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Download Journal № 3 (101) 2018

Drobyazko V. The URSR Law about copyright 1929 year

P. 5-12

This article is dedicated to option of «The first copyright law». In this article the original statement is highlighted. Respectively to the specified acts, all authors recognized copyrighton the works created by them. The majority of author’sworks has lifetime copyright. Copyright could go to heirs for a period of 15 years after authors death. Author could use the work according to contacts between authors, which were regulated by law. «Fundamentals of copyright» contained a fairly wide range of inventions, which could be used without rights. Not a violator of copyright was translation of the work, use someone else’s work to create your own, which is very different from original, public performance someone else’s work with fee for author. The URSR law about copyright at 1929 year with editors was accepted before entering Civil code of the USSR (chapter IV «Copyright», summaries 472-573).

Keywords: exclusive copyright, fundamentals of copyright, copyright act

Zerov K. Intellectual property protection of and fonts

P. 13-24

The article deals with the peculiarities of the legal protection of typefaces with the help of various institu­tions of intellectual property law: industrial designs, copyright, trademarks and trade secrets.

It is concluded that fonts can be protected as industrial designs in class 18-03 of the International Classification of Industrial Designs.

It is also determined that the specifics of the legal protection of fonts by copyright in modern conditions consists in their dualistic nature: on the one hand, fonts are in­dependent objects of copyright and are protected as graphic works, (computer bitmap font is a digital form of expression of a typeface and therefore also protected as a graphic work); on the other hand, computer vector fonts are subject to legal protection as computer programs.

In the Institute of trademarks, the font can be considered as a) goods of the 09th and 16th classes according to the ICGS, b) the distinguishing characteristic of the designation, c) the work that is reproduced in the mark.

Legal protection of the source code of computer fonts is possible through the Insti­tute of trade secrets.

Keywords: font, typeface, font, copyright, trademark, industrial design

Zaykivskyi O., Onistrat O. Intellectual property question in national secu­rity issues researches

P. 25-37

Possible violations of intellectual property rights in the de­fense sector and responsibility for their implementation are considered. The legislation of Ukraine regulating activities related to the development of armaments and military equipment, as well as the implementation of international military-technical coopera­tion, concerning the protection of intellectual property, is analyzed. The importance of intellectual property protection and the necessity to improve the legislation on the regu­lation of issues of intellectual property protection in the defense sphere are noted. Ukrainian legislation theoretically allows you to protect the rights of intellectual prop­erty owners. In the case of violation of intellectual property rights, its protection is car­ried out in accordance with the procedure established by administrative, civil and crim­inal law.

However, all these norms do not protect against possible violations of intellectual property rights, and all subjects involved in the development of armaments and mili­tary equipment — central executive authorities, acting as customers of the state de­fense order, enterprises and organizations that are developing (modernizing) of arma­ment and military equipment, and employees of these enterprises, which themselves create objects of intellectual property rights.

Responsibility of the customer for a number of violations of intellectual property rights in the development of weapons and military equipment is not defined.

For violation of the conditions of the state contract, the parties’ liability is stipulated. But the turn if in these conditions are not defined or not clearly defined, requirements for carrying out measures concerning the protection of intellectual property is not pro­vided for liability. As a result, the customer may receive an example of armament and military equipment that is already morally obsolete and also with material claims.

The foregoing results in the fact that when the customer executes the control over the execution of the state defense order, namely, measures to protect intellectual prop­erty, the availability of patent documentation for products and technology for its pro­duction are not verified, and moreover, the use of intellectual property created (used) in the course of execution the state contract, is carried out without a separate contract with the definition of the rights of the customer.

The law also does not specify the responsibility of the executor for non-compliance with the requirements related to the protection of intellectual property rights in the ex­ecution of a state contract for state defense orders and the further use of intellectual property rights objects.

This situation leads to the «leakage» of intellectual property rights from the legal market of goods, to the so-called “shadow” circulation of objects of intellectual property rights.

The grounds for possible violations are laid down in the statutory documents of the developer, in particular the absence of a collective contract stacked in the organizations executing the state defense order, the provisions of the protection of intellectual proper­ty rights: (the exclusive property right for a service object of intellectual property rights belongs to the employer, and non-property rights belong to the authors who are paid the author’s reward, the size, terms and procedure for payment of which are determined by an employment contract (contract) between the author and the employer). This contract in most cases doesn’t set up, or there are no position of the size and procedure for pay­ment of the author’s remuneration for a service object of intellectual property rights.

