The appropriate enforcement of intellectual property rights remains one of the most significant challenges facing the new member states of the European Union (EU), 15 years after independence and two years after accession. While foreign investment and local economic development have increased at a tremendous pace, the court systems too often fail to adequately protect intellectual property rights, creating a disincentive for further investment and growth, as well as causing harm to local business and innovation in general.
This should come as no shock as the protection of intellectual property was anathema to the Communist system. The challenge today is to educate and raise the level of experience for judges asked to deal on an increasing basis with significant intellectual property law cases. Many judges do not understand the overall benefit of encouraging and protecting innovation, because foreign investors appear to benefit most from such protection. Thus, judges often feel they are protecting local interests by ruling against foreign companies (in fact, local employees and an increasing number of local, innovative companies are being harmed by ineffective enforcement of intellectual property rights). Another holdover from Soviet times is the mindset among judges that their ‘independence’ means they need not look to other judicial decisions within the EU for guidance (this is understandable as Soviet law contained the principle of ‘democratic centralism’, under which the legal system was thought to consist exclusively of written, not judge-made, law). As a result, decisions reached in different new member states are often wildly divergent.
