This article focuses on the analysis of the main positions of the Constitutional Court of the Republic of Lithuania in the cases of intellectual property law. In the article three judgments and the positions of the Constitutional Court extracted therefrom are analysed. The Constitutional Court has formed several important positions with reference to intellectual property law regarding usage of property protection norms for the protection of intellectual property, requirements of application of compensation as an alternative to damages compensation and the (...) calculation of criterions thereof as well as functional legal protection of trademarks. It should be noted that Article 23(1) of the Constitution of the Republic of Lithuania has extended protection to property and, as the Constitutional Court of the Republic of Lithuania has noted, the constitutional protection of property covers not only the protection of tangible, but also of intellectual property. In the same judgment, the Constitutional Court stated another important intellectual property related rule, namely that constitutionally established property protection rights have to be implemented regardless of whether a corresponding international treaty has not been ratified, as protection of authors’ rights is granted under Articles 23 and 42(3) of the Constitution of the Republic of Lithuania. However, the second position stating that the rights of foreign subjects are to be implemented even though a corresponding international treaty has not been signed is to be criticised as by coming to such a conclusion the Constitutional Court has ignored the otherwise generally recognised principle of territoriality of intellectual property rights. In two other cases the Constitutional Court has made important statements relevant to intellectual property law. First of all, the Court stated that compensation instead of claiming actual damages is constitutional. By analysing the positions formulated by the Court, an indirect conclusion can be made to the effect that compensation instead of claiming actual damages is necessary in order to ensure effective protection of intellectual property rights. In other words, the purposes of compensation can be recognised: restoring (compensating) the infringed interests of the injured party; simplifying judicial proceedings, whereby faster proceedings (litigation) and easier substantiation is sought; and the preventive purpose (strong preventive effect). However, the Court’s argument regarding the criterion of compensation calculation, saying that the damages incurred by the intellectual property rights owner depend on the sale value of the product concerned is criticisable, as it is rarely the case that the licence fee or profit acquired in the result of unauthorised use of intellectual property objects is calculated with reference to the final sale price of the product. Notwithstanding the arguably weak argument of the Court, the Court’s position regarding the criterion of final sale price itself does not preclude the possibility of reaching a fair final decision. Finally, the Court acknowledged that trademark protection was limited to the economic functions of the trademark and the full protection thereof. (shrink)

The article attempts to present a thorough analysis of intelectual property, as main property of a modern company, from the perspective of private law. The article anlyzes the essence of the intangible resources that form the intellectual capital and discusses whether the modern institutes of law allow the universal protection of companies‘ intellectual capital. The first part of the article analizes the conception of intangible resources and provides their qlassification. The second part of the article discusses the understanding of intellectual (...) capital and importance thereof to modern companies. In the third part of the article, the possibility to financially account all intellectual property of a company is analyzed. The forth and fifth parts of the article reveal the possibilities of legal protection of intellectual capital. The law on intelectual property is not sufficient to protect all intelectual capital because it protects only that part of intangibles, which become the onjects of the intelectual property. (shrink)

Article deals with the situation of enforcement of intellectual property rights in Lithuania after the implementation of 2004 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. First, the authors outline the importance of the proportionality principle which is embedded in the text of the directive, but sometimes may be overlooked because of the rhetoric openly orientated to right holders. Then, the legislative changes in Lithuania’s intellectual property laws (...) and tendencies in case law are analyzed. The main findings of the research show that despite considerable changes in Lithuanian laws, the situation in case law was not in fact influenced. (shrink)

Straipsnio tikslas – ištirti Latvijos filosofijos istoriografijos tendencijas per pastaruosius tris dešimtmečius. Autoriaus dėmesio centre dvi pagrindinės filosofijos istorijos rašymo prieigos – idėjų istorija ir intelektinė istorija. Iširus Sovietų Sąjungai Latvijos kultūriniame diskurse išpopuliarėjo terminas „idėjų istorija“. Filosofijos istorikai ėmėsi nušviesti glaudžius ryšius tarp Vakarų šalių ir Latvijos kultūrų. Tačiau pastarąjį dešimtmetį Latvijos filosofijos istorikai vis labiau renkasi intelektinės istorijos prieigą.