Uncertainty in collective and labor contract provisions regarding the observance of intellectual property rights leads to the loss of property rights, as well as non-propri­etary rights to intellectual property rights, by authors, and non-remuneration for their use.

However, the authors themselves may also violate the requirements of the law. Par­ticularly, these violations are notable to the development of weapons and military equipment, as they can lead to the damage of the national interests of Ukraine. To date, the legislation does not define the responsibility of the authors of the service objects of intellectual property rights for the implementation of such violations.

Thus, the issue of intellectual property protection, in particular regarding the defini­tion of responsibility for the commission of offenses concerning the use of intellectual property rights in the defence sector, has been paid insufficient attention by our legislators, who have not been able (or not wanted) to solve existing problems in this area. And this is the most fundamental violation for which central (central and executive) central executive authorities responsible for developing state policy in the field of defence and ensuring its implementation, as well as specific officials of these central executive bodies, should be held accountable. After all, the lack of legislative regulation of the problems of intellectual property protection in the development of weapons and military equipment and in the process of military-technical cooperation leads to a number of vio­lations. This is due to only one – the lack of attention and interest from the central executive authorities in ensuring the rights of the state and other entities in relation to objects of intellectual property rights, as is the case in the advanced countries of the world.

The current state of intellectual property protection in the defense sector indicates the need to improve the regulation of issues of the formation and implementation of state policy, the principles of state control in this area, as well as the powers and re­sponsibilities of all the subjects involved in the defense sector.

The imperfection of the legal framework gives the legal possibility of unauthorized use of objects of intellectual property rights that are created when performing the state defense order, including (especially) the implementation of military-technical cooperation. This is facilitated by the lack of responsibility for actions that create a threat of violation of intellectual property rights or contribute to the violation.

In order to warn and prevent violations of intellectual property rights, it is necessary to improve the legislative and normative-legal basis for the regulation of issues of intellectual property protection in the defense sphere.

Key words: national security and defense, intellectual property, defense sphere, objects of intellectual property rights, armament and military equipment, military-technical cooperation

Chomakhashvili О. Acquiring of rights to objects of industrial property rights as an administrative procedure

P. 38-45

The article focuses on a comprehensive study of the procedure for acquiring rights to the industrial property. The author has attempted to determine the individual stages of such an administrative proce­dure. The procedural issues, in general, are considered and complex stages are identified. The problematic issues concerning the rights of the subjects of power authority, the terms of the examination for the objects are analyzed. There is a dis­cussion on the amount of payment for such services. The principles of providing and signs of administrative services are described in detail. Comparison of the legal protection of industrial property rights and legislation on administrative ser­vices was carried out.

The legal protection of each object of the industrial property right has its own char­acteristics. The legal protection of intellectual property is ensured by the norms: copy­right and related rights (works of science, literature and art, performance, phono­gram, videogram, speech transfer), the right to the results of scientific-technical cre­ativity (discoveries, inventions, utility models, industrial designs, topographies of integrated microcircuits, plant varieties and breeds of animals, rationalization pro­posals, commercial secrets); rights to commercial designations (trademarks (marks for goods and services), geographical indications, commercial (company) name). The study focuses on the legal ways of acquiring the rights of the second and third group of industrial property rights.

The subjects of intellectual property rights are the creator (creators) of the intellec­tual property right object (author, performer, inventor, etc.) and other persons who own personal non-property and (or) property intellectual ownership rights. The pri­mary subject of intellectual property right is an individual. The primary subjects of property rights of intellectual property are also the employers of the person who cre­ated the object of intellectual property right in connection with the performance of of­ficial duties. Individuals and legal entities can also acquire the primary right of intel­lectual property by virtue of law. Derived subjects of intellectual property rights are legal successors to whom this right passes by virtue of law, contract or inheritance. Authors can be individuals regardless of their age, legal, social, political or another status.

Differences between protection of copyright objects and industrial property rights as­sociated with various types of objects of intellectual property rights and features of protection of rights in accordance with the Law on Copyright and Industrial Property Laws.

The difference of legal protection to objects of copyright and industrial property rights is associated with various grounds for the emergence (acquisition) of intellectu­al property rights.

The acquisition of intellectual property rights for an invention, utility model, in­dustrial design, plant variety, the animal breed is certified by a patent. The acquisi­tion of intellectual property rights for the layout of integrated circuits, a trademark is certified by a certificate.

The receipt of a patent, a certificate for the relevant objects of industrial property rights, is connected with the conduct of an expert examination, established by law. This stage of the legal protection of industrial property is considered as an adminis­trative procedure that has certain stages, requirements, formalized documents and definite rights, duties of participants in such procedures.

