2 (118) 2021

Download Journal № 2 (118) 2021

Trotska V. Legal aspects of usage out-of-commerce works by libraries and other institutions. The article is devoted to the study of the norms of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, such as provisions on the permitted use of works out-of-commercial circulation, that are permanently in the collections of libraries and others cultural heritage institutions. The norms of this EU Directive, as well as the provisions defined in the laws of some European countries, are analyzed in detail.

The main provisions of the EU Directive are considered, which provide for a double mechanism of permitted use of works of cultural heritage institutions: main and reserve. The essence of each mechanism is considered in detail.

The article also considers the question of when the rights holders have the right to refuse, meaning not to allow cultural heritage institutions to use out-of-commerce works.

A comparison is made between the norms of the legislation of Ukraine on copyright and related rights concerning the free use of works by libraries and other cultural heritage institutions and the relevant norms of European legislation. It is established that in the legislation of Ukraine the list of institutions that have the right to freely reproduce works is limited only to libraries and archives. Unlike the provisions of the EU Directive, norms of national legislation do not apply to museums, film and audio funds. However, free reproduction is allowed only by reprographic method (photocopying) of copies, which restrains the possibility of freeing reproduction (digitization) of works using modern digital technologies.

It is concluded that classical norms of the legislation on copyright and related rights with the development of relations in the digital environment are changing. Legislators are constantly searching for optimal ways to balance public and private interests. Whether the new rules will be successful depends on how states implement the rules of the EU Directive in state law and how they will be applied in practice.

Keywords: copyright; out-of-commerce works; cultural heritage institutions; exceptions and limitation; representative organizations of collective management

Prilipko D. Artificial intelligence and copyright. In the article, the problems of legislation of Ukraine regarding the issues of copyright on works created due to artificial intelligence were analyzed. Particularly, who is the owner of copyright of works created due to artificial intelligence. On the one hand, it could be a developer of a computer program, from the other hand, it could be a client or an employer. Because, it could happen that there is a situation when robots created something new and original, e.g., how it happened with the project “New Rembrandt”. In this case, computers created a unique portrait of Rembrandt. And here is a question, where is in this portrait original and intellectual works of developers of these computers and programs. In the contrast, this portrait could be created without people who developed special machines, programs, and computers. The article’s author proposes to add into Ukrainian legislation with following norm: the owner of the copyright created due to artificial intelligence should be a natural person who uses artificial intelligence for these purposes within the official relationship or on the basis of a contract. In case of automatic generation of such work by artificial intelligence, the owner of copyright should be the developer.

Also, another question arises, particularly, who will be responsible for the damage caused by the artificial intelligence. As an example, of the solution for this issue Resolution 2015/2103 (INL) was given, where is mentioned that human agent could be responsible for the caused damage. Because, it is not always a developer is responsible for the damage.

Also, the legislation and justice practice of foreign countries was explored. The ways of overcoming mentioned problems in legislation of Ukraine were proposed. Such as changing our legislation and giving the exact explanation in who is the owner of copyright on works created due to artificial intelligence and in which cases this person could become an owner of the copyright. However, probably, these issues should be resolved at international level regarding globalization.

Keywords: copyright, work, artificial intelligence, computer program


Ponomarova O. Experience of EU countries on ethical aspects of patenting biotechnologies in the field of medicine and pharmacy. The progress of modern biotechnological achievements poses new ethical and social challenges to society. Research using biotechnology in medicine and pharmacy leads to more in-depth knowledge of diseases. With the help of biotechnology, it becomes possible to treat previously incurable diseases. It is worth noting that today with the possibility of using biotechnological developments, the scientific community in a very short time was able to successfully invent vaccines against COVID-19.

During clinical trials, the safety of study subjects should be unneglected for the rapid introduction of the product to the market. Ethics and innovation in modern society always go hand in hand, especially in the field of health care. The worldwide spread of COVID-19 underscores the importance of maintaining a balance between ethics and intellectual property rights when human lives are in mortal danger.

Society is concerned about the ethics of patenting life, namely, the possibility of patenting genes, cell lines and human tissues. The Directive states that the human body cannot be invented at certain stages of its formation and development, including germ cells, as well as the simple discovery of one of its components, including the sequence or partial sequence of a gene.