Lithuania had a different experience in legal regulation of private property. There were periods when right to private ownership was denied and on the other hand – the periods when right to private ownership was respected and protected. Authors wanted to review today’s status of rights to private property in retrospective. The main purpose of the article is to reveal functions of private property in Lithuania. The article analyzes peculiarities of legal regulation of private property in Lithuania during different stages (...) of the state’s development. The authors have analyzed the social significance of the right to private property, how it changed and how it has been reflected in Lithuanian legislation and the case law of the Constitutional Court of the Republic of Lithuania, paying a particular attention to entrenchment of the right to private property in the Constitution of Lithuania. The authors evaluate the compliance of the national legal regulation and Article 1 of the First Protocol with the European Convention on Human Rights, and the case law of the European Court of Justice. (shrink)

The recent Lithuanian court practice shows discrepancies in cases dealing with partitioning of common partial divided property. Moreover, no doctrinal research has been concluded on the limits and conditions of the co-owners‘ right to demand that his share should be partitioned from the common partial ownership in Lithuania. Taking into account that proper implementation of co-ownership rights is based on common agreement of co-owners, when no agreement is reached between co-owners regarding the fact and the mode of partitioning, a question (...) arises on what conditions and to what extent the co-owner is free to implement his right to demand partitioning of his share from the common partial ownership. The research on historical developments of the partition law in different European countries shows that the co-owner’s right to partition is based on the idea of pluralistic conception of the modern property law objects. The authors of this article argue that this conception allows the co-owner to enjoy the right to dispose of his share in the common ownership as a separate object of civil turnover at his own volition and without the other co-owner’s consent. However, the right to partition is not absolute and is limited by the rights of the other co-owner to his share of the same property, so the right to partition may be implemented only following the proportionality and interest balance between the co-owners. (shrink)

