laws. After all, the government has provided most of draft laws to the Parliament. Who would vote in the Parliament if the Government was not led by majority leader? If it was the opposite way - there would not be any work between Parliament and the Government, the legislative process would stop. It is a custom that is not recorded anywhere but is successfully met.

Court precedent - which the decision of the state (mainly judicial or administrative) body on a particular case, the basis of which is used dealing with similar cases. It was particularly prevalent in ancient Rome and the feudal courts. Many marine and commercial law claims were formed on merchant ships. Contemporary court precedent is the main source of law in the so-called Anglo- Saxon law countries: United Kingdom, USA, Canada, and Ireland. Currently, Lithuania has already spoken about the judicial decisions as precedents.

Normative legal act - that is a written official act issued by the State competent organs or institutions - a document that determines, amends or withdraws the legal norms. All, without exception, normative acts are state acts as they are allowed or sanctioned by the state authorities. They express the will of the state. If they are breached, then criminal, civil, administrative laws of other legal sanctions are applied. Legal norms issued by the state institutions are laws, decrees, ordinances, government regulations, ministerial decrees, orders by state committee chairmen, local authorities and governing bodies’ resolutions and decisions. Normative acts in legal system are identified and distributed in hierarchical way, i.e. depending on belonging. The lowest are the acts issued by the local government institutions and the highest - laws, statutes that are released by the highest state authorities and also international treaties ratified. These acts, laws, compared with all other acts are of the highest legal force. All other acts must strictly comply with the law, to be released on their basis and enforce their execution.

"Modern lawyer must know not only national law but also other legal systems, if they want to be competitive in the global market" (R. Simasius).

(Source: Wikipedia)

31 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

2. THE MAIN DIVISIONS OF LAW 2.1 CONSTITUTIONAL LAW – THE CENTRE OF LEGAL SYSTEM

Why is it necessary to consider the constitutional law? How important are these subjects of law not to a lawyer? First of all because this are of law takes exceptional place in the whole system of law, it analyses the most important public relationships. Constitutional law is a concept having many definitions. It is analysed in several aspects: • This is an independent branch of law, which regulates the most important political, economic, and social public relationships; • This is an independent branch of science, which analyses the roots of constitutional law, its operation and future prospects; • This is educational (academic) subject. This is fundamental teaching course that is taught in the first semester of the first year of studies as it is the basis for further studies. This course provides knowledge in law that is important in further studies.

Illustration 6. The first written constitution in Europe on the 3 May, the Constitution of the Polish–Lithuanian Commonwealth (Source: Wikipedia)

Illustration 7. 1992 10 25 Constitution (Source: Wikipedia)

Constitutional law should not be equated with the Constitution, because the Constitution is only the basic law of the country, one of the main sources of this law. Constitutional law is known for many countries. Even in countries where there is no Constitution, this branch of law place an important role in the national legal system. The constitutional law is a name associated with the Constitution - special legal document. It is considered to be the fundamental law of the country by

32 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW all countries formally or informally. In the science of the constitutional law following concepts are often used: substantive and formal. Substantive law - is a system of legal norms that regulate the relations between the state and public organisations, with person's legal status in the state. Formal law - that is a specific part derived from the abundance of legal norms, which defines the basic principles and limits of legal regulations. From a formal point the constitutional law is identified with the Constitution, constitutional law - is the Constitution Act itself, a written constitution that some states have and some do not. The object of our study is the substitutive law, which deals with the most important public relations that are related to the state, its government organisation, assesses a person's legal situation in the country. Jurisprudence often uses the term "public law", which is like a synonym for constitutional law. What term is to be used depends on the customs of each country. For example, Anglo-Saxon and Roman legal systems traditionally use constitutional law, while the Germanic tradition countries use the term "the state law". For a long time this term was also used in Lithuania.

In all democratic states this branch of law is exceptional. It‘s exception is determined by: • the object of this branch of law - exceptionally public relations. These relations make the basis of state, public, and individual's (human's) life. • only this law regulates thoroughly all important areas of life, while the other branches of law regulate separate areas or problems of legal system. • special form of the establishment of legal norms. Constitutional legal norms are established in the main law of the country - Constitution, which expresses the will and interests of the people. In accordance with the principles established in the Constitution other branches of law are created. • This law sets the main principles of constitutional order to which other branches of law cannot oppose. • Constitutional law establishes the main human and civil freedoms, rights, and guarantees • Sets the principles of the territorial structure of the country. • Creates the system of government institutions, sets their competence and the basis of activities. • Regulates the creation of law process (law-making) itself and sets the types of legal acts.

Constitutional law is the primary in Lithuanian legal system and leads to the emergence of other branches of law, their development, regulatory principles and boundaries. Section II of the Constitution of the Republic of Lithuania is devoted for Human and the state. It provides and guarantees human rights and freedoms. Human rights is a huge value and achievement of modern civilisation. In 1996, the Constitutional Court in 20 November resolution noted that "there is no unified concept formulated in legal doctrine of the natural human rights and freedoms. From the very birth, a person has inseparable personal fundamental and permanent rights and freedoms. Human nature itself is the primary source of their rights and freedoms." That means that human rights and freedoms do not occur because of the will of the state but because of the fact that a person acquires them at birth. They are not separable from the person and are not bound by neither territory nor the nation. The basic human rights is to live and act freely, follow their will, mind and conscience. Human rights express persons will and decision. Human rights are universal, they belong to everyone. In 1998, the Constitutional Court in their 20 November resolution emphasised that "every person has rights, which includes the best and the worst people."

33 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW In terms of human rights, it is essential to distinguish the concept of civil rights, meaning the rights of the citizens of the Republic of Lithuania. However, foreigners and people without citizenship also have the same rights and freedoms as the citizens of the Republic of Lithuania, unless otherwise provided by the Constitution, international treaties and laws. Human rights and freedoms established in the Constitution of the Republic of Lithuania in essence are in line with all international human rights standards and freedoms provided in the main: legislation - that is the Universal Declaration of Human Rights, adopted by the UN in 1948. Since 1953 in Europe the European Convention on Human Rights is adopted (which protects the civil and political rights), which is applicable to the signatory countries. The Convention also provides the monitoring mechanism - the European Court of Human Rights, which deals with states and citizens' complaints about human rights violations. On 1 January 2007 the Convention was already signed and ratified by 46 European countries. The European Social Charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Convention on the Rights of the Child and others. Each country puts exceptional emphasis on human rights and freedoms but there is no complete and final list of rights and freedoms.

Discussion question... Is euthanasia a way to damage human right to life? What is your opinion on death penalty? ......

Legal theory distinguishes between three types of the sources of law (which have been discussed previously). In Lithuanian legal system and at the same time in the Constitutional law the main source of law is distinguished, which is legal acts. These acts are adopted by state agencies within their jurisdiction. These acts establish, amend or abolish legal norms. Regulations lay down general rules. In such a way they are different from individual legal acts that have been allocated to certain subjects or single use for specific circumstances of place and time.

Table 4. Normative and individual legal acts

Normative acts Individual legal acts General instructions come in the form of legal Does not contain legal norms and the instructions norms, they provide for a large number of times that they have are individual in nature. Individual acts are issued on behalf of specific indi- Normative acts are addressed to unspecified legal viduals for specific occasions (to employ or lead to and natural persons in general retirement) Normative legal act covers a wide range of public Individual acts cover only strictly limited relation- relations ships. A normative act is valid regardless if the act provides Individual act expires with the end of a particular for specific social relations or not. social relationship (completion of a contract) Normative legal act is a formal written document that has binding legal power and is intended for Individual legal act is for a single individual use multiple use (application)

Source: created by the author

34 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW All normative acts are of state as they are issued by various state institutions. They are to be followed; appropriate means of legal effect are applied if they are violated. Normative acts are addressed to unspecified legal and natural persons.

Normative legal acts - these are legal acts that are officially written and adopted by the competent authorities having binding legal effect, which establish, amend or abolish legal norms.

Each modern state has a variety of legal acts adopted by different authorities at different times. The number of those acts is increasing because legislation cannot stop at any stage of its development, it is constantly evolving, taking into account the evolution of public relations and public needs. A variety of legal acts, which often fundamentally change the nature of the former legal regulation even principles is created. Due to numerous acts it is difficult to focus, it is difficult to find the relevant rule and benefit from it. It is therefore necessary to codify laws, group them under the relevant science-based system. Systematisation is necessary in order to discover weaknesses in legislation, remove them, and discover the regulatory gaps and to overcome them. It is one thing to create an act, it is quite another thing - to use that act appropriately. All legislation is designed so that the members of the public may have access. However, in practice there are often cases when people do not understand the elementary laws, them in their own way, which result in regulatory gaps. Therefore, to eliminate this gap a legislation systematisation is necessary, i.e. permanent management of laws using the chosen management system. All legislation compose an integral system, which is characterised by signs of compatibility, mutual interaction, hierarchy, specialisa- tion and classification of the branches of the law. In each country's Constitution, laws, and regulations a legal system is established. The Constitu- tion provides the order of adoption and change of it. The Constitution also provides for the powers of the state in dealing with various issues and adopting appropriate legislation. The laws provide the procedures of permits, alterations, and withdrawal of legal norms. Legislative classification - it is their division into separate groups according to certain characteristics. Due to grouping (classifying) of legislation, it may be easier to use them and it is more effective to apply the set norms. Systematisation of legal acts is very different. Normative legal acts are divided according to the legal power. Legal validity indicates the meaning, supremacy or belonging of the act - depending on who issues the legal act, what the competence of the issuing institution is, and what its position in the state is and what constitutional authority powers this issuing institution has.

• The Constitution as the fundamental legal act, • Laws, statutes, Parliamentary statute (possesses the power of law), ratified international agreements • The clarifying, secondary (accompanying) legal acts. All legislation must not contradict the Constitution, and laws, they are released on their basis.

Normative acts according to the branches of law are divided into: constitutional, criminal, civil, administrative and so on. Other basis of division of acts – the institutions that issue them. Therefore there are state institutions, state sanctioned public organisations, local authorities, local governing institutions, and the acts showing the will of the people (referendums).

35 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW These legal acts have different meaning and power. Normative legal acts regulate general public interests, they have clear, accurate, and specific requirements, and thus their application is easier than other legal acts.

Normative legal acts are also divided into national and local according to the area (area of validity). The Constitution of the Republic of Lithuania, Codes, other Lithuanian laws, government regulations and acts of branch state government institutions are valid throughout the territory of Lithuania, and normative acts by municipal councils, city (district) mayors - only within the respective administrative units.

Normative legal acts are classified also referring to individuals. Most of the Lithuanian regulatory legislation applies to all natural and (or) legal entities. However, there are a number of regulatory legislation for certain categories of persons (entities) to regulate the relations. This is reflected in the titles of the law - the Foreigner’s Act, the Citizenship Act, Higher Education and Research Act, Social Services Act, Child Benefits Act, Public Law bodies and etc. - reveal their intended application. Normative acts can be applied not only to all persons without exception but only to the category of certain persons (entities), i.e. they apply to all citizens who are in the territory of the validity of acts including stateless persons and foreigners. Criminal and administrative laws do not apply to foreigners who have diplomatic immunity.

The characteristics of normative legal act are following: 1. The act is issued by a competent legislative body; 2. expresses authoritative commands; 3. creates certain legal consequences; 4. The act regulates major public relations; 5. Determines, changes or destroys legal norms; 6. The normative act shall take effect on the day after the official publication in the Legislation register if the same act does not provide a later date.

Classification of legal acts - it is their division into separate groups according to certain characteristics. Due to this grouping (classifying), they may be easier to be used and applied more effectively. According to their value (legal power), the normative legal acts are divided into laws and sub-statutory normative legal acts. Laws according to their meaning (legal power) are divided into basic (constitutional) and simple.

Illustration 8. The hierarchy of normative legal acts

Laws: Secondary legislation: The Constitution, Presidential decrees, Normative Constitutional laws, Government resolutions, legal acts Simple laws, statutes, Ministries, departments, International ratified local authorities agreements

Source: made by author

36 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW The existing regulatory documents in Lithuania are closely related: some are specified by other legislation, certain legislative norms keep others' norms. They share a common legislative principles and strict hierarchical relationships.

Laws: constitutional and simple Constitutional laws are the most important sources of law. These are the Constitution of the Republic of Lithuania, constitutional law. It is the Constitution of the Republic of Lithuania, the constitutional law "On the State of Lithuania", constitutional act "On the Non-Alignment of the Post-Soviet Eastern Unions" and others listed in the Constitution of Lithuania. Constitutional laws are different from the conventional laws in content, form, issue, and order; they are amended and supplemented in a different way. The Constitution includes a wide range of state and public issues of life. This is not only legal, but political and ideological document. Compared with other sources of law, the Constitution has the highest legal force, and is the basis for application of the law. The Constitution provides for its replacement and replenishment order. The basic laws determine all laws and subordinate normative content of the legislation and it is a legal basis for the adoption of any other legislation. 7 article of the Constitution of the Republic of Lithuania stipulates that "if the law or other act is contrary to the Constitution, it is not valid." Thus, the Lithuanian Constitution and other laws of constitutional provisions have the highest legal force.

Law - is a normative legal act to be adopted by the supreme representative body of state power (Parliament of the Republic of Lithuania – the Seimas) or it is adopted by referendum - by the vote of all the people.

The law-making procedures in relation to legal effect are similar, but their place and role in the legal system are quite different. Therefore, they are divided into types according to various criteria. Given the importance of the existing norms, legislation is divided into constitutional and simple. Constitutional laws include constitution, laws modifying the constitution and additions to the constitution which are provided in the constitution. One of the characteristic features of the law is its normative character, but the law is in any other normative act. Common law - are all other laws issued by the Seimas of the Republic of Lithuania, for the adoption of which a majority of the members of the Seimas is sufficient. Like the Constitution and other basic laws (the most important sources of law), common laws are very important sources of law and the legal system foundation, allowing the secondary regulatory legislation. In reference to the latter, the common law has the supreme legal power. Some of its decisions, the Seimas documents by resolutions. The Seimas always gives the form of law to those legal acts, which set forth the relevant instructions of mandatory character. This is how law is different from the non-normative nature acts adopted by the Seimas - declarations, statements and other acts that are not required to carry out. They express only the wishes, desires, and proposals by the Seimas but not mandatory behaviour requirements. Different constitutional and ordinary law-making procedures demonstrate a difference in their meaning of legal norms. Simple laws are less stable and their value is lower. The existing regulatory documents in Lithuania are closely related: some are specified by other legislation, certain legislative norms keep the norms of other legal acts. They share common legislative principles and strict hierarchical relationships. The normative acts can be applied not to all people without exceptions but only to the category of certain people (entities), i.e. they apply to all citizens who are in the territory of the validity of acts, including stateless persons and foreigners. Criminal and administrative laws do not apply only to

37 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW foreigners who have diplomatic immunity.

Secondary legislation One of the most important governmental, sub-divisional state government and local authorities, and governing bodies is the legislation of secondary normative legal acts (mandatory rules of conduct). The following governmental institutions in Lithuania are authorised to issue the secondary normative acts: the Government, ministries and other branch agencies, municipal councils of cities (districts), mayors and administration. The above-mentioned state authorities allowed to issue normative legal acts are called secondary because they fully comply with the rules laid down in legislation. This is the application of the law regulations, it does not matter whether the acts are a one-time or of continuing validity.

Secondary legislation - such regulations, which specify but do not complete, do not change the provisions of the law, are created on the basis of existing laws, and are intended to implement them.

Secondary acts are usually the management acts of various executive government bodies. According to their area of influence and their release entity, the secondary legislation is divided into general, local, departmental and internal organisation. General secondary legislation applies to all natural and legal persons in its territory. Resolutions by the Seimas of the Republic of Lithuania fall into this category, in which the law enforcement procedures are determined, the constitutional norms are established, they are detailed and particularised. This is a practice almost abandoned Lithuania. Law enforcement procedures are increasingly governed by the laws themselves. Decrees of the President, Government resolutions, the legislation by the Constitutional Court, the Bank of Lithuania, ministries, departments, and orders issued by the governmental institutions. Local municipalities and their executive bodies are responsible for local secondary legislation. Normative legal acts of the Government - Government resolutions. They shall be adopted by a majority of votes. Government resolutions tend to formulate and introduce orders of general nature (i.e. legal norms), which usually particularise and explain law provisions, outline how they should be implemented in practice. So these are the normative acts.

Presidential decrees In accordance with the provisions of Article 85 of the Constitution, the President of the Republic of Lithuania, in the course of its mandate, issue acts - decrees. Decrees are divided into non-countersigned and countersigned. Countersigned means that the responsibility does not lie with the President but the Prime Minister of a minister who signed it. The President's signature without the signature of the Minister or the Prime Minister's signature loses any meaning, it has no legal power, so these decrees of the President have legal effect only when they are be signed by the Prime Minister or the minister concerned. The legislative decrees are published in the Register and shall enter into force on the day after publication, if the date of its entry into force is not specified.

