№ 2 (124) 2022

Download Journal № 2 (124) 2022

Shtefan О. The principle of transparency and openness of the judicial process and its full fixation by technical means in the civil proceedings of Ukraine. The article substantiates the relevance and necessity of further in-depth research on the principle of transparency and openness of the judicial process and its full fixation by technical means in civil proceedings of Ukraine, proves the objective connection between the principles of civil proceedings and processes in society and the method of the field of law, as well as between the very principles that comprise the system.

It defines the principles of civil procedural law as the main ideas, fundamental principles of the tasks and objectives of civil proceedings, enshrined in the rules of civil procedural law, which reflect the specifics of the subject and method of legal regulation of civil procedural law, as one element of the legal regulation of civil procedure, which are in a dialectical relationship and interdependence with other elements of the mechanism of legal regulation.

Different approaches to the disclosure of the essence and legal implementation of the principle of publicity and openness of the trial and its full fixation by technical means, which are reflected in the scientific works of procedural law professionals of the past and modern researchers. It turns out that this principle is a constitutional, intersectoral, organizational principle of civil procedural law, which has a normative consolidation at both national and international levels of legal regulation.

Based on the analysis of the legislation, the content of the principle of publicity and the principle of openness as components of the principle of publicity and openness of the trial and its full fixation by technical means, exceptions to these principles, as well as legal mechanisms for their implementation. The legal positions of the European Court of Human Rights on the disclosure of information with limited access are analysed. The conclusion is substantiated that the principle of openness and openness of the judicial process and its full fixation by technical means is a complex principle, its implementation is ensured, on the one hand, by achieving the tasks and goals of civil proceedings, and on the other, by exercising the right to fair trial components — the right of access to justice.

Keywords: principle of publicity and openness of judicial process and its full fixing by technical means, principles of civil proceedings, civil proceedings, information with limited access, mechanism of legal regulation

Shabalin A. On some aspects of the systematization of legislation in the field of intellectual property law. The scientific article is devoted to some issues of systematization of intellectual property rights. The study focuses on existing foreign legal models of intellectual property regulation (Belgium, Bulgaria, Czech Republic, Poland, Hungary, Germany). Based on which it is concluded that the latest foreign, in particular European, legislative trends convincingly demonstrate the feasibility of codification of intellectual property law. This approach helps to optimize the relevant legal regulation. In addition, the article focuses on existing scientific doctrinal approaches to the need to introduce into Ukrainian legislation a special codified act in the field of intellectual property law. Based on the results of such analysis, the position on the introduction of such a normative document into national legislation is supported. It is emphasized that this will eliminate regulatory inconsistencies, develop common legal approaches to the regulation of intellectual property. Another positive aspect of codification is that the latter allows to exclude from the legal framework a significant number of by-laws, including obsolete ones. Which will ultimately improve the quality of regulation and is in line with the principle of legal certainty, which is one of the generally recognized in the European legal area. The author emphasizes that the codification should be carried out considering the Ukrainian and advanced Western, in particular European, judicial and law enforcement practices on intellectual property. At the same time, it is pointed out that one of the current directions of systematization of intellectual property legislation is the detailed regulation of legal relations arising in the digital sphere, as this position is consistent with current and future trends in the significant role of IT in private law. In this regard, there is a need to develop new special methods and special procedures for the protection of infringed intellectual property rights, considering the manufacturability of relations concerning intellectual property. This should be enshrined in a separate section/chapter of the future codified act.

Keywords: intellectual property law, codification, legislation, civil law, systematization of intellectual property law

Ulitina O. Literary works legal protection in creative industries. The article is devoted to the issues of the literary works legal protection and its importance for the creative industries development. As long as literary works are one of the most common objects of copyright, they often serve as the basis for the creative industries activities. An important feature of literary works is that they can be both completely separate works and be part of other compiled works. This feature makes literary works important for the book publishing, film, computer game, advertising, marketing industries and also for education and culture.

