№ 1 (87), 2016
Nowadays the question of modernization of existing and the development and implementation of modern weapons and military equipment based on the latest scientific and technological achievements; ensuring the protection of intellectual property created by the state budget, implementation of promising scientific developments into production; technology transfer; encouraging further development of scientific potential is urgent for Ukraine’s defence capability. Therefore one of important issues that requires constant attention and support from the state, is the further deve-lopment of intellectual property protection in military and technical sphere.
Every newest development by definition includes intellectual property rights based on which these developments are created. Therefore, if the state develops arms and military equipment, it must ensure and protect its rights on the objects of intellectual property created while developing new designs of weapons and military equipment. It is the military and technical sphere where the objects of intellectual property are created; they belong to the sphere of national security and defence, and the state is obliged to ensure their protection and ownership of these objects. This will allow increasing the competitiveness of the domestic defence industry and will make impossible any claim under the mass production of weapons and equipment for their own needs and for export.
Despite the visible progress made in recent years to ensure the legislative protection of intellectual property, its imperfection is still one of the factors that hinder the creation of an effective system of intellectual property in Ukraine, especially in the military and technical sphere.
The problems of intellectual property protection are systematic and they are in several interconnected areas: political, legal (legislative), economic and administrative.
Practice in application of law has identified a number of issues related to ensuring effective protection of rights for objects of intellectual property both generally in the country, and especially in the military and technical sphere.
The increasing role of patent and legal protection of new technologies and technical solutions causes the need to improve the system of legal protection of intellectual activity results, especially those related to national security and defence.
Legal protection creates a basis for protecting the interests of authors, customers and manufacturers of armament and military equipment for the results of intellectual activity in the process of their treatment, which is governed by civil law.
One of the most important is the question related to the distribution, acquisition and implementation of rights for objects of intellectual property that are created by the state budget, and their entry into economic circulation.
The existing legislation of Ukraine on Intellectual Property provides that the conditions of the distribution of rights for intellectual property should be set out in the agreement (contract) for performance of works.
However, the particular owner of the rights for objects of intellectual property is not clearly defined.
According to the legislation obtained scientific-technical products can be transmitted to economic entities (users of the product) for practical application in compliance with the rights and economic interests of the state, order performers and owners of property and moral rights for the objects of technology and intellectual property objects created in the course of order. Procedure and conditions of the transfer and use of rights to scientific and technical products are determined by agreements between the customer, the performer and user of this product.
Intellectual property protection in military and technical area is performed generally as in the state as a whole, according to the same laws and the same procedure, but has its own peculiarities.
One of the main reasons for the lack of efficiency of state influence on the scope of intellectual property is the absence of a clear interaction between state authorities at all stages of development and implementation of state policy in the field of intellectual property.
Especially significant influence thus have government customers for weapons and military equipment.
The Ministry of Defence of Ukraine is one of the largest scientific-technical customer of military, dual-purpose and special production in Ukraine in the process of development of which the objects of intellectual property are created. Ensuring legal protection and effective use of such objects is an essential element at all life cycle stages of objects of intellectual property rights in the Ministry of Defence of Ukraine.
Key words: military techincal sphere, intellectual property
But there are many problems connected with the partial transfer of these rights. The following scientists studied the specified topic: A. Amalgendy, V. Dmitryshyn, E. Gavrilov, O. Gorodov, V. Kryzhna, O. Zhylinkova and others.
In accordance with the Civil Code of Ukraine (articles 427, 1113) the intellectual property rights could be transferred in accordance with the law completely or partially to another person. Also the Law of Ukraine on Copyright and Related Rights contains some rules which provided partial disposition of property copyrights (article 31) and related rights (article 39–41). In accordance with these prescriptions the contracts for transfer specified rights have to provide the terms about modes of object using. The legislation about industrial property has a different regulation. In general by «a contract for transfer of property right» specified rights transferred to the purchaser in full value. There is one exception in legislation about trademarks. The contract can provide partial transfer of trademark rights in part of goods and (or) services.
We consider that intellectual property rights cannot be transferred separately. Although, Ukrainian Civil legislation provides the possibility of transferring property copyrights and related rights concerning to some modes of object using, we think that construction of license contract corresponds to this situation.
Thus the question about divisibility of the intellectual rights objects is quite interesting. Some of these objects are divisible and it makes a possibility of the partial transfer of the intellectual property rights.