The Prime Minister countersigns the decrees: • concerning the appointment of Lithuanian diplomatic representatives and their removal from foreign countries and international organisations • concerning the introduction of the state of emergency

38 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW The Minister of Foreign Affairs countersigns the decrees concerning the highest diplomatic ranks and special naming The Minister of the Interior Ministry countersigns the decrees on granting the Lithuanian citizenship The Minister of Defence countersigns the decrees on the highest military award degrees

Acts - Decrees of the President also endorse award orders, medals for specific persons, the convicted are given grace, etc. Such Presidential Decrees are of non-normative types of legal acts because they do not create a general rule, they only document (consolidate) decisions relating to specific individuals or cases. Acts of the President - the decrees as well as laws are published in the Legislative Register. The President issues resolutions concerning the internal work questions.

Government resolutions. They shall be adopted by a majority of the Government meeting (8 ministers). They are signed by the preparing minister and the Prime Minister. They particularise, detail and interpreted legal norms, determine the order of implementation of state legislative norms.

Validity of normative legal acts Normative legal acts shall be understood in reference to time, territory (space) and individuals. In real life, a very important question, when the norm is to be applied and from which the time is no longer needed. In various countries, the legislative act is understood differently from the date of acceptance or approval. In other cases, a normative act shall take effect from the date of publication. The third case is when a normative act comes into force, as it is set in the legal norm itself or in a special law for that purpose.

Since the 1 January 2014 when the Basic Law of Law-making entered into force, a normative act shall enter into force on the day following the official publication of the legislation in the Register if the same act does not provide for a later date. In addition to these changes the law also provides other very important developments - the whole process will be even more open to the public, i.e. the preparation and adoption of the legislation. All people will be able to observe the process on the Internet in the information system of the Seimas. The information contained there is not only already the prepared draft legislation, but much more - who offered it and how the idea to change the legislation originated, how the draft of the legislative text is developed, who and what comments submitted before the final project. Every citizen will be able to give their own comments and suggestions and see whether they are taken into account.

Provided below are the independent tasks for group work

Using the legal acts, the Constitution of Lithuania, we shall deal with the presented situations providing arguments:

Situation 1

Tomas decided to play a joke on his friend: when he stopped by at his friend's house, he noticed

39 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW that there was the light in the basement and his friend was there. Tomas quietly came to the basement door, closed it with a bang and locket it as the key was in the lock. The friend, heard the noise, ran up to the door and being unable to unlock them started shouting asking to be let out; however, Tomas decided to let a friend be in the dark for couple of hours and then came to let him out. The friend did not understand such joke and wrote a statement to the police.

Questions: 1. Is this the human rights violation? If so, what kind? 2. Did the friend violated a specific Constitutional norm? If yes, define which one......

Situation 2

The new campus store noticed a great increase in the number of thefts. Administration sought help from the district inspectors. For the purpose of prevention, he made a list with a pictures with people prone to committing crimes and using drugs and advised to supervise these individuals. Without further explanation he left the list with pictures with the administration of the store. The staff hung up the photos at the store information stand adding a note"These are the thieves". Some of those people have never been arrested for stealing.

Questions: 1. Is this the human rights violation? If so, what kind? 2. Did the officer violated a specific Constitutional norm? If yes, define which one......

Situation 3

In order to determine the producers of homemade vodka and avoiding to use the special equipment, police officers listen to personal conversations at the apartment door or through the outlet at the neighbour’s flat.

Questions: 1. Is such a way of gathering information the violation of human rights? If so, then which ones? 2. Did the officer violated a specific Constitutional norm? If yes, define which one......

40 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Situation 4

Police officers acting on anonymous telephone message arrived at the apartment. The door was opened by a 10 year old child. Officials inspected the apartment because the child did not object and left. Later the child's parents called to the Police Commissariat demanding an official explanation and relevant documents on housing inspection. In addition, they wrote a statement in which it was claimed that 10 000 LTL got missing.

Questions: 1. Is such a way of gathering information the violation of human rights? If so, then which ones? 2. Did the officer violated a specific Constitutional norm? If yes, define which one......

Situation 5

There was fire in an apartment building. Firefighters and police officers upon their arrival could not find the hosts at home. Neighbours asked to extinguish the fire in the apartment but officials refused to do this commenting that they could not enter the private territory without the apartment owners.

Questions:

1. Is this the violation of human rights? If yes, then what exactly? 2. Did the officers violated a specific Constitutional norm? If yes, define which one......

Situation 6

Store owners intend to install cameras and eavesdropping equipment to monitor and listen to their sales persons doing business, serving customers.

Questions: Is not this the violation of human rights?

You will find the answer in the PERSONAL DATA PROTECTION ACT

......

41 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

Practical tasks are presented to consolidate the material:

1. The concept of the constitutional law. How different authors describe the constitutional law?

2. How do you understand the general norms of the constitutional law? Give examples using the Constitution as the basis for your answer.

3. How do you understand the specific norms of the constitutional law?Give examples using the Constitution as the basis for your answer.

4. What function is performed by the constitutional procedural norms? Give examples.

5. What is the constitutional legal relationship? What are the necessary conditions for such relationship to occur? What constitutes the content of the constitutional legal relationship?

6. Who can and who cannot be the subjects of the constitutional legal relationships? Give specific examples.

42 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 7. What are the signs of the constitutional legal relationships? Describe.

8. What are the constitutional legal relationship groups? How they differ from each other?

9. What is the legal fact? How are they classified?

10. The concept of the legal norm. What are the features of the constitutional legal norm? How is it different from other legal norms?

Constitutional principles. These are provisions contained by the Constitution, which determine the constitutional rights and the development of other branches of law. Most of the legal principles are clearly defined and directly established in the Constitution. However, there are principles that are indirectly declared, but they come from the other legal norms. Let us consider the general principles of law.

PRACTICAL TASKS FOR GROUP WORK:

Let's define and describe general principles of law (3; 4; 7; 18; 2; article 21 part 3; 28, 30; article 31 part 1; article 5; article 109 part 1; article 110 part 1; article 12 part 2; article 62 part 1; article 86 part 1).

How do you understand the principles in the constitutional law? What principles are followed and why?

Analyse in more detail the principle of separation between legality and state power, the principle of presumption of innocence.

43 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Practical tasks

1. How do you understand the concept of the source of law? What forms of law sources do you know of?

2. The concept of the source of law according to the Roman-Germanic legal tradition.

3. The concept of the source of law according to the Anglo-Saxon legal tradition.

4. Classify the sources of law according the legal power.

5. Classify the sources of law according to the nature of their application and volume. Give examples.

6. How do you understand the validity of the legislative territory (area)?

7. Explain the validity of legal acts in the circle of people. Give examples.

8. How do you understand the limits of validity of the normative acts? How are they valid?

9. How do you understand the rule that the law cannot be dated by the back date?

10. What is the collision of normative legal acts?

11. What is a law? What types of law can be there?

44 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 12. Describe the legislative procedures in Lithuania. When the laws come to their power? What is the President's role in the legislative process?

13. The meaning of the Constitutional Law and its making procedure. Can the constitutional laws be replaced?

14. In Lithuania, the process of coming into effects of the normative legal acts is determined by (mark the correct answer with "x") • The Seimas of the Republic of Lithuania • President of the Republic of Lithuania • The Government of the Republic of Lithuania • Legislation Register • The Lithuanian Constitution and the Law "On the procedure of publication and entry into force of laws and other legal acts"

15. The concept of sub statutory legislation. List their types (under legal power).

16. Presidential decrees. The order of their entry into force.

17. What is countersigning? List the countersigned Presidential decrees. Who countersigns them?

18. International agreements - that is

19. Who has the right of initiative to conclude international agreements?

20. International treaties by legal system in Lithuania can be (select the correct answer) • Signed or not by the President of the Republic of Lithuania • Adopted or not by the Government • Ratified or not by the Seimas

45 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 21. What international agreements should be ratified and where? What is meant by international treaty ratification?

22. What is the legal precedent? Is such source of law common in Lithuania? Which countries of the world use it as a very common source? Give examples.

23. What is it a constitutional custom? Do you know such examples in Lithuanian constitutional law? In which countries of the world constitutional customs occupy an important place in the normative acts system?

24. While temporarily acting as the President, the Chairman of the Seimas sacked the Minister of Agriculture and appointed another in his place. Please comment on the situation.

25. The members of the Seimas called for the removal of the President from his or her office by impeachment proceedings. What are the next steps of the Seimas?

26. A member of the Seimas at the press conference stated that the President roughly violated the Constitution: 6 months after the beginning of the year the President of the Republic did not make the annual report on the Lithuanian domestic and foreign policy and the situation in Lithuania. Please comment on the situation.

27. What legal acts does the President issues? Describe the President's role in the legislative process. What should the President do after the Seimas issued a law?

28. The President signed 2 decrees: 1) on pardoning the convict and 2) a decree on the highest military rank (General) award. Please comment on the situation.

29. During his or her leisure time in Nida, the President of the Republic driving a car caused an accident on the road Juodkrantė-Pervalka, which killed the driver of another vehicle. Klaipe- da County prosecutor instituted criminal proceedings. Are the actions of the Prosecutor legal? Please comment on the situation.

30. The President dismissed from the office the Lithuanian Army Commander and the Chairman of the Board of the Bank of Lithuania. Please comment on the actions of the President.

46 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 31. The President signed two decrees: 1) on the granting of citizenship and 2) for the highest diplomatic name award. Please comment on the situation. When the decrees of the President shall enter into force, if they are not signed by ministers on time?

32. List the highest state officials appointed by the President. By who and how can they be removed from their office?

33. The president did not sign the constitutional law adopted by the Seimas because in his or her opinion, this law is not included in the list of constitutional laws. Please comment on the situation.

34. President of the Republic between sessions of the Seimas gave consent to arrest members of the government on suspicion of bribery taking. The particular member of the Government is also the member of the Seimas. Did the President act legally?

35. After the publications in the press and on television in relation to the Prime Minister (he al- legedly received significantly higher rates than other depositors of commercial banks and the day before the closure of the commercial bank withdrew the entire deposit), the President of the Repub- lic expressed distrust in the Prime Minister and invited him to resign. But the prime minister refused to resign. Is the President's solution legitimate? What is the legal way to resolve this conflict?

47 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

The Constitution of the Republic of Lithuania Section VII. The Government of the Republic of Lithuania.

Task. We find connections between the Seimas and the Government, between the Govern- ment and the President, between the Government and local authorities

Comments

......

48 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Consolidation of knowledge with practical tasks:

1. What is the government? Can a state exists without the government?

2. When the government gets the power to act?

3. The most important mandate of the Government. When the Government must return its mandate? What is meant by "the return of mandate"?

4. When the government must resign? Who accepts the resignation of the government?

5. When must the Minister resign? The process of resignation.

6. It turned out that the minister is a public company shareholder, teaches at the University, and is a member of the Artists' Union and member of the Seimas. Is this legal?

7. What must the Government do after the election of the Seimas and the President?

8. The Seimas at the meeting by the majority of votes of the present members of the Seimas expressed distrust in the Government, and adopted a relevant resolution. Must the government resign in this case? Give arguments to your answer.

49 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 9. The Minister of Health refused to sign the resolution adopted at the meeting of the Go- vernment, on the grounds that he had voted against the resolution. Were the Minister's actions legal? Give arguments.

10. 7 ministers changed in the Government of Lithuania. Comment on the situation.

11. What legal acts are issued by the Prime Minister of Lithuania? From when they enter into force? Who signs them?

12. Who and how establishes the Ministries of Lithuania? How many and what are there the Ministries of Lithuania?

13. What distinguishes the Lithuanian Prime Minister and ministers? To whom they are accountable, and to whom they are subordinate?

14. President of the Seimas approved the proposed candidacy of the Prime Minister. What are the next steps of the Prime Minister?

15. What are the legal acts adopted by the Government:

1) What is the number of days they take? 2) What is the order? 3) Who signs them? From when they enter into force?

50 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 16. A Minister for rowdy actions was arrested and taken into police custody. Please comment on the situation. Can the Minister be prosecuted? Is it possible to punish the Minister with an administrative fine for violation of traffic rules?

17. To whom and over what period of time is required to be presented by the Prime Minister after his or her appointment?

18. Are there any restrictions on members of the Government?

19. What should the government's actions be after the Seimas rejected the program of the Go- vernment?

20. If the Prime Minister cannot perform his or her duties due to the incapacity (health problems) - what comes after that?

21. Briefly describe the Prime Minister's appointment to office. The order of substitution of the Prime Minister.

22. Government adopted a resolution, which was not signed because due to the change of more than half of the ministers the government had to resign. Is it mandatory for the new Prime Minister and a certain Minister to sign the adopted but not signed resolutions by the previous Government?

51 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 23. It appeared that the minister is a deputy director of a joint England-Lithuanian company, often goes abroad for business. Is this legal? Explain the situation.

24. What officials are appointed and dismissed by the Prime Minister?

25. The Seimas 2 times in a row did not support the President's proposed candidature of the Prime Minister on the ground that the candidate is not a representative of the ruling party. Please comment on the situation.

26. Does the government have the right of legislative initiative?

27. The Seimas approved the President's proposed nomination of the Prime Minister. After 15 days of the appointment, the Prime Minister did not present to the Seimas his or her government approved by the President and its programs. Please comment on the situation.

28. The government signed a five-year contract with a foreign government on the political and economic cooperation. What is the legal effect of this international treaty?

29. Minister of the Interior within three days, did not sign the decree of the President of the Republic of Lithuania on granting of citizenship. When such is the case, when will the Presidential Decree come into force?

30. Between the President and the Prime Minister there were disagreements; therefore, the head of the Government appealed to the Seimas concerning the issue of confidence. Did the Prime Minister act legally? How should the Seimas behave in this situation?

52 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Lithuanian Seimas. Section V of the Constitution.

1. Briefly describe the Seimas. What are the main functions of the Seimas? The Seimas place in the system of organs of state power.

2. When is it considered that the Seimas has been elected? Who can participate in the elections to the Seimas (Passive Electoral Law)? Who cannot participate in elections?

3. The immunity and indemnity of the members of the Seimas. What are some of the Seimas members’ social securities? Who are they set by?

4. When does the mandate of a member of the Seimas come into power? When a member of the Seimas acquires rights of a representative of the Nation? When a member of the Seimas receives a badge and a certificate of the Seimas member?

5. Where, to whom and when do the members of the Seimas take an oath? The member of the Seimas must take an oath not later than ...... (complete the sentence). What are the consequences of failure to give the oath or give it with reservations?

53 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Practical Tasks

1. A member of the Seimas, while being intoxicated, offended visitors of a café, used swear words. The administration of the café called the police that took the member of the Seimas to the Police Office. Can a member of the Seimas be arrested or have his / her freedoms limited in other ways?

2. The member of the Seimas is (mark the correct answer with X)

o A minister o A shareholder of a company o A member of Writers’ Union o Lectures in the University o Leads radio broadcasts

Is that legal? Can the member of the Seimas be also the Prime Minister or a minister?

3. The member of the Seimas Algis P. during his holiday in Zarasai district caused and accident that killed another passenger in a car. The district Prosecutor initiated criminal proceedings. Please comment on the situation.

4. What is interpellation? Who and to whom can it be expressed towards? The consequences of interpellation.

5. Can the members of the Seimas change the articles of the Constitution? What is the procedure for making amendments to the Constitution?

6. What are the basics of the Constitution providing for impeachment in the Seimas? What is the procedure? Who can propose impeachment in Lithuania? Which officials can begin impeachment in the Seimas?

7. The Seimas, having heard the General Prosecutor's report about a crime committed by a member of the Seimas, decided to allow prosecution and passed a resolution to begin preparatory actions for impeachment proceedings. Is this a legal solution?

54 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 8. How much time should it take for the Chairman of the Seimas to present the law to the President to sign after the vising of the adopted law by the Seimas?

9. What legal act regulates the publication and coming into effect of the laws?

10. To whom and within what number of days the laws adopted by the Seimas and signed by the President as well as resolutions of the Seimas are sent to?

11. On the National Holiday (March 11), the member of the Seimas did not raise the national flag outside his home. A police officer fined the member with the administrative penalty. Did the police officer act legally?

12. The President returned to the Seimas the law it had already passed for reconsideration. What is the procedure of reconsideration of the law in the Seimas?

13. The largest Lithuanian newspaper published information that several members of the Seimas were using the services of prostitutes. Is announcing such information legitimate?

14. A member of the Seimas celebrated his birthday at his office. Several other members of the Seimas were also present. Were such actions legal? Can the member of the Seimas be held administratively liable?

15. 300 thousand citizens of the Republic of Lithuania with the electoral law, signed a statement to convene a referendum on early parliamentary elections and handed it to the Seimas for consideration. Explain the hearing of the application procedure in the Seimas.

16. For the time period specified in the Constitution, the President did not sign the law adopted by the Seimas. That was because the Chairman was not in Lithuania and after the deadline this law was signed by the Deputy Chairman. Was there a breach of the legislative procedure?

55 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 17. 1 .a) the mandate of the member of the Seimas starts from the day when (complete the sentence)....

b) What happens to the member of the Seimas if he or she does not take an oath of takes it partially?

