№ 3 (119) 2021
Fedorova N. Legal regulation of advertising agencies in the context of intellectual property law. The main prerequisite for the rationalization of advertising activities in all its scale is the methodological and planned preparation of advertising messages and their correct use at all stages of the advertising process. Advertising agencies play an important role in being qualified coordinators between trade (distribution) and marketing, for the benefit of consumers.
The specificity of legal relations arising in connection with the creation and distribution of advertising is associated with the fact that their subjects on the part of advertising producers are mainly professional business entities, which conclude agreements on the creation of advertising with their customers. Relationships between advertising creators and advertising agencies are mainly built based on order agreements for the creation and use of objects of intellectual property rights or labour contracts. In this case, the author retains non-property intellectual property rights, while property rights in most cases pass to the advertising agency or advertising customer.
So, the author retains non-property rights, and, unfortunately, they, as a rule, are unimplemented properly in relations arising from the creation and distribution of advertising. Undoubtedly, we are talking about the right to a name. As a rule, advertisements don’t include their creators’ name, regardless of how they are distributed. However, this doesn’t mean that the rights of the advertising author. or the rights of the advertisement constituent elements author may be violated. The legislation notes the possibility not to indicate the name of the author with his consent or at his request. According to Law of Ukraine “Copyright and Related Rights”, the author has a personal non-property right to demand recognition of his authorship by properly indicating the author’s name on the work and its copies of any public use of the work, certainly, if it’s possible. However, the purpose of advertising is to disseminate information about a product or service and not about its author. For the practical aspect of this situation, it’s usually indicated that the producer is an advertising agency, not the individual authors of the content.
Keywords: advertising, legal regulation, subjects of advertising activity, consumer rights, advertising legislation, hidden advertising, comparative advertising
Samolovova N. Unregistered industrial design in the fashion industry. In order to harmonize legal relations in the field of intellectual property with the EU member states, a new Law «On the Protection of Rights to Industrial Designs» entered into force in Ukraine, in which a new term appears — an unregistered industrial design (un-RID) similar to the unregistered Community design (UCD). Thus, together with the registered industrial design, the information about which is entered in the Register and for which the Certificate was issued, the term of property rights of which is valid for 5 years from the date of filing the application with the Institution and can be extended, if necessary, up to 25 years, now there is a new one in the Law — an un-RID, the term of legal protection of which is 3 years from the date of its bringing to the general knowledge on the territory of Ukraine. The law provides for the same legal regulation for the protection of registered and unregistered industrial designs.
The legal protection granted to registered and un-RIDs has a lot in common. The main differences between an un-RID and a registered industrial design are the absence of formal requirements for acquiring rights, a short term of protection, and a limited scope of rights granted to the owner of an un-RID. Since an un-RID is a new institution of intellectual property law for Ukraine, the article discusses options for solving these issues in practice in the member states of the European Union. The article provides examples of decisions of the EU courts related to the protection of un-RIDs in the fashion industry. It follows from the practice of national courts that the most relevant un-RIDs are in industries that offer products that are in demand for a short-term, do not require significant costs and a complex registration procedure, therefore they are relevant to design solutions in the fashion, jewellery and accessories industry. The article also analyses the state of protection of intellectual property rights in the fashion industry in Ukraine. In Ukraine, with the introduction of a new institute of intellectual property rights, designers have great new opportunities to protect their collections from copying and other violations.
Keywords: industrial design, intellectual property, unregistered Community design, novelty, individual character
Zaikіvskyi O., Onіstrat O. State national security policy and intellectual property issues. National security (“NS”) of Ukraine is achieved through a balanced state policy in accordance with accepted doctrines, strategies, concepts and programs in such areas as political, economic, social, military, environmental, scientific and technological, information, etc.
