№ 3 (107) 2019

Download Journal № 3 (107) 2019

Shtefan A. Compensation for violation of copyright and related rights

P. 5-18

Compensation is a form of compensation for property damage for violation of copy­right and related rights. In the previous 25 years the Law of Ukraine «On Copyright and Related Rights» provided that compensation is determined by a court in the amount of 10 to 50 thousand minimum salaries established by law. At the same time, it was not necessary to prove a specific amount of damages. Therefore, compensation was the most widespread way of protecting copyright and related rights

On July 22, 2018, the new procedure for payment of compensation came into force. In today’s conditions, compensation is characterized by the following features:

  1. Compensation is a lump sum payment. It cannot be determined as a percentage of future sales of copies or other use of copyright and / or related rights objects with­out specifying its size. Compensation should be paid as a single, one-time payment in a fixed amount;
  2. The amount of compensation depends on the guilty form of the offender. In the case of the intent of violating, the compensation calculates in a triple rate, with negligence — in the double amount of remuneration that would have been paid if a right holder was granted permission to use the object that was unlawfully used by the offender;
  3. The basis for calculating the compensation is the amount of remuneration that would have been paid if the offender applied for authorization to use the disputed object.

This approach is based on the rule of paragraph b) of part 1 of Art. 240 of Associa­tion Agreement which reproduces the provisions of paragraph b) of part 1 of Art. 13 of Directive 2004/48/EC.

In the EU, compensation is provided by the legislation of Croatia, Germany, Greece, Latvia, Lithuania, Poland, Romania, however, each state regulates the rule for compensation differently. The approach introduced in the Ukrainian legislation is exactly the same as in Poland. The practice of its application has not yet begun to form but there is no doubt that in the new legislative environment protection of copy­right and related rights will be more complicated. The right holder must prove the amount of remuneration that would have been obtained by him for granting permis­sion to use the relevant object which was not previously required for the payment of compensation. However, despite the predicted difficulties, the new compensation model can become a sufficiently effective way of protecting copyright and related rights. This model is in line with the European approach and it provides for one of the highest payments compared to the legislation of the EU Member States.

Key words: compensation, payment of compensation, protection of copyright and related rights

Smorodyna А. Model License Agreements under Ukrainian Legislation: the Past and the Present

P. 19-27

The article analyses the actual implementation of the clause 1 of Article1111 of the Civil Code of Ukraine on the approval of model license agreements by authorized agencies or creative unions. It describes the legal status of listed subjects and examines their actual realization of mentioned powers. It turns out that the Ministry of Economic Development and Trade of Ukraine has approved the samples of the contracts in the field of copyright and related rights, which have recommendatory nature. Creative unions do not approve the respective model con­tracts. The author turned to the history of the establishment and development of rele­vant Soviet legislation on the model contracts in copyright law. This issue has been investigated in chronological order. It studies the relevant provisions of Soviet legisla­tion regarding the model publishing agreements (since 1925) as well as the change and transformation of these provisions. It was discovered the dependence of these provisions with the obligatory state registration of contracts and implementation of the principle on freedom of the contract. In conclusion, author states that the men­tioned law has lost its relevance and should be deleted herein.

Key words: licensing agreement, author’s contract, model contract, disposition of intellectual property rights, civil law

Kashyntseva О. Looking for legal compromise in implementation the supplementary protection certificate

С. 28-31

The implementation of supplementary protection of inventions on medicines need to search and to keep balance between the interests of patent holder and interests of society in such sensitive sphere as health care.

The both Ukrainian drafts of law contains the article which regulates the grant of the SPC and determines the procedure. However, both drafts do not determine the basic patent for which the SPC could be granted. The big gap of the drafts is also the absence of scope of the patent rights for which the SPC could be granted. Basing on the EU experi­ence the scope of the SPC should be determined and restricted by the scope of the patent for which the first marketing authorization was granted in a market. We could not avoid the abuse of patent rights without such restriction. We also should link the right on SPC with the first appearance of medical product in the world market and it’s registration in national market in Ukraine. Ukraine should grant SPC on really innovative medical products which come to the national market not later then 1 year from the date of it’s first appearance in the market.

