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Defence 

Shtefan O. Explanations of parties and third persons in cases arising from disputed copyright relations

P. 5–15

The scientific article is devoted to disclosing the specifics of such kind of evidence as explanations of the parties and third persons involved in cases arising from the disputed copyright relations. In the scientific article it had received      further development the doctrinal position that among the explanations of the parties and third persons to the means of proof should refer only to those in which the parties or third parties report the facts of legal or evidential value. This doctrinal position is fully consistent with the provisions of Art. 57 CPC of Ukraine, as it is the fact that the parties and third persons and their representatives should give an explanation, the contents of which must be notified of any actual data on the basis of which the court determines the presence or absence of circumstances that substantiate the claims and defenses of the parties and other circumstances relevant to the case.

In order to identify characteristic features of the explanations of the parties and third persons, as a means of proof, within this article it is examined the existing civil procedural doctrine classification: by the method of bringing to the court the information about facts – the written and oral; by nature (by the attribute of a legal interest) – for statement and recognition.

Through the prism of doctrinal civil procedural approaches to civil procedural experience of foreign countries the analysis of the implementation of the provisions Civil Procedural Code of Ukraine concerning procedural forms of giving by parties, third persons and their representatives the information about any of the evidence on which the court determines the presence or absence of circumstances justifying the claim claims and objections: explanations (part 2, Art. 57 CPC of Ukraine) and questioning them as witnesses (Art. 62 CPC of Ukraine).

The analysis revealed the shortcomings of the provisions of the Civil Procedural Code of Ukraine. The first thing that attracts attention is a contradiction between the title of this article, which deals with the «explanations of the parties, third persons and their representatives», and the text of the rules of these are already questioning these people as witnesses. Such inconsistency can be seen in part 2 Art. 57 CPC of Ukraine, in which legislator equates «testimony» of parties, third parties and their representatives with their «interrogation».

The next observation logically following from the text of mentioned norm is a contradiction between the meaning of Art. 62, 57 CPC of Ukraine and the principle of inadmissibility of procedural combination. According to this principle a subject of civil legal procedure relations can not within the same case be more than one procedural state (the plaintiff can not in this case be the same third party defendant to be a witness etc.).

The principle of the inadmissibility of procedural combination has its statutory consolidation, directly in part 1 Art. 41 CPC of Ukraine, according to which people may not represent in court if they are in this process as Secretary of the court session, translator, expert, specialist, witness. Thus, representatives of the parties and third persons can not be questioned as a witness. In addition, such a procedural action as questioning of the parties, third persons and their representatives as witnesses made in the trial on the merits. Wherefore art. 184 CPC of Ukraine stipulates that parties, third persons and their representatives questioned as witnesses in accordance with Articles 180-182 CPC of Ukraine. I.e., in accordance with the procedure of questioning witnesses. However, all civil procedural requirements, which follows the court when questioning witnesses regarding parties, third persons and their representatives perform objectively impossible. For example, witnesses who have not yet given testimony may not be present in the courtroom during the proceedings (part 2 Art. 180 CPC of Ukraine); to examine witnesses presiding establishes his relationship with the parties and other persons involved in the case (part 3, Art. 180 CPC of Ukraine) and others.

Parties are materially and procedurally interested persons in the case, respectively, they are not to incriminate himself. Representative in the case is procedurally concerned the person, which in the court acts for the party he/she represents, respectively, he/she also can not testify against the party she/he represents.

However, one can assume that the norm was set with the aim to expand the means of proving for the formation of evidence base, and aimed at obtaining information, which may be silent side, but they have sworn it open. At the same time interrogation of such persons should be only with their consent, the person some questions may answer that they do not remember, and the question posed in a form that should be answered in affirmative or denying, all may refuse to answer.

Considering the above-mentioned, to eliminate contradictions between Ukraine and norms of the CPC of Ukraine to prevent procedural combining it is advisable to exclude Ukraine from the CPC of Ukraine Articles 62, 184 CPC of Ukraine.

Keywords: civil litigation, evidence, means of proof, explanations of the parties, the explanation of third parties, copyright protection

 

Kovalenko T. Mediation: a procedure for dispute settlement by mutual consent of the parties

P. 16–23

Commercial world in recent years is showing serious interest in mediation. This interest is partly dictated by dissatisfaction parties cost and duration of certain litigation and dispute resolution results in the hearings. Experience shows that mediation often leads to a result acceptable to both parties to the dispute.

This paper intends to find out the benefits of the mediation process, explain simple key features and benefits of mediation as it is in the context of the Rules Mediation Center of the World Intellectual Property Organization (WIPO).

Key words: WIPO, mediation, Centre of WIPO, settlement of disputes

 

Copyright 

Trotska V. Prevention and detection of plagiarism in higher education (according to research materials in the EU and Ukraine)

P. 24–36

The article contemplates the questions of the national law, foreign legal practice and legal doctrine of free use of works for creating of parodies.

The author focuses special attention on the relevance of these questions in the world and Ukraine.

Рarodies is a kind of free expression of opinions in society. Parodies are often created not only for entertainment. Рarodies reveal imperfectiones of the person and society expressed in works, through representation in the comic, satirical form.

The authors do not always agree on the transformation of their works. Legal protection in form of an exclusive right is granted to the creator to control the use of the work by others. However, when creating parodies the author’s control is not appropriate. The compromise between public and private interests found in the legislation of many countries. This is copyright limitation and exceptions, or in other words – free use of works.

In particular, the norms about the free use of works for creating of parodies provided in Art. 5 of the Directive № 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society.