18. Can the President of the Republic dismiss the Commander of the Army and the Minister of the Security Service?

19. The Constitutional Law of the Republic of Lithuania: a) Is adopted if voted for b) Is changed if voted for

2.2. Civil Law

The origin of civil law is the Ancient Rome. This is one of the main branches of the main private law (Jus privatum). The Civil Code of the Republic of Lithuania (hereinafter referred to as CC) Article 1.1 defines the civil law as a legal branch, which regulates property and non-property relations of people, family relationships and other personal non-property relations. These rules determine the relations between quite independent of each other, equal to one another and entities that do not control each - of natural and legal persons who by they own free will create relationships regulated by this law. The participants of these relations (actors) freely at their own discretion set their rights and obligations, except for obligations arising from the damage. However, the obligation for damages may occur against a person's will, when the damage is done carelessly or it is due to force majeure. The subjects of these relations are not subordinate to each other, they are equal in their rights and obligations.

The object of Civil law - is the focus of the subjects' subjective rights and obligations (CC art. 1.97). The objects of Civil law are:

1) Items - these are things taken from nature or things created in the manufacturing • immovable and movable items • items described individually or by generic features • consumed and unconsumed items • items withdrawn, presented in limited quantities and not taken out of circulation • items that have normal and special value • basic and secondary items

2) Money and securities. Money - these are the banknotes issued by the Bank of Lithuania, coins and funds in the accounts, notes issued by banks of other countries, state treasury notes, coins and funds in accounts in legal tender. Securities {article 1.101 of the CC}: as the object of civil rights - a document confirming the personal commitment of the issuing party to the document holder. Securities - stocks, bonds, checks, bills {article 1.105 of the CC}, bill of lading, certificate of deposit (certificate), a debt obligation of the State.]

56 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

3) Results of intellectual activity. These are the created values created via human creative work (scientific, literary, artistic creations, discoveries, patents, industrial designs) expressed in an objective form. Results of intellectual activity becomes the object of civil legal relationship only when they acquire an objective form (drawings, manuscripts, model); or when they are recognised by the procedure laid down by the competent bodies. An idea by a scientist, composer, or an inventor that did not acquire an objective form, cannot be protected and does not make an object of civil legal relations. 4) Other material and non-material values. These are a human life, health, physical integrity, honour, dignity, private life, the author's name, business reputation, the legal entity name. Laws link certain legal consequences with these values. The regulating matter of civil law - is exceptionally public relations. Civil legal relationship is a legal relationship arising from the civil law on the basis of material or immaterial goods, in which participants have the legal separation of ownership and property, and are equal subjects of this relationship. The content of the civil legal relationship is the rights and obligations provided for the participants' civil legal relations actions, i.e. the subjective rights and obligations of these participants.

The matter of regulation of the civil law include the following relationships: a) Property relations that are subject to a certain value. These relationships are also known as brand - monetary relations, for example, presenting as a gift, lease, or use agreement. These relationships include: property relations, relations of ownership transfer to other persons; relations for the execution of works or supply of services; covering damage. Property relations - these are social - economic relations on asset management, usage and disposal, transition from one person to another, as well as performing of works, providing of service and the payment of money. Property relations, which are regulated by CL are characterised by the terms of commodity money. Many unreimbursed property monetary relations are related to the market monetary form: e.g., custody, loan, inheritance, and so on. From the outside such a relationship seems to have no marketable monetary terms, but it is the basis of latter. For example, compensation is not provided for items that have been abandoned to use, are kept or inherited. But those things are assets that have value to them based on the notion of fault damage, loss, etc., and can be recovered in cash. b) Personal non-property relations related to property relations. They have an outwardly object expressed, which is directly linked to the personality of the creator. These are intellectual property legal relations when not only material but also moral rights are acquired. Property rights can be transferred. c) Personal non-property relations that are not connected to property relationships. These are public relations caused by the non-material things, inseparable from human and human-organised team. These goods are not measured in money or other assets. They describe the personality (human, people organised collective individuality) reveals its social, moral value. These values include honour, dignity, name (s) of the legal entity name, trademark, personal freedom, integrity, inviolability of the home, the personal life of citizens, correspondence, telephone conversations, secrecy, and so on. These values are inseparable from the person, they cannot be transferred, embezzled and so on. They are only to express the subject's personality. d) Family relationships that are both property and non-property relationships.

It is essential to determine the relationship maturity in the Civil law, because the new CC entered into force only in 2001.

57 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW There is such civil legal relations which are in force for a long time, so it is necessary to determine when to apply the new norms of the CC.

Thus, relationships can be divided into: • The ones that occurred and ended before CC entered into force. • The ones that occurred after CC entered into force; • Mixed relationships. They occurred before CC entered into force and continued after CC entered into force. The rights and obligations, which are applied after the Code entered into force, are the subject to existing legislation, for example, if a tenant violates the rental agreement made in 2000, the current Civil Code norms are applied.

Civil law regulation method. Method shows the manner in which, and by which means legal relations are being regulated. In civil law, a civil use method; the method are characterised by the following features: 1) The legal equality between the legal relationship participants. Participants are legally equal and not subordinate to each other. Participants make decision by their free will. While there appears the civil liability for the obligations assumed, subordination does not. 2) The initiative by the legal relationship participants. Civil legal relationships should occur only by free will, there should not be any coercion. 3) The civil aspect of the legal relationship participants. The legal relationship participants have a choice whether to use their own money or rights, or not to (e.g. having a lawsuit concerning the maintenance of the children, or damages) 4) The property liability of the legal relationships participants. A person experiences losses only in the sphere of property relations. And if damage has occurred, it must be compensated. 5) The legal relationship participants' defence of the rights to the claim procedure. Violation of the rights of persons are protected only in court.

Sources of Civil Law • The Constitution; • Civil Code – 18 July 2000, Nr. VIII-1864; • Civil laws: • supplement CC ; • directly regulate civil legal relationships; • International agreements; • Secondary legislation; • Documents issued by the legal entities; • Court practice.

The principles of Civil law. The principle of law is known as a certain idea, which determines the direction of regulation of public relations. The following principles are recognised:

Principle of equality. That is a general principle of the Constitutional Law. It means that the same situations must be valued equally.

The principle of reason. All civil law entities are obliged to act fairly and reasonably, e.g. .: the term "reasonable price", "reasonable person." There is abonus pater familias evaluation criteria, which is the head of the family caring criteria. Its main idea is: to each specific situation it must be assessed

58 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW whether each person in that situation would behave the same way. Certain persons, i.e. a doctor, have special requirements.

The principle of honesty. Subjectively, it is the inner personal understanding and objectively - the relationship with morality. Objectively it corresponds to the bonus pater familias criteria. This means that via objective evaluation it is taken into account what the person had to do, and via subjective - what he or she could do (what could have known, but did not notice, or the like), in all cases both criteria need to be assessed.

Situation analysis. Analysis must be consistent. It is necessary to analyse several alternatives and choose the most suitable one. Faced with a specific norm, it is important to figure out when and how the norm is applicable.

The principle of the inviolability of property. The owner's rights should be guaranteed. Legitimate expectations and the principle of legal certainty. The principle expresses few ideas: • Respect to the acquired rights. • The prohibition to apply a law using the back date. • Based faith and legitimate expectations. • Understandable language requirement. • Statutory limitation.

Legitimate expectation must be specific, unique and clever.

The principle of proportionality. It comes from the EU law. It is a principle of public law and is designed to regulate the different interests of people.

The principle of freedom of contract. There are four aspects to this principle:

1) Everyone has the possibility to decide whether to enter into a transaction or not. 2) There is an option to choose a party for the contract. 3) The possibility to determine the content. 4) The contract must be legal.

Non-interference in private relations. The articles 22 and 23 of the Constitution. This principle applies to both a natural person and a legal entity. First of all, this principle includes person's non-property values.

Conditions to limit this principle: • Restrictions provided by law. • The essence of this principle - protection of public interests. • Is to protect the values recognised and protected by law. • The requirement of proportionality is provided.

E.g.: parents themselves can choose parenting techniques conforming legislation.

59 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW The principle of inadmissibility of the abuse of law. Consequences of non-compliance with this principle: • A person's rights may not be protected if they are abusing the law. • A person who abuses the law must pay for damages.

E.g.: this principle can be found in competition law.

The legal principle of not permissible limit. It is connected with the principle of non-interference in the private affairs. All rights are limited, have their validity limits, i.e. there are such relationships that are not regulated by law. General principles of law determine the limits of each right.

The principle of judicial protection of the civil law. It is set by the Constitution article 30. CC article 145 provides for temporary protection means: the defendant's arrest of the real property; the detention of the item belonging to the defendant; the adjudging of temporary material maintenance or establishment of temporary restrictions; an entry in the public register of the transfer of ownership of insurance and so on. In some cases, the implementation of this principle may be associated with investigating the essence of arbitration (then the person cannot go to court for a second time).

Natural persons (NP) as the subjects of civil relations.

In order to be a legal entity, a person must be a legal subject - i.e. have legal capacity and capability. The different branches of law set their own requirements to an entity, depending on the specific situation. Civil law determines the criteria of legal capacity and capability, which would describe a person's ability to be the subject of civil legal relations, implementing their rights and duties. A person must not only be able to become the subject of civil legal relations, but also effectively implement the rights and duties assigned to the legal entity. In civil law, if a person cannot perform certain actions, they cannot be deleted from the civil turnover, e.g.: one cannot take away from a mental patient their available rights to the assets, only needs to discuss this person's ability to manage and dispose of the assets (a guardianship is determined). It is recognised that all individuals have equal opportunity to be the subjects of the civil legal relations, but the actual opportunity is different; therefore, a person's capacity is distinguished. Legal personality in the broad sense is the right to have rights, i.e. right to qualify to have rights. The ability to be the subject itself is not transferred, only a specific person's subjective right could be assigned.

Civil capability is an ability to have the rights and obligations {CC 2.1 art.}. A person is suable for life. A natural person's civil capacity occurs at the time of their birth and ends with their death. Although a person just born is also suable at this time they are still not capable, i.e. cannot implement their rights by their own actions. Their parents or other authorised persons can do that instead of them. Natural persons may:

1) hold the property as private property; 2) engage in economic and commercial activities; 3) establish companies or other legal entities; 4) inherit property and bequeath it; 5) choose the type and place of residence;

60 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 6) have copyrights for a scientific, literary and artistic works, inventions, industrial design; 7) have other property and non-property rights.

The content of civil capability reveals the whole of rights and obligations {CC art. 2.4}. Equality is the feature of civil capability. Restrictions on capability means prohibition to be the subject of certain civil legal relations. The moment of emergence and end of legal capability is defined {CC Article 2.1.}. A special law recognises the first independent breath at the person's birth. It does not matter whether the person is breathing him or herself or with the assistance of medical devices. When it cannot be determined whether the child was born alive or not, it is presumed that the child was born alive. The unborn child is not a legal entity but his or her interests are already protected, e.g.: an unborn child can be left a legacy. It is considered that legal capability ends at the moment of death {CC Art. 2.3}. It is regulated by CC and a special law. According to them, the moment of death of brain function can be set only with special medical equipment at a medical institution, but it is not necessary for the stop of blood circulation {CC Article 5.3}.

Capacity - is the ability to have with one's own actions acquire and exercise the rights and duties. Capability is associated to a chase to perfom certain wilful actions and deeds. It is related to one's age and mental maturity. Mental maturity is reached when a person reaches 18 years of age. An exception is (CC Art. 2.5) is personal emancipation (can be applied at the age of 16 years) and marriage (can be used from 15 years of age). Full capacity acquisition does not mean that all rights and obligations are acquired, e.g.: marriage cannot be made at the time of emancipation.

Depending on the content of capacity the following groups are distinguished

1. Incapable persons till the age of 14 {CC, Art. 2.7}. These are individuals who can enter into small transactions as well as transactions related to the volunteer and with minor use of the funds related to that relationship. Such persons are placed under guardianship.

2. Not fully capable persons from 14 to 18 years. These individuals have partial civil capacity. They are given greater powers in dealing {CC Art. 2.8}. They are placed under guardianship. They also can make transactions having the consent. They also can have revenues. However, if they are wasting money, the court has the opportunity to limit the possibility of such transactions. When individuals enter into transactions without parental consent, they can approve the transaction {CC Art. 1.69}. Person's capacity can be limited from the age of 14 to 18.

3. Fully capable persons are from 18 years of age.

4. Persons declared legally incompetent by a court. Definition of person's incapacity or diminished capacity {in accordance with CC Article 10.2}. A person is declared incapable only for mental illness and dementia. Such a person is placed under guardianship. Person's incapability is declared by a court decision only, which can be withdrawn if circumstances are changed.

5. Persons with limited judicial capacity. A person is recognised having diminished capacity is associated with the opportunity to limit their economic rights {CC 2.11 Art.}. If a person is married and enters into expenditure his or her capacity can be limited.

61 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Place of permanent residence and living place

Permanent residence. It is a criterion for determining rights applied to a person. Permanent residence - is the place where the person actually physically resides. The permanent place of residence is the state. One way to determine the place of residence is the residence declaration. It matters in civil proceedings, because it is the place of destination of the claims {CC Art. 2.17 part 3}. A person must report the change of residence. Announcing a person missing or dead. If a person has remained away from home, then others are hindered to exercise their rights. In addition, the question arises whether the person is alive at all. The person is recognised untraceable when for one year there is no evidence about his or her place of residence. In such a case, the temporal protection of the untraceable person's assets is established. The person is considered to be missing from the day when a court announces that. Marriage cannot be renewed if a new one is formed. If a person is declared dead. If a person does not appear at their living place for 3 years and there is no evidence where they might be; or disappeared in circumstances which constitute a threat of death (6 months.). Specific rules apply to soldiers (2 years). When the court recognises the person dead it is be equivalent to their death. The decision to declare a person dead takes effect from the date specified or of entry into force. The consequences for property and personal non-property relations appear. The rights of inheritance appear. Marriage is not renewed if the dead-announced person returns. One cannot require the return of property, unless the circumstances are relevant.

Practical situations. The institution of capability and capacity

Situation 1. A drunk tenant John got into argument with the apartment's landlord and promised to move out next month. When he rose up in the morning he did not remember this, but the landlord found a new tenant.

Answer the following questions:

• 1. Determine what relations connect the parties. These are contractual legal relations arising from contractual rights. • 2. Determine if John's will became a binding expression. He was drunk and noisy but was not limited in his capacity. • 3. Is such expression of one's will valid? Is it possible to revoke the will?

Situation 2. 16-year-old Audrius booked musicians for 2000 LTL for his birthday celebration. At the party he learned that he could argue the deal for 2000 LTL, because he was a minor concluding the deal and did not have full capacity. It was for this reason, he refused to pay the musicians in the morning.

Questions: 1. Who were the parties? They were a minor and musicians. 2. As the person was still a minor, it is necessary to determine whether this was a small transactions, personal transaction free of charge, or only disposing of his rights. If there were funds involved possessed by the same person, then no parental consent was needed at the transaction, as in the situation described the parental consent was not mentioned, which means that the transaction was entered by a minor himself.

62 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3. Then the behaviour of the minor is analysed. After midnight he continued ordering the songs, it means that he agrees with this transaction.

Specific rights of NP. In this case, absolute legal relations occur. These rights have no economic content; therefore, cannot be evaluated in cash. Also, these rights are inseparable from the same person. They acquired on the basis of law, and thus does not depend on the will of others. They are subject to specific means of protection, such as denying degrading knowledge.The following specific rights are distinguished: person's right to name, private life, honour and dignity. E.g.: if the violation of the right to privacy and the image occurs, then one may require for material and moral damages. Law presumes that non-pecuniary damage was present, if its size is proven.

The right to a name. The creditors need to be informed in the case of a name change.

It is appropriate to distinguish between the right to image and the right to privacy. E.g.: if the President's picture is taken in a private space and the picture is used in public space, both of these rights are violated. If a picture is taken in a public space, then only the right to the image is violated.

Lithuanian Supreme Court explained that the image is considered as a possibility to identify the person; therefore, the face does not have to be visible. Image production and distribution requires consent. If the image is used without consent, it is a non-contractual liability, and if consented - it has a contractual responsibility.

Protection of honour and dignity. Honour - it is a social assessment of a personal, dignity - it is the person's self-assessment. In this case, it is important to evaluate who has been an information disseminator. If the mass media did not identify the infringer - then it is responsible itself and must compensate the damage. Not accuracy but honesty is required from the Media. When it comes to criticism, it is important to determine whether it applies to a public or private person. An important distinction is whether the opinion or information is expressed. The compensation for material and moral damage may be required. Property damage - is the loss of revenue; non-material damage cannot be the basis for a person to get rich unreasonably.

Legal persons (LP) as civil law entities (CC Art. 2.33 part 1). LP in civil law - is a company, institution, or organisation having its own name, on their own behalf may obtain rights and responsibilities, be as a plaintiff or defendant in court. Legal persons are divided into public and private: • Public legal entities may be established by state or local government, their institutions or other persons, not seeking for benefits, the purpose of which is to meet public interests. • Private legal persons who are legal persons that aim to satisfy private interests. Private legal entities are established by private initiatives. In most cases the founders are natural persons, but they can also be both private and public enterprises. The legal capability and capacity. The capability of a legal entity is determined by its activities regulating laws and statutes (regulations). They validate the scope and tasks of the legal entity. The capacity of a legal entity is determined by its purpose:

• Together with the capability the legal person acquires capacity; • Occurs from the moment of establishment (registration) of the legal entity.