Patents that relate to the human gene are particularly critically examined ethically.

Ethics, morality, and law are interrelated components and are extremely important for society to accept the invention. EU patent law is based on ethical principles. Thus, the adoption of the Directive was envisaged for the development of the EU economy, the ability to regulate controversial issues regarding the patenting of biotechnological inventions by criteria of ethics and morality and to harmonize EU legislation.

Owners who run biotechnology institutions (organizations) must protect the results of research, and obtaining patents is the most effective way. After all, long-term research and development of new products or processes require significant financial costs. The intellectual property product must be protected by a patent, including biotechnological inventions.

Keywords: patenting, ethics, biotechnological inventions, medicine, pharmaceuticals, health

Zaikіvskyi O., Onіstrat O. Issues of the protection of intellectual property in process euro-atlantic integration. Some issues concerning the protection of intellectual property in the process of Euro-Atlantic integration are considered, in particular the peculiarities of the protection of intellectual property in the implementation of international cooperation of Ukraine and the protection of national interests in the process of this cooperation. The legislation of Ukraine regulating activities related to international scientific and technical and military-technical cooperation is analysed. The importance of intellectual property protection at all stages of international cooperation of Ukraine and the need to improve the legislation on the regulation of intellectual property protection in the process of this cooperation is determined. It is suggested to take a number of measures to address issues related to the protection of intellectual property in the process of international cooperation of Ukraine and the protection of national interests regarding the use of intellectual property rights in the process of this cooperation.

The protection of intellectual property in international cooperation should be ensured primarily by bilateral agreements on this issue, which should be concluded at the beginning of cooperation in any field, as well as agreements on the protection of classified information. These agreements should define the basic principles for concluding agreements (contracts) and be aimed at mutual protection of information, prevention of infringement of the rights for the results of intellectual activity when using them in the course of cooperation.

To deal with this issue, it is necessary to systematically and comprehensively approach the improvement of legislation on intellectual property in the defence sector, especially on the protection of national interests in the implementation of cooperation in the process of Euro-Atlantic integration. It is necessary to clearly define in the legislation the obligations of all subjects to ensure the protection of intellectual property at all stages of cooperation, as well as expanding the list of violations and responsibility for their implementation, especially for actions that threaten infringement of intellectual property rights measures to ensure the protection of intellectual property rights.

Keywords: Euro-Atlantic integration, intellectual property, objects of intellectual property rights, infringement of intellectual property rights, scientific and technical cooperation, military-technical cooperation

Zosymenko O. Managed entry agreementsas a new legal framework for access to medicines. The article concerns the new provisions of national legislative a legal mechanism for access to medicines, namely managed entry agreements. The use of managed entry agreements in European contract practice is widespread.

Ukraine, in responding to the COVID-19 pandemic, has reviewed the legal mechanisms for access to medicines contained in national legislation and had taken the first steps towards implementing managed access agreements.

Ukrainian legislation did not contain such a concept as a managed entry agreement by March 2020, and such agreement was never used in Ukrainian contract practice for the purchase of medicines. On March 17, 2020, changes were made to the national legislation, namely the Law of Ukraine «On amendments to certain laws of Ukraine aimed at increasing the availability of medicines, medical products and their accessories, which are purchased by the person authorized to carry out purchases in the field of health care» which were amended, in particular, to the Law of Ukraine «Fundamentals of the legislation of Ukraine on health care» and supplemented by article 791 of which a managed entry agreement to national legislation was introduced.

The provision of Article 79-1 of the Fundamentals of the legislation of Ukraine on health care regarding the parties, subject matter, content of managed entry agreements is analysed.

January 27, 2021, the Cabinet of Ministers of Ukraine adopted a decision approving the procedure for the negotiation, execution, modification and termination of managed entry agreement. A standard form of agreement for a managed entry agreement has been approved. The managed entry agreements procedure has been introduced in Ukraine February 15, 2021.

The legal and regulatory provisions concerning managed entry agreements have been analysed and highlighted their particularities.

