Kodynets A. Contractual relations in the transfer of intellectual property rights.
In modern conditions of development of market relations are increased the value and role of the treaty as a universal model of mediation legal relations based on legal equality, self-determination and independence of their participants. In these circumstances, the value of the contracts are increased and the scope of contracts are expended, new contractual structures are created, mechanism of regulatory procedures are changed.
Today in the field of intellectual activity there are a large number of different contracts of different nature, a significant portion of which are specific contractual design, unique to this area. Therefore, the scientific analysis of the legal nature and place of contracts on the transfer of intellectual property rights in the civil contractual obligations, the study of their features and aspects of the contractual regulation of relations in the disposal of the rights of intellectual property has the particular importance.
Along with the license agreement, which regulate relationships for the provision of intellectual property rights, there are other contractual models which reflect the process of disposal of the rights of intellectual property. This is a contract on transfer of exclusive intellectual property rights, which received its regulatory consolidation in the art. 1113 of the Civil Code of Ukraine.Under this contract, the person who holds the exclusive intellectual property rights, transfers the rights to another party in whole or in part according to the law on certain contract conditions.
In contrast to the license agreement, agreement on the transfer of intellectual pro-perty rights is aimed at full assignment of property rights to the work of art, invention, utility model, industrial design, trade mark or other intellectual property object, so the content of the contract on the transfer of intellectual property rights implies irreversible alienation the rights of intellectual property.
Form of this contract has complicated character. Agreement on the transfer of intellectual property rights is a mandatory in written form. Agreement on industrial property rights shall be subject to mandatory state registration. In article are made the conclusion that the law should secure the position, according to which if the contract for the transfer on intellectual property rights are subject to state registration, the property rights of intellectual property passes to the purchaser at the moment of state registration of the contract.
The article considers the civil-legal aspects of the contractual relationship on the transfer of intellectual property rights, the analysis of the current legislation in the area of disposal of the rights of intellectual property, determination of the legal nature of this group agreements, as well as the formulation of conclusions and recommendations aimed at improving the civil legislation in this area.
Key words: contract on transfer of exclusive intellectual property rights; disposal of intellectual property rights; trade mark; information relations, the result of intellectual activity; civil law
Illiashenko Е. Principle of direct execution of the copyright agreement in the sphere of health care.
The article is dedicated to a research of the principle of direct execution of the copyright agreement in the sphere of health care. The demands inherent to the principle of direct execution in the sphere of medicine along with national and international legislation are analyzed in the scientific article. The author has come to conclusion that the main participants of intellectual creative activity are the persons conducting inventive, pedagogical, scientific and technical activity.
The possibility of reproduction of creative result, achieved by the author of piece of art, third persons, is one of the reasons of appearance of copyright legal relations.
The order of entering into the copyright agreement is defined by the Civil Code of Ukraine and the Law of Ukraine “On Copyright and Related Rights”. Contractual form of piece of art`s usage guarantees realization and protection both non-proprietary and proprietary rights of the author. This form satisfies the interests of the clients due to the fact that they are purchasing separate rights to use the piece of art, non-belonging to the other persons, and in connection with this they are able to cover expenses on reproduction and distribution of piece of art and to receive remuneration. In addition, the society is also interested in contractual usage of piece of art, because such form stimulates creative activity of citizens and promotes spiritual and scientific development in the state.
The Law of Ukraine “On Copyright and Related Rights” defines a copyright agreement as an agreement, in accordance with which one party (the author or other person) shall transfer proprietary rights to the other party to the agreement.
The copyright agreement shall be the agreement, in which the substitution of the author-executor is not allowed under any circumstances.
The main duties of the author comprise a direct execution by the author him/herself and transfer of the piece of art to the other side. The piece of art shall meet the conditions and requirements, defined by the parties — it can be a piece of art of a certain kind of literature, genre, designation, scope etc. The requirements to the scientific work of art — article, brochure, monograph, manual — are defined in the same way.