These norms introduced by the Law “On Copyright and Related Rights” in October 2016 in Ukraine. The Law provided the allowance of free use of literary, artistic, musical and other works for the creation of other works in the parody genre on its basis.

The article devoted to the analysis of the questions of the enforcement of these norms in practice. In this regard, the author explores the terms of “parody” and gives the main features of parodies.

The main feature is that parodies are the works that is the result of creative activity of the author (parodist).

In the opinion of the author, the first specific feature of the parody is that it can not exist without an original work, which is the basic for ridicule.

The second specific feature of the parody is that the parody has comical, satirical character.

Іn addition, this article contemplates other features of the parody. In particular, the «recognition» of the original work in the parody.

The author concludes that the popular work is often the main material for creating of parodies. In the doctrine of copyright, there are proposals on the distribution of remuneration for any use of the parody between the author and the parodist. In this regard, the article contemplates the problems of payment of such remuneration.

In addition, the author focuses special attention on the analyzes of the conditions of free use of the original work for creating of parodies.

At the end of the article the author draws conclusions аbout the main features of parodies, and the conditions of free use of works for creating of parodies.

Keywords: parody, copyright, work, limitations and exceptions, free use of works

 

Law and innovation 

Koval I. Legal characteristics of ecological business objects: the theoretical foundations and legislative consolidation

P. 37–46

The article is devoted to research of the legal characteristics of ecological business objects. The concept, types, peculiarities of the legal regime of ecological products are determined. Signs of ecological innovation are defined. The concept of intellectual property and technology for ecological purposes is proposed. Proposals for legislative consolidation of the legal regime of ecological products are formulated.

Ecological innovations – new or improved products, works and services, as well as organizational and technical solutions of industrial, administrative, commercial or other nature, that: are the realization (implementation) of an object of intellectual property that is decisive for this innovation; are competitive; have the function of environmental protection and ecological usefulness.

It was found that the characteristics of the concepts of «ecological goods», «ecological innovation» is crucial to determine the reasons and conditions for granting state support to business entities that carry out ecological business.

It is proposed to introduce the approach that the state support provided to subjects of ecological business in condition of ecological product conformity. Conformity assessment shall be carried out by conformity assessment body under the rules of conformation of compliance procedures that are determined by the central body of executive power, ensuring the formation of the state policy in the field of conformity assessment and under the detailed rules of production and turnover of relevant ecological products.

It is proposed to introduce a system of measures aimed to stimulate and speed up patenting and using of results of intellectual activity for ecological purposes: a primary consideration of applications for patents for inventions, utility models, industrial designs for ecological purposes; reducing the size of annual fees for maintaining patents on objects for ecological purposes; placement on the priority basis of state order for research, aimed to create ecological technologies, or the state order for the purchase of ecological innovation products; consolidation in the tax legislation of preferences for business entities that enter into an agreement aimed on the disposal of intellectual property rights on objects of intellectual property, transfer technology with ecological purpose; consolidation in the tax legislation the possibility of deposition a right on intellectual property object with ecological purpose in the charter capital of business entities without payment of value added tax.

Keywords: ecological business, ecological products, ecological innovation, ecological usefulness, intellectual property

 

Patent law

Ivashchenko V. Legal protection of inventions and technical improvements during intensive industrialization in the USSR (1930–1940’s.)

P. 46–55

The article analyzes the legal regulation of protection of inventions and technical improvements during intensive industrialization (1930–1940’s. XX century.). Based on sources and some theoretical developments, shows a number of legislative steps Soviet power in shaping its own model of protection of inventions and technical improvements. The author characterized by hanges in the legislation of the USSR and the USSR in connection with the adoption of the «Regulation on inventions and technical improvements in 1931» and a number of subordinate regulatory acts. The study examines the positive and negative aspects of Soviet legislation in the field of invention and rationalization. Also emphasizes the dominance in Soviet legislation the principles of public ownership of inventions and improvements that have been implemented in the restoration of the system of granting patents for inventions that existed until 1991 However, the author emphasizes the positives compulsory introduction of inventions into production. The author analyzes the system of payment of royalties for inventions and improvements, as well as other social guarantees enshrined in legislation.

Key words: the Soviet leadership, the USSR, the Regulation on inventions and technical improvements, inventions, inventors’ certificates of patent royalties

 

Scientist’s view 

Iliushchenkova К. The evolution of the legal regulation of organs and other anatomic human materials donation

P. 56–64

In the article the statutory instruments that have regulated the donation of organs and other anatomic parts of the human, which are now void, and which exist today have been investigated. On the basis of the analysis the chronological development of donation and evolution of legal regulation have been made. The main stages of the legal regulation of organs and other anatomic parts of the human donation have been defined and further ways of reforms have been identified.

Key words: donation, transplantation, donation of organs, donation of anatomic parts of the human

 

IP education 

Ramalho A. An IP education fit for purpose: what should an IP master look like?

P. 65–66

Intellectual property’s increasing relevance, both in legal studies and society, obliges us to rethink IP education, and how we can design efficient master programmes that will educate future generations of IP professionals to meet market demands. This article considers a possible solution in the form of discussion of the master in intellectual property and knowledge management provided by Maastricht University.

Key words: intellectual property, master program, education

 

Reviews

The review of the monograph of R. Kotsuba «Constitutional legal regulation of nuclear security policy of Ukraine»

Р.  67–68

The review of the monograph of O. Shtefan «Civil-procedural defence of subjective copyright: theory, legislation, court practice»

P. 69–70

 

 

 

№ 1 (93) 2017