63 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

2.3. Labour Law

It is the branch of law that regulates social relations which occur in the working process between the employee and the employer, between employers and their organisations, the employees (or their representatives) and state labour institutions, on social and economic conditions to be established, the disciplinary and material responsibility for labour disputes, safety, compliance with labour laws and their management, recruitment, training, and other relationships. Labour law regulates social relations concerning work. A working person affects the surrounding environment. Not every effect has the economic impact of the legal sense. This should be use- ful, conscious process between a human and nature. The participants of work are the work object, the object of the operation, and the specific targeted activities, consciously directed towards the achievement of a specific result. Work - a deliberate human activity, using both physical and intellectual qualities and the work must be public and social. It is not just related to the environment, but it must lead to a collective social element - it must involve people.

Labour law - working relationships. The following features of the employment relationship are distinguished:

1. Subordination. This is obedience to the employer's procedures - one of the most important signs of labour relations. Labour means the working process, which is organised by the employer, who leads the work and is responsible for it. The employer assumes full range of duties, such as: the obligation to provide means, the duty to organise the work. He or she has a duty to organise the work and thus gains the right to give required instructions to the employee. 2. Performing the function of work. The employee has contracted to do a certain job or perform certain duties. 3. Recompense. The work must be performed for a fee.

If the relationships do not have at least one of the features, these are not labour relationships.

E.g., the Sports Law of LR provides that the players form a specific professional sports contract. Although it has all three features of the employment contract, still it is a civil contract as the basketball player is not an employee under the Lithuanian labour law, but under EU law he or she is considered an employee. EU provides free movement of workers: neither the state nor private individuals cannot interfere. Labouring under Lithuanian law is equal the labouring under EU law because EU labour law has a wider perception of an employee. EU describes an employee with same three characteristics: subordination, provision of services, recompense.

Labour law regulation method - mixed. This approach reveals itself through individual institutes: labour contract, execution, material liability, dispute resolution and so on. They all have a slightly different regulatory approach. A permission and a command have a different relationship. E.g.: termination of employment regulation is particularly mandatory.

Labour law principles. Principles are ideas, beginnings, revealing the essence of law, the nature of social purpose, and trends. The principles are formulated based on the International Labour Organisation (ILO) conventions, the European Social Charter, the Universal Declaration of Human Rights and others documents and are set out in the Labour Code of the Republic of Lithuania (LC).

64 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Principles are classified as: • general, • interprofessional, • sectorial.

General Law principles in Labour law

Justice, legality - the basic principles of the legal system, the basis for the legal system. The principle of rights and obligations - one party cannot have only rights and the other have only duties. The rights of one person matches the duties of another person. The principle of legitimate expectations. This principle rests with the legislature to establish the possibilities for employees' expectations (goals) so that they do not contradict the law.

Interprofessional principles

• Prohibition of abuse of rights - the law cannot be ignored in all cases and by all entities, problems cannot be solved ignoring other people's legitimate rights and interests. • Reasonableness - can vary in the required degree of reasonableness. Given the nature of work and personal skills it may be required to have a different perception of responsibility, be able to evaluate one's own actions and be attentive. Therefore, for example when the Supreme Court of Lithuania is hearing a case for the fact of presence / absence of a contract between a lawyer and an enterprise. It is clear that a lawyer has different standards than an ordinary worker. • Integrity - most often this principle is applied - when the party having specific rights under the law is using them in bad faith. E.g.: an employee during their sick leave shall be entitled to holiday extension. A worker got ill and according to LC it seems that he or she does not even need to inform. But in practice, if a person has the right and wants to use it, but the other party does not know about this right - the principle of integrity requires to inform of their status. The principle of integrity reflects a tendency to require both parties to act in good faith.

Sectorial principles

Specially designed Labour law principles. They are listed in the LC Art. 2, Art. 40 (principles of social partnership). In addition to these principles expressed in DK, there are principles that arise from different interpretations of rules and norms. Law principles of collective labour. The principle of freedom of associations - a series of standards - the ILO conventions, the European Social Democratic Party, the International Treaties, the Universal Declaration of Human Rights, the Convention, and other documents prohibit interference to the freedoms of associations or prohibit them. Such protection is enshrined in the Constitution - Article 35 (join into associations freely), Art. 50 (trade unions). This approach involves individual rights: the right to form an association, the right to access (be their members); the right to freedom of action, setting the internal structure, goals, being protected from external influences (state, employers). Discussion question. Can the leader of a Joint Stock Company set up a Trade Union? Answer. The employer cannot be a member of the Trade Union operating in his/her company.

65 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Using this principle other rights are derived: • Collective negotiation • Collective contracts • Collective disputes (the right to collective sanctions, i.e. strikes). Only the subjects of labour law can go on strike.

Freedom of collective negotiations. Negotiating freedom means being able to make demands and requirements and the employer's duty to listen to them. The employer must negotiate with employees, even if the requirements are odd. Is it mandatory for the employer to sign an agreement? No, there is no obligation. But the requirements included in the contract are very important. The parties of the collective negotiations must take responsibility for their obligations; they must do so voluntarily, without violence, without prejudice to the existing legal system and implement the commitments undertaken.

At the collective level, both parties must respect each other - they cannot throw each other out from the negotiations, not to give minimum assistance, the negotiations must be conducted in good faith.

Individual principles of Labour law

Labour insurance of all forms of forced and compulsory labour. Established by the Consti- tution and international documents. It is a job that a person does not choose by their free will. An employee cannot be forced to do the work without his consent, other than for which he or she were hired. Public works, the court sentenced works are not forced labour. Labour relations stability. Laws do not allow to enter into a fixed-term contract, if the work is of a permanent nature. Labour Code prohibits the changing conditions of the employment contract unilaterally, without the consent of both parties, e.g., changing the necessary employment contract terms and conditions, guarantees when hiring, and other. Freedom to choose one's work – people choose their work independently, independently signing the work agreements. They can choose the activity they want. The agreement form reflects this principle best. The principle of fair wages – the state sets the minimum wage and the principles of payment. The principle is established both in the Constitution and the Labour Code. The wages must guarantee the normal level of living of the employee and his or her family, equal pay for both men and women for the same work. The principle of equality of the subjects of labour. That is perceived as a natural right, regardless of gender, race, nationality, language, origin, nationality and other factors unrelated to the professional qualities of the person. E.g.

LC Article 96 – prohibition of discrimination when hiring; LC Article 129 – prohibits discrimination when reducing the number of employees; LC Article 186 – equal work equal pay.

Requirements for specific qualifications is not a violation of equal rights. It is an objective necessity of the qualifications necessary to perform those functions. On that basis, differentiation can be made. Then the employer may impose conditions, but they must to be equal to all employees

66 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW and candidates. We also have the EU directives which can be implemented by special laws such as the Equal Opportunity Act.: Are these standards enough? Hardly. Therefore, the directives raised anti-discrimination policies to a very high level. The Consolidated Directive - accepted in 2006 Directive 54 prohibits discrimination: at the conclusion of the employment contract, execution, termination of the employment relationship, discusses Occupational social security system (which is what your employer is doing at their own initiative protecting workers from risks), social relations, with the exception of the state social insurance, defines the protection of self-employed persons. The Directive covers employees, self-employed and civil servants, because these are the workers in accordance with this Directive.

2004/114 Directive concerning the discrimination in the areas of sex services and selling of goods. 2000/43/EB Directive - race, ethnic origin – these are the areas of this Directive. 2000/78/EB Directive - age, ailment, sexual orientation, religion.

Practical situation - Danish employer decides to encourage non-smoking employees and announces that non-smokers will be paid a supplement to the salary. EU does not prohibit this but what about national law? The specific situation should be taken into account. What about the Lithuanian law? According to LC Article 2 part 1 section 4 – that is a circumstance not connected to professional characteristics. Therefore, it is not allowed to do that in Lithuania. Thus, if employee's legal position should be differentiated, that needs to be connected only to professional characteristics. Situation 1: the owner of a model home announced that he/she is going to hire a female model for showcase clothing.

Is this job requirement related to sex is legitimate? Directive 2006/54 and the Equal Opportunity Act states that discrimination will not be found when the work can be performed only by a person of a particular sex.

Situation 2: The employer made a decree according to which the employees who were not sick in the last 6 months will get a bonus.

An employee differentiation occurs that is based on a legal fact that the person was ill and took the sick leave. Is the EU law governing this matter? No. Is it regulated by the LC? Differentiation is prohibited because this fact does not meet the employee's performance.

Situation 3: employees who have a high continuous service in the company are given a bonus. Is this duration may be the basis for the differentiation of employees? These are the rules, which focus on seniority; it happens often because employers want to encourage long working.

Is the length of service a professional characteristic of an employee? After all, seniority is always related to age. Who could have 15 years of service? Already the only ones who are of the appropriate age or older. Thus, in principle, the question of seniority is strongly related to age. Question - whether it is age discrimination or differentiation indirectly due to age?

67 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Situation 4. Who can go on pregnancy and maternity leave? Of course, only a woman can do that. Half of the age is taken away from her. She is discriminated due to the pregnancy and maternity leave. This is an example of indirect discrimination on sex as only a woman can take the pregnancy maternity leave. Meanwhile, both men and women can take a child care leave of up to 3 years. Therefore, taking away the salary of such person discrimination is not present, but persons of the specific sex are affected more heavily: in practice about 97 per cent of women. In such a way women are indirectly discriminated. Direct discrimination is when discrimination applies on a prohibited ground. Indirect discrimination is when discrimination is applied on neutral grounds, e.g., only people who are 180 cm height are employed. Practically, when such neutral criterion is applied, women are discriminated. Both direct and indirect types of discrimination are prohibited. Age - both direct and indirect discrimination on grounds of age in accordance with the laws and directives can be justified. Article 6 of Directive 2000/78 - no discrimination on the grounds of age, if the national law seeks a justifiable aim, and the aim will be necessary, and legal means and will comply with the principle of proportionality. Three essential steps are distinguished: an objective, measures, and proportionality. Seniority - indirect discrimination, which can be justified on socially meaningful goals, with appropriate measures that are proportionate. Does this provision has a purpose? The longer an employee works in the company, the more expensive he or she is: pay more for experience, qualifications, etc., than to younger workers. Over time, the employee's productivity will grow, but the cost will increase. Such staff do not create as much product as it costs; it is difficult to terminate the employment contract with them; then no one will want to recruit them. Who must bear the maintenance costs?

Situation 4: 4 years old girl is looking for a retired Lithuanian nanny. Discrimination based on age, ethnicity, gender (it would be the different if the girl were one year old). Such publication calls for administrative responsibility.

Situation 5: Pranas and Maryte are 59 years of age. They are working in the same company, in the same shop, on the same shift. A new installation is built and one person should be relieved. All the conditions are exactly the same. Pranas has more than 3 years to retirement and Maryte is given preference to remain at work until retirement, because there she has less than 3 years left to retirement. Differentiation basis: due to sex. Is such discrimination justified? Again - no discrimination regarding retirement age.

Sources of Labour law. The sources of law – a form of expression of legal norms.

The hierarchy of sources of law: The Constitution (Article 48, Art. 49, Art. 50, Art. 51, etc.): the right to choose work, the right to payment, labour insurance of forced labour and so on. Laws: Constitutional, general The Labour Code - codified law (LC). Extremely important are also other laws regulating labour relations. The connection of other labour laws with the Labour Code is complicated, as LC Art. 11 part 1 provides that if there are objections, then the applicable to the Labour Code norm is applied.

68 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW LC is systematic and consolidated act. If a dispute arises between the legislative acts then a more favourable norm is applied to workers - LC Art. 11 part 2. International treaties governing labour relations. Contracts: multilateral, bilateral. LAT Senate Resolution (2003 12) said that the European Social Charter and other contracts do not apply directly but only when the specific national legislation is adopted. Secondary legislation This legislation regulates labour relations in the cases provided by LC and at the planned levels. If LC does not provide an applicable norm, then secondary law cannot be adopted. The government is not free to regulate labour relations, it can only provide law enforcement procedures. Collisions in Labour law. Rules applied in the national labour law: • Later law changes the earlier one • Special norm takes over the general one Applying more beneficial norm to the employee is not a rule to solve collision. Legal theory has the rule is that the higher legal force legislation removes the lower legal power from its application. However, the opposite rule also applies in the labour law applies - the utility worker rule. It means that such particular norm is in force, which provides more favourable working conditions for the employee. This is established by LC Art. 11 part 2.

Local legal acts. Collective agreements.

Collective agreements always involve two parties. They may be made: 1. At a higher level than of an entity, i.e., branch of farming, territorial level, and national level. The state and municipality are not a social partner. 2. At the level of the business entity (structural department).

Collective agreement - a local normative act. Other possible sets of local regulations are also possible. These are acts which are adopted by the employer and they are used to regulate labour relations in the company. Employer has the right to organise the work process. He has the power to issue binding instructions for each employee or just standardise instruction, i.e. say that his instructions are applied to everyone. The employer makes his or her individual will into the collective will through his or her orders, instructions, and so on. In some cases, there may participate and employee representatives, for example. The rules of work may be adopted only in agreement with the employees' representatives.

Questions for discussions: 1) If the head of the organisation signs an order which violates the order of accepting a legal act? Answer......

2) If the employer suddenly decides to change the work order without the consent of the employees? What then? .....

Employment contracts. This is not a source of labour law, because the employment contract establishes the individual rather than general binding rules. It is an individual rights report - the source of individual's rights and responsibilities. The Labour Code defines the concept of an employment contract (LC Art. 93). This is a written agreement with the employee, providing for mutual obligations. Working parties of the contract are the employer and the employee. Employment contract - is the individual performance of job functions. The employee must obey

69 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW the established procedures of the workplace. The content of the work contract is composed of the conditions agreed between the employee and the employer. A distinction is made to the essential conditions of the employment contract - meaning the work place and the work functions. If the parties do not agree on these essential conditions, it is considered that there is no contract. Individual contracts of employment also have necessary conditions (for example, seasonality, terms, and additional work, part-time and so on.). Parties of the agreement parties also discuss other conditions (payment, testing period, connecting professions, holidays and so on).

Types of employment contracts:

1) Non-terminated; 2) Fixed-term, short-term, seasonal; 3) Concerning the second job; 4) Telework.

The subjects of labour law. These are the participants of the work relationships who have work rights and obligations, i.e. have labour capability and capacity. An employee (LC Article 15) – a natural person who has both working capability and capacity. The working capability and capacity occurs when a person turns 16 years old.

Exceptions: • Some jobs as well as some duties and rights are obtained only from the age of 18 (LC Article 277). • Some jobs can be given to persons from age of 14 to 16. (These works are provided by the Government Resolution Nr 138 of 29 Sept. 2003).

Incapable persons cannot be subjects of the Labour law.

An Employer (LC Article 16) – is an entity, institution, organisation or an organisational structure that despite the form of ownership, legal form, and type of activities has working capability and capacity. Employee team. According to Article 17 of the LC of the LR, the staff team consists of all the personnel having employment relationship with the employer. The members of the administration are also the employee team. The supreme body of this team is the general staff meeting (conference).

Practical situation for consolidation of the knowledge of the Labour law (answers to be found in the Labour Code)

1. John is working as a guard at the school for 20 years. He has one minor child. The school promises to reduce staff. How much time before does the director need to warn John? What severance should John get? Answer. Labour Code of the Republic of Lithuania (LC) Article 130 part 1 provides that an employer has the right to terminate the contract by giving the employee a written warning 2 months before. LC Article 129 part 4 lists employees who must be warned about reductions of staff not later than 4 months before. John does not fall into the following list of employees, so John needs to be warned 2 months before. Since John has been employed for 240 months, he will be paid the

70 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW severance of 6 months average wages.

2. Aldona works for a public company. Since 2012, by the order of the director Aldona was appointed as the procurement leader. When the workload increased, Aldona would refuse these duties. Does Aldona have the chance? Can the director prohibit Aldona to do so? Answer. If the procurement organisation is part of the job in the current position drafted in the job description, Aldona is unlikely to be able to refuse these functions. This issue can be resolved only through finding a consensus with the director. She cannot refuse the assigned functions independently.

3. According to LC Article 214, employees raising two young children up to 12 years, have one additional day off per month. How much time before the employer needs to be informed about the desired day of rest? Who decides on the granting the day off for such a worker - the head of the company, or the head of the department? Can the employee use this day off suddenly in the case of the illness of a child in order not to take the sick leave? Answer. The Labour Code of the Lithuanian Republic Article 214 part 1 provides that extra rest is only granted when requested in writing by the employee. Then the employer has a duty to provide a rest period. The specific procedure for giving extra rest should be determined between the employee and the employer in the agreement. The Labour Code does not provide requirements for work time, how many days the employee has to work in order to earn the extra rest day. The only requirement from the employer's side - is the worker's request for a day off and the supporting documents that the employee has 2 children up to 12 years. In the case of the illness of a child, the staff should be given the day off.