The Article 220 of Association Agreement between Ukraine and EU determines that The Parties recognise that medicinal and plant protection products protected by a patent in their respective territory may be subject to an administrative authorisation procedure before being put on their market. They recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on their respective market, as defined for that purpose by the relevant legislation, may shorten the period of effective protection under the patent.

The Parties shall provide for a further period of protection for a medicinal or plant protection product which is protected by a patent and which has been subject to an ad­ministrative authorisation procedure, that period being equal to the period referred to in paragraph 1, reduced by a period of five years.

In the case of medicinal products for which paediatric studies have been carried out, and the results of those studies are reflected in the product information, the Parties shall provide for a further six-month extension of the period of protection referred to in para­graph 2 of this Article.

Thus, the article determines only principles of SPC, all internal legal rules could by determined by the country-party itself. Ukraine should impellent id SPC only bas­ing on the same legal grounds like in EU.

Keywords: supplementary protection certificate, medicines, inventions, basic patent

Ponomarova О. Compulsory and voluntary drug licenses: some aspects of enforcement

P. 32-38

The purpose of the article is to study the peculiarities of the legal na­ture of non-contractual forms of realization of intellectual property rights in the field of medicine, to which we in the process of research include: compulsory, open and vol­untary licenses. These forms of realization of intellectual property rights in the field of medicine received their legal regulation outside the scope of contractual law.

Today, thanks to the adoption of the Doha Declaration, science-intensive pharma­ceutical companies, operating within the framework of corporate social responsibility, increasingly use open licenses, allowing generic manufacturers to produce and sell generic versions of their products within a given geographic region.

Today, most companies that own intellectual property rights for HIV / AIDS treat­ment drugs use open licensing or immunity from prosecution with generic manufac­turers or sign an agreement to refuse to prosecute for violation of their patent rights to drugs for the treatment of HIV / AIDS. Such an agreement is called – an open, vol­untary license agreement unlike a compulsory license.

In the article, we propose changes to the legislation of Ukraine, which will lead to harmonization of national patent law with the European Patent Convention and best European practices of law enforcement, and consequently, as a result, will allow es­tablishing a fair balance between the interests of patent winners and the rights of cit­izens of Ukraine to access medicines.

Key words: compulsory license, voluntary license, medicine, property rights

Diduk A. Violation of the «right to» commercial secrecy and know-how

P. 39-46

The article is devoted to separate problematic issues concerning the violation of the «right to», or rather, the «right of access» to commercial secrets and know-how, taking into ac­count the physical nature of «information as such».

At present, the legal doctrine has developed two approaches to understanding the «right to» information. As for the first approach, the «right to» information is regarded as a subjective right. According to the second approach, the subjective right to information (confidential information) does not exist, and the term «right to» information is used only as conditional, since in reality it is a «right of access» to information (confidential information).

The author comes from the position that the information is a message containing (in itself) the information, and for familiarization with them is not assigned the exclusive right, and especially the «property right», then, accordingly, there is no subjective right. Therefore, the term «right to» information (confidential information in the form of commercial secrets and know-how) is not an exact scientific formulation. More pre­cise scientific formulation, which more adequately reflects its essence, is the term «right of access» to information (confidential information in the form of commercial se­crets and know-how). Therefore, in the article the term «right to» commercial secret and know-how is used as conditional.

The violation of the «right of access» to commercial secrets and know-how in gener­al and in the field of pharmacy, in particular, are illegal ways of obtaining such confi­dential information (commercial secrets and know-how), unlawful disclosure and other unlawful actions that violate the said right.

