Download Journal № 1 (117) 2021

Ulitina O., Pyliuchenko D. Legal regulation of creative industries in Ukraine. Creative industries — is a field that exists at the intersection of economics, law and other sciences. In a modern world, where creativity comes to the fore, the relevance of creative industries is growing every day. Creative industries are of great importance for the development of culture, entertainment and tourism.

Fields related to the creative industries are primarily characterized by great creative potential. Their development and support at the state level are the key points to the economic prosperity and strengthening the relations between foreign countries. Given the great importance of creative industries in the current existence of developed countries, it is important to create conditions for their most effective functioning, and this primarily applies to the legal regulation in these areas.

The rapid changes in society, which is influenced by the creative industries, indicates that the legal system, legislation and doctrinal concepts in this area need to be updated.

The article deals with the issues of creative industries legal regulation in Ukraine. The article reveals the essence of the concept of creative industries and highlights the main features that characterize them. Different approaches to defining the concept of creative industries are revealed. The historical development of this concept in the context of economics and law is considered. The correlation of the creative industries with intellectual property, and with copyright in particular, has been determined.

The authors review the main legislative acts that are designed to regulate the activities in creative industries. Certain problematic issues in this context are revealed, in particular gaps and conflicts in the conceptual apparatus used in the field of creative industries legal regulation.

The legal regulation of the creative industries is largely based on the legal provisions of intellectual property law, because the creative industries activities are closely linked to the creation and use of intellectual property objects, including copyright. However, each industry also has a list of legislation that is narrower and focuses on the specifics of this area.

Keywords: creative industries, culture industries, creative economy, intellectual property, copyright

Denysenko R. On work-for-hire intellectual property assets created under employment agreements for conducting scientific research, development and engineering. The article analyzes the legal regime of official works created during the performance of the contract for the performance of research or research and development and technological work. It is proved that the subjects of contractual relations in addition to the executor and the customer should also include the creator (author, inventor) — an employee working in a scientific institution or enterprise, whose creative work created an official object of intellectual property. At the same time, a scientific institution (enterprise) that has hired an employee under an employment agreement (contract) acts as an employer. Based on the analysis of the legislation in the field of intellectual property and scientific sources, the author identifies the features of intellectual property. The meaning of the terms «duties» and «employer’s order» is investigated. It is stated that there is no definition in the legislation of Ukraine of the term «official task» and requirements for registration of official task for the creation of a work. The grounds for recognizing the objects of intellectual property rights as official are determined and analyzed. The peculiarities of the distribution of property rights to official objects between the customer, the executor and the employee-author in the context of the legal relations that arise and accompany the performance of contracts are considered. Various contractual constructions used in the mechanism of division of property rights into official objects are analyzed. Proposals are formulated aimed at improving the local regulation of the distribution of property rights to service facilities. Particular attention in the article is paid to the issue of payment of remuneration to the author of the official object. The structure of such remuneration is analyzed, sources of its payment are offered, terms of payment of such remuneration and their legal definition. It is proposed that the contracts provide for obligations (guarantees) of the parties to «finance» the customer and pay the contractor remuneration to the author for the creation and use of the official object.

Keywords: subjects of contractual relationships, work-for-hire intellectual property assets, author, employer, property rights for work-for-hire intellectual property assets, consideration

Doroshenko O., Rabotiahova L. Some aspects of establishing the conformity of an industrial design to the criteria for protection. The new edition of the Law of Ukraine «On the Protection of Rights to Industrial Designs» No. 3770-XII, adopted on October 14, 2020, introduced significant changes to the regulation of the legal protection of industrial designs. The basic norms of the law were harmonized with the articles 212−217 Chapter 9 «Intellectual Property» of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand. The concepts of «individual character», «the overall impression», «the informed user» and «the degree of freedom of the designer», «the circles specializing in the relevant industry» have been introduced into the sphere of legal protection. These concepts were not previously used in the legislation of Ukraine. The article analyzes the content of these concepts on the basis of European law enforcement practice, Decision of the European Union Intellectual Property Office Board of Appeal, Judgment of the Court of Justice of the European Union и Judgment of the General Court of the European Union. In accordance with the new edition of the Law, an industrial design can be declared invalid in an administrative procedure. Authors reviewed the administrative procedure for establishing the conformity of a registered industrial design to the criteria for protection (a novelty and an individual character). A registered industrial design shall be considered to be new, if no identical design has been previously disclosed to the public and to have an individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any previously disclosed design. A design shall be deemed to have been made available to the public (i) if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, (ii) except where these events could not reasonably have become known in the normal course of business to the circles specializing in the relevant industry in Ukraine. Authors analyzed this two-step test. Particular attention was paid to the disclosure of industrial designs as a trade mark, copyright work, patent, utility model or otherwise on the Internet. Criteria for assessing disclosure of designs on the internet considered.

