Download Journal №2, 2013
O. Kashyntseva, L. Shatyrko

Psychological and Psychotherapeutic Techniques as the Intellectual Property Objects.

Р. 3-10

The article deals with the issues of peculiarities of the legal nature of psychological and psychotherapeutic techniques as objects of intellectual property rights. Today psychology and psychiatry are the branches, in which the observance of copyright does not correspond to the modern international legal standards. It is noted that defending the rights of scientists, writers, performers, and we forget that the highly professional psychologist and a psychiatrist embodies a scientist is the author and scientist of the executive at the same time.

It is noted that at the present time especially actual is the problem of copyright protection in the field of psychological testing, because in almost all areas of the psychological practice that use psycho-diagnostics methodology, is a mass violation of intellectual property rights. So, the vast majority of foreign tests and psychotherapeutic methods, once in the scope of interest of scientists in the USSR period, arbitrarily interpreted and applied without the consent of their authors.

It is considered, that the controversial is the question of the autonomy of the signs of the originality of the work, it is inexpedient to consider the «originality» as a separate topic, if we accept that this criterion is fully covered by the notion of «creativity».

It is supposed, that the most effective executor of psychological and psychotherapeutic techniques is their author. From the position of copyright the author and the executor may be any physical person, from the position of medical right, – have essential restrictions.

It is reported that, according to h. 3, art. 32 the Fundamentals of health legislation of Ukraine and the Order of application of methods of psychological and psychotherapeutic influence, to apply the above technique, that is, their immediate perpetrators can only psychologist, a doctor, a psychologist, a psychiatrist and psychotherapist, narcologist and a sexologist.

Great attention is paid to the legal protection of such objects of copyright and related rights as the results of intellectual activity in the field of psychology and psychiatry. The problem is complex and consists not only of the norms of legislation in the sphere of copyright and related rights, but also the medical legislation.

Psychologists, doctors and lawyers is to unite the efforts in the sphere of harmonization of human rights and intellectual property rights and to develop the necessary changes in the national legislation with regard to internationally-right standards.

Yu. Osypova

Course-of-duty objects of right of intellectual property, created in higher educational establishment

P. 11-23

The article says, at the present stage of development of our society before the institutions of higher education of Ukraine the goal is not only to train highly qualified personnel, but also to take an active part in the process of creation and use of objects of intellectual property rights, and also effectively to dispose of the intellectual property rights on them. It is demands from universities as «competent» approach to the issue of legal regulation of relations of intellectual property, especially in the part of acquisition of the intellectual property rights by university, because without security of the so-called «purity» of the intellectual property rights can not be a speech about their efficient implementation. In view of the fact that the main source of acquisition of rights of intellectual property of the universities there is a right of the employer, the decision of the questions connected with the so-called «official» object of intellectual property rights for institutions of higher education is very important.

The author considered that the legislative regulation of relations on the «service» objects of intellectual property rights is far from perfect. The manifests itself, in particular, that for today in the norms of the Civil code of Ukraine and special laws in the field of intellectual property there is no terminological unity in the definition of the object of these relations. So, the Civil code of Ukraine operates with the notion of «object created in connection with the execution of the labour contract». In turn, special laws operate with concepts: service work; the employee’s invention (useful model); industrial design created in connection with the performance of official duties or orders of the employer; the topography of integrated circuits, created in connection with the performance of official duties, or by a special behalf of the employer; varieties created by the breeder in connection with the performance of the labor contract. It is noted that the legislator defines only two of the above-mentioned notions, namely: the service works and service of the invention.

On the basis of the analysis of the article. 429 the Civil code of Ukraine and scientific literature shall determine the conditions to be met by objects of intellectual property rights, so that it can be attributed to the category of «object created in connection with the execution of the labour contract». In addition, the author of put and solve the question about which objects of intellectual property rights defined in art. 420 of the Civil code of Ukraine, is possible and expedient the application of the article. 429 the Civil code of Ukraine.

The article also provides an analysis of the concepts of «service work», «invention (useful model)» and other similar concepts contained in special laws dealing with specific objects of intellectual property rights. On the basis of the analysis the author considers the question or embraces the concept of «object created in connection with the execution of the labour contract» the concept of «service work», «invention (useful model)», «industrial design created in connection with the performance of official duties or orders of the employer»; «the topography of integrated circuits, created in connection with the performance of official duties, or by a special behalf of the employer» and «grade, established by the breeder in connection with the execution of the labour contract».

On the basis of the obtained results is determined by what is included in the category of «service» objects of intellectual property rights, created in higher educational institutions of Ukraine, according to the Civil code of Ukraine and special laws dealing with specific objects of intellectual property rights.