The author offers to introduce the notion “principle of direct execution” in the copyright agreement, aimed to more thoroughly reflect the author`s duty to create the object of obligation by his/her own creative work. The contents of the copyright agreement shall be built on this principle.
Keywords: agreement, author’s contract, health care
The article deals with the problem of registration of copyright on photographic works. It contains the analysis of existing schemes, which regulate the registration of copyright on the photographic works in countries such as Ukraine, the United States and the United Kingdom. It is proposed to amend the registration of copyright.
Nowadays registration of the copyright is optional, but some attempts to popularize it are undertacken. However, the current system of copyright presumes that the author does not actually require registration for his rights, although in further it leads to problems with the defense of his work, receiving of compensation for damage caused by violations.
The introduction of compulsory registration of copyright can significantly improve the situation in this sphere, it may lead to more efficient protection of rights in a digital environment.
This paper proposes the introduction of the system of registration requirement for copyright, as this procedure will improve the copyright protection and equalize the balance between the author and the society, as well as will help in dealing with «orphan works».
This system of registration will reduce the number of orphan works, that for which it is impossible to identify the personality of the author.
The most advanced is the system of registration in the United States. It offers online registration option that is much faster and cheaper than the paper registration. Talking about the registration of photographic works, has to be admitted that it is possible to register a group of pictures under the one title which is much more useful for the photographer.
Copyright registration on photographic works in the UK is less developed, but there is also the possibility of on-line registration and registration of collections of photos.
Registration of photographic works in Ukraine is more complicated and does not provide online registration. Therefore, it is proposed to adopt foreign experience and maintain the online registration in our country. Online registration will allow to raise the fees for regular registration. This will make online registration more popular because it is more simple, fast and cheap than paper one.
Keywords: copyright, photographic work, copyright registration, registration of copyright on the photographic work.
The article deals with geographical indications as a legal category and an economic and legal institution. The reasons of conflicts between trademarks and geographical indications and mechanisms of their resolving (conflicts trademark law, the law on geographical indications, unfair competition and commerce under a different name). It is considered administrative system of protection, international agreements (Lisbon Treaty, TRIPS Agreement). The regulatory framework applicable in resolving disputes between trademarks and geographical indications in the EU (EU Regulation № 2081/92, TRIPS Agreement), the USA (rules BATF, Lаnhаm Act) and in Ukraine is analyzed. The recommendations on alternative mechanisms for resolving conflicts trademarks and geographical indications are made
Keywords: geographical indication, trademark, conflict, unfair competition, litigation
Petrenko S. Some issues of compliance of an invention to such criterion of patentability as novelty.
This article concentrates on improving of the methodological provisions of forensic examination facilities of patent objects in solving the problem of establishing of an invention (utility model) to «novelty» patentability condition and legislation on protection of rights to inventions (utility model).
The procedure for determining of compliance of provided invention with patentability novelty condition set out in the Law of Ukraine «On Protection of inventions (utility model)» and the Rules of the application for invention and applications for utility model. Thus, in contrast to the procedures for determining compliance with the invention provided «novelty» patentability criterion, which was outlined in the Order of the application for an invention (utility model), which operated in decision rules of the application for invention and applications for utility model, the novelty test is performed only with position of detection of the technical solutions with identical features and does not take into account the technical solution with equivalent, or identical and equivalent characteristics.
Utility models, as well as the invention, the novelty test criteria is made only from the standpoint of detection of the art technical solutions with identical characteristics, in the absence of verifying compliance with the requirements of patentability such as «inventive step», a prerequisite for Patents as a utility model technical solutions that all classical principles of patent law can not and should not be patentable.
Methodological Recommendations on specific issues of examination of an application for an invention (utility model), developed in 2014 by the SE «Ukrainian Institute of Industrial Property», provides, in the case of the examination of the patented invention for compliance with the requirements of patentability «novelty» of research known in the art technical solutions which are not unique to identical but equivalent features. For the proper regulation of utility model examination for compliance with the requirements of patentability («novelty») similar rules should be contained in the Rules consideration.
