Download Journal № 3 (125) 2022

Shtefan О. The concept and meaning of the principles of civil procedural law in martial law. The article reveals the meaning of the concept of principles of civil procedural law, its relationship with other related concepts, in particular, with the concept of «principles of civil procedure», defining the limits of their application. The conclusion is substantiated that the purpose and tasks of civil proceedings reveal the essence of the principles of civil procedural law. The essence of the principles of civil procedural law is revealed through their features. Different approaches in the science of civil procedural law to determine their characteristics are analysed.

The definition of the principles of civil procedural law is formulated, which are the basic ideas, fundamental principles of the tasks and objectives of civil justice, enshrined in the rules of civil procedural law, which reflect the specifics of the subject and method of legal regulation of civil procedural law relations and are in a dialectical relationship and interdependence with other elements of the mechanism of legal regulation.

The functional purpose of the principles of civil procedural law is directly related to the impact on legislative activity, becoming its guideline. On the other hand, external factors can influence the principles themselves and the mechanisms for their implementation. The peculiarities of the implementation of some procedural actions in martial law, which are reflected in the draft Law of Ukraine «On Amendments to the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine and the Commercial Procedural Code of Ukraine (concerning the conduct of proceedings under martial law or state of emergency)» № 7316 and related to the implementation of the principle of openness of civil proceedings. The peculiarities of court summonses and notifications for the period of martial law or state of emergency are revealed, the author’s opinion on the proposed mechanism of realization of the principles of openness of civil proceedings, equality and justice, legal certainty is stated. He substantiated the conclusion that the legislator did not consider the system of principles of civil justice to ensure access to martial law, and some provisions of the law contradict the principles of openness and several constitutional principles such as equality and justice, legal certainty.

Keywords: principles of civil procedural law, principles of civil procedure, martial law

Shtefan А. Citation in works created by the creative industries. Citation, i.e. the use in the work of small fragments of other works with reference to them, belongs to the traditional copyright exceptions and limitations that contribute to the development of science and culture, and free dissemination of information. The Ukrainian system of copyright exceptions and limitations is characterized by an exhaustive list of such cases, so only actions expressly provided by law are allowed. Therefore, free and uncoordinated with the author citation of the work is allowed only in compliance with the requirements provided by the law.

First, the work from which the quotation is used must be lawfully made public, i.e. disclosed to the public with the permission of the author. Citing an unpublished or illegally published work constitutes a deviation from lawful conduct and qualifies as copyright infringement.

Second, the length of the passage used must be appropriate to the purpose, which may include explaining one’s statements or referring to another author’s opinion. The limit of the size of a citation, such as the maximum number of words, signs, or seconds of duration, is not established by law. Therefore, the volume of the citation should correspond to the purposes of expressing a particular opinion, providing certain information or data. Works of fine art, photography and other small works can be cited in part or in full if it is justified by the goal. The use of such works must be absolutely targeted and have a direct connection with the information contained in the work in which the citation is given.

Third, the excerpt from the work must be given in an authentic formulation that corresponds exactly to the original. If a quotation is translated from a foreign language, its use does not require permission but the translation must be correct and accurately convey the author’s thought.

Fourth, a quotation can be included only in a work of a critical, polemical, scientific, or informational nature. It should be taken into account that, under Ukrainian law, articles and programs of the media are always considered informational objects, so the media can quote other works regardless of the genre of their particular article or program.

Fifth, when citing, it is obligatory to indicate the name (pseudonym) of the author and the source of borrowing. If the work is published anonymously, it is sufficient to comply with this requirement by indicating the source of borrowing. Without specifying the work and its author(s), the use of a fragment of the work will not be considered citation, and therefore, even if all other requirements are met, the user’s actions will be regarded as copyright infringement.

In general, when quoting, it should be remembered that it must be carried out in strict accordance with the requirements established by law. Users are not given the right to determine which of these requirements may not be met because only their combination determines the boundaries of permissible and allowed behavior in the free use of works.

Key words: citation, quotation, free use of works, creative industries, copyright, intellectual property

 

Trotska V. Limitation on property rights of performers, producers of phonograms in accordance with the legislation of Ukraine and the EU. The article is devoted to the study of the norms concerning the limitation of property rights of performers and producers of phonograms. These provisions are applied by analogy to the norms on the limitation of property rights of the authors. The provisions allow any person to lawfully use the performance of works, their sound recordings (phonograms) without the permission of the subjects of copyright and related rights and without payment of remuneration, or in some cases — with payment of remuneration.

The norms are applied in special cases, in the public interest, in particular reproduction of performances, phonograms for personal purposes, for studying and scientific research, for informational purposes, etc. Therefore, their research requires special attention.

The article analyses the limitations of property rights of performers and producers of phonograms, defined in the Law of Ukraine «On Copyright and Related Rights». Attention is focused on the special conditions for the application of norms on the limitation of property rights of performers, producers of phonograms, in comparison with the norms on the limitation of property rights of authors.