Particular attention is paid to the regulation of administrative services in the sphere of acquiring the right to industrial property. Administrative service is the result of the implementation of power by the subject of administrative services provision at the re­quest of an individual or legal entity, aimed at establishing, changing or terminating the rights and/or duties of such person in accordance with the law.

Keywords: acquisition of rights, industrial property, administrative services, pro­cedure

Kashyntseva О. Key points of the Ukrainian patent reform in the health care sphere

P. 46-50

Medicines are essential element of effective health care system. Innov­ative medicines are the result of complex research and development work conducted by research institutes, universities and pharmaceutical companies.

Governments have equally important responsibility to protect intellectual proper­ty rights of the patent-holders as well as ensure access to life-saving treatments for patients. 95 % of Ukrainians are buying their medications out of pocket, including such expensive new treatments for cancer, HCV, and TB. It is the new, innovative drugs that are mostly out of the reach of an average Ukrainian patient: 15 % of them are forced to borrow money or never even initiate a treatment due to lack of financial recourses.

Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 (the «Doha Declaration») by the Ministerial Conference of the WTO is calling to recognize the superiority of the right to protect public health and, in particular, to promote access to medicines for all, over the intellectual property rights. EU-Ukraine Association Agreement respects this priority as reflected in the Article 219 of the Agreement by reinstating the priority of human rights in accordance with fundamen­tal European values and principles. This Article provides solid foundation for the patent law reform to enable balance between the access to medicines and IPR protec­tion. Countries around the world are successfully using TRIPS flexibilities such as compulsory licensing, strict patentability criteria, patent oppositions, parallel impor­tation to improve access to new treatments.

Ukrainian government started to implement patent reform aimed at striking the balance between public health interests and patent protection by introducing the fol­lowing progressive provisions in Law of Ukraine “On Protection of Rights on Inven­tions and Utility Models”: excluding from the patentability objects the methods of di­agnostic, treatment and surgery and new forms of known pharmaceutical products to counter low-quality patents that artificially extend patent monopoly on medicines so called ‘ever greening’ practice; implementing of pre-granting and post-granting patent opposition procedures in the Ukrainian Patent Office, when third parties can contest the quality of patent to be granted; deleting overly burdensome provisions from compulsory licensing procedure; implementing the supplementary protection for the inventions on pharmaceutical products basing on the same principles like in EU Legislation; allowing preparatory actions to be made with drug regulatory authority to ensure early entry of generic products right after patent expiry (Bolar exception).

Kryvolapchuk V., Fyl S. Legal protection of geographical indications in the context of the Association Agreement between Ukraine and the EU

P. 51-59

The article deals with the issue of harmonization of Ukrainian legislation with EU norms in the field of protection of geographical indications. The legal regulation of the protection of geographical indications in Ukraine and the EU is considered. The attention is drawn to divergences in the norms of domestic legislation in the field of the protection of geo­graphical indications related to the discrepancy of the conceptual apparatus and the ambiguity of the definition of the subjects of IPR in geographical indications. It is noted that in order to establish a unified conceptual device for geographical indications in Ukraine, the legislator should consolidate the definition of «geographical indications» in the norms of the Central Committee of Ukraine and replace the term «indication of the origin of goods» and its derivatives with «geographical indication» in the Law of Ukraine «On the protection of rights to indication of the origin of goods «and by-laws, which es­tablish the procedure for acquiring rights to the specified object. Dispositions of Articles 201-211 of the Association Agreement between Ukraine and the EU in the field of the protection of geographical indications are analyzed and it is established that the norms of the Agreement determine the wider content of the geographical indications and their scope of legal protection; expand the list of geographical indications; reveal the essence of the mechanism of protection of similar (homonymous) names; define a clear proce­dure for the correlation of geographical indications with trademarks; provide for the cre­ation of a subcommittee on geographical indications from representatives of the EU and Ukraine. The issues of bringing the protection of geographical indications in Ukraine in compliance with the norms of the Association Agreement between Ukraine and the EU are highlighted.

Keywords: geographical indications, Association Agreement between Ukraine and the EU, legal protection

Bahareva О. Legal regulation of appointment and conduct of judicial ex­pertise on violation of rights to objects of patent law in the economic process

P. 60-69

The article reviews the legislation of Ukraine used in the appointment and conduct of forensic examination of industrial property objects, in particular industrial designs, inventions and utility models. While writing the article, a number of norma­tive legal acts were reviewed and analyzed, the norms of which clarify the procedure for carrying out all necessary actions in the appointment and conduct of forensic exa­mination, beginning with the pre-trial investigation bodies and ending with the con­clusion of the forensic expert.