However, many theoretical and practical issues concerning the definition of the content, challenges, tasks and mechanisms of implementation of effective functions of public policy and management decisions for the further development of social processes still remain insufficiently studied. Therefore, the main tasks of the NS system subjects are constant monitoring of the impact on NS of processes taking place in various fields (including intellectual property), forecasting, identifying and assessing possible threats, destabilizing factors and conflicts, their causes and occurrence consequences. In particular, the impact on NS (especially on defence capabilities) of the significant development of intellectual property and the full use of intellectual property rights is not taken into account at all.
State NS policy should include measures to prevent the emergence and neutralization of sources of threats to NS under the influence of the development of intellectual property.
Theoretical aspects of the state policy of National Security and Defence of Ukraine (“NSDU”) development are considered. The necessity of current problems definition in this sphere and the inclusion of intellectual property questions in these processes is investigated. It is determined that the effective implementation of the state NS policy is impossible without a comprehensive analysis of intellectual property issues impact on the sphere of the NSDU. The importance of further research on the development of a unified approach to improving the protection of intellectual property and its determination as a component of NSDU, the development of appropriate recommendations to address issues of intellectual property in this area and to neutralize sources of threats under the influence of intellectual property in the structure of NSDU.
Keywords: state policy, national security, intellectual property
Dorozhko H., Romashko A., Kravets L., Poladko O. Modern approaches to the protection of scientific and technical information as a result of intellectual creative activity. The article is devoted to defining terms for information in order to use it effectively. New scientific and technical information is particularly highlighted. It is of particular value for commercialization processes. Objects of new information that may be objects of intellectual property rights are highlighted. It is shown that there are inconsistencies in the legislation of Ukraine regarding these objects. This applies to such objects as know-how, trade secrets, and innovation proposals. Unclear definitions of them as objects of intellectual property rights effect the effectiveness of their use. This will affect their sharing and the transfer of rights to third parties.
The problem of protecting new information is particularly investigated. The danger of its illegal use arises already at the stage of creation. The analysed practice of privacy violations has shown this. The main reason that was identified is the lack of competence of those who have access to it. This is especially true for information that is subject to intellectual property rights. Many of them have poor knowledge of the method of checking for patent purity and approaches to determining secrecy.
A method for using WIPO PROOF is proposed. It allows you to confirm the existence of an information file of a particular author at the time of its registration. The article shows the possibility of using the ISO9001: 2015 and ISO/IES 27001 standards.
By the ISO/IES 270001 standard “Information technology — Security techniques — Information security management systems — Requirements” in 2019 alone, the International Organization for Standards issued more than 67 thousand certificates, which indicates its demand in the business environment.
It was stated that in Ukraine it is necessary to resolve the issue of controversial information products and actively use methods for its protection. Recommendations were made to organizations on information resource management. This is the main way to effectively develop them in modern conditions.
Keywords: scientific and technical information, intellectual property, trade secret, invention, utility model, rationalization proposal, WIPO PROOF, management system
Androshchuk G. Artificial intelligence: economy, intellectual property, threats. Artificial intelligence (AI) technologies, the spread of which is based on the widespread use of digital information and the rapid growth of computing power, are leaving the realm of purely theoretical research and becoming one of the segments of the world market that can have truly revolutionary consequences. The paper provides economic and legal analysis of the state and trends of AI, identifies its impact on the economy, the importance of the role of intellectual property (IP), assesses the risks, threats and dangers of criminal use of AI, developed mechanisms to counter them. The development of AI technologies as an integral part of «Industry 4.0» is considered, the main provisions of the «White Paper on Artificial Intelligence» of the EU are studied.
Over the next decade, the EU plans to spend $20 billion a year on AI development. At the same time, the protection of IP rights in the context of AI development and related technologies has been unconsidered by the Commission, despite the key importance of these rights. In legal regulation, AI is seen as a new challenge for the economy and the legal system, a new phenomenon that has a multiplier effect, a legal phenomenon in the structure of legal relations, a new object for legal regulation.