In carrying out by a court decree forensic research for information on the state of the art set of features useful model to the filing date to it, or, if priority is claimed, before the priority date, according to the methodology for forensic examination related inventions and useful models (universal) of the Ministry of Justice of Ukraine (Reg. № 13.3.01) equivalent research evidence is not made.
The difference in approach to establishing the details of the art set of features useful model for forensic examination and examination of State Enterprise «Ukrainian Institute of Industrial Property» may lead to different conclusions even in the study of the same sources in the same amount. In this case, the above circumstances, expert opinion on the patentability invention, compiled SE «Ukrainian Institute of Industrial Property» at the request in accordance with Part 2 of Art. 33 of the Law of Ukraine «On Protection of inventions (utility model) in our opinion is more correct than the conclusion of forensic examination, as the study takes into account the equivalence of attributes.
This fact should be taken into account when providing evidence of the parties in the process, and judges when deciding on the need for an examination of invalidation of a patent for utility model Ukraine and evaluation of evidence.
Keywords: forensics, utility model, criteria for patentability, novelty
Shtefan A. Mechanism of proof in legal structures of the right to judicial protection.
The mechanism of judicial evidence relates to the field of procedural and legal mechanism. It’s a certain system of elements, components, which reveal its essence in their interactions. It doesn’t act always, but only where the implementation of legal norms on certain individuals need to determine their rights and responsibilities in the court decision. The mechanism of procedural regulation ensures the implementation of the right to judicial protection.
Judicial protection is a complex legal phenomenon. This is the activity of the whole judicial system, the set of all court proceedings. The right to judicial protection guaranteed by the Constitution. The rights and freedoms of man and citizen are protected by the court. Denial of the right to appeal to the court for protection is invalid.
The first element of the right to judicial protection is the right to go to court. This is only the initial stage of the right to judicial protection. Connectivity of the right to judicial protection and results of the case is wrong. The second element of the right to judicial protection is not the right to satisfy the claim, but the right to a fair hearing by an independent competent and impartial court. This is the right to trial regardless of the results and consequences of the right to receive reasonable legal; it’s the right to judicial decision regardless of its content and character. The third element of the right to judicial protection is the right of appeal. The last item is the right to execution of court decision. Without it judgment loses its value.
In the context of the right to judicial protection the mechanism of judicial proof plays a leading role. No civil case can be resolved without proof; no right can be protected only by virtue of an appeal to the court for its violation. Mechanism of judicial proof is closely connected to the realization of the right to judicial protection; it valid at all stages of the civil process and directly affects the movement of civil case, at the appeal court in the appeal or cassation, the review of court decisions in due to the new circumstances.
Keywords: court defence, proof, mechanism of proof
Rieznikova V. Concept, importance and perspectives of legal security of e-commerce in Ukraine.
The article is devoted to the concept, features and value of e-commerce. It was established that the definition of «electronic commerce» understanding of its essence, there are two predominant approaches: (1) as a business (commercial) activity, which is a kind of economic activity; (2) as a special relationship — relationship of electronic commerce. Last treated as a complex phenomenon that requires settlement rules different areas of law (commercial, civil, administrative, etc.). Solved value ecommerce concept with other related concepts (electronic commerce, Internet — commerce, etc.).
Highlight multiple levels of legal regulation of relations of e-commerce international, regional (within the EU) and national. Analyzed the international experience of legal support e-commerce. Both the main international bodies and made them key acts on legal support e-commerce. Defined legal framework regulating relations in the field of e-commerce in Ukraine.
Shows the indicative list of priority measures in the long term is intended to provide the necessary regulation of е-сommerce in Ukraine. The necessity to adopt a special legal act (Law of Ukraine «On electronic commerce»), it is dedicated to the regulation of electronic commerce, such that summarize, systematize and identify its main elements. The provisions of this law shall take into account the extensive rules of the Commercial and Civil Codes of Ukraine (while making changes to them), the provisions of the UNCITRAL Model Law «On electronic commerce», as well as the European Union Directive on electronic commerce. Noted the need for the development and improvement of legislation of Ukraine in the field of e-commerce to take into account the principles of technological neutrality and transparency.