Keywords: registered industrial designs, novelty, individual character, administrative procedure, invalidity

Zaikіvskyi O., Onіstrat O. National security systemand issues of intellectual property. The system of national security of Ukraine is defined as the interaction of the individual, society, public authorities and local governance in the process of ensuring national security, taking into account the relationships between them and their environment. It is an open, dynamic, social system, the main purpose of which is to integrate efforts of the individuals, society and the state for the realization of national interests, ensuring the integrity of the social organism and the ability of the state to defend these interests.

It is noted that the issue of intellectual property is an integral part of the national security system of Ukraine, as they are present in all objects of the national security system of Ukraine, and their non-compliance or violations pose a threat to these objects, including national interests in the defense sphere of Ukraine.

Theoretical aspects of the national security system of Ukraine, components (elements) of this system and their relationship, the main tasks and functions of strategic subjects of the national security system are considered. The influence of intellectual property on the system of threats to national security and defense capabilities of Ukraine is studied. The need to define the system of intellectual property protection as a component of national security and defense of Ukraine and to take into account intellectual property issues in the development of national security state policy, as well as the importance of further research on the role of intellectual property in national security and defense of Ukraine are defined.

The structural scheme of the national security system of Ukraine is proposed. It includes the objects of national security; subjects of national security; threats to national security.

Insufficient attention is paid to the study of the role of intellectual property in the field of national security, as well to the identification of threats to state security in this area. Therefore, there is a growing need for theoretical research that would conceptually define and substantiate the role of intellectual property in the field of national security and defense.

Keywords: national security system of Ukraine, subjects of the national security system, threats to national security, intellectual property

Androshchuk G. Сombating unfair registrations and using means of individualization in the conditions of digital transformation. The article examines the economic, legal and institutional aspects of combating unfair registration and use of means of individualization (trademarks, brand names, geographical indications, domain names) in the context of digital transformation. The formation of theoretical and methodological and methodological foundations for the protection of the rights of their owners, improving the efficiency of experts of intellectual property agencies, law enforcement agencies, tools for digital search and use of artificial intelligence (AI) to ensure the effectiveness of the institution of individualization. The economic and legal aspects of foreign (in the jurisdictions of China, USA, EU) and domestic legislative and law enforcement practices to combat the phenomenon of unfair registration and use of personalization, digital search tools and the use of AI are analyzed. It is shown that over the next five years, 30 to 50% of product searches will be by voice rather than text, so the impact of AI on the way a product is purchased will have significant economic and legal implications for individualization legislation. The means of counteracting unscrupulous applicants in the USA have been studied. The U.S. Patent and Trademark Office (USPTO) has developed rules under which foreign applicants and trademark owners must be represented by a U.S. licensed attorney when filing trademark applications with the USPTO. Emphasis is placed on the introduction of legislative liability of e-commerce platforms for counterfeit goods. The analysis of the last changes in the legislation of Ukraine on protection of trade marks is carried out. It is shown that the new rules change the approaches to registration and protection of trademarks, create the possibility of their fair use. Digitalization, transition to e-document circulation in the Customs Register, improvement of the procedure for destruction of counterfeit goods are important anti-corruption steps in the activities of Ukrainian customs in the context of digital transformation of the economy.

Keywords: intellectual property, unfair competition, means of individualization, valuation, squatter, losses, digital transformation, artificial intelligence

Postryhan T. Legal regulation of UK science parks. The article reveals important legal aspects of the UK science parks, the creation and operation of science and technology parks in Great Britain. The author considers the legislation of Great Britain on the activities of science and technology parks, technological innovations, tax and other benefits. The author traces the development of legislation governing the activities of science parks in Great Britain. Innovative structures, their features are considered. An analysis of research by scientists on state and legal regulation of higher education, research institutions, science parks. The author examines the Government’s policy on the development of the scientific and technical sector of the economy by supporting and encouraging innovation in the scientific and technical sector and the Question of the Great Britain Science Parks. The UK provides significant government support to science parks, fosters cooperation and dialogue between industry and academia in the field of innovation and high technology. In this matter, the state directly funds research partnerships between industry and basic science. The state strategy includes, in particular, the application of direct tax benefits for companies that interact with universities to implement high technology, research and development, tax benefits in the field of depreciation, as well as through financial and technical support of leading universities and public laboratories, grants and grants.