4. In 2010 Petras turns 65 years old. On the day when he had to deal with documents, Petras asked the secretary to write for him a statement on the dismissal from his job. She wrote the statement, but Petras later learned that the statement was written on behalf of the company, not his. "Please dismiss me due to voluntary redundancy." Petras did not read the statement before signing it and remained deceived because the request did not specify the reasons for the dismissal - "retirement." The dispute between Peter and head of the company is going on also at the present moment because Peter does not constitute proof that it was not him who wrote the statement. Why is there such a dispute between Petras and the head? What is so important in the reason for dismissal? Is there a limitation period for labour relations?

5. Does the school cleaner who cleans the working post area must work for 40 hours a week? Answer. Everything depends on the employment contract. In the event of a dispute, the contract of employment is the main argument. The contract must describe not only the cleaning space but also working time.

6. An employee is working at JSC “STAR“ (Lith. ŽVAIGŽDĖ) for more than 10 years. The pay slip has a section "Bonus". The bonus is paid monthly along with salary. It was named as the work incentive. Since last year, the bonus is paid only partially or excluded on the sole ground that the employee was sick.

71 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Is the bonus excluded legally? If not, then where the employee can apply to? Answer. LR LC Article 233 provides that the employer can encourage (express gratitude, give gifts, premiums, additional leave, etc.) their employees for the good performance of one's duties, produc- tive work, long and perfect work, and other good results. It is logical that the worker does not get the bonus if he or she is sick and is not working.

7. Does the employer have the right to terminate the contract if the employee did not work due to illness for 9 months? If so, then on which article of the Labour Code can the employer base his/her actions? Does the employee receive any severance pay? Answer. LR LC Art. 133 part 2 is the answers to these questions. Under this Article, the employee may terminate the employment contract. Severance pay is disbursed according to LC Art 140 part 3, i.e. the average wage of two months.

8. Kęstutis is working at a farm in Norway. The farmer did not pay a large sum of wages (approx. 50 thousands LTL). Where can Kęstutis apply concerning the payment? Answer. Since the labour relationships are taking place in Norway, the dispute must be solved there.

9. Janina is a retired college lecturer. On 1 Sept. 2014 she left the work on the grounds of the labour agreement between the parties and received 4 months wages severance payment. Can Janina get employed in college again to manage the finals? Answer. As the labour contract was terminated by mutual agreement, Janina can get re-employed at the college. Of course, if the employer agrees.

10. John is working according to a rolling schedule, got flu and took the sick leave. First two days coincided with Saturday and Sunday. The employer did not pay for these days on the ground that the weekends are not paid for. Is the employer right?

Answer. The employer acted correctly. If Saturday and Sunday were the scheduled work days for John then the employer were required to pay for these days.

11. Does the employee who intends to marry get days off or holidays for the wedding? Is he/she paid for them?

Answer. LR LC Art. 184 part 4 provides that an employee at his request may be granted unpaid leave for at least three calendar days for marriage. An employer may provide the annual paid leave, but it depends on the mutual agreement.

12. Kęstutis is working on the construction site. The work is conducted in two shifts (night and day). How many shifts in a row can one work at night? How much rest is provided after anight shift?

Answer. LR LC Article 160 "The daily rest" provides that daily uninterrupted rest between working days (shifts) shall not be less than 11 hours in a row. LC Art. 161 states that the uninterrupted weekly rest period must be at least 35 hours. Therefore, Kęstutis must be granted both days off in a row.

72 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 13. I work as a sales person at a JSC. This year my holidays lasted only 14 days. The head of the store does not allow me on holidays because there is no substitute for me. Where to apply in such a case and what can I do? Answer. One can apply to the State Labour Inspectorate. The LC of the Lithuanian Republic Article 169 part 1 provides that every year the annual holidays should be granted in the same year of employment. In the given circumstances the employer is wrong.

14. Can a retired person work in one place but hold two positions? Answer. The Labour Code of the Lithuanian Republic Art. 114, part 1 provides that an employee may negotiate with the employer. The law does not prohibit for pensioners to work. The right of the employer is choosing an employee which is not limited.

15. Is it necessary for an employee go for certification? Is there a law on which the employee could be exempt from certification? On what grounds can a person not to hold the certification exam? Answer. If there is a mandatory employee certification, no one will run away from it. All reasons (illness, disability, incapacity, business trip and so on) can postpone the date of certification, but it cannot be avoided.

16. Arvydas works as a guard without days off from 8 am to 8 pm. What should his salary be? Answer. Wages depend on the agreement with the employer. The wage should not be less than the minimum monthly wage set by the Government.

2.4. European Union (European Community) Law

European law - European regional law. EU law system. Supra-national law. In a variety of ways this can be international, supra-national and international organisations in the region, or the national (European Region) State law. EU law is a sort of in-between national law and international law. It not only regulates the cross- border agreements between the two parties, but also is the applicable general national law of the Member States; as it has been set by the Treaty of the Member States, the Community law prevails over national law and directs its validity.

The main features of European Union law: • Supra-nationalism (supra-national legal system). This law stands above the Constitution, above all the national law pyramid. Each EU Member State must recognise the EU law. • Direct effect, direct application. The Member States' rights and responsibilities may be based not only on national legislation. The directly applicable general legal norm law of the EU has to be: clearly formulated, specifically, in detail, unconditionally; must be of such a nature that the national body courts could apply this norm without additional measures. It is necessary to distinguish between the types of legislation: directives, regulations, guidelines, establishing agreements, decisions, international treaties (by EU), opinions, declarations, memos, etc. • The forms of EU legislation work as defined by the EU's founding documents (the EU Treaty, the EU acting (functioning) contracts). One of the set features - The Founding Treaty

73 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW contract. The Founding Treaty provides establishing the competence of the EU legislation. The EU now has a fairly extensive expertise in various fields. The EU cannot itself create competence, it can act only where it was allowed to operate only in order to achieve those objectives, which have been allowed it to be pursued in the Member States. European Community law is applied and works unconditionally in all the Member States.

ES law is divided into: 1. The EU primary law - framework legislation (establishing and accession treaties, international agreements). 2. EU secondary law - a derivative of EU law, adopted on the basis of EU primary law (directive, regulation, decision, and recommendation). 3. The EU's "national" (i.e. of the EU Member States) law, which includes the law resulting from the implementation and the application of EU law (e.g., transposition of the directives, decisions of national courts on the application of EU law and other legal acts).

Primary law – modifications. These are regulations of direct effect. The rates must be accurate, specifically defined, not requiring a separate national act. The primary law of the European Communities appears on the basis of founding treaties between the Member States, drawn up in accordance with international standards.

Secondary law. All Member States have been addressed with regulations and directives, decisions, which are published in the official bulletin part L.

Regulations - unitary, universally binding in its entirety and directly effect in each Member State. All members are bound to comply with the regulations and apply them. Regulations can bind to natural or legal persons or give them certain rights. The regulations apply not only for the member states, but also for the individuals within those countries concerned. Nobody has the right to depart from the provisions of the regulations. The Member States may not grant exceptions. In order for the regulations to take effect in the State, there is no need to accept the national law, regulations cannot be transposed into national law.

Directive - required legal act, but the requirements are only partial, not all the scope but only the objectives are required. It is also addressed to the Member States, not individuals. However, the State may choose the form and methods to achieve those goals. The State adapts objectives to the directives. This operation is gentler than the regulations, because it needs to be transposed into national law. The States may adapt a directive, transpose it into national law following the requirements:

• The measures taken have to properly reflect the content of the directive; • The State must respect the time limit laid down in the directive; • The state must choose the most appropriate forms and methods of incorporation.

Decisions. These are specific provisions for individuals, not abstract rules applied in most cases. Decisions shall be binding in their entirety to those to whom they apply. Optional acts include recommendations and opinions issued by the EU institutions. Recommendations can be addressed to Member States, natural and legal persons. They usually offer certain actions or behaviour, harmonisation of various policy areas, coordination. They are most commonly accepted by the European Commission, less often - the Council.

74 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Opinions generally refer to points of view of the EU institutions on certain issues. An opinion may be addressed to the Member States, may be the answer to another institution or a document. The opinion may be required as a procedural step in EU decision-making process, without which the final decision is invalid. It cannot be said that the recommendations and opinions in general do not have any legal effect. National courts when resolving legal disputes must take into account the recommendations, espe- cially when they can specify how to interpret the provisions of national law adopted in implementation of the recommendations or when the recommendations complement binding Community legislation.

Discussion questions. 1) What happens when a Member State is required to transpose a directive? Can be transposed by any national measure, but it is necessary to maintain legal certainty, pre- dictability. It is prohibited to adopt a law that will block operation of the directive. Directive consistent interpretation of the law must be interpreted so as to avoid any conflict. 2) What happens if the state does not transpose / transpose the directive incorrectly? Then there is an opportunity to apply the directive directly.

Let's imagine a situation when a foreign subject is included into legal relationships: • A foreigner (employer or employee) • The work is done abroad or is carried out in several countries

1) Foreign company (subject) is operating in Lithuania (establishes a JSC, a branch or employs a natural person): • If a foreign company is setting a JSC (foreign capital), then the employer is the set JSC, and there is no foreign element. Then the relationship is national, the other party will not be able to apply the law of the foreign country. • If the same foreign entity establishes a branch, the branch will be the employer. At the registration the branch becomes Lithuanian, so it will have national relationships and the national law will be applied. • If the same foreign entity employs a natural person, then the employer will be the foreign entity and then there will be a foreign element.

2) Lithuanian employer: • employs a Russian worker in Moscow - a foreign element present; • employs a Lithuanian to carry out the functions in Moscow - also a foreign element present, although both parties are Lithuanian entities.

3) Foreign element usually occurs when the employer is a foreign entity or work is done in the overseas territory. Only in this relation it can be deviated from the Lithuanian law. LC contains the illusion that we can choose a law at any time. Escaping from the principle of territorial labour law can happen only in the relations of international character, because it is a private contract in nature. Such an agreement may be useless to an employee but the employee cannot simply refuse it desiring to work. So there are special provisions that restrict the parties from choosing the applicable law. According to LC Article 7 - the parties may choose the applicable law, but such a choice does not exclude the application of mandatory rules of law of the country, which is valid in the absence of choice. However, the right of choice is valid only when the relationship contains a foreign element.

75 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3) Cases when the parties themselves do not choose the applicable law. Danish company makes and employment contract with a Lithuanian and does not discuss specifically the country of work - Lithuania or Denmark. Let's say that is Lithuania; therefore, Lithuanian law primarily will regulate this relationship. If there is no permanent job place, the decision then is the law of the employer's place of business (the country which is sending).

And if the Danish company agrees with the citizen of Lithuania that he/she will work in Lithu- ania? Agreement seems to be more related to a specific country, and the working relationship will be regulated precisely by the law of that country. What are the conditions in the contract? Citizenship, contract language, currency, the place of contract, contract dispute resolution, place, etc.

3. INTELLECTUAL PROPERTY 3.1. The concept of intellectual property

Intellectual property is such intangible property created by the human mind (intellect, thinking, thought) and spirit protected by law, like any other form of property. Intellectual property law covers all what people have created using their mind: inventions, discoveries, science, art and so on.

Intellectual property consists of an abundance of its objects, so this area is one of the fastest developing areas. Intellectual property covers a wide range of various and independent rights: of authors, inventions, patents, related rights, trademarks, designs, geographical indications, etc. All these rights arose at different times for different purposes.

The characteristics of intellectual property rights - intangible objects - what is perceived rather than the physical objects (not things). That emphasised the intangible nature of intellectual property objects.

Civil Code of the Republic of Lithuania Article 1.97 provides that "the object of civil rights, among other things, is the result of intellectual activity." The Article 1.111 of the Code, lists a non- exhaustive list of the results of intellectual activity - scientific, literary and artistic works, patents, industrial designs and other results of intellectual activity, expressed in some objective form (manuscripts, drawings, models, etc.). Invention patents and other results of intellectual activity become objects of civil rights from the moment they are recognised in the results of intellectual activity according to the law. Intellectual property objects are divided into objects of copyright and industrial property, which means that copyright objects are related to culture, art, and industrial - to the industry. The objects of copyright are the protected works, broadcast, phonograms, first recordings in various films and so on.

The Convention of establishing the WIPO (World Intellectual Property Organisation) was signed in 1967 in Stockholm (Sweden). It is the largest convention in the field of protection of intellectual property. It was launched in 1970, 173 countries signed it. Lithuania became a member of WIPO on 30 April 1992. The Article 2 of the Convention provides that "intellectual property are rights in literary, artistic and scientific works; artist performing activities, and sounds, TV shows, inventions, scientific discoveries, industrial designs, trademarks, trade names and commercial stamps;

76 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW protection against unfair competition and other rights related to intellectual activity of production, scientific, literary and artistic fields." Intellectual property is divided into two major groups - copyrights and related rights and industrial property.

Every country determines intellectual property in accordance with their national laws, regulations, and therefore in different ways. On the international scene into account the laws of the State and the practice are taken. Individuals living in the European Union Member States can protect their intellectual property rights at the national (regional) level, and also at EU level throughout the European Union. Under intellectual property law, intellectual property owners are granted certain rights of various types of intangible assets such as music, literature and other art works, discoveries and inventions, words, phrases, symbols, and designs. The most common types of intellectual property rights: copyright, trademarks, patents, industrial design, marketable appearance and in some cases - commercial secrets.

The concept of intellectual property was introduced only at the end of the nineteenth century in a number of countries. The origins of copyright are related to the emergence of book printing. The origins of copyright and patent rights come from the British Statute of Anne (Statute of Anne) adopted in 1710 and the Monopolies Statute (Statute of Monopolies) adopted in 1623. The Statute of Anne provided that the author's personal property right in a work is valid for 14 years. The Statute provided liability for copyright infringement. Any person violating the rights of the owner of the work had to pay a single penny for every page of the book issued illegally, but it could not ensure the real work of authorship. At the time, the value of this Statute was very high.

Illustration 11. (Source: Wikipedia)

Intellectual property includes: • copyright and related rights • inventions and patent law • trademarks • names of legal entities • geographical indications • design law • protection against unfair competition

77 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3.2. Copyright

The copyright and related rights in Lithuania are regulated by the Copyright and Related Rights Act (CRRA 1999 May 18, No. VIII-1185). This Law provides:

• copyright in the literary, scientific and artistic works (copyright); • performers, producers of phonograms, broadcasting organisations and audio-visual work (film) the first fixation (related rights); • rights of database producers (sui generis rights); • implementation of copyright and related rights as well as collective administration and enforcement, as well as the sui generis rights implementation and enforcement.

This law is in line with provisions of the European Union laws - 27 Sept. 1993, Council Directive 93/83 / EEC concerning certain aspects of copyright and related rights rules applicable to satellite broadcasting and cable retransmission; 11 March 1996, Directive 96/9 / EC of the European Parliament and Council on the legal protection of databases; 22 May 2001, European Parliament and Council Directive 2001/29 / EC on copyright and related rights in the information society, certain aspects of harmonisation; 29 April 2004, European Parliament and Council Directive 2004/48 / EC on the enforcement of intellectual property rights; 12 December 2006, European Parliament and Council Directive 2006/116 / EC on copyright and related rights in the term of protection; 23 April 2009, European Parliament and Council Directive 2009/24 / EC on the legal protection of computer programs and so on. With regard to copyright, it is necessary to find out the reasons of their importance. Who the owner of copyright is and what the object of copyright is?

First of all, copyright - is the basis for proving and protecting ownership of the work. Often in the creative, artistic and business world there are disputes over the copyright to a specific published work and its remuneration. Copyright must be protected in order that authors - creators could have something to live on, because creating a work (e.g., a movie) is very expensive, and if everyone could legally copy it, would it pay back to create, write, etc.? Copyright prohibits a clear copy of the same work content, but not ideas. For example, if someone wrote a book about love, and yet you write a novel about love - it is not an infringement of copyright. But if your novel you use the same names, locations, similar situations, it is very likely that you will violate copyrights.

The author - a natural person who created the work. Copyright occurs when a literary, scientific or artistic work is created.

The subject of copyright - is the author himself, another natural or legal person who, according to cases set by the Copyright and Related Rights Act shall have the exclusive rights to the property or the person to whom this law passed to (successor). The author who created a work becomes its author, whether or not he or she is capable. If the author is legally incapable, his or her copyrights are implement by their parents (guardians). Only people may become authors, but not devices (computer, machines) or animals (e.g., a dolphin paints a picture). The computer can be used for creative works as an aid in the creation, so if the computer is used to create the work, its author is a human being but not the computer. Additionally to the authors, the subjects of copyrights may be individuals who obtained the copyright through inheritance or a contract. They can be both natural and legal persons. Often there are cases when the owner of copyright improperly formed an agreement or does not have enough evidence to support his or her rights to the work. The authors then

78 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW turn to lawyers asking them to defend their rights. For example, a programmer creates a company's accounting program, but due to improper forming of the contract, the programmer provides the program for other users. Therefore, to prevent this from happening, it is necessary to properly set up copyright agreements providing for the transfer of rights, responsibilities and deadlines.

Co-authorship (associate copyright). Often the work is created not by one but several authors. They are considered as co-authors, regardless of whether the work is composed of several parts or is indivisible whole. Each part of such work has independent meaning, as it can be used independently of the other parts. Contributors must decide by consensus on salary. If they do not agree on compensation, salary is divided among them, taking into account the contribution of each author into the work. None of the co-authors may prohibit the use of a collaborative work without a valid reason (CRRA Section 7).