Keywords: e-commerce; concept of e-commerce, value of e-commerce, signs of e-commerce, legal security of e-commerce, regulation of e-commerce
Virchenko V., Savchuk V. Protection of breeding achievements as precondition of food security of Ukraine.
The article is devoted to analysis of interconnection between food security and breeding activity results protection. The idea of food security as main tasks in the context of economic security support is proved. Connections between food security and the necessity to support agro-industrial complex and direct production of crops, their updating and improvement are discovered. Proved that breeding industry has a low level of development in Ukraine. This situation has arisen because of the limitation of the legal framework and insufficient level of government support.
The article also reveals the basic problems of food issues at the international level and its possible solutions at the national level. There is described the essence of food security, approaches to its understanding, and the mechanism of its formation. There also is revealed that a very important component of food security is its functional subsystem that is engaged in direct production and the formation of food resources and reserves. It is determined that a special place in this process takes the synthesis of agro-production and innovative scientific approach, which is based on the breeding industry.
In this case, the article also examines the nature of breeding and basic ways of its protection. In addition, there are identified the most powerful international organizations which coordinate international cooperation in the field of the breeders’ rights legal protection. The article also identifies the main international agreements concerning legal protection of the breeding activity.
Ukrainian legislation in the sphere of breeders rights protection is analysed. It considers institutional and regulatory support of this process in Ukraine. System of civil law, administrative law and criminal law protection of rights of breeders in Ukraine are considered. Main problems of breeding legislation and implementation of these laws in Ukraine are analyzed. Recommendations concerning improving effectiveness of legal protection and government support of breeding activity results in Ukraine are defined.
Keywords: breeding achievements, food security, breed, protection of breeding achievements
The article is dedicated to the analysis of how the respect of medical secret influences on the relations between the insurer, insurant and the doctor.
To analyze in due course the above the current legislation of Ukraine regulating the relations between the insurer, insurant and a doctor and the practice of the said relations shall be examined. And as a result the relative amendments to the current Law shall be made.
The issues examining and analyzing in the article are very topical and highly important to be resolved. First of all, the said issues are part of the reform of the health care system of Ukraine, and the reform of the health care system is the part of the Strategy of state development «Ukraine-2020» having the purpose to implement the European standards into all spheres of Ukrainian life.
Nowadays according to the current law in most of cases we have a possibility to have a health insurance only if we sign a free-will health insurance contract. This type of contracts is regulated by the Law of Ukraine On Insurance, by general principles of Civil Law, by general principles of Medical Law of Ukraine.
Having analyzed the texts of contracts offered by the Insurance companies in Ukraine it is clear that there are some drawbacks that breach the general principles of human rights and some issues that do not meet the general principles of Civil and Contract laws. The mentioned issues can be the reason to bring an action against Insurer who is breaking the rights of Insurant. To resolve the said issues and drawbacks some amendments to the current Law of Ukraine shall be made. For instance, it is offered to amend the art. 20 of the Law of Ukraine «On Insurance» and to prohibit the insurer to examine, analyze and to use by any way the information related to the genetic data of the Insurant, even despite the explicit consent of the Insurant; to amend the Insurance rules of the free will health insurance contracts with the requirements to respect the special status of health information at all stages of the relationship between the insurer and insurant.
Key words. Health insurance, medical secret, persons right to the health data confidentiality, respect, insurance rules, insurer, insurant, free-will health insurance contract.
The author analyses definitions and legal nature of court decisions and generalization of judicial practice. The article explains differences between a court decision and a precedent. The special attention is given to the problem of using court decisions and generalization of judicial practice as sources of civil law.
Key words: generalization of judicial practice, court decision, precedent, sources of civil law, interrelation, legal nature