Straipsnyje grindžiama nuomonė, jog postmodernybė yra iš modernybės kylantis kapitalizmo sistemos būvis, kuriam būdinga gyvybės suprekinimas ir suišteklinimas. Postmodernybę charakterizuoja populiariosios ir medijų kultūros išplitimas. Tos kultūros apima ne tik kultūros prekes, bet ir vartojimo būdus, įgūdžius ir jų lavinimą. Pastaruoju metu jos kuria nemirtingumo vaizdiniams bei nuojautoms palankią kultūrinę, intelektinę ir pasaulėvaizdinę terpę, kurioje struktūriškai įsitvirtina genetinis diskursas ir jo nustatomos žmogaus ir jo gyvenamo pasaulio aiškinimo gairės. Svarbus šio diskurso bruožas yra technologinis inžinerinis jo pobūdis, išryškėjęs susiejant nano (...) ir biotechnologijas, kuriomis tikimasi įveikti gyvąją ir negyvąją gamtą skiriančią prarają, iš reikalingų atomų bei molekulių kuriant reikalingų ląstelių dalis ir klonuojant gyvas būtybes. Gyvybė suprekinama ir suišteklinama patentuojant gyvybės elementus – genus ir su jais susijusius procesus. Daroma išvada, jog visi genetikos, informatikos ir kitų mokslų laimėjimai, teikiantys žmogaus gyvenimo ilginimo galimybių, kurios palaiko gundančią nemirtingumo idėją, jau yra persmelkti prekinių santykių, tad ir pats nemirtingumas įmanomas tik kaip prekė. Aptariami kai kurie evoliuciniai ir religiniai techno sapiens sampratos aspektai. Detaliau gvildenamos dvi „nemirtingumo“ versijos: Z. Baumano, kuris nemirtingumo pažadą sieja su kompiuterinės technikos plėtra prasidėjus „Antrajai medijų erai“, ir J. Baudrillard’o, tegiančio, jog klonavimo technologijos „apgręžia“ evoliuciją ir žmogų gundo virusiniu ar vėžiniu belyčiu nemirtingumu. Pagrindiniai žodžiai: genetinis diskursas, klonavimas, medijų kultūra, nanobiotechnologijos, nemirtingumas, suprekinimas. Genetic Discourse in Media Culture: Temptation by Commodified Immorality Vytautas Rubavičius Summary Postmodernity is maintained as a stage of the development of capitalism. The difference between modernity and postmodernity is explained in relation to the new sphere of commodification and resourcification, namely, that of life and of all natural living processes. Postmodern media culture, or popular culture, is peopled by signs of immortality and various kinds of immortals – cyborgs, clones, zombies, immortal human beings and others. Thus, culture accustoms a consumer to immortals and immortality which is concidered as the main goal of a human being and evolution. By nano-bio-technologies and genetic discourse this goal is made scientifically valid, thus reachable. Genetic discourse is becoming the fundamental world-view providing focal landmarks for the emerging future. Media culture supports the spreading of genetic discourse and facilitates its understanding. The temptation by immortality can be considered as a version of modernist ideology of human liberation from various natural, social and heavenly bonds. This liberation, and also secularization, is supported by a scientific genetic technological discourse which is becoming a stimulating factor of postmodern media production. The genetic explanation of the world is particularly handy for technological reflexivity: the entire world is as if encapsulated into human genes, which become the principle explaining the mystery of life, evolution and the future of humanity, thus rendering power to produce the human proper form and the future of people. All the possibilities stemming from the new genetic and biotech discoveries fell under the regulation of property relations by patenting, thus making “immortality” – as a temptation and brand – not only an exeptional commodity, but also a political tool and a commodifying force. As the relationships of private property have penetrated natural biogenetic diversity and, having turned it into a resource, the cognitive subject has reached the goal to secularise the Universe, which he has set for himself: only he as the owner and producer of genes lures people with the eternal shapes of the clones and their genetic information, which will be sustained in any location of the Universe. The temptation by “immortality” will become even stronger when the genetic code is mastered. The future of humanity is related to the mixed forms of life, trans-genic or otherwise genetically modified organisms and techno-human forms that will help to postpone, and later to conquer, death. Even thinkers with religious tendencies perceive the technological improvement of human beings as their evolution towards the techno sapiens and consider such a development as an advancement towards the Kingdom of God. The technologization of human beings is imagined in terms of their divination. Yet in this case the character of contemporary science secularising God and obliterating the perception of divinity is overlooked. Two versions of immortality are analyzed more closely – that of Z. Bauman, who links it with the development of computer technologies, and that of J. Baudrillard, who gives a warning that by cloning technologies humanity is trying to inverse the evolution and to return to the undifferentiated state of cells. The conclusion is drawn that regardless of how we understand ‘immortality,’ argue over its reality or unreality, all possibilities to prolong human life granted by genetics, informatics and other advances in science and technologies, which support the tempting idea of immortality, have already been penetrated by commodity relationships; therefore, “immortality” itself will be available only as a commodity. Keywords: cloning, commodification, genetic discourse, immortality, media culture, nano-bio-technologies. (shrink)

The aim of the article is to answer the question if accession can be maintained as a separate and independent mode of acquisition and loss of ownership in the Lithuanian civil law. Although this mode takes its beginning in the Roman law and is well-known in other European jurisdictions, the situation in Lithuania is less clear because the accession is almost totally absent from the legal texts of the Lithuanian positive civil law, court decisions and legal doctrine as well. Thus, (...) a legal analysis confined to the linguistic analysis of law would come to the conclusion that Lithuanian law functions without the accession. Nevertheless, a deeper analysis of the Lithuanian Civil Code and case law reveals a different view. To respond to the posed question, the article analyses the functions and the concept of accession as one of the aspects of a broader property law principle, namely, of unity. The essence of the latter is that one thing presupposes one right of ownership and it is inconceivable to hold several full ownerships into the same thing. In this respect, accession plays an important role protecting the legal interests of the third parties. Also, the application of accession in other continental European countries and the solutions proposed by the Draft Common Frame of Reference is analysed. Further, the analysis turns to the Lithuanian positive law and case law. In spite of the lack of express reference to the accession rule, careful analysis shows that, in fact, the accession rule is established in the Lithuanian Civil Code, albeit it could be found in various forms and in several different units of the Civil Code. Also, Lithuanian courts routinely apply the rules on accession in practice. Even more, the analysis shows that the Lithuanian Civil Code is not devoid of the rules of accession, but, on the opposite, this legal institute is over-regulated and, in part, incoherent. This quality can be explained as a consequence of an imprecise legal drafting. The final conclusion is drawn that accession is a separate and fully working legal institute of Lithuanian civil law, although to reach its coherent application a certain interpretative position should be adopted. (shrink)