Keywords: managed entry agreements, availability of medicines, original medicines, purchase of medicines, medicinal immunobiological drugs

Shabalin A. V. Procedural issues of applying to the court for the protection of intellectual property rights. This scientific article explores the procedural issues of going to court in case there is a violation of intellectual property rights. In the process of scientific research, the issues of jurisdiction in court cases on violation of intellectual property rights have been analyzed, the legal features of jurisdiction in lawsuits for violation of intellectual property rights have been determined, requirements for the content of a legal claim. Based on analysis of the economic procedural legislation, it is concluded that a person who applies to the court for infringement of intellectual property rights may refer to the cases of the European Court of Human Rights in order to substantiate his legal position. It is indicated that in the course of the 2016 judicial reforms in Ukraine, the rules of judicial jurisdiction and the competence of the court in court cases on violation of intellectual property rights were changed. At the level of procedural law, a special court was created — the High Court of Intellectual Property, which is empowered to judicially review cases of IP violation. The High Court of Intellectual Property has not started its work for now. The author points out that this situation has a negative impact on Ukrainian judicial practice and the practice of protecting intellectual property rights.

Based on the results of the study, the author proposed his own theoretical grounds and developed proposals for improving procedural legislation regarding the possibility of introducing alternative jurisdiction in some categories of cases of violation of intellectual property rights. Such legal cases include copyright infringement of an individual who is the author or the author’s representative. The legal rule on alternative jurisdiction in cases of infringement of intellectual property rights is effective if there is a violation of IP rights in the Ukrainian temporarily occupied territories. The author points out that such a legislative proposal will improve the quality of legal protection of subjects of intellectual property rights in the temporarily occupied Ukrainian territories.

Keywords: protection of intellectual property, court, EPC of Ukraine, CPC of Ukraine, European Court of Human Rights

Androshchuk G. Artificial intelligence: economy, intellectual property, threats. Artificial intelligence (AI) technologies, the spread of which is based on the widespread use of digital information and the rapid growth of computing power, are leaving the realm of purely theoretical research and becoming one of the segments of the world market that can have truly revolutionary consequences. The paper provides economic and legal analysis of the state and trends of AI, identifies its impact on the economy, the importance of the role of intellectual property (IP), assesses the risks, threats and dangers of criminal use of AI, developed mechanisms to counter them. The development of AI technologies as an integral part of «Industry 4.0» is considered, the main provisions of the «White Paper on Artificial Intelligence» of the EU are studied.

Over the next decade, the EU plans to spend $20 billion a year on AI development. At the same time, the protection of IP rights in the context of AI development and related technologies has been unconsidered by the Commission, despite the key importance of these rights. In legal regulation, AI is seen as a new challenge for the economy and the legal system, a new phenomenon that has a multiplier effect, a legal phenomenon in the structure of legal relations, a new object for legal regulation.

The introduction of AI in the field of IP creates new legal and economic problems. The creation of AI works is an integral area of activity in the modern digital economy. These circumstances bring to the fore the problem of recognition of authorship in the creation of AI works, the possibility of authors to dispose of their rights and their use of mechanisms for legal protection of IP. The analysis of the cases considered by courts connected with a problem of legal personality of AI is carried out, legislative activity on this question is studied. Possibilities and dangers of criminal use of AI are shown. They are ranked in order of their level of danger — depending on the harm they may cause, the potential benefit or the benefit of crime. Prospects for the development of AI in Ukraine are shown, the Concept of development of artificial intelligence in Ukraine is analysed. It is concluded that AI should become one of the key drivers of digital transformation and overall growth of Ukraine’s economy.

Keywords: artificial intelligence, economic impact, intellectual property, regulation, cybersecurity, risks, threats, national security