Conditions for co-authorship to occur: • collective creative work, • agreement on the end result of the collective work - the work (creation), • agreement on each author's contribution to the work, • agreement or consent on collective work.

Remember that the copyrights of the work created by collective authorship extends over the entire life of contributors and 70 years more after the last contributor's death. Copyright - author's property and moral rights concerning the created intellectual (scientific, artistic, technical, etc.) work.

• Property rights - that includes release of the work, its reproduction by any means; translation, arranging, adaptation, reproduction, distribution, rental, lending, provision, or other transfer of ownership, public performance of the work in any manner or means, announcing the work and so on. The authors for their work get remuneration. The author has the right to control the use of their work. Property rights may be transferred to another person under a copyright agreement. The author's economic rights are valid for life of the author and 70 years after the author's death, regardless of the date it is legally made available to the public (ATGT, Article 4). The author has the protection mark of their rights. The mark consists of three elements: the letter C in a circle or in parentheses, the author's name (title) and the year of the first publication. • Personal moral rights • the right of authorship - it is the recognition of the authorship or the work, a clear indication of the author's name on all copies of the work or when the work of another person is used publicly. • the right to the author's name - the author's requirement is that his or her name is always or never indicated, or his or her pseudonym is indicated when using the work in any way. • the inviolability right to the work - this is the author's objection to the distortion of the whole work or its title, any replacements, or attempts that might damage the author's reputation and honour.

The author's moral rights cannot be transferred to another person. After the death of the author, the copyright property rights are inherited by the law or a will. The author in their will can designate

79 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW a person to whom they entrust the protection of these rights. The moral rights of the author also can be protected by the successors. The author's moral rights are reserved for an indefinite period.

Copyright Agreements. The author's property rights may be transferred by an agreement for the transfer or they can be given at the conclusion of a licensing agreement, but moral rights are not transferable to other persons. According to the author's contract, one party (the author) transfers, gives the author's rights of the literature, science, or art work or commits to creating the work or to transfer or grant copyright to the other party (the rights of the assignee or licensee), the other party commits to use the work under the conditions specified in the contract and pay royalties (CRRA Article 39). The copyright agreement is one of the types of civil contracts. Therefore, this agreement is governed by the general regulations for contracts and transactions (the conditions, processes, responsibilities, etc.). Conditions that limit the passive or active capacity are not valid (CC Article 2.6). For example, such an agreement that would oblige the author to transfer his or her works all over the entire life to a publisher, to keep his or her pseudonym the same, not to publish his or her works using their own name and so on is not allowed.

The objects of copyright - original literary, scientific and artistic works which are in any objective expressed in the form of creative activities (CRRA Article 4). Books, pamphlets, articles, blogs), oral works (speeches, lectures, sermons), performed on stage works (drama, choreography, performances), musical works, audio-visual works (films, television movies, programs), radio broadcasts, sculpture paintings, prints, photographs, architectural works, works of applied art, illustrations, maps, plans, etc. works), as well as derivative works of other literary and scientific works of art - translations, adaptations, reviews, essays, musical arrangements and so on. Copyright objects are not officially registered. Their protection arises from the creation of the artwork and the expression of the objective form of the moment. Ideas, procedures, processes, systems, methods of operation, principles, discoveries, separate data, legislation, verdicts, various regulations, spatial planning and other official documents, their translations, official state symbols, signs, i.e., flags, coats of arms, money signs and works of folklore and so on are not considered the objects of copyrights.

3.3. Related Rights

These rights include the use of works. Related rights are closely related to copyright and protect the interests of performers and record producers' interests but not the author's. Artists perform works, works are recorded in phonograms, broadcasted, as well as become a basis for making movies. The author has the rights to the works, and the performer has the rights to performances. The producer of the phonogram has the right to a phonogram, the performer - the performance, the author - the performance and recording of the work. Work broadcaster can broadcast "live" or use records, but the broadcaster must use the works without infringing the copyrights.

Related rights - these are the copyrights of performers, producers of phonograms, broadcasting organisations, audio-visual works (films) the first fixation rights, guaranteeing their financial and moral interests.

The subjects of related rights have the exclusive right to authorise or prohibit performances, phonograms and broadcasting, use of audio-visual works (films) and the right to receive remuneration for the use of these objects. Actors, musicians, dancers and singers, conductors, choir directors and

80 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW so on are considered to be the performers. The performers have moral and property rights.

CRRA Article 52 lists the artist's moral non-property rights: the right to a name, to their own direct (live) performance or its recording, the right to object to any distortion of performance, which can damage the artist's honour or reputation. The performer can perform and publish with their real name, as well as a pseudonym, if this is compatible with the rights or morality of others.

If the work is performed by a group, the right to implement the collective performance belongs to the leader or representative. The performer's moral rights are reserved for an indefinite period.

The performer's property rights are listed in CRRA Art. 53 "means: broadcast, rebroadcast or otherwise publicise the performance that was not recorded, unless the performance is itself a radio or television program; refusing to record the performance; reproduce a fixation; make the record of performance publicly available."

According to Article 59 CRRA, performers' property rights are valid for 50 years after the date of the performance. If the period of fixation of the performance is legally published or legally co- mmunicated to the public, performers' property rights are valid for: 1) 50 years after the first record of the performance, which is not a phonogram; release or publication date; 2) 70 years after the first record of the performance, which is not a phonogram, release or publication date.

Copyright and related rights are protected by a collecting copyright management association LATGA-A (Lithuanian Copyright Protection Association Agency); AGATA (Association of Related Rights Agency). For infringement of copyright the author defending their successors may apply to the court with a request for compensation for damage and stop of malpractices. Cases on the moral rights of the authors are examined by the district court (RL CCP Article 27 part 2). Material damages are refunded in accordance with LR CC norms.

Questions for self-testing and independent tasks (using CRRA):

1. Who an author is?

2. List the subjects of copyrights.

3. Explain the copyright in works created during the official duties or job functions.

4. Describe the concept - the manufacturer of an audio-visual work.

81 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 5. What an audio-visual work is?

6. What legislation governs copyright?

7. Give examples of collective works.

8. How is the remuneration determined for the copyright of the audio-visual work?

9. How is the remuneration determined for the associate copyright?

10. If the work contains the author's name or a pseudonym, which casts doubt on the identity of the author, who is considered to be the author of an audio-visual work?

11. What is the object of copyright?

12. What is not considered the object of copyright?

13. What is protected by copyright?

14. What are the distinctive moral copyrights?

15. How are the copyrights protected? Please describe briefly.

82 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 16. How do you understand associate copyrights?

17. What liability is applied to infringements of copyright?

18. What is the limitation period and compensation for non-material and material damage for embezzling of copyrights?

19. What institutions ensure copyright protection?

20. Explain the author's capacity.

For discussion. Why should copyright protected? Give examples.

Notes ......

3.4. Patent Law

Inventions are protected by patents. Unlike copyrights, patents not only protect the invention itself, but also its idea. In order the invention would be successfully "embodied", it is necessary to register it. If you invent something and patent it, it will not be used without your consent by anyone. Conversely, if the invention is not patented, then it will be available to all others, and any liability will be sought, because there will be no legal basis. Therefore, it is necessary to record all the inventions. The registration fee must be paid. Patents must be registered in order that the inventions would not be produced or no one can do what the inventor invented, or just in order this hard work would be worthwhile.

This right belongs to a part of intellectual property - industrial property, which is related to industrial production, industrial product sales, and market services. The Article 1 of the Paris Convention for the Protection of Industrial Property accepted on the 20 March 1883 (the Republic of Lithuania became the member of the Paris Convention for the Protection of Industrial Property of the State on 22 May 1994) specifies what the industrial property objects are - these are the invention patents, industrial designs, trademarks, service marks; trade names, names of origin, protection against unfair competition. This is a non-exhaustive list. The Convention states that industrial property can depend on agricultural production areas in the mining industry, manufactured and natural products (wine, grain, food, minerals, animals, beer, flowers, and mineral waters).

83 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Patent law is governed by the Patent Law of the Republic of Lithuania ("Valstybės žinios," 1994, No. 8-120). Inventions are protected by patents, because the object of the patent law is the invention. The Act does not define the concept of the invention, the Patent Law of the Republic of Lithuania Article 2 only describes the features of an invention: 1) the novelty of invention - invention must be not known at the technical level. Technical level means all public information about inventions in Lithuania and other countries till the moment of submission of the registration; 2) the level of the invention means that invention must be unknown to the specialists of that area at the technical level. If the result of the invention is obvious to the appropriate field then that is not an invention; 3) industrial application - the invention can be manufactured, used in industry, agriculture, health care, and in any field of human activity.

The Patent Law of the Republic of Lithuania Article 2 part 1 indicates what is not regarded as inventions - these are the design of products, games, doing business, calculating machines of the program, and means of presenting information. Inventions cannot conflict with the interests of society, morals, and principles of humanity.

Granting of a patent. With the creation of the invention, it is necessary to formalise and file a patent application with the State Patent Bureau. The patent application must include the documents listed in the Patent Law of the Republic of Lithuania Article 11. The State Patent Bureau shall conduct examination of the application, during which it reviews the documents, their clearance, and fees.

Patent - is the document issued by the State Patent Office that confirms the legitimacy of the invention. The patent is valid for 20 years from the filing date. The patent gives you the right to use the invention

Independent tasks for knowledge building (use the Patent Law of LR).

1. What are some of the most common types of industrial property?

2. Industrial property is considered to be ...... (list at least 3 known to you)

3. What is the patent law?

4. Explain what a patent is and what its validity is?

84 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 7. What is the composition of a patent application?

8. What is the period during which the State Patent Bureau, upon request, carry out a formal examination?

9. How many years is the patent registration certificate valid?

10. What are the inventions sources of law?

10.11.What What are the characteristics inventions sources of describe law? an invention?

11. What characteristics describe an invention?

12. Which inventions patents are not issued for?

13. List the subjects of patents law. 13. List the subjects of patents law. 10. What are the inventions sources of law? 14. Can an incapable person be the subject of patent law? 11. What characteristics describe an invention? 10. What are the inventions sources of law? 15. What is the patent owner's rights and protection available to them? 14. Can an incapable person be the subject of patent11. What law? characteristics describe an invention?

12. Which inventions patents are not issued for?

Discussion15. What .... Why is patents the patent should be owner's registered? rights Is 13.this List andnecessary? the protection subjects Arguments:12. of Which patents available Prosinventions law. and Cons topatents them? are not issued for? 3.5. The Concept and Features of Trademarks 13. List the subjects of patents law. 14. Can an incapable person be the subject of patent law? Verbal Trademark Discussion... Why patents should be15. registered? What is the patent Is14. this Canowner's an necessary? incapable rights and person protection Arguments: be the availablesubject of topatentPros them? law? and Cons.

15. What is the patent owner's rights and protection available to them?

3.5. The Concept and Features of Trademarks Visual Trademark Discussion .... Why patents should be registered? Is this necessary? Arguments: Pros and Cons 3.5. The Concept andDiscussion Features .... Whyof Trademarks patents should be registered? Is this necessary? Arguments: Pros and Cons 3.5. The Concept and Features of Trademarks Verbal Trademark Verbal Trademark

(Source: Wikipedia) Visual Trademark Three-dimensional trade mark containing the word element Visual Trademark

(Source: Wikipedia)

(Source: Wikipedia)(Source: Wikipedia)

Three-dimensionalThree-dimensional trade mark containing trade markthe word containing element the word element

(Source: Wikipedia)(Source: Wikipedia)

Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

What a trademark is? What is its purpose? What are its benefits?

Trademark protects certain forms, drawings, words, and letters. Development of trademark dates back to very ancient times. Separate sources say that the first trademarks appeared five thousand years ago in Egypt, where the masons left their initials on the pyramid blocks. In ancient times ceramics were widespread. Ancient Greek pottery produced used signs to mark the vases and other products. Those signs were the initials or a finger stamp put on a still unfired clay product. In ancient Rome, the producers of bricks would press their initials on the bricks. The tradition to label products spread in the middle Ages when trade flourished. According to sources, the first written medieval source certifying the emergence of trademarks in Europe was the act regulating the legal protection of trademarks by the English Parliament in 1266. This act instructed the British bakers to mark on their baked loaves of bread. In the nineteenth century, the legal protection of trademarks became even more significant after the beginning of the industrial revolution. Due to the growing competition product plagiarism emerged. In 1875 England issued a law which governed the holder's monopoly on the use of the mark, and most importantly - the judicial protection of trademarks. Relevant documents for the legal protection of trademarks were accepted in France (1857), Italy (1868), The United States (1881), and Russia (1885).

The Paris Convention of 1883 - the main international legal act in the field of industrial property protection, which is also valid in the current period. In 1925 the Trade Marks Act was first adopted in the interwar Lithuania and the first trademark was registered in 1992. Lithuania after the Second World War was dominated by the socialist economic relations, which did not recognise the competition, and the goods were not identified. People still have the memories of glass bottles of milk, kefir, sour cream and meat products were wrapped in paper. There were no talks about trademarks. "The socialist economy transformed the brand features, limited them to the information tag, and the absence of competition wiped out advertising and sales techniques"1. Only after the restoration of independence, design and advertising became a necessity. A resolution on the legal protection of industrial property was adopted, and finally - the Trade Marks Act of the Republic of Lithuania (hereinafter - LR) was adopted.

Trademarks emerged in order to identify the goods in a particular social environment. Identification happens for the sake of the following objectives: • the social group the product is dedicated to (social identification); • the ownership of the product (identification of ownership); • Who produced the product (identification of origin)?

Various historical reasons led to the occurrence of marking the goods. In order to stay in the market, producers wanted to be easily recognised among the competitor and help the consumers to make sense in the abundance of similar goods. There is a number of definitions of a trademark. Under the legal doctrine it is said that "a trademark includes tangible, real characteristics of the product, i.e., physical characteristics of the product, the packaging, as well as guarantee and additional services, also the intangible - consumer's beliefs and attitudes. Trademark - is a set of rational, closely related and consumer oriented

1Klimas A. Lietuvos prekių ženklai. Vilnius, Vilniaus dailės akademija, 2008 m. P. 63.

86 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW physical, functional, aesthetic and emotional elements, which distinguishes the company goods from its competitors and creates financial assets of the company, increases sales" (Birstonas R., Klimkevičienė D. et al.). Trademark has to stand out from the abundance of goods so that consumers would recognise the trademark, would meet their needs through exactly the values of that trademark. Therefore, we say that the trademark is not only distinguished by the product characteristics, product or service, but also by the additional value of the goods formed namely by the exclusive brand in the consumer's mind (what user does not know the McDonald's restaurant chain? Vilkyčių dairy products, etc.?).

Definition of trademark is presented in the LR Trademark Act Article 2 part 1, which says: “a trademark is any sign the purpose of which is to distinguish between the goods or services of an entity from other goods or services of another entity and which also can be represented graphically.” The benefits of trademark are defined by its functions. The Supreme Court of Lithuania (hereinafter - SCL) has indicated the main four functions of the trademark: "dividing (differential), origin (source), quality and advertising"2. The main function of the trademark is dividing or identifying. This distinguishing feature is the essence of the trademark and its guarantee of exclusive rights protection3. The means of product identification can vary, e.g., the shape of goods, wrapping, specific physical characteristics, certain labelling and so on. The main features of item identification: a generic brand name, labelling, marking, brand, packaging, design. A trademark is for identification of the goods and that is the best way to achieve this goal. The name of the good should help to understand the purpose of the goods and the type of the goods. The trademark also has a broader meaning - the name of the good, symbol, design, unique colouring, certain elements of arrangement or other information. In order that the trademark would have the legal protection it needs to be patented. Other features of identification are easier. Product name is based on purely verbal information, the symbol of the product does not have any tactual information, and the packaging performs the functions of identification and protection of the product4 . Frequently customers choose a product by its trademark. Also, the purpose of the trademark is to represent the manufacturer, also, facilitating the selection of customers, strengthening their loyally, helping the advertising. The trademark helps to advertise the goods, introducing the goods or services to the customers, providing information about the goods and services available in the market. The trademark should also perform the function of origin. The goal of this function is to inform the consumers where and by whom the product is manufactured. The name of a trademark should be understandable, easy to pronounce, recognisable and memorable; it is also needed that it would be distinguished by its colour, image and so on. It must be original, easily translated into foreign languages in order it would be able to register and legally protect it. The Trademark Law of the Republic of Lithuania, Article 5 provides what signs can create a trademark - "trademarks that are covered by the legal protection provided by this law, can be composed of the following signs: words, personal names, names, artistic pseudonyms, names of legal entities, slogans, letters, digits, drawings, emblems, three-dimensional forms, colour or combination of colours, their compositions." The relevant provisions concerning signs which may constitute a trademark are set in the Trade- marks Directive Nr. 89/104 Article 2 in the European Council Regulation No. 40/94 on the Community Trademarks Article 4, which provides that "the Community trademarks may consist of any signs 2 Lietuvos Aukščiausiasis Teismas. Nutartis, Civilinė byla Nr. 3K-3-337/1999. 3 Birštonas R., Klimkevičiūtė D. ir kiti. Intelektinės nuosavybės teisė. Vilnius, Registrų centras. 2010 m. P. 515. 4 Urbanskienė R., Vaitkienė R. Prekių ženklų valdymas. Kaunas, Technologija, 2006 m. P. 10.

