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1.
  • Marušić, Branka, 1983- (author)
  • Author’s Right to Choose : Right of Divulgation in the Online Digital Single Market of the EU
  • 2020
  • In: EU Internet Law in the Digital Era. - Cham : Springer. - 9783030255787 - 9783030255794 ; , s. 137-160
  • Book chapter (peer-reviewed)abstract
    • This chapter provides an analysis in the material scope of application of the moral right of divulgation and the economic right of communication to the public in the EU’s digital single market. The aim is to bring forward arguments why the application of both rights should only be addressed through the protection afforded by the economic right. The rationale behind this is that the right of divulgation, as a moral right of the author, and the right of communication to the public, as an economic right of the author, both share the same trigger point for their application. This trigger point consists of the author’s choice in sharing her or his work with the public, in which the author of the work also chooses the manner, shape and place where this sharing will occur.Unlike the economic right of communication to the public, which has been harmonised in the EU, the right of divulgation, as a moral right is deeply rooted in the national legislative and judicial interpretation of the Member States that recognise this moral right of the authors. In line with this and for this chapter, analysis of the material scope of the application of the right of divulgation is evaluated through the monistic and dualistic approach to the regulation of copyright, and the jurisdictions that are analysed are primarily France and Germany.Against this background, the analysis in the chapter provides for overlapping interpretational criteria of both rights that encompass an act of sharing, the definition of what the public is, and what the modes of dissemination of work are.
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  • Marušić, Branka, 1983- (author)
  • Copyright Protection of Works of Applied Art
  • 2023
  • In: Gewerblicher Rechtsschutz und Urheberrecht. Internationaler Teil. - 0435-8600. ; 72:6, s. 604-609
  • Journal article (other academic/artistic)
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  • Marušić, Branka, 1983- (author)
  • Derogating Regulative and Enforcement Powers in Copyright Protection in the Digital Market: A Trojan Horse for the EU?
  • 2017
  • In: Croatian Yearbook of European Law & Policy. - 1845-5662 .- 1848-9958. ; 13, s. 169-190
  • Journal article (peer-reviewed)abstract
    • The proposal for a Directive on Copyright in the Digital Market contains a proposal to harmonise protection of copyright in the digital market and to close the so-called 'value gap'. The value gap is a term that, in the realm of online copyright dissemination, signifies a situation where the right holder (for example, the author of a song) is not adequately remunerated for his or her work. This situation usually occurs when his or her song is made available on an online platform, such as YouTube, and he or she is not paid for the use and enjoyment of the work. The current market mechanism to tackle this problem is done via licensing schemes.This paper will analyse the possible Trojan horse that is hidden in this proposal in order to ask whether, when it comes to online regulation and enforcement of copyright, the deployment of article 114 TFEU is the correct legal basis for the EU to enhance accountability of internet service providers in the regulation and enforcement of copyright.
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  • Marusic, Branka, 1983- (author)
  • End Line : The Boundaries of Extended Protection for Word Trademarks in EU Law
  • 2014
  • In: NIR. - 0027-6723. ; :5, s. 537-561
  • Journal article (other academic/artistic)abstract
    • The well-known marks are used as a safety valve in the protection and preservation of the commercial value of trademarks. It is a shield, available to trader to protect its financial investment in the allure of the trademark, and a sword against anyone who wants to engage in free riding on this investment. The overall analysis of the boundaries of extended protection for trademarks in the form of remedies, demonstrates that a trader cannot rely on a well-known mark status without any obligations attached to it. The whole idea of this article rests upon access points for interested third parties, to word embedded in the well-known mark. This article introduces two access points, independently developed from the European trademark framework, that have as an underlying idea the protection of market principles and other traders, rather than the protection of the trademark owner. The problem of well-known marks and their interaction with market principles derives from a simple fact that the basis for their protection rests upon the suggestive function of the trademark. This suggestive function needs to be curtailed in order for the proper functioning of the market to occur. Curtailment occurs in the form of boundaries to its protection, in the form of access points. These access points have been grouped in two areas. Firstly the general principles of EU law, and secondly the competition law.
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7.