Keywords: forensic examination, intellectual property law, objects of patent law, industrial model, invention, utility model

Butnik-Siversky O. The principles of formation of the national security of Ukraine in view of intellectual property rights: theoretical review of deve­lopment

P. 70-83

The author summarizes the theoretical issues of the formation of national security of Ukraine from the point of common scientific approaches, economic securi­ty, innovation security and intellectual security. It is substantiated theoretical and methodological aspects of the formation of national security, which should be based on the innovative and intellectual sphere of activity and develop the theory of the con­struction and functioning of the national security system in view of intellectual prop­erty rights as a component of the general scientific theory and methodology of Ukraine’s national security. The innovative and intellectual sphere of activity is not an integral part of the national security system of Ukraine, as it organically grows into elements of the national security system of Ukraine, transforms them, strength­ens, integratively combineswith them on the basis of innovativeness of national secu­rity, theoretically takes into account the principle of diffusion of innovations from the point of intellectual property rights. This approach is conceptually different from the independent theory of intellectual security, since the formation of national security in the view of intellectual property rights acquires the features of innovativenessof the national security of Ukraine, taking into account the substantiation: the principle of formation of national security on the active complex of existing and specially created bodies, state and non-state structures; principles of the structural and functional sys­tem; the principle of strategy formation; principles of the strategic management process; principles of creation and implementation of intellectual property rights into economic circulation; the principle of diffusion of innovations in the view of intellectu­al property rights; principles of the selection of priority research directions; the princi­ple of legal capacity.

Key words: national security, economic security, intellectual security, principles of formation, intellectual property rights

Cherednik N. Realization of intellectual property rights in research uni­versities: theoretical аspects

P. 84-90

Стаття присвячена аналізу поняття реалізації прав інтелектуальної власності в контексті діяльності дослідницького університету як суб’єкта права інтелектуальної власності на підставі норм законодавства України та теоретичних підходів.

Ключові слова: дослідницький університет, вищі навчальні заклади, права інте­лектуальної власності, реалізація права, інноваційна діяльність

Ponomarova O., Kashyntseva O. Some peculiarities of agreements on cre­ation and use of patenting objects in the field of medicine

P. 91-98

The article deals with the Ukrainian legislation in the sphere of intellectual property which permits patenting the methods of treatment and thus contradictory agreement the European intellectual property doctrine in this part.

In this article we will reveal the theoretical foundations and give some practical recommendations on the legal regulation of intellectual property relations in the sphere of medicine in accordance with the norms of contractual law in particular the agreements on the creation and use of patenting objects in the sphere of medicine. Particulars of the subject of agreements on objects of patenting in the sphere of medi­cine is the compliance with international ethical and legal standards as an invention (utility model) objectified an industrial design a scientific result and the process of ob­taining such a scientific result.

Of particular interest is the legal status of the subject of intellectual property rights in the sphere of medicine since the realization of property rights of intellectual property such a subject can only be subject to the acquisition of a special status of the subject of medical practice which also determines the further features of the content of the agreements itself compliance with international ethical and legal standards the necessity of observance of relevant clinical protocols approved by the Ministry of Health of Ukraine.

Key words: intellectual property rights, medicine, inventor, agreement, object of patenting

Kushnyr Y. Value added taxation of transactions with intangible assets in European legislation

P. 99-108

The article deals with the legislative approaches of the Euro­pean Union and individual EU member states to value added taxation of transactions with intangible assets. It is determined that intangible assets occupy a special place in the development of the construction industry. The general approaches and factors that affect the process of harmonization of the European tax legislation are analyzed. The character of taxation of transactions with intellectual property objects is investi­gated. Usually, such transactions are equal to transactions for the supply of services, although national legislation may contain some specifications. Such transactions (with the exception of the royalty payments or the import by the authors or their suc­cessors of the works of art that are not objects of taxation) are taxable at the standard rates. The national legislation of the EU member States basically does not provide for such operations the possibility of applying reduced rates. However, even in this part the tax legislation of the EU member States cannot be considered until the end of har­monization.

The principles of the European legislation influence on harmonization of the Ukraine national legislation in the part of the value added taxation are determined.

Key words: construction, European tax law, intangible asset, intellectual property

For infomation

Announcement of the postgraduate course

P. 109-112

№ 3 (101) 2018