News

05
June2013

The GDI approaches the Constitutional Court with a claim against the Minister of Education and Science on behalf of publishers

Five publishing houses in Georgia have approached the Constitutional Court of Georgia with a demand to find the provisions of the Order of the Minister of Education and Science of Georgia on the basis of which the Ministry of Education and Science appropriated the copyrights under their ownership unconstitutional. The Georgian Democratic Initiative (GDI) is going to render legal assistance to the publishers during the proceedings in the Constitutional Court.

On April 8, 2013, the Minister of Education and Science of Georgia sounded out an initiative about giving textbooks to school pupils free of charge.[1] We, the publishers that have signed the claim, once again express our positive attitude to the aforementioned initiative, though, at the same time, we believe that it should not be carried out at the expense of violating our rights.

The Order of the Minister of Education and Science issued on February 25, 2010, approved the rule of approving textbooks of institutions of general education. According to the aforementioned rule, publishers are obliged to give their preliminary consent to transfer the copyrights on textbooks created by them to the Ministry and, after the approval of the textbooks, to transfer the copyrights to the Ministry under an agreement. The same Order enables the Ministry to transfer the right to exercise the copyright to any interested person on the basis of pressing social need.

With the aforementioned Order, the Ministry restricted the publishers’ right to ownership (the right to dispose of their property freely) and, in fact, appropriated their copyrights free of charge. Generally, such rights (a license) constitute goods protected by the right to ownership. The European Court of Human Rights and the European Commission of Human Rights have established in several cases that a license constitutes an object of the right to ownership if a person possessed it and had a long-term expectation to receive income.[2] In this specific case, the Ministry restricted the publishers’ right to ownership with its own order, which contradicts the requirements of Articles 21 and 23 of the Constitution of Georgia according to which the right to ownership may be restricted by a law, but not by a sub-law (a minister’s order constitutes a sub-law).

Another reason why we, the claimants, consider the disputed norms unconstitutional is that the imposed restriction violates the essence of the right to ownership. In accordance with Paragraph 1, Article 21 of the Constitution of Georgia, “The restriction of the rights referred to in the first paragraph shall be permissible for the purpose of the pressing social need in the cases determined by law and in accordance with a procedure established by law, in a way that does not violate the essence of the right to ownership.” As we have noted, the restriction imposed by the disputed norms makes the Ministry of Education and Science the owner of the copyright. Accordingly, the Ministry, having decided to exercise this right, has in fact eliminated the grounds for exercising the right by other copyright owners, since the aforementioned works were intended for the process of general education and it is impossible to use them in any other form.

In its public statements, the Ministry tries to present this process as contractual (private) relations between us, by which it misleads the public. Naturally, we would not have transferred the copyrights to the Ministry if it had not been for the normative obligation to conclude a license agreement with the Ministry which was imposed by the disputed Order.

As of today, the Ministry is publishing the school textbooks on the basis of its own unconstitutional act and is planning to disseminate them, which, naturally, violates the publishers’ right to ownership.[3]

Due to the aforementioned, we, the publishers that have signed the claim, approach the Constitutional Court of Georgia and demand that it find Subparagraphs t.a) and t.b), Paragraph 1, Article 6; Subparagraph b) of Article 10; and Subparagraphs b) and g), Paragraph 2, Article 11 of the aforementioned Order unconstitutional, since they contradict the requirements of Articles 21 and 23 of the Constitution of Georgia.

During the substantive review of the case in the Constitutional Court, the interests of the publishers will be protected by the Georgian Democratic Initiative (GDI).

  1. Intelekti Publishing House LLC
  2. Artanuji Publishing House LLC
  3. Diogene Publishing House LLC
  4. Logos Press LLC
  5. Bakur Sulakauri Publishing House LLC
  6. Triasi LLC
  7. Physical person – Irina Rukhadze

 


[1] The information is available on the website: < http://www.mes.gov.ge/content.php?id=4543&lang=geo > [Accessed: May 10, 2013].

[2] The decision on permissibility of the European Commission of Human Rights on the case ofPudas v. Sweden, D&R 26 (1985), p. 241; the 7 July 1989 judgment of the European Court of Human Rights on the case of Tre Traktorer Aktiebolag v. Sweden, Par. 53.

[3] It should be noted that, with this action, the Ministry simultaneously contradicts the disputed Order issued by itself, which is a subject of an independent dispute, and we, the publishers, are pursuing an administrative dispute in this direction.