First of all it concerning to the copyright and related rights. Copyright legislation uses the term «part of work» (article 436 of the Civil Code of Ukraine, articles 9, 13 of the Law «On Copyright and Related Rights»). And it must be underlined that the part of work, which has independent significance, is as copyright object, as the work itself. So author can transfer to another person property copyrights to such part of work. For example, the author of song can dispose of his property rights to lyrics, but leaves to himself the property rights to music.
The partial transfer of intellectual property rights is present, when the right-holder transfers his trademark rights concerning to the part of goods and (or) services. In this event State Intellectual Property Service of Ukraine provides separate registration of trademark concerning to those goods and (or) services for which there was a transfer and issues a new certificate. Although, as a specified sign trademark still be the same, as an object of protection trademark is divided into two ones, which have their own values of legal protection.
In patent law sphere such partial transfer of the intellectual property rights is impossible, in general. Some scientists express an opinion, that the intellectual property rights to the inventions, utility models and industrial designs can be transferred in part of their features. But this view is quite debatable because the value of legal protection is defined by essential features, which are fixed in independent claims (for the inventions and utility models) or in set of images of the product (for the industrial designs). So right-holder cannot to dispose his property rights concerning to the part of essential features because otherwise the essence of object will be lost. Also he cannot transfer his rights with regard to the features, which are provided in the dependent claims, because these claims don’t contain the essence of object themselves.
Keywords: intellectual property rights, contract for transfer of the intellectual property rights, modes of intellectual property object using
The paper examines the impact of 3D technology on the reform of intellectual property rights legislation. The essence of 3D printing and the opportunities that a person gets from reproduction of any thing in any from in any material is covered directly. The author analyses the current legislation in the sphere of intellectual property rights on the possibility of «free reproduction» of objects via 3D printing. The study leads to the conclusion that in this context the law does not meet the current level of equipment and technology and is helpless in carrying out the functions of protection and defence of intellectual property. Based on the analysis of 3D printing capabilities and its areas of application the article describes ways to improve current legislation on intellectual property rights.
Keywords: 3D model, 3D printer, 3D technology, intellectual property, intellectual property rights, objects of copyright, industrial property, free play of intellectual property, intellectual property infringement
The article contemplates the questions of free use of works for the purpose of ensuring public security, administrative, parliamentary or judicial proceedings.
The author analyses the compliance of the norms of national legislation to the norms of European legislation, in particular, art. 5 (3) of Directive 2001/29/EC of the European Parliament and of the Council on the harmonization of certain aspects of copyright and related rights in the information society. According to this article, Directive defined limitations and exceptions to copyrights when permitted free use of works for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings.
In accordance with the legislation of Ukraine in the field of copyright and related rights there are only free reproductions of works defined in judicial and administrative proceedings. At the same time, there are no norms on the possibility of free use of works for the purpose of ensuring:
In this regard, the article details considered these cases. The author explores the terms of «parliamentary procedure» and «parliamentary proceedings», defines their relationship, and provides suggestions for applying these concepts in the legislation. However, the author explores terms of «public security», «national security», examines the definition provided in the legislation of Ukraine, considers their signs and provides suggestions for the prediction of the term of «public security» in the legislation in the field of copyright and related rights.
Author focuses special attention on the litigation dispute relating to the use of works in order to ensure the functioning of the state mechanism. The author gives the examples of disputes considered in Austria, the United States and Ukraine. These cases related to the free use of works for the purpose of ensuring public security and judicial proceedings.
At the end of the article the author draws some conclusions.
The legislation of Ukraine should be brought into correspondence to the legislation of European Union, including a Directive 2001/29/EC of the European Parliament and of the Council on the harmonization of certain aspects of copyright and related rights in the information society. The author provides specific proposals to amend the legislation.
Keywords: author, free use of works, public security, parliamentary procedure, administrative and judicial proceedings
The author examines the legal definition of theatrical productions as an object of intellectual property rights in the article. The author establishes that the legal concept consists of four main elements: a reference to the works of theatrical art formation based on another work — dramatic, musical or dramatic literature, the presence of a single plan and a specific name. The article analyzes details each element and based on that outline ways to further improve the legal definitions of theater productions as an object of intellectual property rights.
Key words: theatrical performance, object of intellectual property rights, theater, drama, performance
In 1970 the American researcher Robin Meadow drew attention to the fact, whether a fair and workable method exists which will allow format protection and at the same time preserve the free use of «mere» ideas. To find the legal guidance for the protection of TV formats, we must determine what TV format is, how it differs from other TV programs and which components of TV format are protected by law.
