Balkan Yearbook of European and International Law 2021

This third volume of the Balkan Yearbook of European and International Law (BYEIL) is devoted in particular to the specific legal challenges faced by Southeast European countries in the area of intellectual property law. The authors discuss a range of topics in Serbian and Bosnian and Herzegovinian copyright law, trademark and patent law, the relevance of which extends beyond their national borders. The papers included in the permanent sections on European law and international law explore contemporary challenges in public and private law. These challenges concern various legal fields, including consumer law, commercial law, corporate and criminal law, and the corresponding papers tackle a number of fundamental theoretical issues, while also highlighting the latest developments in legal practice. Preface Contents Part I: Intellectual Property Challenges in South-East Europe The Referential Use of Another ́s Trademark in the Context of Comparative Advertising 1 Introductory Remarks 2 Critique of the Text of LOT from the Aspect of Its Harmonization with the EU Directive on Trademarks 3 Theoretical and Legislative Framework 3.1 Trademark Functions 3.2 Interaction of Trademark Law and Unfair Competition Law 3.3 Consolidation of Goals 4 Comparative Advertising as the Most Legally Sensitive Form of Referential Use of a Trademark 4.1 Comparative Advertising and Protection of Navigation Goodwill 4.2 Comparative Advertising and Protection of Surplus Goodwill 5 Conclusion References Online Intermediary Liability in Serbian Law: Reconciling IP Protection and Freedom of Expression 1 Introduction 2 Legal Framework for Online Intermediary Liability in Serbia 2.1 Safe Harbor Rule 2.2 Blocking Injunctions 3 Freedom of Expression Concerns 3.1 Right of Information 3.2 Specific Filtering Obligation 4 Concluding Remarks References Compulsory Licensing System in Bosnia and Herzegovina: How Pandemic-Proof Is It? 1 Introduction 2 Compulsory Licences in the International Context 3 Covid-19 and Compulsory Licences 4 Non-voluntary Licences in Bosnia and Herzegovina 4.1 Compulsory Licence (Art. 79) 4.2 Compulsory Licence in the Public Interest (Art. 80) 5 Other Legislation Affecting Compulsory Licensing 6 Local Manufacturing Capacities 7 Compulsory Licensing Potential 8 Conclusion References Damage Compensation Due to Copyright Infringement on the Internet in Serbian Law 1 Introduction 2 Civil Law Protection of Copyright: In General 3 Claims for Damages for Copyright Infringement 3.1 Who Is Entitled to Claim Damages? 3.2 Who Could Be Obliged to Compensate the Author? 3.3 Is It Always Possible to Apply the Rules of the Tort Law to Compensation in Copyright? 3.3.1 Entities Exchanging Author ́s Work Via Internet 3.3.1.1 Liability of the Internet Provider in General 3.3.1.2 Liability of Internet Service Provider in Serbian Law 3.3.1.3 Liability of the Direct Perpetrator of the Copyright Infringement on the Internet for Damages 3.4 Scope of the Damage (and Compensation) 3.4.1 Determining the Extent of the Damage Caused by Copyright Infringement Under the General Rules of Law on Obligations 3.4.1.1 The Differential Method 3.4.1.2 The Method of Illegal Profit of Damage Perpetrator 3.4.1.3 The Method of Analogy Including the Fee for Rights Assignment/Transfer 3.4.2 Provisions of LCRR on Determining the Damage 3.4.2.1 Perception of Responsibility Under the LCRR 3.4.2.2 Increase the Amount of the Compensation in Certain Circumstances Digression: Indemnification as a Function of Compensation 3.4.2.3 Lump Sum Compensation 3.5 Non-Pecuniary Damage 3.6 Revision of the Judgement in Copyright Disputes 4 Conclusion References The Scope of Author ́s Moral Right of Integrity in Serbian Law 1 Introduction 2 Moral Right of Integrity as Prescribed in the Serbian Law on Copyright and Related Rights 2.1 Object of Protection of the Moral Right of Integrity 2.2 Substance of Protection of the Moral Right of Integrity 2.3 Legitimate Conflicted Interests of Other Stakeholders as the Outer Limits of Protection of the Moral Right of Integrity 3 Conditions for Application of the Moral Right of Integrity 3.1 Unauthorized Alteration of the Work (Disclosed to the Public) 3.2 Justified Personal Interest of the Author to Oppose the Alterations of the Work 3.3 Prevailing Personal Interest of the Author Over the