Butnik-Siverskiy O., Dorozhko G. Methodology of technology transfer in the field of intellectual property: economic and legal nature of the origin and definition of certain terms. The article considers the methodology of technology transfer from the point of economic and legal content in the field of intellectual property. It is noted that there is no single definition of technology transfer, as scientists in various fields interpret it due to the peculiarities of their field of activity. At the general level, the field of technology is considered as the birth of technologies, their types and maturity, which are the objects of transfer, taking into account the peculiarities of state regulation in the field of transfer. It is in the field of technology that an invention (utility model) is born, as a result of intellectual, creative human activity; that is, they associate this process with the material carriers of technologies, or the intangible phenomenon becomes a material state. The transfer of technology is associated with the transition to technical means, technological processes, and computer networks. It is considered from the point of law as a type of communication between business entities on the basis of contractual relations. It is determined that from the point of methodology of technologies and their components transfer, the issue of technologies origin and the nature of their creation require in-depth study, and that is important to indicate the author(s) (owner(s)) of the result of intellectual, creative activity in the field of intellectual property. The main goal of the technology can be achieved only if there is a quantitative assessment of the perfection of the process and product quality. Technology uses two types of models: ideal objects of basic sciences, on the basis of which the most general laws and regularities of natural sciences are formulated, and ideal objects of technology itself, on the basis of which morphological descriptions of separate stages and functional descriptions of the structure of technological lines are made. New local technologies are the result of inventions, utility models in the field of technologies, which have a specific author(s) (inventor(s)) and which are the object of transfer. Amendments to the terms of Article 1 of the Law of Ukraine «On State Regulation of Technology Transfer Activities».

Keywords: the concept of «technology transfer», technology fields, local and basic technologies, the object of transfer, contractual relations, intellectual property.

Doroshenko D. Legal framework for the use of intellectual property in sports activities. The article analyses the legal regulation of the use of intellectual property in sports activities. The relevance of the study is justified by the fact that the income of the global sports industry is increasingly depending on the use of the intellectual property by sports organizations.

The author notices that adoption of temporary laws aimed at protecting the intellectual property rights of sports organizations who organize major sporting events in a country are distinctive features of sports activities. There were two similar laws in the Ukrainian legislation. Although these laws contained some gaps, this experience should become a basis for the introduction of the concept of ambush marketing on a regular basis in the domestic law.

Analysis of international agreements in the sporting sphere shows that nowadays among the world sports organizations, only intellectual property of International Olympic Committee has an exclusive basis of protection. At the same time, the fact that in general the use and protection of intellectual property is given too little attention in international agreements in the field of sports gives greater importance to local regulations adopted by sports authorities.

According to the established practices of foreign sports organizations, professional rules and contracts between the athlete and the organization contains mutual restrictions of the use of a number of intellectual property objects constituting the athlete’s image. To date, in Ukrainian practice, only regulations and contracts of several football organizations contain the similar provisions, which at the same time have a number of shortcomings. One of the issues is terminological ambiguity in image rights legal phenomena, which is still new to Ukrainian practice, and therefore requires the consistency of definitions between different sports organizations.

Thus, although Ukrainian legislation creates the background for domestic sports organizations to benefit from their intellectual property, it still requires the adoption of some new important definitions.

Keywords: sports activities, sports activities legal regulation, temporary laws, ambush marketing, image rights, local rulemaking

Kashyntseva O. Pharmaceutical nationalism as an instrument to ensure the access to medicines. The article concerns the emergence of the phenomena of «pharmaceutical nationalism» in the year of the COVID-19 pandemic. Pharmaceutical nationalism is manifested in the qualitative and quantitative aspects. In the context of a qualitative manifestation of pharmaceutical nationalism, we presume the political will on establishing of a new state protectionist policy to local manufacturers of medicines, the establishing of preferences, exemptions of the patent monopoly basing on international legal instruments (TRIPS-flex). The quantitative aspect of pharmaceutical nationalism is the primacy of satisfaction of the needs of the domestic market of medicines in quantities that could ensure the biological security of individually for each state, independently of the interests of others. The article also raises the issue of the need and means of forming pharmaceutical nationalism in Ukraine.

The world community is calling for the demonopolization of research results on the prevention and treatment of COVID-19. WHO invites developers and companies to work together to ensure the disclosure of treatments and methods if they prove effective. International Federation of Library Associations and Institutions also presented an open letter to WIPO urging WIPO to use all available flexible intellectual property mechanisms to maximize global access to information (research data) on the treatment of COVID-19. Canada, Israel and the EU are working to prevent the monopolization of COVID-19 prevention and treatment.

Ukraine should actively work to develop legislation in the field of compulsory licensing, as provided for in Art. 31 TRIPS Agreement. From a political point of view, it is the historical chance of Ukraine to become «he second India» or «the first Ukraine» in Europe in the production of generic medicines and biosimilars.

Keywords: pharmaceutical nationalism, access to drugs, compulsory licensing, government use, exclusion from intellectual property rights