Unlawful ways to obtain commercial secrecy and know-how include industrial es­pionage, bribery of an official (employee) who actually controls commercial secrets or know-how, unlawful penetration into the premises of his owner, listening to commu­nications, illicit acquaintance with the content of correspondence, containing commer­cial secrets or know-how, etc.

Also, the commercial secret (know-how), is one way to protect against unfair competi­tion and is carried out in accordance with Art. 10bis («Unfair competition») and Art. 10ter («Trademarks, trade names, false indications, unfair competition, remedies, the right to go to court») of the Paris Convention for the Protection of Industrial Property. The na­tional legislation on unfair competition does not, as such, fulfill the function of protecting «rights», but rather the law-protected interests of a person who is in fact controlling com­mercial secrets or know-how, but gives way to general civil law. The main feature of the rules of such legislation is its legal and protective nature.

So we can say that the protection of commercial secrets (know-how) is carried out in the framework of the fight against unfair competition, provided by article 10bis of the Paris Convention. Also, according to Art. 10ter in the process of ensuring effective protection against unfair competition, the participating countries undertake to pro­vide such nationals of other countries of the Union with the following protection: nat­ural and legal persons lawfully controlling confidential information shall be entitled to prevent the disclosure, receipt or use of such information without their consent other persons, if the latter have done so in ways that are contrary to honest commer­cial practice. In the notion of a method that is contrary to honest commercial practice, the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the TRIPS Agreement) invests in breach of contract, breach of trust, in­citement to violation; the acquisition of closed information by third parties who knew or committed gross negligence without knowing that actions that contradict honest trading practices were allowed in the process of such acquisition.

It can be stated that the TRIPS Agreement was the first time at the international level to identify the notions of protecting undisclosed information (commercial se­crets) as a means of information protection, the use of which is legally controlled by a legal entity. In general, in the past, many countries have addressed the issues of pro­tecting trade secrets or know-how no matter other than the issues of secrecy or indus­trial property protection. In order to meet the signs of the TRIPS Agreement, WTO member countries will have to protect all commercially valuable secrets.

Keywords: violation of law, right of access, confidential information, closed infor­mation, undisclosed information, classified information, commercial secrecy, know­how, industrial espionage, commercial espionage, unfair competition

Zaikіvskyi O., Onіstrat O. Influence of intellectual property rights influence on the defense capacity of the state

P. 47-54

The violation of intellectual property rights in the defense sphere and its influence on the state defense capacity is consid­ered. The legislation of Ukraine regulating activities related to the development of ar­maments and military equipment, as well as the performance of international mili­tary and technical cooperation, regarding the intellectual property protection, is ana­lyzed. The necessity of the legislation improvement on the regulation of intellectual property protection issues in the defense sphere is noted.

The development of military capabilities in the context of Ukraine’s defense capac­ity, to a large extent, depends on the equipment of the Armed Forces of Ukraine with modern weapons and military equipment, which is created on the basis of intellectual property rights objects (hereinafter — IPR objects). The more complex a weapons and military equipment, the more IPR objects are used, which may belong to different subjects of intellectual property rights. Unlawful use of these IPR objects or other vio­lations of intellectual property rights may lead not only to significant financial losses, but also to the loss of IPR objects themselves or to the prohibition of the use of weapons, which will negatively affect the defense capacity of the state.

However, the experience has shown that the issues of intellectual property protec­tion, especially in the defense sector, are not fully regulated, so many violations of intel­lectual property rights occur at each stage of the development of weapons and military equipment. These violations cause not only the mental and material losses of the au­thors of IPR objects and patent holders, but also affect the defense capacity of the state.