In scientific studies it is often indicate that a television format is that set of invariable elements in a program out of which the variable elements of an individual episode are produced. But any cyclic program has invariable elements (its own title and studio, sound and graphics, an identical plan of its creation) while in some issues producers may appear new different components. In my opinion, TV format easily stands out among all other existing objects. This identification is achieved by the fact that all components of the format form a solution, a combination that is not appropriate for any other program. It should be at least one episode or plot move which, in the connection other elements, creates a new result, different from the known.
Also, as mentioned in studies, content that is strongly embedded in local and national cultures has a better chance to be successful domestically, but it is less likely to find interested buyers and enthusiastic audiences abroad. Therefore TV format is a program which has the ability to be adapted, localized for different audience than the audience of the country where format was created. Localization represents the erasure of foreign, abstract components and their replacement with specific markers of national belonging.
Television format may contain objects of copyright (script, director’s staging, operator’s staging, choreographic works, etc.) and related rights (phonograms), trademarks, patents objects (industrial design) and financial information, industrial, institutional and otherwise, which is a trade secret. All those objects are protected by law. But the idea or concept taken as format’s basis may not be limited to use by others.
It is well known that copyright formed as a legal mechanism to ensure a balance of interests between authors and society and one of the factors of this mechanism is no monopoly on the idea. The development of scientific, artistic, technical creativity is precisely because the idea, separate from the works in which it has implemented, can be freely used by any persons in any country of the world. The idea is always abstract; it expresses the basic nature of the work. The full contents of a literary or audiovisual work, its episodes, characteristics of the characters, plot moves are not contained in ideas; idea summarized the plot of the work. Hundreds of objects can be created on the basis of the same idea but they all will be different, not identical. Copyright rightly does not apply on and theories, principles, concepts, methods, techniques, procedures, and other similar events, but protects the form of expression of the work. The idea, therefore, answers the question «what is this work about», while as a form of expression of work — «how the idea embodied in the work».
The ability to protect ideas widely discussed for many years. We can often find advices on making a confidentiality agreement with the potential buyer. The International Association for the recognition and protection of formats (FRAPA) notes that the most effective way of protecting format is to document and record every step of its development. The industry has developed mechanisms outside the legal system to cope with TV format imitation. It includes first-mover advantages, social norms and gentlemen’s agreements, active brand management, merchandising, dispute resolution systems, vertical integration, format portfolio building, tacit knowledge, and risk management, as well as changes in format types, elements, and production.
However, as noted by both Ukrainian and foreign experts, the best protection of TV formats is the understanding by television companies that TV format imitation badly affects on their reputation which has a direct impact on their position at the global media market.
Key-words: format of television programme, television format, legal protection of television format
In the article were investigated problems and particular ways of restoring the competitiveness of the Ukrainian pharmaceutical industry. Also were made several propositions of state regulation of economic relations that involve changing the legal regime providing patent protection with the peculiarities of the pharmaceutical sphere.
Key words: intellectual property, innovation, patent, invention, utility model, industrial design, competitiveness, pharmaceutical industry
The article analyzes the situation and problems of science parks in Ukraine as part of the national innovation system. The legal basis of organization and operation of science parks is defined, the provisions of the current legislation that promote the development of their activities as a structural element of the innovative economy are considered. Implementation issues such as innovation in Ukraine and the problems it is characteristic of science parks are identified, and some solutions are offered.
One of the main problems is the decline in funding for scientific research and experimental development (R&D), which led to outflow of qualified scientific and technical staff from Ukraine, the decline of many scientific schools, the rapid degradation of the material and technical base of scientific and technological research, preferred implementation in Ukraine borrowed technology is not of the highest quality and so on.
There are also problems arising in the activities of science parks, which can be divided into two groups: obstacles in doing innovation as such in Ukraine and the problems it is characteristic of science parks.
The first group include:
- the absence of a clear policy on the integration of science and business, which is embodied both in the constant change and duplication of functions of central executive authorities that deal with policy formulation and implementation in sphere of innovation activity and duplicating or performance measures of regulations and dispersion of resources the large number of small events;
- Ukrainian dominance in low-tech sectors of industry, characterized by stability in production and sustainability in technology that causes lack of interest of companies in these sectors in those newly technological solutions;
- underdevelopment as a direct (financing, co-financing of new businesses, grants, subsidies, etc.), indirect state support (tax relief, «vacation», etc.) innovation activity;
- the absence of funds in research institutions and higher education institutions on innovative infrastructure maintenance;
- the absence of encouragement of business entities to invest in applied research and development, as well as to modernization and technological renovation of enterprises.
The solution of these problems will benefit the development of science parks in Ukraine and their compliance of the international approaches adopted in sphere of innovation activity, in favor of integration of science and business.