V. Tatkov

Jurisdiction of disputes to economic and administrative courts in realization of intellectual property legal

Р. 24-30

The article concerns one of the most important problems, which arise in the sphere of commercial legal proceedings in Ukraine, in particular the problem of delimitation of jurisdiction disputes in the sphere of violations of intellectual property rights. This problem becomes to relevance from the judicial reform, one of the first stages of which was the formation within the national judicial system, together with the courts of General jurisdiction and economic courts, the system of administrative courts.

It is noted that in cases of invalidation of the law enforcement documents on objects of the intellectual property of the defendants will be not only the State service of intellectual property, but also the owner of the relevant security document because adopted by the court decision on recognition of a patent or certificate invalid can deprive him of his rights arising from the fact of state registration and protection of a result of intellectual, creative activity.

It is shown that the procedure for the issuance of a law-enforcement document, can assess not only as a way of implementation of the competent public authority of their administrative functions, and as a form of legal protection of objects of civil rights arising on the basis of the legal structure, which, along with the actions of the author (inventor) on the creation of the results of creative activity, also provide for the registration of property rights on them in the form of a patent or certificate. Therefore, disputes associated with the recognition of such documents as invalid, are disputes on the right and directly do not have a public law nature. Describes the conditions under which a commercial dispute shall be subordinate to the economic court.

It is reported that the reasons make it possible to assert that the disputes in the sphere of intellectual property, including disputes on invalidation of the law enforcement documents on objects of the intellectual property, of which parties are entities, can not be attributed to the category of administrative disputes.

It is noted that in cases of invalidation of the law enforcement documents on objects of the intellectual property of the defendants will be not only the State service of intellectual property, but also the owner of the relevant security document because adopted by the court decision on recognition of a patent or certificate invalid can deprive him of his rights arising from the fact of state registration and protection of a result of intellectual, creative activity.

It is expedient to issues of resolving disputes in the sphere of intellectual property of the subjects of management referred to the competence of economic courts in the legislative order.

M. Pototskyi

Recognition of intellectual property rights as a way of missing rights of economic entities

Р. 31-36

The article on the example of cases in the sphere of intellectual property, for the analysis of such a way of protecting the rights, as the recognition of the lack of rights. There are the proposals on the improvement of the economic judicial legislation, which regulates the relations of protection of the rights in the sphere of intellectual property.

Considered a list of examples from the Ukrainian judicial practice. On the basis of the court cases shows that there are grounds to state the growth in the number of conflicts of rights to objects of legal protection which can be provided in various types of intellectual property rights: copyright, industrial designs, commercial (company) names, trademarks.

It was noted that the judicial practice in these disputes is in the process of formation, and the legal position of the judiciary are not unambiguous. The process of formation of the judicial practice, determined by a number of factors, among which the confrontation between e Civil code and Commercial code of Ukraine, lack of coordination of the current legislation in the sphere of intellectual property, lack of unambiguous position of the judiciary regarding the jurisdiction of the disputes in the sphere of intellectual property.

It is reported that in case of appeal to the court for protection of their copyright the person on the confirmation of the existence of its copyright law, according to the Civil code of Ukraine, it is sufficient to submit the court of original or copy of a work, on which it is specified in the usual way as the author or a contract.

It is noted that the formal presence of the right (the availability of evidence which suggest that a person is the author of the work), does not mean that the object complies with the conditions of providing legal protection, that is a result of intellectual activity is a work of art. In respect of objects of the copyright in such a condition is the existence of a creative nature.

It is shown that a person is able to exercise the copyright, to dispose of it, until it has been established that in the person there is no copyright. Setting this possible by the recognition of the disputing of an agreement or determine that the object does not correspond to the terms and conditions of granting of legal protection. In respect of the objects of copyright possible through establishing that the product does not have any signs of creativity, and thus, does not comply with the conditions for granting protection, and, accordingly, a person who considers himself as the Creator, there is no copyright.

It is reported that it might be worthwhile to consider the use of the instruments provided for by the Commercial code of Ukraine, namely: the defendant in a dispute about the violation of the copyright has the right to submit a counter-claim with the requirement about a recognition of lack copyright. In the framework of consideration of the given dispute would be logical to conduct the appropriate expertise, to establish corresponds or does not correspond to the object to the conditions of providing legal protection.

The decision on the case in respect of a counter-claim will be a matter for decision-making on the main claim about protection of copyright, if it is established that the object does not comply with the conditions for granting protection, the court will have grounds for recognition of a lack of copyright and refusal in satisfaction of the principal of the requirements for the protection of copyright.