In this context, the legal protection of literary works is of particular importance. International legal protection of literary works is carried out in accordance with a number of international acts, including the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention of 1952, and some Directives of the European Parliament and the Council. In Ukraine the provision of legal protection to literary works is provided in accordance with the Law of Ukraine «On Copyright and Related Rights».

The author concludes that legal protection of literary works can occur in compliance with two main requirements. The first — the work has to be fixed in a tangible form and has to be expressed in words. The second — it has to be the author’s own intellectual creation, that is the work has to be new and original, and the author has to make certain creative efforts to create it.

The protection of literary works plays a significant role in the development of creative industries and is crucial for the organization of their work. Compliance with the IP law concerning the creation and use of literary works in the creative industries is the basis for their economic growth, while violations of IP law and attempts to circumvent the legal mechanisms of the use of law reject the industry, in particular by preventing it from entering the international market.

Keywords: Literary works, copyright, intellectual property law, creative industries, objects of copyright

Fedorova N. Advertising as an object of copyright. The article reveals questions regarding such a complex object of copyright as advertising. The current legislation and judicial practice are analysed, it is substantiated that advertising elements should be characterized by signs of originality, uniqueness, and uniqueness.

As a rule, advertising combines several objects of copyright at once. At the same time, each separate part of the work (advertising video) can be used independently and is considered as a work and is protected in accordance with the Law of Ukraine «Copyright and Related Rights». Given the above, advertising is considered as a complex, multi-layered object of copyright, which includes various independent objects — elements of it. At the same time, in the case of creating advertising as a complex object, it is assumed that intellectual property rights must be transferred to all copyright objects that are part of it.

Copyright objects what can be used in advertising are usually: drawings, animations, photographs, musical accompaniment, video, design, font, etc.

Separate interest as an object of copyright deserves such a component of advertising as a «slogan». However, Ukrainian legislation does not establish special requirements for the use and protection of slogans in advertising.

It is determined that individual elements of advertising can receive independent legal protection both by copyright (in particular, drawings, animations, photographs, musical accompaniment, fonts, design), and outside of copyright. For example, an advertising slogan, the subject to the requirements of the law, may acquire legal protection as a sign for goods and services. At the same time, such legal protection of individual elements of the internal structure of advertising does not change its protection as an integral object of copyright, but can serve as an additional guarantee of the protection and protection of advertising in the event of a conflict of interest requiring a judicial decision.

Keywords: advertising, advertising elements, copyright, advertising structure

Drozdov A., Pototsky M. Legal and organizational principles of creation high court of intellectual property. Analysis of the legal and organizational support for the establishment of the High court of intellectual property revealed a scientific problem regarding the lack of implementation of the constitutional provision according to which higher specialized courts may act in accordance with the law, the absence of the Law of Ukraine «On the High Court of Intellectual Property» procedural norms that should ensure the activities of this court to hear cases on intellectual property rights.

The purpose of the article is to analyze the key legal and organizational issues of the creation of IP-court, the main provisions of the draft special law on this court, identify gaps in procedural law, and develop proposals for their content.

To achieve this goal, the history and main problems of the establishment and operation of IP-court, international experience of this judicial body, the draft Law of Ukraine «On the High Court of Intellectual Property», some provisions of legal acts of the European Union.

The main theoretical and practical problems that actualize the urgency of the beginning of IP-court activity are formulated. It is noted that in view of the European integration vector of Ukraine’s legal system, the administration of justice will be largely conditioned by legal acts of the European Union, so it is advisable to provide this court with procedural tools inherent in EU law.

It is concluded that the creation and operation of IP-Court is due to the deepening of economic globalization, dynamic development of technological innovation, which in the case of integration of the Court into the international justice system will lead to internationalization and openness of intellectual property protection in the European space.