Key words: intellectual property, defense sphere, defense capacity, intellectual property rights objects, intellectual property rights violation, arms and military equipment, military and technical cooperation

Shtefan O. Magistrates courts and the prospect of their introduction in Ukraine

P. 55-64

Reformed the judicial system and legal proceedings laid the groundwork for the introduction of the previous court, which could hear cases expedited proceedings, in­cluding minor cases, as well as to carry out conciliation of the parties. Referring to the ex­perience of foreign countries and history of Ukraine such preliminary court called «World Court». The question of the introduction of justices of the peace in Ukraine over the past decade has been raised repeatedly at both legislative initiatives, and in legal doctrine, however, unity in the vision of the place of the Court, its jurisdiction had not been achieved. In the article on the basis of the analysis of the legislation of Ukraine, special national and foreign literature justified, that justices of the peace (magistrates) is the subject of the judiciary and shall belong to the system of courts of general jurisdiction.

It has been proven that a candidate for the position of judge of the World Court should conform to the General requirements laid down in the Constitution of Ukraine and the law of Ukraine «on the judicial system and status of judges», the requirements for candi­dates for the post of judge.

Also at the legislative level, should be provided with opportunities for career develop­ment of a magistrate.

It has been determined that the jurisdiction of the international court should be to consider and resolve minor cases, as well as cases arising from administrative offens­es, which are currently being considered by the courts.

Key words: civil proceedings, magistrates courts, civil jurisdiction, a minor case

Kyrylenko A. Multilateral Investment Court: prospects of creation and potential impact on the Ukrainian system of intellectual property rights’ protection and enforcement

P. 65-77

On April 30, 2019, the Court of Justice of the Euro­pean Union delivered its Opinion 1/17, confirming the compatibility of the mechanism for the resolution of disputes between investors and States, provided for by the free trade agreement between the EU and Canada, with the EU law. This Opinion may become the first step towards the creation of a Multilateral Investment Court, the project, which is preliminary promoted by the European Union through the conclu­sion of bilateral trade agreements.

While Ukraine is no alien to investment disputes over intellectual property rights, the interplay between investment law and intellectual property rights has received limited attention among local scholars. Consequently, this article starts with introducing the reader to the key elements of existing international investment treaties that are relevant for the intellectual property regime. It is followed by an overview of main investment dis­putes, involving intellectual property rights, with a view of mapping potential issues such a dispute may present to the Ukrainian system.

The third part of the article analyses the European Union’s new generation of inter­national investment agreements. Although Ukraine has not yet been involved in such negotiations, art. 89 of the EU/Ukraine free trade agreement allows for its review to in­clude provisions on investment protection and investor-to-state dispute settlement proce­dures. Consequently, two recent investment chapters are contrasted, the one included in the Comprehensive Economic and Trade Agreement with Canada, as a developed-to-de- veloped country negotiations model; the one included in the draft of the Deep and Com­prehensive Free Trade Agreement with Tunisia, as a developed-to-developing country negotiations model.

Such comparative analysis has allowed me to discern both common and diverging provisions, relevant for the national intellectual property systems, which, in turn, will allow Ukraine to adopt informed decisions during a potential negotiation with the Euro­pean Union.

Key words: multilateral investment court, EU investment agreements, interna­tional investment law, TRIPS, EU/Ukraine free trade agreement, EU/Tunisia free trade agreement

Cherniuk V. The legal regulation impruving of intellectual property rights objectives transfer to science park statute capital

P. 78-83

Higher education in situations and scientific in situations can create innovative structures of various types (science parks etc.) under the current legislation of Ukraine. Statute capital of new legal structure includes intellectual property rights that were transferred from such institutions. But the level of activity and development of such structures re­mains unsatisfactory in Ukraine. It is necessary to make appropriate changes, includ­ing in the legal regulation of intellectual property in science parks. The article reveals and analyzes the problems of intellectual property transfer to statute capital of sci­ence parks, as well as offers to change the Law of Ukraine «About science parks».