The principle of publicity is one of the fundamental principles of property law: property rights should be made public in order to inform third parties about the existence of the property right and its holder and thereby to foster legal certainty and efficiency. The publicity of ownership in immovable property is achieved through registration of ownership in the public register. However, the problem arises because of the unavoidable discrepancies between the data contained in the public register and the factual situation. (...) Different states choose different models to solve the practical problems arising out of the aforementioned discrepancies. On the one hand, Lithuania belongs to the group of states that implement the so-called declaratory system of registration, i.e. the transfer of ownership is based on an agreement or other legal grounds and the registration is not mandatory but provides the transfer with a third-party effect. This can be seen as a proof of priority of a factual situation over the registered data. On the other hand, Lithuanian laws provide the data of the register with some positive reliance, i.e. third parties are not only protected from claims arising out of unregistered rights (negative reliance), but they can also rely on the transcripts in the register. This is especially true in the case of bona fide transferee of immovable property which with some minor exceptions acquires ownership even from a non-owner, if the latter honestly relied on the data of the register. This regulatory framework is further adopted and transformed by the case law of the Lithuanian courts. The analysis of the latter shows that courts are inclined to rely more on the factual situation and easily deny the meaning of the registered rights. In various ways, the concept of the bona fide transferee is restricted and there are instances of positive duties ascribed to them. Besides, the existing case law demonstrates equivocal attitude towards the legal effects of registered data. Such tendencies of case law may hinder the rule of positive reliance and cause greater legal uncertainty. (shrink)

The Civil Code of Lithuania (1964), in force until 2000, did not regulate the objects of civil rights, thus Chapter V of Part III of Book I of the Civil Code of Lithuania is a significant novelty. Several approaches to an abstract definition of the objects of civil rights still exists in the legal doctrine: whether the object of civil rights and the object of the civil relationship coincide; is the object of civil rights an element of the civil relationship (...) and can separate objects (e.g. actions) be considered as the objects of civil rights. Some authors consider such discussion useless to the practical implementation of the law, however, other authors emphasise that the lack of attention of the theory to this subject causes methodological problems while analysing the functional and systemic links among different types of civil relationships. Therefore, the purpose of this research is to analyse the link between the concepts of the object of civil rights and the object of civil relationship, the link between the objects of civil rights and property objects and the types of objects of civil rights in order to reveal the system of objects of civil rights. The subject-matter of the research is the analysis of legal regulation and legal doctrine of the objects of civil rights and their types and their interrelation with the property objects in order to identify the abstract definition of the object of civil rights and examine the system of objects of civil rights. (shrink)

During the last twenty – thirty years there has been unprecedented demand for new legal regulation in the field of environmental protection, which influenced the immense growth in both the body of environmental legislation and in re-thinking the idea and principles of the environmental protection itself. The provisions of environmental law are passed, accepted and obeyed with a great resistance in the society. On the one hand, environmental law may be defined as a value system that seeks to induce humans (...) to act as stewards of nature rather than only its exploiters, and therefore the environmental provisions are construed in a manner that the main instruments are limitations of different activities in order to prevent the disruption of natural systems. On the other hand, by doing so the environmental law places nature and future generations (those categories commonly do not have any legal personality) and not the human (the sole addressee and the beneficiary of the traditional legal system) in the centre of environmental regulation. This concept radically transforms the relationship between nature and mankind by subordinating the initiative to benefit from legal regulation. By doing so, the environmental provisions make the opposite and evolve tension in respect of such rights as the right to property, the right to personal life, or individual welfare. In the present research the aim is to disclose the origins and the most important principles of international and regional legal regulation of environmental protection, and to analyse the essence of environmental law in the context of public interest. The environmental law is analysed in the context of such human rights as the right to property and the right to personal life. (shrink)