Download Journal № 2 (106) 2019

Trotska V. Public interests of society = private interests of authors. Is the possible the balance in the digital age?

P. 5-16

The author in the article investigates the issue of the balance of public and private interests in copyright in the digitalage.

Private interests of subjects of copyright are based on their exclusive property rights. Such rights are considered as monopoly on the results of creative activity.

In conditions of the development of digital technologies, the boundaries of the mo­nopoly are narrowed, because the public interests are taken into account.

Public interests need implementation of the right to freedom of information, free access to cultural property, education and science, etc.

Society is interested in free access to works, especially for the purpose of studying, scientific research, the use of works with information, personal purpose, etc.

Ignoring private interests leads to the limitation of the author’s property rights, ig­noring public interests leads to the limitation of constitutional rights and human lib­erties. If the state does not take into account interests, then it leads to a conflict. The main issue of copyright in the digital era: how to prevent such a conflict?

It is possible to prevent a conflict due to the norms on the free use of works.

In the conditions of the development of the digital environment, the norms on the free use of works are considered to be the most “flexible” in copyright law. Norms are reviewed and adapted to the new conditions for the distribution of works in the digital age. This is a permanent process.

Therefore, the settlement of relations can only be considered as a way to achieve balance.

The author analyzes in the article the problems of applying the norms of legislation concerning the free use of works and the needs of society in expanding such norms.

At the end of the article the author draws conclusions.

Key words: public interests, private interests, balance of interests, social relations, free use of works, limitation of property rights, digital environment

Fedorova N. Proprietary interests of produc­ers of television format

P. 17-23

In the article, the author considers the property interests of manufacturers of television format. Determines who can be a television format manufacturer.

The producer should have exclusive rights only on those objects-elements used in the television format, as well as on objects created by him in person. Object-elements or parts thereof created during the production of a teleformat but for various reasons not included in the television format as a whole should belong exclusively to their au­thors. If the producer wishes to acquire rights also for objects (works) that are not in­cluded in the format, he will need to conclude certain relevant contracts for these works or parts of them. The only exception to this rule may be the case of granting rights to use individual items-elements for television-format advertising.

Since the authors of the teleformat have a director, scriptwriter, and author of a spe­cially created musical composition for a format, the owner of the whole set of property rights to the television format (in accordance with the contract) is its producer, which may be any person, including legal, which took the initiative and responsibility for the production of such a work, but only within the use of a particular teleformat.

It should be borne in mind that television format may include objects that have differ­ent terms of legal protection (for example, copyrights and rights of performers), which are subject to a different calculation procedure and have different legal regimes.

It is expedient to see the television studio and producers see the position that when using a complex object, the person who arranged for its creation has the right to indicate his name, name or pseudonym. Note: this is already widely practiced on television.

It should be emphasized that among persons who are not subjects of copyright to the teleformat, but can dispose of the rights of authors, there are organizations for collective management of intellectual property rights. As stated in the legal litera­ture, the collective management of intellectual property rights is the most effective mechanism of legal regulation of the circulation of various objects of copyright with their large-scale use.

The main disadvantage of collective management of property rights in accordance with the provisions of Articles 47 (Part 3), 48 (Part 2, 3) of the Law of Ukraine «On Copyright and Related Rights» is the existence in the legislation of the simultaneous provision of the exclusive nature of property rights and the model «Advanced Collec­tive Management of Intellectual Property Rights». We believe that the existence in one copyright and legal system of two mutually exclusive legal institutions is a signif­icant obstacle for the normal realization of the subjects of copyright relations of their subjective rights.