Key words: intellectual property, statute capital, objects of intellectual property rights, science parks, legislation

Androshchuk G. Trends in the development of artificial intelligence technologies: the economic and legal aspect

P. 84-101

The economic-legal analysis of the state and trends of the development of technologies of artificial intelligence (AI) has been carried out. The influence of AI on the development of society, economic effect, meth­ods and the field of application, the state of developments in the world and Ukraine are analyzed. In the next decade, AI will become the main market trend and the best business tool. The contribution of intellectual technologies to global GDP is estimated at 15.7 trillion. dollars In the next 5-10 years, China will be the leader in the success­ful operation and adaptation of AI technologies. According to analysts, the most bene­fit from AI technologies will be in the areas of financial services, retail and medicine.

The scientific and inventive activity in the sphere of AI, the role of protection of in­tellectual property (patent and copyright), and the maintenance of the balance of com­peting interests are researched. Recently, the number of inventions based on AI has sharply increased. The leaders in the number of such inventions are American compa­nies IBM and Microsoft. This growth is due to the fact that in recent years AI has evolved from the theoretical concept into a real product that gains the world market. Since the advent of AI in the 50’s of the last century, inventors and researchers have applied for almost 340 thousand inventions based on AI (as of the end of 2016) and published more than 1.6 million scientific articles. The transport sector, including au­tonomous vehicles, is one of the sectors with the highest rates of growth in the appli­cation of AI. China has become a global leader in increasing the number of patents in the AI sphere over the past five years.

By the number of companies working in the sphere of AI, Ukraine is among the three leaders among the countries of Eastern Europe. There are 57 AI companies in Ukraine and it has 11 investors

Generalized practice of state regulation of activity in the sphere of AI in industri­alized countries and EU countries. More and more countries are developing national AI strategies. Thus, 17 countries, including Canada, China, Denmark, France, India, South Korea and Taiwan, have already announced their AI strategies. Some of them invest billions of dollars in this area. China, for example, has invested more than $ 10 billion in this technological trend, followed by South Korea — $ 2 billion and France — $ 1.5 billion. Governmental structures from different countries are con­cerned about the need to develop relevant national strategies, programs and regula­tion of AI legislative level. Identified existing problems and suggested ways to solve them. Problems constraining the development of AI in Ukraine: the absence of a strategy for the development of AI, the domestic infrastructure for its work and the weakness of the business about existing fundamental scientific developments in the field of AI, insufficient for the implementation of AI level of digitalization of compa­nies, the lack of a high level of data work, and is also a misunderstanding of the im­plementation guidance in the AI company

Key words: artificial intelligence, technology, copyright law, patent activity, inven­tions, intellectual property

Opanasenko A. Representation of the Crimean Tatar people in Ukraine at the present stage

P. 102-112

The article explores in detail the system and the peculiarities of the formation and powers of representative bodies of the Crimean Tatar people in Ukraine. A brief historical reference is provided on the history of the conception and the formation of a system of such bodies. Through a detailed analysis of the system of representative bodies of the Crimean Tatars, these institutions are given a classifica­tion, the peculiarities of their interaction within the framework of the aforementioned system are highlighted. On the basis of the current documents of the Qurultay of the Crimean Tatar people and the Mejlis of the Crimean Tatar people, the peculiarities of the formation of representative and representative-executive bodies of the Crimean Tatar people, as well as their structural divisions, are investigated. The specificities of the elections and other forms of direct participation of persons belonging to the Crimean Tatar people in his representation are analyzed. The specifics of the interac­tion of representative bodies of the Crimean Tatar people with representative-execu­tive bodies of the Crimean Tatar people on the general republican, regional and local levels, as well as the peculiarities of the interaction of such bodies with state authori­ties and local self-government in Ukraine, are singled out. The study also assesses the current situation in the field of legal regulation of the issues of the Crimean Tatar people as indigenous people of Ukraine, identifies the main trends that affect its fur­ther formation and development.