Keywords: litigation, intellectual property law, High Court of Intellectual Property, European Union law

 

Androshchuk G. Problems of patenting inventions created using artificial intelligence: doctrine and practice (р. 1). The dynamics of development of the world market of artificial intelligence (AI), patent activity in this field, problematic issues arising in connection with the patenting of inventions created using AI are studied. Aspects of doctrine formation and policy development in the field of intellectual property (IP) and AI are considered. Features of examination of patentability of inventions created with the use of AI in different jurisdictions (EPO, USA, Germany, China), foreign legislation, doctrinal positions and case law in this field are analyzed. According to the analysis of the Artificial Inventor project, DABUS applications indicating the AI system as the inventor, submitted in 17 jurisdictions, were mostly rejected at the level of IP offices and as a result of court appeals. In general, the applicant failed to persuade the IP courts and agencies with his arguments, despite differences in national law and patent systems. The main provisions of the draft law «On Amendments to the Law of Ukraine «On Protection of Rights to Inventions and Utility Models» on the regulation of relations arising in relation to inventions and utility models created using artificial intelligence» are considered. It is concluded that the Law on the Protection of Rights to Inventions and Utility Models excludes computer programs from patented objects. Their minority is stated in the total number of filed applications and issued patents. Between 1980 and 2018, only 740 such applications were published (1.26% of the total). The rules for compiling, submitting and reviewing an application for an invention (utility model) in Ukraine are outdated and do not reflect aspects of AI. Only a comprehensive approach (changes in legislation and improvement of expertise) will solve this problem.

Keywords: intellectual property, artificial intelligence, inventor, software, examination, patent, digital transformation

Cherep А., Voronkova V., Cherep О. Digital transformation of society as a necessary condition for its innovative development. It is substantiated that the digitalization of the economy in today’s conditions significantly affects the livelihoods of both enterprises and the population. It is the use of information technology that is the basis of the digital economy.

The significant impact of the use of information technology on the daily life of the population of the countries of the world, regions, and the effectiveness of business entities based on automation, mechanization, and robotics has been proved. It is established that the digital transformation concerns all spheres of activity of the world’s economies. It is reflected that digital transformation in the context of globalization are the main factors in improving the efficiency of the world’s economies, creating services and products of higher quality and value, etc.

Statistics show that the highest level of use of information technology in domestic companies that provide financial, educational services; communication services, logistics. At the same time, in some sectors of the economy, the intensity of automation, robotics, and the use of digital technologies is very low.

Analysis of different stages and models of the transformation of economic processes takes place in different countries according to forced or gradual models, focus on various technologies and programs. The assessment of the main indicators of digitalization of the countries of the world showed that they can be found: internet coverage; the share of e-commerce in retail trade; the share of society that uses innovative information technologies in all spheres of activity.

It is substantiated that by 2025, digital transformation will affect all spheres of life of most countries of the world. It is established that the development of the digital economy is inextricably linked with the formation of an innovative and information society. Furthermore, it was demonstrated that the basis of digital transformation is based on the development of innovative information technologies, which are aimed at increasing the quality of services and showing the productivity of work. The goals and strategic directions of digital transformation are highlighted. The advantages and disadvantages of digitalization of the Ukrainian economy are summarized.

Keywords: information, information technology, digitalization, innovations, transformation, integration, standardization, strategic directions

Doroshenko О., Dorozhko G., Romashko A., Yurchyshyn O., Kravets A. Innovations and innovation management — the key to achieving sustainable development goals. The UN General Assembly Resolution dated September 25, 2015 set goals for sustainable development, which are actively accepted around the world. The World Intellectual Property Organization, the International Organization for Standardization, and the Public authorities of various countries are looking for and implementing approaches to achieve these goals. They are supported by the Decree of the President of Ukraine «On the Sustainable Development Goals of Ukraine until 2030», which became the strategy of economic development of our country.

Innovations are inherent in any sphere of human activity and can be applied for achieving goals of sustainable development, but it is not always possible to organize a creative process resulting in their occurence and implementation. In addition, the creator or employer of the creator often does not support innovation properly at different stages of its life cycle and loses the opportunity to benefit, in particular: do not adhere to secure communication, are unable to assess the importance and commercial viability of innovation, fail to protect and commercialize it.