87 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW capable of being represented graphically, particularly by: words, including personal names, designs, letters, numerals, outer image or the look of their packaging if that allows distinguishing the applicant's products or services from products or services by other companies." A trademark can contain the place of origin of the goods, the start-up date of the company opera- tions, awards, and in some countries – even owner‘s name or other references5. Also, the trademark may be: written, visual, spatial, and luminous (advertising), auditory, kinetic, aromatic and so on.

3.6. Trademark Protection

Whoever registers a trademark first, acquires the pre-emptive right to one or another trademark. Trademark protection is based on the principle - "whoever is first in time, is the first in the law." These legal principles of trademark protection are distinguished: • Trademark registration • Territorial nature of trademark registration • Trademark protection only of those goods for the marking of which it is registered.

Registration of trademark leads to exclusive rights-based protection of trademarks in a particular country. When the trademark is registered, then it is easier to prove the owner's rights to it - the legal mechanism to protect the goods is activated. One of the first cases in Lithuania, which dealt with the issue of a wide brand awareness in Lithu- ania, was about the joint Lithuanian and American company JSC "Philip Morris" brands denoting cigarettes "Astra" and "Prima", concerning their recognition as well-known brands in Lithuania. In this case, the Vilnius Regional Court recognised the mentioned brands as well-known by establishing a fact of legal significance (A. Šakinienė). The LR Trademark Law Article 9 establishes that "a well-known trademark is recognised in court, as well as the owner of the well-known trademark has the right to prohibit other individuals from using this trademark without his or her consent. The trademark is protected only in the territory where it is registered, so the territorial principle is very important at the trademark registration. Thus, the trademark should be registered in the state according to the local laws or the international trademark registration procedures could be applied. The trademarks of the European Community exist in the territory of the whole European Union. European Community trademarks are registered in accordance with the 1993 Council Regulation on the Community trademark. Trademarks in the European Union are registered at the Office for Harmonisation in the Internal Market - OHIM that has its headquarters in Alicante, Spain6. Registered trademark becomes legally protected in every member state of the European Union including the Republic of Lithuania. A trademark is protected only in reference to those goods for the use of which it is registered. LR Trademark Law Article 11, part 5, point 3 states that "application to register and issue a trademark certificate shall indicate the names of the goods for which the trademark is used, classified according to the filling date of the Nice Classification. Nice Classification is the International Classification of Goods and Services approved in 15 June 19577. Under the Nice Classification all goods and services are classified into 45 classes. Nice Classification is mandatory not only for the national trademark

5 Žilinskas V., Kasperavičius P., Kiškis M. Intelektinė nuosavybė ir jos apsauga. Klaipėda, Klaipėdos universitetas, 2007 m. P. 305. 6 Urbanskienė R., Vaitkienė R. Prekių ženklų valdymas. Kaunas, Technologija, 2006 m. P. 85. 7 LR Prekių ženklų įstatymas, V.Ž., 2000, Nr. 92 – 2844. 2 str. 16 d.

88 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW registration of the parties to the Treaty of Nice but also when the trademarks are registered by the World Intellectual Property Organisation (hereinafter - WIPO) under the protocol of the Madrid Agreement concerning the international registration of trademarks as well as with the Internal Office for Harmonisation of Market registering of European Community trademarks.

A patent in Lithuanian can be obtained in three ways:

1. National way – when the State Patent Bureau is applied directly in Lithuania. Trademark is registered in every country including the Republic of Lithuania. If a trademark is registered under the laws of this country, it means that the protection happens at national level, for example, in Lithuania, one should follow the LR Law on Trademarks of 1 October 2000. This law gives an opportunity to be legally protected and use the trademarks in our Republic by natural persons or legal entities, unions that registered collective trademarks of both Lithuania and other countries8. According to LR Trademark Law Article 35, the trademark protection is valid for 10 years from the grant date.

2. Regional way - since 1 April 1996 the European Union launched the Community system of trademark legal protection. Certain agreements between countries give the possibility of registering a patent in the group of countries that are signatories to the agreement. An interested applicant to obtain protection in these countries has the opportunity to submit one application in the Regional Office for Intellectual Property.

3. International way – when a trade mark registered at the International Bureau WIPO in Geneva, in accordance with Madrid Agreement Concerning the International Registration of Marks Protocol of 1989. The World Intellectual Property Organisation (WIPO) administers the Patent Cooperation Treaty (PCT) and offers the opportunity to file a patent application for the protection of inventions in any, some or all of the PCT member countries. A country can choose which of these international agreements to participate in. Lithuania with the International Bureau communicates through the national body- State Patent Bureau. Once the application is satisfied, trademark holders receive a Community trademark certificate9 and thus may protect their rights throughout the Community. European Community trademarks entered into force in the territory of Lithuania, when Lithuania joined the European Union. If the applicant indicates the Republic of Lithuania, then Lithuania takes responsibility to legally protect international trade marks registered by the International Bureau of WIPO. The international registration shall be published in the International Bureau Gazette of International Trademarks and in Lithuania - in the Register of Trademarks10. The 1883 Paris Convention is one of the trademarks protection measures. This Convention is the first international treaty at the signing of which the International Union of Industrial Property was established11. A document of trademark legal protection is called a certificate. The registered trademark owner's rights are guaranteed and only those goods are protected by law which are in the trademark registration certificate12. The certificate confirms the trademark owner the exclusive rights to the registered

8 Kasperavičius P., Ulozas V. R. Intelektinės nuosavybės pagrindai. Šiauliai, Šiaulių universitetas, 2005 m. P. 100. 9 Urbanskienė R., Vaitkienė R. Prekių ženklų valdymas. Kaunas, Technologija, 2006 m. P. 86. 10 Kasperavičius P., Ulozas V. R. Intelektinės nuosavybės pagrindai. Šiauliai, Šiaulių universitetas, 2005 m. P. 105. 11 Žilinskas V., Kasperavičius P., Kiškis M. Intelektinė nuosavybė ir jos apsauga. Klaipėda, Klaipėdos universitetas, 2007 m. P. 411. 12 Lietuvos Aukščiausiasis Teismas 2000 m. sausio mėn. 25 d. nutartis civilinėje byloje Nr. 3K-3-28 dėl uždraudimo vartoti prekių ženklą.

89 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW trademark and may be valid for 10 years from the filing date. After this period, the trademark is renewed every 10 years. The form of the trademark registration certificate and data to be recorded is established by the State Patent Bureau13. If the certificate is lost, a duplicate can be issued.

3.7. Trademark Legal Regulation

Trademark protection is governed by a sufficient number of international law - the Paris Convention for the Protection of Industrial Property, the Madrid Agreement and Protocol Con- cerning the International Registration of Trademarks, the European Community Council Regulation No. 40/94 on the Community Trademarks, the Trademarks Directive 89/104, and the Nice Agreement Concerning the International Classification of brands. Legal protection of trademarks in the Republic of Lithuania is governed by the Trademarks Act. Also - the LR Criminal Code, which provides penalties for the use of foreign trade or service marks14, the Administrative Offences Code provides penalties for marking of goods with borrowed trademarks, storing or transporting them, seeking material benefit or for goods produced illegally using someone else's design or patent for the invention, storing or transporting, or seeking material benefit15. LR Civil Code provides for sanctions for losses for the unauthorised use of trademarks and other. The LR Customs Law sets that the court may order to eliminate or remove trademarks from detained illegally carried goods16. The LR Copyright and Related Rights Act provides that a trademark is a subject of copyright. Also, this law established copyright protection stating that a trademark consists of three elements: a circle or parentheses containing the letter C, the author or other of copyright in the name or title of year of the first publication17. LR Competition Act, which prohibits unfair competition, for example: prohibits arbitrary use of a trademark that is identical or similar to a registered trademark or unregistered well-known trademark of another entity18. In order to avoid copyright and plagiarism special attention should be given towards protection of trademark.

Practical tasks for the consolidation of theoretical knowledge

1. Practical Task

One Lithuanian company JSC "Vision" (Lith. Vizija) decided to use and released into market the mineral drink "Rasa''. Lithuanian company JSC "Mineral drinks'' (Lith. Mineraliniai vandenys) had registered this title for their mineral water "Rasa'' long time ago and created a trademark - symbol for this product.

13 LR Prekių ženklų įstatymas, V.Ž., 2000, Nr. 92 – 2844. 20 str. 2 d. 14 LR Baudžiamasis kodeksas. Vilnius, VĮ Registrų centras, 2009 m., Nr.1R-299. P. 150. 15 LR Administracinių teisės pažeidimų kodeksas. V.Ž., 1985, Nr. 1-1. 214 str. 16 LR Administracinių teisės pažeidimų kodeksas. V.Ž., 1985, Nr. 1-1. 214 str. 17 LR Autorių teisių ir gretutinių teisių įstatymas. V.Ž. 1999, Nr. 50-1598. 12 str. 18 LR Konkurencijos įstatymas V.Ž., 1999, Nr. 30-856. 16 str.

90 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW Questions 1. Which principle of trademark is violated? 1. Which Lithuanian company can use the title “Rasa” for mineral water? Why? Provide arguments. 2. Which legal acts protect the appropriate business entity? 3. What liability should be applied in this case?

ANSWER

Lithuanian company JSC "Vision" (Lith. Vizija) will not be able to use the name "Rasa" for their drinks as they violate Trademark Act Article 7 "registration of a trademark or name of the good is declared invalid if it is identical with already registered or an earlier applied for registration trademark of identical goods and (or) services; also if it violated the exclusive rights to the brand name and the Competition Act provisions on fair competition," also on the basis of LR CC Article 2.39 part 3. Under the Trademark Law, Article 4, the protection label of the owner of a trademark, “the owner of the trademark can inform the society about their rights on that trademark with the owner's trademark protection label that is composed of the letter R in a circle which is placed on the right side of the trademark (top or bottom).

2. Practical Task The claimant JSC "YVA" asked the defendant to stop reproducing, distribution, rental and im- ports of the audio-visual work (film) "VETER" as well as award 25,250 LTL for pecuniary damage. It was pointed out that on 22 October 2010 together with the company "CC Limited" registered in Turkey they entered into an agreement that granted by the company that is the only copyright holder of the listed works the exclusive rights the claimant to reproduce and distribute the work over the period of four years from 22 October 2010 in the territory of Lithuania, Latvia and Estonia. On the 23 December 2010 the claimant found out that the work had been already distributed in Lithuania by the company JSC "GGG". Neither company "CC Limited" nor the claimant have never transferred or provided the defendant or third parties any rights to the work.

1. Identify the object of the copyright. 2. Identify the claimant and defendant and the holder of copyright into the audio-visual work. 3. Did the defendant cause any damage? Explain.

ANSWER

1. The object of the copyright is the copies of the audio-visual work (filmed) “VETER”. 2. The claimant is JSC “YVA“, defendant JSC “GGG”, the holder of copyrights of the audio-visual work is the company “CC Limited” registered in Turkey.

Distributing the work without the author's consent, the defendant infringed the applicant's rights, as well as performed acts of unfair competition. The company "CC Limited" granted the plaintiff the right to distribute the work in DVD format in Lithuania. The defendant distributed the work and caused damage intentionally or through great negligence, therefore, the amount that the defendant is required to compensate the applicant must be doubled (the Copyright and Related Rights Act (hereinafter - ATGTĮ) of the Republic of Lithuania, Article 83, part 4, paragraph 2). The applicant,

91 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW who according the agreement on 22 October 2010, received exclusive rights from the company "CC Limited" to reproduce and distribute the work in Lithuania is the only one that can exercise these rights. No other third party cannot have such rights (CRRA, Article 2, part 21). In case of protection of copyrights or related rights, every usage of the protected object without the mentioned owner's permission, as well as exceeding the given user rights, is considered to be an illegal act that violates the exclusive economic rights (CRRA Article 73, part 1).

3. Practical Task Lithuanian company JSC "ROOL'' decided to use and register their trademark ROLEKSIS. We are well aware of the Swiss company ROLEX with widely used trademark ROLEX that also has a sign of a brand - symbol. Will the Lithuanian company be able to register a trademark? Why? What is the brand sign - a symbol?

ANSWER Lithuanian company will not be able to register the trademark ROLEKSIS, because it violates the Trademark Law Article 7 "Registration of a trademark is declared invalid if it is identical with already registered one or the one that is earlier put on request for registration for identical goods and (or) services; Under the Trademark Law Article 4 Trademark owner's rights protection sign, the owner of the trademark can inform the society about their rights to the particular trademark with the owner's rights protection sign that is composed of the letter R in a circle and put on the right side of the trademark (upper or bottom corner).

4. Practical Task

SC "Palanga Bridge" (Lith. Palangos tiltas) publishes the newspaper "Palanga News" (Lith. Palangos naujienos). A.J. is the photographer working for the newspaper and Mr. K. provides drawings and cartoons under copyright agreements. JSC "Palanga Region" (Lith. Palangos kraštas) publishes the newspaper "Palanga". This newspaper in 19 March 2011 published the advertisements of the customer JSC "Akropolis", which used the fragments from the newspaper "Palanga News" (Lith. Palangos naujienos): photos made by A.J., and cartoons drawn by K.P., as well as visual and textual and graphical material composition. No agreements were concluded for the use of those works.

What was violated in the given situation? What rights does the SC "Palanga Bridge" (Lith. Palangos tiltas) have?

ANSWER According to the Copyright and Related Rights Act the copyrightable objects are mentioned in the condition: photos, cartoons, text and visual composition. The copyrights were violated; according to the Copyright and Related Rights Act article 15 the authors can allow or prohibit to use their works. In this case no copyright agreements were signed. Any use of the original work or its copies without the author's consent is illegal. SC "Palanga Bridge" (Lith. Palangos tiltas) has the right to: 1) prohibit the JSC "Palanga Region" (Lith. Palangos kraštas) to use the issues of "Palanga News" (Lith. Palangos naujienos) or its parts,

92 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW photographs, cartoons and other textual and graphical materials, as well as the compositions of its pages; 2) adjudge from "Palanga Bridge" (Lith. Palangos tiltas) for pecuniary damages; 3) adjudge from JSC "Palanga Region" (Lith. Palangos kraštas) for non-pecuniary damage.

5. Practical Task What documents are necessary for registration of the trademark? Where to apply for trademark registration?

ANSWER A person who wishes to register a trade mark must apply to the State Patent Bureau, submitting the following documents: 1. An application for registration of the trademark and issue a trademark certificate. 2. The image of a trademark (its description). 3. Names of goods or services for which the registered trademark is going to be used. 4. A request for priority (if necessary). 5. Power of attorney, if the application is filed by an authorised person. 6. If the trademark contains the name of the Republic of Lithuania, then the Minister of Justice's consent should be handed in. 7. The regulations of a collective trademark use, if a collective trademark is being registered. 8. Owner or his/her successor's consent to use the protected industrial design or other industrial property object in the trademark. 9. If the trademark contains names of literary, artistic or scientific work, well-known person's name or pseudonym and a portrait then also the owner or his/her successor's written consent should be included, notarised. 10. A document certifying the payment of a fixed registration fee.

Legal basis: Trademark Law of the Republic of Lithuania (articles 6, 7, 9, and 10).

3.8. Legal Liability for Trademark Infringement

The whole world, including the Republic of Lithuania faces with trademark infringements. It has been noticed that the use of illegally copied brands increased, so protection is very important, otherwise there is a great potential for substantial losses. The law of the Republic of Lithuania provides for civil, criminal or administrative liability. Trademark infringement is considered when the legal entity's name is misleading the public because of its similarity to other already registered trademarks, goods or services already rendered. RL Trademark Law Article 38 provides that "the holder of a trademark has the exclusive right to prevent third parties without having his/her consent from using any sign which is identical to the registered trademark, because it may mislead the public, damage the reputation of the trademark." In defending the violated rights, the holder has the right to go to court. The court, accordingly, from the disputed circumstances, may decide on the recognition of rights, loss or damages, compensation, seizure or destruction of illegally labelled products. Statutory customs measures

93 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW are applied to the illicit trade-marked goods which are imported into the Republic of Lithuania or exported from the Republic of Lithuania19. Lithuanian market often faces the counterfeit goods from Asian countries. LAT civil case no. 3K-3-1069 clarified the situation when Klaipeda customs seized a large quantity of goods bearing the trade mark "DIESEL" from Vietnam. The brand's representatives insisted Lithuania prohibit the import of goods that infringe the intellectual property rights. The applied to the court for protection of the owner rights, arguing that the seized goods are infringing the rights of intellectual property. The courts identified the infringement and applied the applicant's rights to remedies which seized and ordered the destruction of imported goods at the expense of the defendant and the defendant prohibited without the plaintiff's consent to import and export "DIESEL" branded goods. So the decision was taken on the basis of the Customs Law of the Republic of Lithuania Ar- ticle 86, which states that if the court recognises that the customs office detained goods infringing intellectual property rights, and having regard to the intellectual property rights holder's request, may order the destruction of the goods at the defendant's expense. The Law also provides for other measures: offenders could be obliged to remove the labels from goods. Criminal responsibility may be held for illegal use of the trademark. This is provided by the Criminal Code of the Republic of Lithuania Article 204. The first part states that "the one who without the owner's consent used a trademark for a large quantity of goods or disposed them - will be punished by law to do a certain job or engage in certain activities, or with a fine, or restriction of liberty or imprisonment of up to two years". The second part focuses on selling a small amount of goods using trademarks without the owner's consent and additional another penalty is added to sanctions, i.e., public works, but the strictest penalty, i.e., imprisonment is removed. The RL Civil Code sets the order for compensating of losses and damages in the Republic of Lithuania. In determining the amount of the damages, the court shall take into account the substance of the infringement, the amount of damage, lost income of the owner of the trademark and other expenses20. RL Trademark Law Article 51, part 3 provides that in place of damages, the owner can claim for compensation. It shall be calculated in accordance with the legal price of the goods or services: it can be increased up to 200 percent, and if the offender acted intentionally - up to 300 percent. It is also possible to make civil penalties - termination of the infringement, the restoration of the former situation, confiscation of the goods with illegal trademarks, from which the labels cannot be removed, and, if necessary- destruction, or transfer of unauthorised goods to the owner of the trademark.