Keywords: Crimea, Crimean Tatar people, indigenous people, Autonomous Republic of Crimea, Qurultay of the Crimean Tatar people, Mejlis of the Crimean Tatar people, local mejlis, Crimean Tatar voter assembly, regional mejlis, Crimean Tatars regional conference, representation, self-determination

Volynets I. Cybercrime in health care: demand for protection

P. 112-122

The study aimed to analyze problems of countering cybercrime as a potential threat for healthcare. The scope of the term «cybercrime» is provided. The causes and consequences of the in­fluence of cyberattack are identified. Legislation of Ukraine on information threat pro­tection was analyzed. Examples of cyberattack in health care are provided in accordance with types characteristics of cybercrime (ransomware, denial-of-service attack (DoS at­tack), Insider Threats etc.).

Since the beginning of the realization of electronic healthcare system in Ukraine, there is a certain possibility of a threat for information security. The importance of theoretical and practical improvement of counteraction against cyberattacks is ar­gued in compliance with modern foreign practices in combating cybercrime and per­sonal data protection.

The relevance of implementation of data protection guidelines at the legislative level is noted. Recommendation CM/Rec (2019) 2 of the Committee of Ministers to member States on the protection of health-related data was studied in relation to its implementa­tion to national legislation.

Keywords: cybercrime, computer hacker, cyberattacks, healthcare, personal data pro­tection, cybersecurity, register

Ennan R. «Virtual Property» in cyberspace: essence and legal nature

P. 123-133

In article the essence and legal nature of «virtual property» are considered in the condi­tions of formation of cyberspace. New types of social interaction, available through the Internet, have spawned virtual worlds with a developed economic subsystem. Vir­tual objects that exist in these worlds, often have a significant economic value and can be obtained for real money, which determines the expediency of their protection through the law. However, it is worth recognizing that the current trend towards de­materialization and virtualization of property, the relations arising in the virtual worlds are increasingly difficult to interpret in a language inherited from Roman law. Over time, the need to rethink traditional perceptions of ownership, its objects and the order of their protection in order to attract virtual objects will inevitably arise.

It seems necessary to draw cyberspace into the scope of the current legal regula­tion, not contradicting the real and virtual worlds, but realizing that these worlds exist together, and what happens in one can have serious consequences in the second. In any case, the current status quo for virtual objects can not last long. The situation when there is a black market for such objects, and their regulation is carried out by agreements, unilaterally drawn by the rightholders without regard for the interests of users and third parties, is abnormal. Many experts agree that sooner or later the courts, and after them, and lawmakers will be forced to recognize the reality of «virtu­al» property.

Key words: virtual property, virtual relations, cyberspace, gaming space, virtual world

Pokalchuk O. Certain Aspects of Using ART for People Who Underwent Gender Transition

P. 134-140

The situation with access to reproductive rights for transgender people has changed in Ukraine. In 2016, after a number of discriminatory regulatory and statutory acts regulating the procedure of gender recognition and prohibiting ac­cess to assisted reproductive technologies for transgender people were repealed, new procedures were adopted. However, the situation with factual access to assisted re­productive technologies for transgender people still lacks legal certainty. In the arti­cle, a situation is described when a transgender person approached a healthcare facil­ity for transportation and use of cryopreserved sperm, or oocytes, or embryos, or bio­logical material that has been deposited by this person in the healthcare facility before the gender recognition procedure. It is suggested to make amendments to the national legislation in order to establish transgender people’s right to access to assist­ed reproductive technologies with the aim of preserving fertility and avoiding the sit­uation of legal uncertainty when a person is forced to prove in the court of law that the person who deposited the sperm or the oocytes is the same person who currently wants to transfer the material to a different healthcare facility or to use it. Another point is to avoid legal uncertainty in the situation when two people of the same gen­der identity apply for the use of the embryos, with one of the applicants having gone through the gender recognition procedure.

Key words: assisted reproductive technologies, human rights, equality, non-dis­crimination, gender identity, transsexuality, reproductive rights, LGBTQI, legal un­certainty, gender transition

For information Announcement of the postgraduate course

P. 141-144