YEAR 2019 N.º 2 Volume 19

ISSN 2182-9845

2019 N.º 2
EDITORIAL

Fernando Carbajo Cascón

Hacia un nuevo marco normativo de los derechos de autor y derechos conexos en el mercado único digital

El avance imparable de las nuevas tecnologías obliga a un constante esfuerzo de adaptación de la legislación en materia de propiedad intelectual a los nuevos problemas y exigencias que se plantean en el mercado digital europeo. Exigencias que provienen, en unos casos, del desarrollo de nuevos modelos de negocio basados en la explotación en masa de contenidos protegidos por derechos de autor y derechos conexos, y en otros casos, de la necesidad de favorecer el acceso a la información con fines docentes, de investigación o culturales en general.

Trade secrets legal framework in the new Industrial Property Code

Ana Clara Azevedo de Amorim

Trade secrets; unfair competition; exclusive right; honest commercial practices; principle of proportionality; Industrial Property Code.

The new Industrial Property Code transposed the Trade Secrets Directive into the national legal system, creating an autonomous legal framework regarding unfair competition. Although the scope of application has been extended, according to the removal of competitive relationship, trade secrets protection is still based on a general clause related to honest commercial practices. The value dimension of the legal framework is also reinforced by the principle of proportionality, which is expressed in particular by the introduction of a relevance clause and by in the discretion assigned to the national courts to weigh a set of interests.

Plant Patents in the European Union: Recent Developments

Mª Mercedes Curto Polo

Breeders’ rights; Plant Patents; Biotechnological inventions; plant varieties; agricultural innovation.
 

Biotechnology has become one of the most promising and important technologies for the development of innovation in agriculture. The economic importance of the invested resources justifies that innovators ask for an adequate means of protection to compensate their efforts. There are two possible ways of protection of the developments in plant innovation: A sui generis system born in the middle of last century in order to protect the results of traditional breeding processes, on the one hand; and the patentability of plant inventions which normally are the result of biotechnological processes which operate at the cellular level. The coexistence of these two systems of protection in the European Union causes some frictions which have to be solved, not only by the legislator, but also by the courts and the patent offices when they apply the law to a constantly evolving reality.

Copyright, internet is not the enemy. Thoughts on the “Estimating displacement rates of copyrighted content in the EU” hidden report

Alberto Hidalgo Cerezo

Copyright; Internet; Intellectual Property; Digital transition; Revenues; Piracy; Music; Video games; Movies.
 

Since the dawning days of the popularization of the internet, it has been regarded as an enemy for copyright. Cultural industries have claimed for the losses derived from rampant piracy. That is their side of the coin. In 2013, the European Commission tendered a study that run over 28.000 polls and had an extension of over 300 pages to deepen into this subject: “Estimating displacement rates of copyrighted content in the EU”. It was finally handled by 2015. However, the report never saw the light of day. Why? In July 2017, Member of the European Parliament (MEP) Julia Reda filed an application for accessing public documentation. The results of the report were surprising, stating that piracy in some cases was not hurting revenues, while in others, it was in fact enhancing the sale of copyrighted content by legal channels. Was it an unexpected result for the European Commission?

Internship contracts, professional training and employment: contracts and portraits

João Zenha Martins

Professional training; internship contracts; no temporary needs; public contributions; costs of labour employment; employability.

The text concerns the history and importance of the professional training in the socio-political context which enhances the concept of employability. Nevertheless, is possible to see that the global system of the professional learning is fragmented which allows to have space for a low rigorous use of it. Due to the implicit low costs and the susceptibility of satisfaction of the no temporary business needs, the different types of internships’ contracts tend to work as an alternative to the labour contractual system.

Social entrepreneurship: legislative contributions

Deolinda Meira / Maria Elisabete Ramos

Social Economy; Context Costs; cooperatives; Manager Professionalization; Transparency; Funding.

This study evaluates whether the legal ecosystem related to the incorporation of cooperatives and IPSS, their governance models, the professionalization of their managers, and the transparency and access to funding favor or inhibit social entrepreneurship. The new rules on the incorporation of cooperatives and the provision of three models of management and supervision facilitate the development of social entrepreneurship. Investor members promote the diversification of cooperative funding sources. The Portuguese legal environment presents weaknesses in the professionalization of cooperative managers and in the transparency of IPSS. The “Portugal Inovação Social” Program, crowdfunding and social entrepreneurship funds are innovative ways of investing in social entrepreneurship. However, the regulatory framework of crowdfunding and social entrepreneurship funds suffers from some weaknesses that may inhibit the development of these instruments.

The Mondrian Cake: may Intellectual Property protect signature food?

Maria Victória Rocha

Culinary creations; copyright; industrial property; trade secrets; unfair competition.

Taking the example of the Mondrian Cake, in this article we distinguish recipes from presentation of signature dishes, as well as cookbooks, menus and restaurants and aim to know what can be protected by Intellectual Property (e.g. copyright, patents, designs, trademarks, trade dress, trade secrets, general rules against unfair competition or even nondisclosure agreements and fiduciary duties). Regarding copyright, we emphasise the difference between USA and Continental Copyright approach. For situations where some kind of Intellectual Property protection is possible, we question enforcement and if all type of protection is desirable. What we conclude about food applies to beverages.

The olfative brand in the new industrial property code of Mozambique

Salomão António Muressama Viagem

Brand; olfactory; graphic representation; Mozambique; Industrial Property Code; new brands.
 

The most recent Industrial Property Code of Mozambique (CPIM), approved by Decree 41/2015 of 31 December, brought, among other innovations in the field of trademarks, the consecration of the olfactory brand, one of the "new complex in terms of distinctive capacity and graphic representation, the latter being a very controversial aspect in the field of registration assumptions of the new brands. Although the problem of graphic representation has been circumvented by the European Union trademark law in accordance with its new Trademark Directive ( (EU) 15/2436 of Parliament and Council of 16 December 2015) which has removed it from the range of requirements of the trademark concept; many legal systems such as Mozambican law still maintain it. In fact, the reason for this theme is: to study the olfactory mark and its tutelage in Mozambique.

Book review of CHAPARRO MATAMOROS, P.: Derecho de uso y vivienda familiar: su atribución judicial en los supuestos de crisis familiares, Tirant lo Blanch, Valencia, 2018, 519 pp.

Adrián Arrébola Blanco

Matrimonial property law; family home; family breakdown; shared custody; cohabitation.
 

Book review of CHAPARRO MATAMOROS, P.: Derecho de uso y vivienda familiar: su atribución judicial en los supuestos de crisis familiares, Tirant lo Blanch, Valencia, 2018, 519 pp. (ISBN 978-84-9190-816-8)