  • Marusic, Branka, 1983- (author)
  • Gate Keeper or Trespasser? EU ISP Liability Regime and its Privacy Implications
  • 2016
  • In: NIR. - 0027-6723. ; :1, s. 4-17
  • Journal article (peer-reviewed)abstract
    • The case Google Spain decided in front of the CJEU provides for just one example of an infinite number of occasions in which parties such as end users, content owners and rights management organisations have sought to assign intermediaries/Internet Service Providers (ISPs) with liability for infringements perpetrated online. Internet actors often look to ISPs as the gatekeepers of the web and therefore the most suitable party to be held liable in relation to illegal online activity, whether it is in relation to economic or fundamental rights and interests. Accordingly, this article provides an overview of the ever-shifting notion of ISP liability in the online digital environment in light of the Google Spain decision, in a specific attempt to answer the following question: how far are we willing to affect the functioning of ISPs through their liability for online activity in order to install order in an unruly digital arena?
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  • Marusic, Branka, 1983- (author)
  • New Changes in the Croatian Patent Act
  • 2021
  • In: Gewerblicher Rechtsschutz und Urheberrecht. Internationaler Teil. - : Oxford University Press (OUP). - 0435-8600. ; 70:4, s. 377-379
  • Journal article (other academic/artistic)abstract
    • New legislative reform of Croatian patent system.
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  • Marušić, Branka, 1983- (author)
  • Nihil Sub Sole Novum : The CJEU Ruling on the Validity of Article 17 of the DSM Directive
  • 2022
  • In: NIR. - 0027-6723. ; 2022:3, s. 281-294
  • Journal article (peer-reviewed)abstract
    • This article discusses the validity challenge of Article 17 of the DSM Directive by analysing three legal issues put forward in the CJEU’s judgement: the severability of provisions contained in directives, the liability regime contained in Article 17 of the DSM Directive, and whether this Article safeguards the essence of Charter’s fundamental rights.
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  • Marušić, Branka, 1983- (author)
  • Parody Exceptions in Copyright Laws
  • 2023
  • In: GRUR International. - : Oxford University Press (OUP). - 2632-8550 .- 2632-8623. ; 72:3, s. 284-292
  • Journal article (other academic/artistic)abstract
    • Translation and case note B 12315-20 (Swedish Tiger).
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18.
  • Marusic, Branka, 1983- (author)
  • Price-Fixing in Regulated Professions
  • 2022
  • In: GRUR International. - : Oxford University Press (OUP). - 2632-8623 .- 2632-8550. ; 71:6, s. 567-569
  • Journal article (other academic/artistic)
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  • Marušić, Branka, 1983- (author)
  • Repackaging Medicinal Products in Parallel Trades
  • 2023
  • In: GRUR International. - : Oxford University Press (OUP). - 2632-8550 .- 2632-8623. ; 72:2, s. 167-173
  • Journal article (other academic/artistic)abstract
    • Translation and case note PMT 8284-20 (Abacus Medicine A/S v Novartis AG).
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22.
  • Marusic, Branka, 1983-, et al. (author)
  • Reproduciranje autorskog djela za privatno i drugo vlastito korištenje u svjetlu prava Europske unije [Reproduction of copyright protected works for private and other personal use in the light of European Union law]
  • 2016
  • In: Zbornik Hrvatskog društva za autorsko pravo. - 1333-4328. ; 13-14, s. 31-56
  • Journal article (peer-reviewed)abstract
    • U radu se analizira praksa Suda Europske unije u vezi s iznimkama iz čl. 5. st. 2. toč. a i b Direktive o informacijskom društvu. Izlažu se pravna shvaćanja Suda EU o naravi štete koju trpe nositelji prava uslijed privatnog reproduciranja te naravi pravične naknade, diskreciji koju uživaju države članice EU pri uređivanju iznimke privatnog kopiranja, mogućnosti naplate naknade u slučajevima prekogranične prodaje medija i uređaja, izvorima iz kojih je moguće legalno reproducirati djela za privatno korištenje, uporabi sredstava prikupljenih na temelju naknade za privatno reproduciranje, utjecaju primjene tehničkih mjera na sustav privatnog kopiranja te (ne)mogućnosti primjene sustava privatnog kopiranja na download djela. Upozorava se na potrebu preispitivanja nacionalne prakse u području ostvarivanja autorskog i srodnih prava s pravnim stajalištima Suda EU.