Key words: copyright, property interests, teleformat, producer, audiovisual work, author, performer

Hachkevych A., Kazarian T. The identification of trade secret elements: United States v. Chung

P. 24-30

This article examines the legal nature of a trade secret. The term «trade secret» has been being developed by common law and statute law within the legal system of the United States, especially the Uniform Trade Secrets Act of 1979 and the Economic Espionage Act of 1996. The differences between their scopes of appli­cation are considered along with the features of a trade secret being embodied therein. The question of trade secret protection is discussed on the basis of the case «United States v. Chung», which has become the first conviction under EEA. It may be refered to as a vivid example of explaining the circumstances of trade secret infringement. Consid­ering the results of the research one can understand how legal norms related to trade secrets are practically applied and in which way a plaintiff, whose rights were violated, can ground his or her position that the information being the subject of claims contains a trade secret.

Keywords: features of a trade secret, judicial practice, United States v. Chung, Eco­nomic Espionage Act, reasonable measures

Koval I., Tkachuk G. About the essential terms of the license agreement for the use of the trademark

P. 31-38

The article is devoted to the study of the essential terms of the license agreement for the use of the trademark.

Based on the analysis of the scientific literature, legislation, law enforcement prac­tice, the essential terms of the economic license agreement for the use of the trademark are determined: the subject, the amount of fee, the term, and other conditions that the parties consider expedient to include in the agreement. The necessity of changing the li­censee’s obligation to ensure compliance the quality of goods and services produced by him with the quality of the licensor’s goods and services (as a general rule) to control of the quality of these goods and services to the requirements of the licensor is justified.

To characterize the subject of a license agreement for the use of the trademark is proposed to stipulate in Article 16 of the Law of Ukraine «On the Protection of Rights to Trademarks for Goods and Services» that the subject of the contract (the right to use the trademark) is described by the trademark designation, document number certifying the right to a trademark, the list of goods and services for which granted the right to use the trademark, ways to use a trademark.

It is proved that the conditions of the territory to which the rights apply, as well as the type of license, do not relate to the essential terms of the license agreement, since the legislation provides for dispositive rules to be applied in the event of noncompli­ance of these terms by the parties to the contract.

It is argued that the improvement of the legislative provisions regarding stipulate of essential terms of a license agreement for the use of the trademark will provide cer­tainty to the parties when concluding such agreements, will promote the protection of the rights and interests of the parties of the agreement, the development of stable contractual relationships in this sphere.

Keywords: trademark, license agreement, essential terms, subject of the agree­ment, conclusion of an agreement, term of an agreement, agreement fee

Nedohibchenko E. Franchising: foreign experience

P. 39-45

The article investigates the concept of franchising and its elements according to the national legislation of Great Britain, the USA and France as example. Determines the structure of the fran­chising agreement and its place among other similar agreements. Investigates the specific features of its protection and protection of intellectual property objects rights, as a component of a franchise contract.

The author gives impressive statistical data indicating the effective work of fran­chisors and their positive impact on the economy of the states.

The article proves the need to protect intellectual property rights: trade mark, know-how, trade secrets, which take place in a franchise contract.

In the conclusions, the author notes that the franchising agreement consists of a package of contracts: a preliminary agreement on disclosure of information and a franchise agreement, which significantly distinguishes it from the contract of com­mercial concession, which exists in the legislation of Ukraine, know-how, trade se­crets, which take place in a franchise contract.

In the conclusions, the author notes that the franchising agreement consists of a package of contracts: a preliminary agreement on disclosure of information and a franchise agreement, which significantly distinguishes it from the contract of com­mercial concession, which exists in the legislation of Ukraine.

Keywords: franchising, small business, franchising agreement

Zaikivskyi O., Onistrat O. Objects of the intellectual property rights, which can go to the sphere of national security & defense

P. 46-58

The objects of intel­lectual property rights that may belong to the national security sphere are consid­ered, and a preliminary quantitative analysis has been carried out to determine the number of patents that could potentially be related to the sphere of national security and defense in the development of weapons and military equipment. For the analysis of patents for inventions and useful models, a specialized database of Ukrpatent «Inventions (useful models) in Ukraine» was used.

A preliminary quantitative analysis was carried out to determine the number of patents that could potentially be considered for referring to the sphere of national secu­rity and defense, which determined that such objects could be no more than a thousand.