It was noted that the Commercial code of Ukraine provides the ability to protect intellectual property rights in the way of recognition of the lack of rights, and the application of the method of protection of the rights to promote the constitutional principle, according to which no one may be unlawfully deprived of the right of ownership, as well as ensure compliance with the principle of correspondence filing a claim ways of protection of rights.

S. Petrenko, N. Zabolotna

The responsibility for use of copyright objects through file-sharing P2P networks

P. 37-42

Article deals with a problem of responsibility for distribution of copyright objects through file-sharing P2P (peer to peer) networks (torrent). It is conducted a survey of the persons and their responsibility for the actions of using torrents like copying and distribution of copyright objects without permission of right holder.

Prospective methods to prevent infringement of copyright in the torrent are also considered.

A. Shtefan

Termination of an action of law violation or of threatening of such violation as a way to protect copyright

P. 43-47

This article is devoted to clarify the legal nature of the actions, which violate the copyright or create the threat of its violation, and the definition of the procedure of realization of such a method of protection of the copyright as the termination of actions infringing the right or creating a threat of its violation, and some other similar ways of protection.

The author notes that the protection of copyright remains one of the most important issues of the modern civil law. Indicates that, despite a large number of discussions, the effective mechanism of protection of intellectual property rights in general, and copyright in particular, is not yet fully developed. It is mentioned that in preparation of this article were taken into account the overall achievements of the theory of civil law and intellectual property law, and the provisions of the dissertation research of the Russian scientist Bondarenko S.

It is noted that for the application of the method of protection of the copyright as the termination of actions infringing the right or creating a threat of its violation, it is necessary to actual breach of copyright law, which continues in time, or real threat of such violation: if the offence occurred, but have been terminated, to demand the cessation of actions, which violate the right, the owner of the copyright can’t; if the act does not create a threat of infringement of rights, a court may refuse the copyright owner to meet the requirements of the termination of such action.

Includes analysis of the existing legislation of Ukraine (Civil code and the Law of Ukraine «On copyright and related rights»). Contains a list of actions, which are included in the concept of «copyright infringement». Attention is paid to the fact that filed in the Law of Ukraine «On copyright and related rights» action list is not exhaustive. Shows the difference between the terms «a threat of violation of rights» and «actions that violate the law». Mentioned mandatory provisions, which are part of the threat of violation of the right: 1) the existence of a subjective right; 2) the presence of illegal actions; 3) the admissibility of additional conditions under which the illegal actions can lead to violation of a subjective right.

On the example of a court case, is considered a real case of the terminate actions which violate the author’s right or creating a threat of its violation. Describes the actions of the parties and made recommendations about what other actions can be done, if violated copyright. It is noted that in science, almost no attention is paid to such a method of protection as the termination of preparatory acts aimed to violation of copyright. Setting the path of stopping of violation, in such forms as the jurisdictional and not jurisdictional: the owner of the rights may apply directly to the offender with the demand to stop the acts that violate the right or create the threat of their infringement, and a person who commits such acts, may voluntarily to give up off their feasance.

The article is of interest for authors, organizations of collective rights management, publishers, judges, experts in the sphere of intellectual property rights in general, and copyright in particular, and students on appropriate specialties.

I. Petrenko

Legal protection of the personage of literary artworks

P. 48-54

The author examines the legal nature of a literary personage of the artwork as an object of copyright, gives proposals to the determination of protectability of the personage, provides guidance on the necessary changes in the Ukrainian copyright laws.

O. Matskevych

Contracting by Internet mass-media in the sphere of copyright

P. 55-61

The author analyzes general characteristics of contracting between Internet mass-media and authors who work remotely and are not staff members as well as the forms of such contracts.

I. Rudchenko

The system of subjects of state governing in innovation sphere

P. 62-69

It is noted that the basic functions that must be performed by the innovative system at the modern stage of post-industrial development of the economy, is the formation of the conditions of the innovation activity, to conduct fundamental and applied scientific research; the stimulation of creation and introduction in manufacture of new technologies, which will be competitive on the world markets and will become the basis for release of modern goods; commercialization of ideas and technologies, supply of different sectors of the economy with highly skilled personnel.

Is considered the National innovation system as a set of legislative, structural and functional components (institutions), which are involved in the process of creation and application of scientific knowledge and technologies, and determine the legal, economic, organizational and social conditions for the provision of the innovation process. The state regulation of innovation activity is carried out through the identification and support of priority directions of innovative activity, development and implementation of national, sectoral, regional and local innovation programs, creation of normative-legal base and economic mechanisms for the support and stimulation of innovation activity, protection of rights and interests of the subjects of innovative activities, the financial support of innovative projects, stimulate the commercial banks and other financial-credit institutions that provide loans to the implementation of innovative projects, the establishment of the preferential taxation of the subjects of innovative activity, support of functioning and development of modern innovative infrastructure.

