Kashyntseva О. Reconsideration of intellectual property law from the point of human rights: modern challenges — modern replies.

P. 5-10

Since 2015 the Intellectual Property Research Institute of National Academy of Law Sciences of Ukraine starts the research project of reconsideration of the place and the role of intellectual property law in the sphere of protection of Human Rights — «Harmonization of Human Rights and Intellectual Property Rights in the Sphere of Medicine and Pharmacy». Scientific challenges facing scientists of Intellectual Property Research Institute have extremely strong social demand, based on the necessity to guarantee the human rights by the mechanisms of Intellectual Property law.

Actually the urgency of national reforms in the spheres identified in the Strategy for Sustainable Development «Ukraine-2020» among the main priorities of which is the reforming of the healthcare and intellectual property.

Intellectual Property Research Institute is the most potential national research institution that forms national doctrine of intellectual property as an integral part of national sovereignty. Philosophy of Intellectual Property Research Institute is basing on the principle of harmonization of human rights and intellectual property rights. It is based on the principle of priority of Human Rights in Intellectual Property Law and determining legal mechanisms harmonizing the interests of intellectual property rights and public interest. These researches are providing by the Center for Harmonization of Human Rights and Intellectual Property Rights of Intellectual Property Research Institute of the National Academy of Law Sciences of Ukraine. The fundamental principle of our scientific research with the further implementation of its results into national law is the principle of harmonization of human rights and intellectual property rights. Such scientific research have been carried out by specialists of Intellectual Property Research Institute for many years, through numerous scientific publications and public speaking our specialists substantiated the necessity of reconsideration of the several principles of intellectual property in the twentieth century. Only thanks to them, drawing on the experience of our foreign colleagues we are able to start a new line of scientific research with confidence in its success.

Keywords: human rights, intellectual property, patent, reformation, medicines, methods of treatments

Kodynets A. Conflicts of legislative regulation relations of intellectual property.

P. 11-18

Implementation of innovative model of Ukraine is not possible without the creation a modern system of regulatory relations in the field of protection of intellectual property that would ensure protection of human subjects of creative work (authors, artists, inventors), guaranteeing observance of their rights, protection against possible violations.

The first steps in improving legal mechanism in the use of results of intellectual and creative activities are laid in adopted in 2003 by the Civil Code of Ukraine, which not only greatly expanded the scope of intellectual property rights, but also significantly enriched its substance. In the Civil Code of Ukraine relations in the field of intellectual property was first fixed in a separate structural part (4 book «Intellectual Property Rights»), which indicates their importance to private law.

Further improvement of regulatory relations in the field of creative works provides detailed provisions of the Civil Code at laws, regulations, creating reliable mechanisms of implementation and protection of their subjects. It is necessary also to bring existing normative material in accordance with the general concepts and approaches identified Civil Code of Ukraine with regard to the Association Agreement concluded between Ukraine and the European Union, Chapter 9 of which (Articles 157–252) contains requirements and standards related intellectual property rights.

Analyzing the changes that have occurred in the field of civil law, which regulates the relations of intellectual property, we can conclude that in fact with 2003, date of adoption of the Civil Code of Ukraine, the domestic legislation on intellectual property has not been changed. Civil Code of Ukraine did not become the impetus that would be able to provide update an appropriate legislative framework, and many of its rules (some of which have truly innovative nature), and have not received their specificity at the level of special laws and regulations.

The article examines the problems and conflicts of the current legislation of Ukraine regulating relations in the field of intellectual activity. Analyzes the provisions of the civil legislation of Ukraine, including special, detailed ways of improvement, describes the steps that are taken in this direction in Ukraine. Article explores legal practice of assessment of disputes concerning breach of intellectual property rights. In scopes of the subject of the research it is emphasized the relationship of regulatory issues of intellectual property, the contradictions of the provisions of special intellectual property laws and regulations of the Civil Code of Ukraine, and the imbalance of certain provisions of the Civil Code of Ukraine, including book 4 and chapters 75 and 76, dedicated to the treaty obligations in the field of intellectual and creative activity.

Keywords: intellectual activity, information, contractual obligation, intellectual property, object of intellectual property rights, conflict, civil legislation

 

Shtefan O. Claims about recognition in cases arising from disputed author legal relationships.

P. 19-26

This article is devoted to issues of civil procedural classification of claims. Despite the fact that among civil procedure specialists there were no disputes about isolation of claims for recognition, however, taking into account reforming of the national civil procedural law, there is a need to study this kind of claims separately from example cases arising from the disputed copyright law relations.