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  • Marusic, Branka, 1983- (author)
  • Testing the Competence Divide : A Short Story how the CJEU Annulled a National Measure of a Member State
  • 2019
  • In: Europarättslig tidskrift. - 1403-8722 .- 2002-3561. ; :3, s. 479-485
  • Journal article (other academic/artistic)abstract
    • With the judgement in joined cases C‑202/18 and C‑238/18 (Ilmārs Rimšēvičs) the CJEU for the first time annulled a national measure. However, this case needs to be seen in its context, and that is that the CJEU shaped a direct form of remedial action of annulment of a national measure. Furthermore, this remedial action is very narrow in its scope of application and in can only be applied only to relieved governors of National Central Banks in the Eurozone Member States of the EU (in 2019 that was 19 countries).
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27.
  • Marušić, Branka, 1983- (author)
  • The Autonomous Legal Concept of Communication to the Public : Interpretation in EU Copyright Law
  • 2023. - 1
  • Book (peer-reviewed)abstract
    • The economic right of a copyright holder to communicate to the public has become an increasingly important and complex issue in recent years, this is partially due to changes in the way that content is accessed and consumed online. This innovative book analyses the right of communication to the public, taking account of what legal standing an autonomous legal concept can hold, and how this is impacted by wider harmonisation efforts at an EU level.The book explores the scope of the right of communication to the public in a twofold manner: Firstly, it examines the legal standing and effect, from a constitutional perspective of an autonomous legal concept. Secondly, it analyses CJEU case law, grouping cases by type of communication model to demonstrate what kind of authorisation is required to permit widened communication to the public online. Marušić builds on both strands of analysis to propose an operational model of communication for future use, that can aid in identifying and remedying infringements.Providing novel analysis on the definition and status of autonomous legal concepts in the EU, and setting this analysis against the context of harmonisation processes, this book will be of great interest to scholars working in both copyright law and EU law more widely.
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  • Marušić, Branka, 1983- (author)
  • The Autonomous Legal Concept of Communication to the Public in the European Union
  • 2021
  • Doctoral thesis (other academic/artistic)abstract
    • In the last decades, the manner in which we access, consume, and enjoy content has changed. The traditional way of availability of content was predetermined. In order to access content, one was required to be at a certain place in a specific time. Today, the content is available from a place and a time individually chosen by the end user and oftentimes accessed, consumed, and enjoyed over the internet. The infrastructure of the internet – for online availability of content – is becoming more and more complex. One of the reasons for this complexity can be found in an economic right of the copyright holder. This specific economic right – although found in other EU harmonising measures – is embodied in Article 3 InfoSoc Directive, which is an implementation of Article 8 WCT in EU law. The right of communication to the public, which includes the right of making available to the public (legal concept of the economic right), has in recent decades become the main economic right of a rightholder in digital realities. This economic right serves as a vehicle whereby the rightholder can prevent content from being made available online, or conversely, allow it to be. The reason why the legal concept of the economic right is aiding complexity of online availability of content is the legal uncertainty about the scope of the said legal concept. This legal uncertainty – among other issues of legal complexity – is facilitated by the interpretations of the CJEU. The legal complexity of online availability of content reflects the following factors: the plurality of legal sources for the legal concept of the economic right; the heterarchical relationship between these sources; the three expansive legal systems in which this legal concept can be found (national, EU and international); the competing legal sources on fundamental rights; and the competing realities (physical and digital). Consequently, the main origin of this complexity is twofold. It consists of the overlapping legal systems and of the overlapping realities in which these legal systems operate. The present study concentrates on the legal concept of the economic right from an EU perspective and describes and analyses the relationship between the systems on that basis. Furthermore, the legal analysis of the present study is applied to technological environments represented in the form of communication models that seek to portray how the legal concept of the economic right operates. The depiction of these technological environments provides an explanation of the environment wherein acts of communication and acts of making available occur, thereby throwing light on the nature of these acts and providing clarity on the questions of potential infringement. The right of communication to the public is exercised in linear technological environments that are traditionally found in physical realities – yet not exclusively, whereas the right of making available to the public is exercised in non-linear technological environments that are exclusively found in digital realities. The contribution of the present study to existing legal research is twofold. Firstly, it emphasises the legal standing and effect, from a constitutional perspective, of autonomous legal concepts of EU law. Secondly, it applies the legal concept of the economic right to communication models in order to explain how the said right operates in digital realities.
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29.