Other Involved Legitimate Interests 4 Concluding Remarks References Part II: European Law Customers Protection in Insurance Distribution Directive: An Overview on Harmonization of Legislation in Bosnia and Herzegovina 1 Introduction 2 Insurance Distribution in European Union: Definition and Background 3 Insurance Distribution Directive 3.1 Definition of Distribution and Its Subjects 3.2 Information Duties 3.2.1 Insurance Product Information Document (IPID) 3.3 Professional and Organizational Requirements 4 Legislation Applicable to Insurance Distribution in Bosnia and Herzegovina 4.1 B&H Entities ́ Laws on Insurance 4.2 Insurance Mediation in the B&H Entities ́ Legislations 4.2.1 Law on Insurance Mediation and Representation of Republic of Srpska 4.2.2 Draft Law on Insurance Mediation and Representation in Federation of B&H 5 Concluding Remarks References The Concept of Unfair Terms in Consumer Contracts in Serbian Law: The Case of Validity of Contracting Credit Costs 1 Introduction 2 Origins and Justification of the Judicial Review of Standard Terms 3 Tackling the Issue in the EU 4 Tackling the Issue in the Republic of Serbia 5 Review of the Court ́s Arguments 5.1 Relationship Between the Transparency Requirement and Good Faith Principle 5.2 The Court ́s Reference to the Directive and the CJEU Case Law 5.3 The Court ́s Reference to the Principle of Equal Value of Mutual Obligations 5.4 The Court ́s Reference to Art. 143 of the LoO 5.5 The Court ́s Reference to the Black and Grey Lists of CPA 5.6 The Court ́s Understanding of the ``Take It or Leave It ́ ́ Principle 6 Conclusion References Part III: International Law International Standards on Judicial Ethics and the Pitfalls of Cursory Legal Transplantation 1 Introductory Remarks and Context 2 Standards of Judicial Ethics in International Legal Framework 3 Legal Transplants and Judicial Reforms 4 Confidential Counselling on Ethical Issues for Judges 5 Implementation of International Standards and a Failed Legal Transplant: The Case of Romania 5.1 Reflections on the Reasons for the Failed Legal Transplant 6 Concluding Remarks References Out-of-Trial Ensuring Uniform Case Law in Serbia: Socialist Legal Tradition Reloaded 1 Introduction 1.1 Survival of Socialist Legal Tradition 1.2 Out-of-Trial Court ́s Legal Opinions 1.3 Serbian Context 2 Historical Background 2.1 Pre-socialist Law 2.2 Socialist Law 2.3 Post-socialist Law 3 Present Out-of-Trial Case Law Unification Model 3.1 Overview: Adjudicative and Non-adjudicative Case Law Unification 3.2 Legal Framework for Non-adjudicative Jurisdiction 3.3 Drafting the Enhanced Concept: Operationalization of Article 31 of Law on Organisation of Courts by Supreme Court of Cassa... 3.4 Typology of Legal Opinions 3.4.1 Traditional Legal Opinions 3.4.2 Joint Sessions of Appellate Courts ́ Departments and Submission for Approval to SCC 3.4.3 Q & A System 3.5 Legal Nature of Legal Opinions: Nonbinding and Semi-binding Effect 3.6 Method for Ensuring Compliance with ``Legal Opinions ́ ́ 4 Socialist Legal Tradition as Rationale 4.1 Is This Socialist at All? 4.2 Mainstream Rationale: Political Instrumentalization 4.3 Reminiscence of Principle of Unity of Power: Legal Aspect 4.4 Comprehension of Judiciary and Independence of Judges: Collectivistic Approach 4.5 Authoritarian Spirit of the Concept 4.6 Paternalistic Spirit of Concept 4.7 Conclusion 5 Aftermath: Self-explanatory Unwillingness for Constitutional Changes References Requirements of the Istanbul Convention in Domestic Criminal Law and Court Practice 1 Introductory Review 2 New Forms of Violence 2.1 Female Genital Mutilation 2.2 Stalking 2.3 Sexual Harassment 2.4 Forced Marriage 3 Review of the Criminal Offense of Domestic Violence 3.1 Who Is a Family Member? 3.2 Sanctioning of Perpetrators 4 Concluding Remarks References Blockchain as the Catalyst in the Shift from Closed to Open Limited Liability Companies: The Case of Greyp Bikes 1 Introduction 2 What Is Tokenization? 3 Legal Models of Tokenizing Shares in European Limited Liability Companies 3.1 Foundation 3.2 Lawyer as a Trustee 3.3 Special Purpose Vehicle 4 Equity Token Offering of Croatia ́s Greyp Bikes d.o.o. 4.1 Establishment of the Special Purpose Vehicle 4.2 Legal Relationships Between Greyp Bikes, Smart Zero and Greyp Token Holders 4.3 Flaws in Implementation 4.4 Greyp Bikes Trade Sale 5 Conclusion References