Claims for recognition caused by the need of clarity and certainty in the legal relationship of the parties, in establishing of the limits of the disputed right or obligation in order to remove obstacles to their implementation. Establishing of certainty by judgment in copyright relations, in rights and duties of its subjects creates the necessary basis for their voluntary, correct and conscientious performance and serves as a prevention of their offenses.

Judicial records indicate widespread nature of claims for recognition of copyright to works of arts, for annulment of author’s or publishing contract etc. Due to the fact that the claim for recognition can be sued for the award, in procedural literature, these claims also name as no-award, previous, prejudicial, constituent claims. However, factually there is no judicial practice of «clean» claims for recognition of the rights arising from copyright relations, usually the plaintiff, in order to save time and money drawn simultaneously with the request for recognition of copyright infringement and demanding the award (collection of royalties, compensation, etc.).

Analysis of judicial practice shows that the subject of the claim for recognition mainly serves the legal requirements of the copyright violated or disputed legal rights or obligations between the plaintiff and the defendant. But there are also claims for recognition not prohibited by law, the subject of which are the substantive requirements of the legal relationship between the others, particularly when presented with a claim for recognition of scenario or other contract annulled and void, the recognition of free use of a work without the consent of the author or another person of copyright (Articles 21–25 of the Law of Ukraine «On Copyright and Related Rights»).

In cases arising from the disputed copyright relations, on protection of which a claim for recognition is filed, the essence of the plaintiff’s legal demand to the defendant is entitled in defendant’s agree of the plaintiff’s right in the form as required by the plaintiff to the defendant submitted plaintiff and right did not dispute the existence of such a right.

The basis of the claim for recognition of copyright are legal conditions (legal facts), confirming the presence of legal disputes of the parties, their rights and responsibilities (in the positive claims), or confirming the absence of legal disputes between the parties, their rights and obligations (in the negative claims). The claim for recognition of the reason are mainly the facts that lead to recognition, modification and termination of copyright relations as well as evidence of crime.

The study that was made allowed to distinguish the following features of the claim for recognition in cases arising from the disputed copyright law relations: 1) their goal is a statement of presence or absence of relations; 2) judgments on them not entail enforcement, although they have forced power — require the parties to certain behavior based on the presence or absence of legal disputes; 3) served as on already disturbed law, and before the breach with a view to prevention

Key words: claims, types of claims, author legal relationship

Trotska V. «Google tax»: distinctions of using journalistic works placed on the Internet.

P. 27-36

The article contemplates the problem aspects of legal regulation relations regarding the reproduction of the exploratory aggregators of journalistic works previously published in the mass media or on the websites of the publishers.

The author explores such terms as: «journalistic works», «news», and points at the difference between these terms. The author notes that one should distinguish between news and journalistic works, which has the news character. An access to information published in the news, should belong to society, i.e. to be free. However, the right of journalistic works (articles, notes, analytical reviews, interviews, commentaries, speeches, reports, etc.) belongs to authors or other copyright holder. The protection of Copyright in journalistic works prescribed by the law of different countries.The article contemplates features of using journalistic works in the Internet. For this purpose, the author analyzes the laws of foreign countries, including Spain and Germany legislation, which mass media called «Google tax» or «Google law». Also the author explores the judicial practice solution of the disputed issue in the article with UK and USA publishers and Dutch company called «Meltwater». The author analyzes the decisions that have been taken in these judicial cases.The author places special emphasis to free-of-use features of the journalistic works placed in the Internet for information purposes. For this he explores norms of the Law of Ukraine «On Copyright and Related Rights» in the context of reproduction articles of the exploratory aggregators.This article describes norms that need to be improved in connection with the development of new forms of operational support readers the news materials.Based on undertaken study, the author concludes that the reproduction articles of the exploratory aggregators is not covered by the free use of works provided for in the law.The author gives the real-world example of news agencies. These agencies placed the rules of reproducing articles on their websites. The author describes in details the basic requirements specified in those rules.At the end of the article the author concludes and gives proposals for improvement of the Law of Ukraine «On Copyright and Related Rights».
Key words: journalistic work, Internet-publishing, search engines, free reproduction with informational aim

Androschuk H., Afyan A. Conflicts between trademarks and geographical indications: resolution mechanisms.
P. 37-45

The article deals with geographical indications as a legal category and an economic and legal institution. The reasons of conflicts between trademarks and geographical indications and mechanisms of their resolving (conflicts trademark law, the law on geographical indications, unfair competition and commerce under a different name). It is considered administrative system of protection, international agreements (Lisbon Treaty, TRIPS Agreement). The regulatory framework applicable in resolving disputes between trademarks and geographical indications in the EU (EU Regulation № 2081/92, TRIPS Agreement), the USA (rules BATF, Lаnhаm Act) and in Ukraine is analyzed. The recommendations on alternative mechanisms for resolving conflicts trademarks and geographical indications are made.
Keywords: geographical indication, trademark, conflict, unfair competition, litigation

Tverezenko O. Comparative analysis of the legislation of CIS countries governing contractual relations connected with the creation of the intellectual property objects by an ordering agreement.
P. 46-57

The article provides the research of the legislation and model laws of CIS countries related to the creation of the intellectual property objects by the ordering agreement. It is established that that the copyright objects and topologies may be created under an ordering agreement, unlike inventions, utility models, designs and trademarks. The author finds disputable an issue of creating the plant variety and animal breeds under an ordering agreement.