The necessity of identifying patents that can be classified as national security and defense is indicated and to ensure proper control by the state for their use in order to prevent the transfer for next to nothing that could threaten national security.

Key words: intellectual property, sphere of national security and defense, objects of intellectual property rights, armament and military equipment, international patent classification

Maidanyk L. Virtual object as challenge for established approaches of property law

P. 59-64

This article is devoted to the study of the concept of a virtual object from the private-law point of view, taking into account the practice of foreign coun­tries: court decisions of Supreme Court of Netherlands and practice of the Euro­pean Court of Justice. Approach of considering a virtual object as inalienable thing is discussed. On the basis of the analysis of individual court decisions, the question is raised about the possibility of extending the regime of property rights to a virtu­al object under the conditions of private law of Ukraine. The main aspects that re­strict domination of a user or owner over a virtual object, regardless of the will of other persons are highlightened through «digital force» of online platforms owners and game developers.

Key words: virtual object, virtual property, property law, inalienable thing

Muzyka-Stefanchuk O. Digital economy and new financial technologies

P. 65-70

The article deals with the issues of new financial technologies in the context of the digital economy. The Conception of the Development of the Digital Economy and Society of Ukraine for 2018-2020 is analyzed. The foreign experience of the formation and develop­ment of the digital economy is researched. Areas for harmonization with digital initia­tives, the Digital Agenda for Europe and the Digital Single Market are considered.

The future of Ukraine and the world for digital technologies, the impetus of which is given by the modern digital economy. It is determined that the purpose of the digital economy is to create new and expand existing opportunities for individuals to access their own name or on behalf of others, on behalf of the entity, access to information, fi­nance, etc., regardless of their location. The first thing that matters here is efficiency.

It is emphasized that banks should cooperate closely with start-ups related to FinTech. Banks shold be interested in introducing new financial products into banking activities so that they are not excluded from the banking business. The main thing to keep in mind is that consumers of financial services are interested in facilitating of such services.

It is concluded that Ukraine is trying in every way to join to the global digital econo­my. More precisely, our country is already in this world, in the future — the question of time and quality of introduction of innovations, new financial and other technologies.

Key words: digital economy, innovations, financial technologies, Internet, artificial intellect

Drobyazko V. Repressive persecution of Ukrainian culturein Tsarist Russia

P. 71-75

The article is dedicated to the consideration of repressive persecution of Ukrain­ian culturein Tsarist Russia.The provisions of «Article17» of the Berne Conventionon the «possibility of controlling the investigation» are being investigated. Also about «the performance and display of works». The questions of the final destruction of Ukrainian culture by tsarism. The analysis of Valuev Circular of 1863 y. was carried out. It was secret document of Russian government about ban on reading in Ukrain­ian language. Also Ems act of 1876 — secret document, which was used by Aleksandr II, about ban of Ukrainian language. Also Emsactat 1876 talked about negative influ­ence of the authorities on the formation and development of copyright in Ukraine.

Keywords: copyright, Berne Convention, Valuev Circular, Ems act

Opanasenko A. The legal status of native peoples in Ukraine: challenges and prospects

P. 76-89

In this paper author comprehensively researched the peculiarities and specificities of the legal status of indigenous peoples and their right to self-deter­mination and representation. The current situation of indigenous self-determination and representation was described. The present state of legislative consolidation of the legal status and right to self-determination and representation of indigenous peoples of Ukraine, Crimean Tatars in particular, was determined. The main bills, which pro­pose the legal regulation of indigenous peoples’ issues in Ukraine, were analyzed and the role of foreign, in particular Scandinavian and New Zealandic, experience was an­alyzed. Further prospects of legislative consolidation of the legal status and the right to self-determination and representation of indigenous peoples of Ukraine, particular­ly, considering the forthcoming amendments to Section X of the Constitution of Ukraine, were determined.

Key words: People, native people, minority, self-determination, representation, legal status, constitutional legal status, Crimean Tatar people, Karaite people, Krymchak people

№ 2 (106) 2019