19 LR Prekių ženklų įstatymas, V.Ž., 2000, Nr. 92 – 2844. 52 str. 20 LR Prekių ženklų įstatymas, V.Ž., 2000, Nr. 92 – 2844. 51 str. 2 d.

94 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3.9. Names of Legal Entities

The protection of the names of legal entities, such as industrial property objects, started from 1 December 1991 under the Regulations of the Names of Firms which were adopted on the 31st of October 1991 by the Resolution of LR Government Nr.449. Regulations set the registration of names, requirements and the order of registration of companies, enterprises, institutions, and organisations. Since 1994 names of legal entities - it became compulsory to register the trade names with the State Patent Bureau (SPB). On 1 July 1999, the Law of Firm Names was adopted21. The law confirmed that each company must register the company name. "A name of a business - the name of a company or a company unit that identifies a company or company unit and allows it to be distinguished from other companies or company units."

The main norm of the names of legal entities of legal protection is established by the Paris Convention Article 8, "the company name in all EU countries is protected without an obligation of filing or registration, regardless of whether it is included in the composition of a trademark or not." The Member States must protect the names of the entities, regardless of the procedure required in a particular country to acquire the name of the entity in accordance with national law. Legal protection of the names of legal persons is based on the territorial principle. The principle "first in time means first in law" is applied in the light of those aspects related to the legal protection of the names of legal entities on the basis of the Paris Convention Article 8. The name of the legal entity is the property of that legal entity but it cannot be sold or otherwise transferred to another entity separate from the owner (CC). On 1 January 2004 when the Register of Legal Entities was launched, also the CC of provisions of the year 2000 governing the names of legal entities entered into force. Name of legal entity is one of data items of the Register of Legal Entities; therefore, any unregistered legal entity's name is not possible.

LR CC Article 2.33 states that "a legal entity is an enterprise having its legal name, a business, an organisation that can using its names obtain rights and obligations, to sue and be sued." CC Article 2.39 provides that a legal entity must have its name by which it can be distinguished from other legal entities. LR CC Article 2.39 part 3 provides the requirements for the legal entity name.

Practical Tasks for Knowledge Consolidation

1. TASK The founders of the legal entity that are going to produce and sell coloured stones, want to register their company with the Register of Legal Entities and give legal form of JSC and name "Swarovski" (Lith. Svarovskis). The Register of Legal Entities centre refuses to register such a name.

Why is such a name refused to be registered? What legal documents regulate the composition of the name of a legal entity?

ANSWER

According to LR CC Article 2.40 part 2 "The names of legal entities must be composed in accordance with the Lithuanian language norms and cannot be made up only of a general word

21 LR Firmų vardų įstatymas Valstybės žinios , 1999, Nr. 63-2060

95 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW (words) indicating direct operating items or services, or only of a name of a place, or another word having no distinctive character." Also, according to the rules of composition of symbolic names of enterprises and organisations, it is inappropriate to give symbolic names based on Article 11.1 "Symbolic names should not be made from Lithuanian language errors such as foreign words (homestead) or hybrids, or other non-normative words.“ Also, the name should not be similar or identical to the foreign companies or enterprises known to Lithuania and mislead the public. The name of legal entity shall not be misleading due to the similarity or identity to a previously registered name - RL CC Art. 2:39 CC part 3.

2. Practical Task

The founders of a legal entity that are going to undertake manufacturing and selling of coloured tape want to register with the Register of Legal Entities centre and give legal form of JSC and the name "BANTAS". The Register of Legal Entities centre refuses to register such name for the JSC.

Why is such a name refused to be registered?

ANSWER According to LR CC Article 2.40 part 2 "The names of legal entities must be composed in accordance with the Lithuanian language norms and cannot be made up only of a general word (words) indicating direct operating items or services, or only of a name of a place, or another word having no distinctive character." Also, according to the rules of composition of symbolic names of enterprises and organisations, it is inappropriate to give symbolic names based on Article 11.1 "Symbolic names should not be made from Lithuanian language errors such as foreign words (homestead) or hybrids, or other non- normative words.“

3. Practical Task What is the procedure for the name reservation of a newly established company?

ANSWER The selected name of the future company may be temporarily recorded in the register for the purpose to enable the founders to protect the name of the company before the registration. For that purpose the following documents should be presented to the Register of Legal Entities centre: 1. A request for temporal inclusion in the Register of the name of the company 2. If the name of the company should contain the name “The Republic of Lithuania”, then the company should also present the document giving the right to use the name of the State signed by the Minister of Justice. 3. If the name of the entity should contain the word “Catholic”, then the entity should also present a written permission from the Catholic Church. 4. If the name is identical or similar to already registered trademarks of goods or services, the consent of the owners of these objects must be submitted. 5. A document confirming that the fee for the reservation of the company name is paid should be also added. Legal basis. RL CC 2.39-2.42 Regulations of Legal Entities Register (73-76).

96 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW 3.10. Geographical Indications

That is quite broad and complex concept “Geographical indication – is a mark that reflects the connection between a place and the good, i.e., manufacturer’s from a particular area right to use a geographical terminology in such a way informing the customer of the origin of the good”22. The Trademark Act, Article 2, part 4 provides that “Geographical indication – name of a place or other word or sign, which can directly or indirectly identify a good as originating from a certain territory, region or locality, where a given quality, reputation or other characteristics essential to its geographical origin." Consequently, the geographical links can be established not only in the geographic area, but also the country of origin. A geographical symbol that shows the origin of a product or a good will only be the protected industrial property object if it meets the following criteria: • Geographical origin of the good is indicated (every good originates from a particular place that needs to be indicated on the label of the good). • A specific territory of geographical origin is indicated (the borders of the territory – moun- tains, rivers, soil, humidity, various stages of production, and other economic or historic factors). • The origin connected with the quality, reputation or other characteristics of a product is indicated exclusively. A person can only claim rights to use geographical name for goods recognition and prevent third parties from using such a name for goods originating from elsewhere only if his or her goods exclusively due to the origin of the product is distinguished by its specific characteristics, reputation, and excellent quality (French perfume, Champagne wine, Bohemia crystal, etc.)

Registration of geographical indications is different in every country. In some countries, the geographic indications as well as registration of a trademark is the only way of protection, in other countries that is an altercation, in some other countries that is the choice of the owner of the geographical indications. There are principles of protection of geographical indications as of trademark: pre-emption rights - first come first having rights to call into question the rights of later being registered geographical indication, the shell life - symbols are valid for 10 years, the validity of the territory - guarded in the state where legal protection is requested, use requirement - if the symbol is not used for more than 5 years, its registration may be abolished.

European Union law provides such a geographical indications which protect the names of regional foods. Protection of geographical indications of foods is set by the 20 March 2006 EU Coun- cil Regulation No. 510/2006 on geographical indications of agricultural products and foodstuffs and protection of the designations of origin 20 March 2006 EU Council Regulation no. 509/2006 on agricultural products and foodstuffs as traditional specialties guaranteed, and 14 December 2006 European Commission Regulation nr.1898 / 2006, which establishes the regulations of the Council of the detailed implementation procedures.

"Protected reference of place of origin is awarded to those products the quality and characteristics of which exclusively depend on its origin, geographical environment (French terroir), and the name of the good contains the name of a place showing the geographical reference. All the stages of the production (from raw material to processing of the product) should be carried out in that area. For example, such reference is found with the products: Roquefort (France) and Feta (Greece) cheese, Prosciutto di Parma (ham from Parma).

22 Birštonas R., Klimkevičienė D. ir kt. Intelektinės nuosavybės teisė. Vilnius, 2010

97 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

• The goods, the name of which contain the geographical name of the place of production, are marked with the protected geographical indication. Any stage of production can take place in that area. • "Traditional Speciality Guaranteed" mark is used on products the characteristics of which distinguish them from similar products group. E.g., Italian cheese Mozzarella, Belgian beer Lambic, Lithuanian "Skilandis" (traditional smoked meat product) have such status (Information taken from Wikipedia). France and Italy have registered the most of such geographical protection products.

(Source: Wikipedia)

Six Lithuanian products are included into the Geographical Indications Protected Register based on 2014 year data:

Daujėnai homemade bread

Low landers sour cream "kastinys"

Stakliškės mead

Lithuanian cottage cheese

Honey of Seinai –Lazdijai land

“Skilandis” – traditional smoked meat product

(Source: Wikipedia)

98 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW

3.11. Protection against Unfair Competition

In some sources competition (Lat. concurrentia - concurro "running together'') means competition for markets, commodities and other resources between producers, consumers and other economic entities. Competition occurs when a few entities engage in the same activity, sphere, business, or production. "Competition" is defined as manufacturers' competition for favourable farming conditions, product sales, and market penetration. Competition means competing and emulating in any field in order to achieve the same goal. Four types of competition are distinguished:

• perfect competition; • distorted competition; • unfair competition; • unfettered competition

As the object of an intellectual property the third type of competition is selected - unfair competition. This type of competition is often equated with misleading advertising, the brand name of the entity or identity, etc. Unfair competition can be described as actions contrary to fair business competition and practices that may harm another entity. Competition law prohibits business entities to perform any actions contrary to fair business practices and good customs, when such actions may harm another entity's ability to compete23. Unfair practices are also when a business offers the competitors' employees to terminate the employment contract or fail to meet its obligations and advertising, which according to the laws of the Republic of Lithuania is considered mislea- ding24. This type of competition is characterised by the following prohibited activities:

• use arbitrary signs that are similar to the name or trademark of another company; • provide false information about one's own or of other company's goods, i.e., the number of goods, quality, parts, their consumption characteristics and place of manufacture, type, time, tools or just hiding misleading information, which would tend to mask the risks from the use of goods; • supply or use information, which is a commercial secret; • coax employees of the other company into the termination of the employment contracts with its competitor or just not to fulfil the functions in the contract of employment; • disseminate the misleading advertising, which by the Advertising Law of the Republic of Lithuania is recognised as misleading advertising; • prohibits abusing of dominant position.

The obligation to provide protection against unfair competition is established in the Paris Convention. It also sets forth the general prohibition of unfair competition. Another international legal instrument regulating the prohibition of unfair competition in relation to geographical indications and trade secrets protection is TRIPS Agreement (World Trade Organisation Agreement on Intellectual Property Rights). Lithuania adopted rules prohibiting unfair competition. An indicative list of cases of unfair competition is presented in the Lithuanian Law on Competition; special protection against unfair competition rules are laid down in the Civil Code - for regulation of

23 Lietuvos Respublikos konkurencijos įstatymas, Valstybės žinios, Nr. 30-856, 1999. 16 str. 24 Lietuvos Respublikos Nesąžiningos komercinės veiklos vartotojams draudimo įstatymas. V. Žin., 2008, Nr. 6-212

99 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW commercial secrets (CC Art. 1116), for compensation for the damages for misleading advertising (CC Art. 6301-304). RL CC and RL CAO provides the criminal and administrative responsibility for some of the acts of unfair competition. Provisions against unfair competition are established in the Law of Advertising of the Republic of Lithuania, Consumer Protection Act, Public Information Act, and the Unfair Commercial Practices Prohibition Act.

Practical Task SC "TRIX'' from 1995 produces domestic sewage treatment equipment, made an agreement with the inventor V.Š. and named the device NX-1. JSC "TRD'' started producing similar device in 1998 but failed to deliver the inventor's name and called the device similarly FX-1. SC "TRIX'' allured three employees of JSC "TRD''.

Questions: 1. What actions were taken? 2. What type of competition can be recognised in this task? 3. Which company needs to apply for the damages and where to? 4. What sanctions could be applied analysing this task and what legal acts could be used?

Practical Task

JSC "Wood" (Lith. Mediena) from 1997 under an agreement with the inventor T.T. began producing machines for extracting of wood pellets. They called the device M -1. JSC "Seaside Wood" (Lith. Pajūrio mediena) began producing similar products. In 1998 failing to provide the name of the inventor and called the machine similarly MX-1. In order to carry out a large order, the JSC "Seaside Wood" (Lith. Pajūrio mediena) allured 2 employees from the JSC "Wood" (Lith. Mediena).

1. What actions were made by JSC “Seaside Wood" (Lith. Pajūrio mediena)? What damages? Comment.

ANSWER From the given task description it can be seen that some actions of unfair competition were made, i.e. embezzling of the machine, alluring of the employers, the machine MX-1 was produced later than the machine M-1. According to the Law of Unfair Competition Article 16 part 5 the following are the actions of unfair competition: "copying of the product of another entity or simulating its product packaging or packaging shape, colour or other distinguishing features, if it can be misleading concerning the identity of the product or if the acts are aimed at taking advantage of the reputation of another entity, to get unfair advantage''.

100 Jurate Paulauskiene LAW BASICS AND INTELLECTUAL PROPERTY LAW References

Normative acts:

1. Lietuvos Respublikos Konstitucija. Lietuvos Respublikos Teisės aktų registras. 2. Lietuvos Respublikos Prekių ženklų įstatymas, V.Ž., 2000, Nr. 92 – 2844. 3. Lietuvos Respublikos konkurencijos įstatymas, V.Ž., Nr. 30-856, 1999 4. Lietuvos Respublikos Nesąžiningos komercinės veiklos vartotojams draudimo įstatymas. V. Ž., 2008, Nr. 6-212 5. Lietuvos Respublikos Firmų vardų įstatymas V.Ž., 1999, Nr. 63-2060 6. Lietuvos Respublikos Autorių teisių ir gretutinių teisių įstatymas. V.Ž., 1999, Nr. 50-1598 7. Lietuvos Respublikos Reklamos įstatymas . V.Ž, 2000, Nr. 64-1937, 8. Lietuvos Respublikos Vartotojų teisių apsaugos įstatymas. V.Ž.,1994, Nr. 94-1833 9. Lietuvos Respublikos Administracinių teisės pažeidimų kodeksas. V.Ž., 1985, Nr. 1-1. 10. Lietuvos Respublikos Baudžiamasis kodeksas. Vilnius, VĮ Registrų centras, 2009 m. Nr.1R-299. 11. Lietuvos Respublikos Civilinis kodeksas. V.Ž., 2000, Nr.74-2262 12. Lietuvos Respublikos Civilinio proceso kodeksas. V.Ž., 2002. Nr. 36-1340 13. Lietuvos Respublikos Administracinių bylų teisenos įstatymas. V.Ž., 2000, Nr. 85-2566 14. Juridinių asmenų registro įsteigimo ir juridinių asmenų registro nuostatai, patvirtinti LR Vyriausybės 2003 11 12 nutarimu Nr.1407//V.Ž., 2003,Nr.107-4810 15. Lietuvos Aukščiausiasis Teismas 2000 m. sausio mėn. 25 d. nutartis civilinėje byloje Nr. 3K-3-28 dėl uždraudimo vartoti prekių ženklą.

Special Literature:

1. Andriulis V., Maksimaitis M. Lietuvos teisės istorija. V., 2002 2. Birmontienė T., Jarašiūnas E., Kūris E. ir kt. Lietuvos konstitucinė teisė. Lietuvos teisės universitetas, 2001 3. Birštonas R., Klimkevičienė D. ir kt. Intelektinės nuosavybės teisė. Vilnius, Registrų centras, 2010 4. Dambrauskienė G., Marcijonas A. ir kt. Lietuvos teisės pagrindai. Justitia, Vilnius, 2004 5. Kasperavičius P., Ulozas V. R. Intelektinės nuosavybės pagrindai. Šiauliai, Šiaulių universitetas, 2005 6. Klimas A. Lietuvos prekių ženklai. Vilnius, Vilniaus dailės akademija, 2008 m 7. Матузов Н. И., Малько А. В. Теория государства и права. – Москва, 2001 8. Šedbaras St.. Administracinė atsakomybė . V., 2005 9. Urbanskienė R., Vaitkienė R. Prekių ženklų valdymas. Kaunas, Technologija, 2006 m. 10 Vaisvila A. Teisės teorija. V., 2004 11. Žilinskas V., Kasperavičius P., Kiškis M. Intelektinė nuosavybė ir jos apsauga. Klaipėda, Klaipėdos universitetas, 2007 m.

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