Wishing to improve the legislation of Ukraine related to the creation of the intellectual property objects under an ordering agreement, in particular, considering that articles 430 and 1112 of the Civil Code of Ukraine are contradictable to each other in matter of defining the owner of the material intellectual property rights, the author suggests the improvements of these provisions of the Civil Code of Ukraine according to the requirements of articles 17 and 107 of the Model Intellectual Property Code for countries-members of the CIS.

Key words: аgreement, agreement on creation by the order and use of an intellectual property object, author ordering agreement, intellectual property object, countries-members of the CIS, the Model Intellectual Property Code for countries-members of the CIS.
Revutskyi S. Development of scientific and technological activities from the perspective of economic globalization in the developed countries of the world at the beginning of the XXI century.
P. 58-63

The author examines the development of scientific and technical activities of the developed countries of the world in the formation of the fifth and sixth technological orders at the beginning of the XXI century. The questions of the need to accelerate the innovation process in a period of economic crisis are studied. The issues of the characteristics of high technology in the XXI century are analysed.
Key words: globalization, scientific technological activity, innovations

Petrenko V., Levitskyi V. Improving of system of intellectual property rights judicial protection.
P. 64-70

The article analyzes common factors of procedural difficulties of judicial protection of intellectual property rights and substantiated procedural advantages judicial and procuratorial way to protect.

Existing gaps in the legislation of Ukraine in the sphere of intellectual property, primarily legislative norm determining the jurisdiction of judicial review and, unfortunately, only one way lawsuit proceedings, indicate the need to harmonize it with legislation of the European Union. It is necessary to improve the regulatory framework of intellectual property and improvements mechanisms rights protection in this area.

The legislative strengthening the responsibility for violations of intellectual property rights, improvement of legal regulation of economic aspects of intellectual property rights, including the system of payment of fees and taxes for actions related to the guard rights of objects intellectual property, improvement of legal regulation of economic mechanisms stimulating creativity and so on, are also necessary.

The authors recommend to attribute the consideration of affairs of settling disputes related with violations rights to the objects industrial property to the jurisdiction of commercial courts considering readiness of judicial corps of such courts in respect of qualified consideration indicated cases subjective composition these disputes, introduced specialization of judges, as well as international experience consideration of the such cases exactly specialized courts.

The article establishes the need of elaboration normative acts with requirements of official documents that must accompany the statements of claim in the courts for the protection of intellectual property rights violations.

Keywords: judicial protection, ways of protection, intellectual property
Olefir A. On the issues of legal protections of biotechologies.
P. 71-83

The article studied the main categories of legal regulation of biotechnology and international specificity of this question. Identified socio-economic and key regulatory shortcomings of the legal protection of biotechnology in Ukraine and the EU, on the basis of which made recommendations to improve national legislation in the context of European integration.
Key words: biotechnology, innovation relations, patent, invention, plant varieties and animal breeds, Directive 1998/44/ EU, Association Agreement between Ukraine and the EU, the Agreement TRIPS

Shabliienko A. Subjects of legal relations in the sphere of e-commerce.
P. 84-90

Active development of e-commerce that is a new field of social relations for domestic law necessitates regulation and establishment of rights, obligations, warranties and liability of the members of this relationship. However, the primary task is to determine the number of participants who are involved in such a relationship.Considered the most important points of procedure of doing e-commerce, the article distinguishes the general and special subjects (institutional).General subjects in the article include any participants of the legal entities and individuals, state Ukraine, Crimea, municipalities, foreign governments and other entities of public law, all those who serve the customers and suppliers of goods and services via the Internet.The special (institutional) subjects in the article include telecommunication (ISPs) operators, operators of payment systems, certification centers (confirmation) of electronic signatures, registrars and administrators assign network IDs and hosting providers. In addition, the article analyzes regulations that provide information about the subjects. Proposed own approach to determining the list of legal entities in the field of e-commerce in Ukraine.
Keywords: Internet, electronic document, electronic document management, digital signature, e-commerce, e-business

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№ 1 (81), 2015
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