Shows the controls and ensure implementation of the state policy in the sphere of innovation activity. The security shall be the highest body in the system of bodies of executive power of general competence – the Cabinet of Ministers of Ukraine, Central bodies of executive power of sectoral and cross-sectoral competence. To the authorities of the special competence in the area of public administration include the Ministry of education and science, youth and sports of Ukraine and the State Agency on science, innovation and informatization of Ukraine.

It is reported that the subjects entities that participate in the formation of the state policy in the sphere of scientific and scientific-technical activity, is a National and sectoral National Academy of Sciences of Ukraine.

It is shown that the system of the subjects of state regulation and management in the innovation and scientific-technical sphere has a structure, which coincides with the system of bodies of state power in Ukraine.

I. Kushnir

The mortgage loans as a method of financing of housing construction

P. 70-76

The article is devoted to mortgage lending, as one of effective methods of financing housing construction. Examines the relationship between the borrower, the manager of budgetary funds and the bank in the process of granting a mortgage loan.

It is shown that the situation that has now evolved in the real estate market, demonstrates the need for a variety of ways in the formation of the sources of financing of housing construction, except for budgetary resources. Statistical data, which are given recent years the National Bank of Ukraine, allow speaking about the fact that the savings of citizens, which are mainly in the hands, can be regarded as significant investment resources for housing construction in Ukraine. The most important condition for the implementation of the classical mortgage lending are of high incomes of the population. Without this, the system of housing Finance is extremely unstable and is sensitive to various external influences. Examines the ways of financing of housing construction: methods of mortgage lending and the methods of financing the real estate in special cases.

It is noted that in spite of the positive effects, which provides mortgage lending as one of the methods of financing of housing construction, however, in Ukraine, only a small percentage of specialized financial institutions uses long-term mortgage loans secured by residential real estate as a priority direction of its activity. Among a factor that does not assist distribution of mortgage, there is percent politics, that is conducted presently by credit establishments, and also mistrust of potential investors and population to investing of money in the programs of the mortgage crediting.

Specifies if to speak about the use of the mortgage in the sphere of real estate, it is advisable to consider a mortgage not only as a civil-legal or economic-legal category, but also as a financial and legal.

It is considered, that should settle the grid, that will give the opportunity to various layers of the population to participate in this program, it is advisable to apply the differentiated approach to the participants. Thus it is possible to attract money, not only to those citizens, who are in need of such housing, but also those who have more money. Should be fixed on the level of legislation, that means that the state guides for the repayment of the interest on the loan should flow directly from the state to the Bank, and not pass through the buyer.

It is reported that the system of mortgage crediting is one of the most progressive in the process of financing of housing construction. Suggests ways of improvement of mortgage lending in the process of financing of housing construction.

V. Udyak

Features of legal regulation of tax policy as a method of an economy regulation: perspectives and approaches

P. 77-83

The article discusses the role and importance of tax policy in the system of state regulation of the economy.

The five main criteria of effective taxation policies which provide optimal impact on the harmonization of interests between the taxpayers and the state: fiscal sufficientness, economic efficiency, social equity, stability, flexibility.

It is shown that a feature of the legal regulation of taxation policies, as a method of state regulation of the economy at the current stage is the ratio between direct and indirect taxes. This ratio should be determined depending on the priorities of economic policy of the state, which may be of two types: policies on expanding domestic consumption; policy on expansion of export.

Considered the issues of tax competition between States, that is, to a certain extent, a positive phenomenon, since the forces them to continuously optimize existing tax systems, balancing between the needs of the budget and the interests of taxpayers in order to preserve the competitiveness of the national economy. At non-observance of these conditions is the increase of tax burden in comparison with the competitors that will generate the outflow of investments, the corresponding reduction of the tax base and the final decline in the volume of resources that are mobilized in the budgets of different levels. This problem affects not only the investments but also for the competitiveness of national producers, as taxes is a determinant of prices. In practice, this means obtaining competitive advantages of national commodity producers in the country in which the tax burden more low in comparison with other states.

Examined the effects of the main types and models of tax policy, which made the world practice in the development of the economies of States. The type and model of the fiscal policy, which chose one or another state in the building of the national tax system affects its role and significance in the system of state regulation of economy. The choice of the type and model of tax policy in any country is influenced by the following factors: national goals, the relationship between different forms of property in the means of production, the political system in the state, etc.

The substantiated recommendations on the reform of the tax policy of Ukraine, aimed at building a competitive national economy.

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№ 2 (70), 2013
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