The copyright on the intellectual property expert report. Consequences

• Author: Raul Sorin Fântâna
• Position: Faculty of International Economic Relations, Christian University 'Dimitrie Cantemir', Brasov, Romania, Intellectual/Industrial Property Expert
• Pages: 96-100

THE COPYRIGHT ON THE INTELLECTUAL PROPERTY EXPERT REPORT.

CONSEQUENCES

Lecturer Eng. Raul Sorin FÂNTÂN

1, PhD.

Abstract

Currently, a ccording to the law, the expert is tr eated as a witness, a nd the expertise - presented a s a report - is

treated as a work implemented in support of justice only. Referrin g to the intellectual proper ty, an expert r eport is often

a resear ch work with pr onounced char acter of investigation. According to the copyright law, such a uniq ue work

should be cited even in the cour t device resolution, scientifically commented, as bibliogr aphical source. The immediate

consequence in support of the act of justice is that, unlike the jur isprudence - which in many countries is not a sour ce of

law, ha ving a n informative chara cter only, a written report - especially the technica l work – can not be commented by

any court. Eva luated as technical work, an expert report on the one hand should be treated as such - cited - by the

courts of la w a nd on the other ha nd implemented a ccording to the rules imposed in the scientific works: documented,

with a minimum number of r eferences to and q uotations from serious sour ces, including pr evious expert reports from

completed files. We think tha t such an a pproach of the expert report would lea d to a significant improvement of th e

justice act a t least in Business Law.

Keywords: technical expert repor t, res interpreted, intellectua l-industrial proper ty, technical work, technical

jurispruden ce, standardization

JEL Classification: K20

1. Possible ways to avoid speculative interpretation in judicial common language

Harmonization of specific legislation for intellectual property was a necessity to ensure good

functioning of EU internal market2. For example before Directive 89/104/EEC entered into force

the legislation applied to trade marks in the member states contained discrepancies which could

restrict free circulation of goods and services and could alter competition in the common market.

Harmonization of EU member states legislation as a whole, including relating the

intellectual property distinct valuable assets, governed by law, does not imply the obligation of

identical legislation but “closeness to national regulations with the most direct impact upon internal

market functioning.”3

Consequently in the law domain was necessary to find a way to reconcile the varied

interpretations a notion, a phrase or an article from a national law might have with the interpretation

given by an EU supreme forum. This way was named preliminary procedure4 and it “becomes a

distinct but integrated evidence of the judicial systems of member states” regardless the

contemporary law system5 functioning in the member state.

This competent forum to solve the incertitude regarding the interpretation of a

communitarian normative in conflict with a national legal provision contributes to consolidate a

modern principle according to which “the national judge is the communitarian civil judge.”6,7

The preliminary transmission procedure represents an essential coordinate of the dialogue

between the national courts of justice and the European Union Court of Justice8.

1 Raul Sorin Fântân - Faculty of International Economic Relations, Christian University "Dimitrie Cantemir", Brasov, Romania,

Intellectual/Industrial Property Expert, raul_fantana@yahoo.com

2 Introduction, para. (2) to DIRECTIVE 2008/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22

October 2008 to approximate the laws of Member States relating to trade marks

3 Ibidem, par.(4)

4 According to the European Institute of Romania, the complete translation of the term is "action reference for a preliminary ruling."

5 Striblea M.S., Teoria general a dreptului, Universitatea „Alexandru Ioan Cuza” Iaşi, Facultatea de Drept, 2008, pp. 26-31.

6 Case T-51/89, Tetra Pak, Intellectual Property judgment of July 10, 1990

7 Roşianu C., Aciunea în pronunarea unei hotrâri preliminare, THEMIS, Revist a Institiutului Naional al Magistraturii

nr.3/2005, p.1.