Keywords: science parks, innovations
For examples of cases of misappropriation of trade secrets in various courts analyzed the practice of protection of trade secrets in the United States, its economic impact on international trade, economics, companies and countries. To improve the efficiency of intellectual property protection is a diagram of operations for companies, designed for the protection of trade secrets and reducing the potential threat of theft.
Keywords: security, intellectual property, trade secrets, unfair competition, da-mages, economic espionage
The article examines the problems in the civil jurisdiction of a court in cases arising from the infringement of intellectual property rights. As far as exactly about these various disputes of jurisdiction applied in Ukraine, which creates numerous problems in practice. The article examines issues of determining the jurisdiction of the courts as a whole, taking into account the holding of judicial reform, approaches to the theory of law the concept of jurisdiction of the court. The provisions of civil substantive and procedural law on the protection of civil rights and freedoms are disclosed. The rules of the special legislation in the field of intellectual property are studied. Patent law, law on means of individualization and copyright are analyzed from the standpoint of securing in them of the rules of the violation of the rights and remedies, including – determination of jurisdiction of the courts. It is stated that the relevant legislation should be improved. At the same time, copyright law in general demonstrates a successful approach to the formation of the basic provisions for the protection of intellectual property rights. This approach denies the statement of representatives of civil law science of imperfection, not systemic, chaotic norms of special laws regarding the protection of intellectual property rights as compared to the provisions of the Civil Code of Ukraine. As far as the provisions set out by the Law of Ukraine “On copyright and related rights” allow the parties of the litigation clearly navigate the contents of the rights and obligations arising from the dispute over the infringement of intellectual property rights. It is proved that the civil jurisdiction provides the best opportunity for the protection of intellectual property rights. This follows from the universal nature of the civil jurisdiction and from the properties of disputes on violation of intellectual property rights arising from civil legal nature of moral and intellectual property rights.
Key words: constitutional process, European integration, European legal standards, European legal values, democracy, rule of law, constitutionalism.
The article investigates the specifics of the constitutional process in modern Ukraine in the context of its European integration. The author substantiates the role of the European legal values and legal standards in the process of modernization of the Ukrainian Constitution, improving the principles of constitutionalism. Particular attention is paid to issues of constitutional ensuring of sustainable democratic development of Ukraine, the creation of reliable and efficient mechanisms for ensuring the constitutional principle of the rule of law. The position and prospects of development of Ukrainian constitutional law in the light of the EU recommendations implementation are analyzed.
Key words: constitutional process, European integration, European legal standards, European legal values, democracy, rule of law, constitutionalism.
The subject of my research is the history of the term «placebo» (which dates back to the XII century). Pharmaceutical Encyclopedia of Ukraine states — placebo is a component of any treatment that is used specifically because of its nonspecific, psychological or psychophysiological effect or which is used because of its alleged aimed nonspecific effects on the patient, symptom or disease.
There are positive and negative effects of the placebo effect. The positive placebo effect is the improvement of health aspects after use of placebo, such as well-being or quality of sleep, indicators of cardiovascular or respiratory systems, feeling of joy, optimism, etc., And the negative placebo effect (nocebo) provides exactly the opposite changes: deterioration of health or disease, unwanted painful symptoms and so on.
Within my research I analyzed the norms of national and international laws that govern the ethical and legal aspects of the use of placebo in clinical trials. In particular, the Law of Ukraine «On Basis of Legislation of Ukraine on Health Care», Law of Ukraine «On Medicines», Good Clinical Practice — GCP, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects, etc. The main rule regulations, both national and international, consider the use of placebos is the inviolability of the human body, the securing of medical tests, without compromising health.
However, in clinical trials (according to GCP standards) the main focus for analysis is using placebo by so-called “blind” methods. Through Blinding / masking method one or more clinical trial participants did not know which of the assigned study drug they had been taking. Double blind method based on the fact that neither the doctor nor the patient knows which drug is applied. Triple-blind method is the case when the patient, the doctor and another doctor (the different person), who evaluate and summarize the results do not have information regarding the treatment, which the patient has undergone. Overall, the use of «blind» method minimizes the impact of observers (doctors or experts) as subjective factors on the reliability of the results of clinical trials, in order to avoid the belief that one method is better than the other one.
Examples of instructions for medical use of the drug in which the placebo effect is one of the ancillary effects of the drug.
Taking into account the abovementioned facts we can conclude that the placebo provides an opportunity to check how people overcome diseases with the help of their body mechanisms. If placebo is used only to help the patient, it can be considered ethical.
Key words: placebo, placebo effect, blinding method, clinical trial