  • Marušić, Branka, 1983- (author)
  • The concept of terroir tested : sharing of the same terroir between two EU Member States
  • 2021
  • In: Journal of Intellectual Property Law & Practice. - : Oxford University Press (OUP). - 1747-1532 .- 1747-1540. ; 16:4-5, s. 435-441
  • Journal article (peer-reviewed)abstract
    • This article looks into wine as a credence product, whose bond of trust is vested in the concept of terroir as a signal to the consumer that the wine she or he is buying originates from a specific location and is made in specific circumstances. The main question of the present analysis is what the legal consequences are when such terroir is shared between two EU Member States, looking into the examples of wines Tokaj and Teran.Arguments advanced in the article are that, on the EU-wide level, there are two effects of the shared terroir. The first effect is a shared PDO; and the second effect is an artificial enlargement of terroir that is not linked to the original geographical position. 
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  • Marušić, Branka, 1983- (author)
  • The implementation of Article 15 of the DSM Directive in Croatia : a gold-plating provision
  • 2022
  • In: Journal of Intellectual Property Law & Practice. - : Oxford University Press (OUP). - 1747-1532 .- 1747-1540. ; 17:9, s. 741-747
  • Journal article (peer-reviewed)abstract
    • • ‘Gold-plating’ is a term widely used with reference to the implementation of European Union(EU) directives. It refers to a situation in whicha national implementing provision extends thescope of an EU directive.• In operational terms, a gold-plating provision provides for additional burdens for businesses andindividuals alike; most importantly, it interfereswith the expected aims that a directive seeks toachieve.• Te Croatian implementation of the DSM Directive (Directive 2019/790) has several examples ofgold-plating provisions. In this article, only one isdiscussed: the transposing provision of Article 15.
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31.
  • Marušić, Branka, 1983- (author)
  • The mere provision of physical facilities for acts of communication to the public revisited - joined cases Blue Air and CFR (C-775/21) and (C-826/21)
  • 2023
  • In: European intellectual property review. - 0142-0461. ; 45:9, s. 551-556
  • Journal article (peer-reviewed)abstract
    • The inclusion of the term "mere provision of physical facilities", as evidenced in the preparatory works for the World Intellectual Property Office Copyright Treaty (WCT), was to shield internet service providers (ISPs) from liability for infringing communication to the public originating with a third party. In the European Union (EU), this term has been introduced as a recital to the InfoSoc Directive, and as such was applied beyond its original purpose. Primarily, it has been used to related rights and secondly, it has been applied in physical realities, assessing liabilities of hotels, rental cars, aircraft, and trains for copyright infringement. The assessment was based on focusing on what is a "physical facility" and what is a "mere provision". The Blue Air and CFR case offers two insights into the "mere provision". The first insight is that a mere provision can be automatic in nature. The second insight is that the automation that enables an act of communication can be for the benefit of travellers independently of their will.
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  • Marušić, Branka, 1983- (author)
  • The New Croatian Copyright Act – A Mixed Bag of Novelties and Quandaries
  • 2022
  • In: GRUR International. - : Oxford University Press (OUP). - 2632-8623 .- 2632-8550. ; 71:11, s. 1056-1061
  • Journal article (peer-reviewed)abstract
    • Croatia’s accession to the EU in 2013 left a mark on the Croatian Copyright Act. This mark was in the form of several amendments which aimed to implement the EU copyright harmonising measures. This implementation led to an uneven approach to copyright and related rights protection by prioritising implementation of the acquis communautaire over internal coherence and balance of rights. The new Croatian Copyright Act, adopted in October 2021, restores the internal coherence by substantially improving the layout of the act. Nevertheless, the formulation of some of the provisions it contains are inconsistent with international law, EU law and the Croatian Constitution. This paper focuses on three problematic legislative choices in the new Croatian Copyright Act – the gold-plating provision of the press publishers’ right, the automatic transfer of copyright made within public or state-owned institutions, and the nationalisation of audio-visual works. 
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  • Marusic, Branka, 1983- (author)
  • Wine wars : They might start when you are outside the EU club, but they end once you are in the club
  • 2020
  • In: Journal of Intellectual Property Law & Practice. - : Oxford University Press (OUP). - 1747-1532 .- 1747-1540. ; 15:12, s. 949-950
  • Journal article (other academic/artistic)abstract
    • General Court, Case T-626/17, Slovenia v Commission, ECLI:EU:T:2020:402The General Court dismissed Slovenia’s action for annulment of Commission Delegated Regulation (EU) 2017/1353 of 19 May 2017 amending Regulation (EC) No 607/2009 as regards the wine grape varieties and their synonyms that may appear on wine labels (2017 OJ L190, 5), which allowed Croatia to use the name ‘teran’, a Slovenian protected designation of origin for wine
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