The author notes the important role in the development of innovation policy in the UK plays the creation of information support for innovation.

The author has analyzed the legislation in the field of providing tax-compliant pilgrims for education and distribution. Legislation in the field of supply of taxable pilgrims for additional and retail outlets is stored alongside a number of regulatory legal acts, the main ones being:

  • Income and Corporation Taxes Act 1988;
  • Finance Act 2000;
  • Finance Act 2002.

The author examines the executive authorities that implement state policy to stimulate the development of research and development. The author identifies that the UK is creating numerous innovation centers. The article emphasizes that of particular interest are the model contracts proposed by the Ministry, aimed at the transfer or use of ownership of the results of intellectual activity in the field of innovation. The author states that the British model of state support for innovation can be useful in shaping public policy and creating a legal framework for regulating legal relations in the field of innovation and the interaction of universities with business to implement research and development and high technology.

Keywords: science park, science, legal regulation, high technologies, innovation, benefits, taxes

Shabalin A. On the issue of codification of legislation in the field of intellectual property. This scientific article examines the issue of the need to create a special code of intellectual property in Ukraine. For a full-fledged and objective study, an analysis was made of the history of Ukrainian legislation in the field of intellectual property, foreign models of legal regulation of intellectual property rights, especially European legal experience, were also investigated. The author supports the position regarding the creation in Ukraine of the Intellectual Property Code, the analogue of which exists in Italy and France. Based on the study of Ukrainian and foreign legal systems, the author defines the main criteria for creating an intellectual property code: Legal and organizational criteria are defined. The author points out the need to implement the European legislative practice, the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union on judicial cases in the field of intellectual property into the code. This vector of implementation will have a positive meaning for the adaptation of the Ukrainian legislative system to European democratic standards in the field of legal regulation, legal protection of intellectual property rights. The author pays special attention to the need to harmonize the intellectual property code with the Civil Code of Ukraine and procedural legislation in order to level the negative legal consequences in legal practice in the field of intellectual property; also in the IP Code shall contain the following provision or requirements, which contained universal definitions of legal concepts in the field of intellectual property. Based on the conducted scientific analysis, the author points out the need for the existence of the Ukrainian code of intellectual property and special laws in the field of intellectual property. It follows from this that there is a need for legal regulation of individual legal relations (objects of law) in the field of intellectual property law. The author points out that such a legal system corresponds to the model of legal regulation of the field of intellectual property that exists in the European Union.

Keywords: intellectual property right, codification, legislation, The Civil Code of Ukraine

Stefan O. Doctrinal approaches to the definition of civil procedural law. The process of reforming procedural legislation, its harmonization, harmonization with the principles and standards of international law, as well as other processes taking place in society and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedural law is its definition. In turn, the development of science is impossible without reviewing even established doctrinal approaches and provisions.

An analysis of the special literature, mostly educational, led to the conclusion that scholars use approaches to the definition of the term “civil procedural law”, which were developed and included in the theory of civil procedural law in the 50s-60s of the twentieth century. Modern definitions of civil procedural law are based on the provisions of the old invalid legislation, or on the provisions of the legislation of other countries (for example, the Russian Federation). Therefore, the purpose of this study was to review the existing definitions in the theory of civil procedural law and their harmonization with the provisions of current legislation of Ukraine.

In the process of researching doctrinal approaches to the definition of civil procedural law, it was found that researchers invest in the definition of the subject, purpose of this branch of law, as well as additional characteristics of civil procedural law (participants, sectoral affiliation, stage, etc.).

The lack of a single doctrinal approach to the definition of the subject of civil procedural law, which is part of the definition of civil procedural law, prompted to study the subject of civil procedural law and propose its author’s definition.

Based on the provisions of current legislation, the article presents the author’s definition of civil procedural law as a branch of law, set and system of legal norms, the subject of which are public relations arising in civil proceedings on the basis of fair, impartial and timely consideration and resolution of civil cases in order to effectively protect violated, unrecognized or disputed rights, freedoms or interests of individuals, rights and interests of legal entities, the interests of the state.

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedural law

№ 1 (117) 2021