The introduction of AI in the field of IP creates new legal and economic problems. The creation of AI works is an integral area of activity in the modern digital economy. These circumstances bring to the fore the problem of recognition of authorship in the creation of AI works, the possibility of authors to dispose of their rights and their use of mechanisms for legal protection of IP. The analysis of the cases considered by courts connected with a problem of legal personality of AI is carried out, legislative activity on this question is studied. Possibilities and dangers of criminal use of AI are shown. They are ranked in order of their level of danger — depending on the harm they may cause, the potential benefit or the benefit of crime. Prospects for the development of AI in Ukraine are shown, the Concept of development of artificial intelligence in Ukraine is analysed. It is concluded that AI should become one of the key drivers of digital transformation and overall growth of Ukraine’s economy.
Keywords: artificial intelligence, economic impact, intellectual property, regulation, cybersecurity, risks, threats, national security
Kodynets A., Murashko A. Video game in the system of intellectual property: the concept and features of legal protection. The article is devoted to the study of the legal understanding of video games as an object of intellectual property rights. The author concludes that video games constitute digital information, which greatly facilitates their development, however, complicates the protection of intellectual property rights. There is a contradictory connection between the concepts of «electronic (digital) information», «audiovisual work», «computer program» and «literary work», which establishes some uncertainty in the protection of video games, namely, what should be understood by these concepts in terms of law.
The author found that the use of the latest technologies to improve the visual component brings the video game even closer to the game audiovisual object, which increases the complexity of the process of protection of intellectual property rights. However, the current situation with the use of the term «computer program» in the context of protection of intellectual property rights to video games does not cover all features of the latter, covering only the main program among the software recording and operation of the game, such as audiovisual content. Therefore, there is a need to use the generalized concept of «software» as opposed to the narrower concept of «computer program». In this case, in the absence of at least one of the characteristics of the multimedia work, the computer program should be referred to the scope of legal regulation of software.
The author proposed to understand the video game as object of intellectual property law in the following manner: multimedia work expressed in the form of digital (electronic) information, the principle of which is determined by the algorithms of the software provided for installation in the memory of computer devices.
In general, the digital nature of video games presupposes a revision of existing approaches to the protection of intellectual property rights, which may be aimed at weakening the regulatory function of the law where it is possible to regulate the relationship by more flexible means.
Keywords: video game, intellectual property law, computer program, software, digital information, electronic information, multimedia work, audiovisual work
Shabalin A. Judicial procedural issues of choosing an effective method of legal protection in civil cases. The article is devoted to the study of Civil Procedure aspects of the court’s application of a proper and effective method of protecting a violated right within the frame of its own judicial discretion. Attention is paid to the study of the legal nature of civil protection, existing doctrinal positions, as well as the legal and regulatory environment. The features of the exercise of discretionary powers by the court regarding the use of an effective method of protecting violated private law have been established. It is indicated that the court is empowered to choose an effective method of legal protection exclusively within the limits of the statement of claim — claims are detailed. It is emphasized that when choosing an effective method of protection, the principle of the rule of law must be observed, in accordance with the provisions of Article 10 of the Civil Procedural Code of Ukraine (“CPCU”). This means that an effective method of legal protection must be correlated with the provisions of the Convention for the protection of human rights and fundamental freedoms and the case law of the European Court of Human Rights. This universal provision applies to all cases of claim proceedings, namely the claim, which are decided by the rules of civil procedure. The peculiarity of the court’s use of an effective method of protection in civil cases is that it can choose an effective method of legal protection only in court cases in which the claim is considered, as well as when the law or agreements do not determine the effective method of legal protection. On the basis of the conducted scientific research, the author has developed own gradation of legal criteria of choice by court of an effective way of legal protection at consideration of civil cases. Such a gradation is universal for all cases considered by the court under the rules of civil procedure. Exceptions to the above regarding the application of a specific method of protection are cases related to compensation for damage caused to an individual as a result of withdrawal of an insolvent bank from the market or liquidation of the bank.
Keywords: civil procedural protection, court effective way of protection, civil process