Research on the problems with regress in achieving the goals of sustainable development related to innovations, innovation management, taking into account the requirements of legislation and management system standards.

International and national legislation in the field of intellectual property, management system standards. When researching methods of analysis and synthesis were used including system analysis.

The results are based on the analysis of publications, current legislation and existing standards on various management systems.

Statements concerning innovation activities that are within the competence of both specialists in the economic and legal spheres, as well as specialists in the technical sphere were developed. Statements for the development of a clear and accessible procedure for all employees, for innovation management taking into account the process of novation development and implementation were developed.

Keywords: innovations, innovation management, intellectual property, management systems, management system standards

Оleinikova L. Relationships between competitiveness levels. It was established that the actualization of competitiveness as a category applicable to national economies took place in the late 80s of the twentieth century, foremost, it was due to the rapid development of globalization processes, where the dynamics of competitive relations, the rapid transition from price to non-price competition, the construction of competitive advantages on knowledge and innovation, the inability to record competitive advantages for a long time became the basis.

It is proved that the main levels of competitiveness are the enterprise, region, country, product, technology. Furthermore, it is determined that the competitiveness of enterprises is associated with the ability of the enterprise to use competitive advantages, strengthen its market position, rationally form, distribute resources, investigate how to improve activities and competitiveness of the industry is determined by the efficiency of the group of enterprises, their ability to meet the existing demand in the market by producing high-quality goods in order to strengthen competitive potential. It is proved that the priority of the analysed approach is the distribution of competitiveness at different levels and the definition of characteristics for each level.

The points of view of scientists on competitiveness, theoretical and methodological approaches to determining the competitiveness, competitiveness of the enterprise, region, and state are analysed, the relationship between the levels of competitiveness is determined. The main types and factors of competitiveness in its determination are distinguished, the levels of innovative development and competition are considered, the influence of the activities of market participants and the timing of achieving competitive advantages on it are reflected.

Keywords: Competitive advantages, competition, interconnection, competitiveness, state, region, technology, products, factors

Tarasenko L. NFT — the latest digital copyright object or form of expression. The article is dedicated to current issues of NFT legal protection. There were analysed the legal nature of NFT as an object of copyright, the legal regime of NFT — the work, and some proposals for improving the legal regulation of these relations are substantiated. It has been proven that in a separate group of copyright objects it is expedient to allocate new digital objects that appear recently — NFT, multimedia works, video games (computer games), Internet site, blockchain, and others. The legal nature of new digital copyright objects has been found to be controversial. It is established that in the scientific literature NFT is interpreted as an independent object of copyright, as a way to use the object of copyright (for example, conversion of art into a digital token form), as an objective form of expression (digital token form), as security digital document, as a way of technical protection of the copyright object from encroachment on it. It has been proven that converting a work into an NFT form is a way to commercialize a copyright object. Furthermore, it is substantiated that NFT is a form of expression (existence) of the object of copyright, and NFT-work (photography, video, painting, drawing, music etc.) in the presence of originality (creative nature) is the object of copyright, which is fixed in specific digital tokenized form.

It has been established that tokenization of works provides additional opportunities for copyright protection of such objects due to blockchain — the technology on which NFT operates.

It has been proven that NFT as a digital certificate certifies the uniqueness of the work, which allows increasing its value and avoid illegal distribution in the digital environment in the future (which is typical of almost all digital and digitized copyright objects). Likewise, it has been proven that most NFT disputes should be resolved based on the findings of judicial intellectual property and computer science expertise.

It has been established that copyright law is not adapted to regulate the use of works in the digital environment, so NFT works have an undefined legal regime as objects of copyright. It has been proven that the current copyright law, which is imperfect in regulating relations in the digital environment in general, should be applied to the relations related to the creation, use, exercise, and protection of NFT works.

Keywords: NFT, copyright, work, token, blockchain, digital environment, judicial expertise