The legal analysis of the relevant norms, defined in the international conventions in the sphere of related rights, has been carried out. It is stated that the relevant norms of the Law are borrowed from the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms. The cases of limitations, defined in this Convention, concerning exceptions related to the issuance of compulsory licences. However, this was not considered when formulating the norms of the Law.

For comparison, the relevant norms of EU law in the sphere of copyright and related rights have been studied. The conditions of free reproduction of copies of phonograms for educational purposes, defined in the Law of Ukraine «On Copyright and Related Rights», in particular on exceptions to the export of reproduced copies of phonograms, requirements for remuneration, in the analysed EU laws are absent.

It is concluded that the provisions of the Law have to be improved. Suggestions are provided. Appropriate changes will facilitate the effective application of the norms on the limitation of property rights of performers and producers of phonograms, in practice.

Keywords: copyright; related rights; limitation of the rights of performers, producers of phonograms; performance; phonograms; compulsory licences

 

Doroshenko D. The features of sports commentary as copyright protected work. The article analyses a sports commentary legal nature as a result of creative activity of sportscaster, and, correspondingly, the possibility of legal protection provision for such a commentary.

Based on the analysis of multiple researches, devoted to sports commentary, and established practice, the author determines that sports commentary can be seen as creative work that demands a significant level of knowledge from a sportscaster whose aim is to attract an audience to sports broadcast. Thereby, a high number of sports commentaries featured by unique author’s style and originality contains the signs of artistic work that could be protected by copyright according to Berne Convention provisions. In general, such result of creative activity corresponds to speech as copyright protected work, since sports commentary combines an applying of material prepared and analysed in advance and impromptu generating due to unpredictability of sports competition actions.

At the same time, the author emphasizes the difference of legal approaches to settlement of disputes concerning sports commentary within legal frameworks in the USA, the EU, and Ukraine. In particular, the Supreme Court of Sweden denies to acknowledge the level of sports commentary originality enough for copyright protection. However, such a position can hardly be considered as common regarding sports commentary, since it does not characterize the work of a sports commentator as in general due to the variety of approaches can be applied in this genre of sports journalism. Simultaneously, judiciary of Ukraine and US indirectly recognize a sportscaster work as a creative activity. Thus, even though sports commentary is not protected by copyright within existing legal frameworks, several judgements provides the way to solution of that discuss. Bearing in mind that for today a broadcast of sports events still has pretty inappropriate level of legal protection to secure it from pirate activities, the protection of sports commentary could prove another legal instrument aimed to strengthen sports broadcasting legal positions and personal rights of sportscaster.

Keywords: sports commentary, sport broadcast, broadcast, speech, creative activity

 

Drobyazko V. Protection of technical means of protection and information on rights management in the European Union. The article is devoted to the study of such aspects as protection of technical means of protection and information on the management of rights in the European Union. These protections are provided for the first time in Articles 11 and 12 of the WIPO Copyright Treaty (WCT) and Articles 18 and 19 of the WIPO Performance and Phonograms Treaty (WPPT). Each of the WIPO treaties contains almost identical provisions obliging Member States to prevent circumvention of technical measures used to protect works, performances, and phonograms and information on rights management.

The implementation of the above provisions of the WCT and the WPPT is devoted to Chapter III «Protection of technological measures and information on rights management» (Articles 6, 7) of Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. Article 6 of the Directive obliges EU Member States to provide adequate legal protection against the circumvention of any effective technical measure by a person who knows or should be aware for obvious reasons that he is pursuing such a goal. According to Article 7 of the Directive, the EU Member States are obliged to provide adequate legal protection against all persons who knowingly commit unlawful acts regarding rights management information.

The provisions of Articles 7 and 8 of the Directive are incorporated into the domestic law of the EU Member States. The article analyses the relevant legal provisions of Germany, Austria, Greece, and Denmark. Thus, the German Law of September 10, 2003 on the Regulation of Copyright and Related Rights in the Information Society introduced into the Law on Copyright and Related Rights the regime of legal protection of technical means of protection and information on rights management (paragraphs 95a–95d) and remedies rights (p.108b–111a), which prohibits the circumvention of mechanisms designed to protect works and other protected objects from unauthorized control.

In Ukraine, the protection of technical means of protection and information on rights management is provided by the Law on Copyright and Related Rights, Article 1 of which defines the terms «information on rights management» and «technical means of protection», and Article 50 lists illegal acts protection and information on rights management are classified as infringements of copyright and related rights. The subject of copyright or related rights may sue the person who infringes the right to technical remedies and information on rights management.

Keywords: copyright, work, performance, phonogram, technical means of protection, information on rights management, digital networks

 

Androshchuk G. Problems of patenting inventions created using artificial intelligence: doctrine and practice. The dynamics of development of the world market of artificial intelligence (AI), patent activity in this field, problematic issues arising in connection with the patenting of inventions created using AI are studied. Aspects of doctrine formation and policy development in the field of intellectual property (IP) and AI are considered. Features of examination of patentability of inventions created with the use of AI in different jurisdictions (EPO, USA, Germany, China), foreign legislation, doctrinal positions and case law in this field are analysed. According to the analysis of the Artificial Inventor project, DABUS applications indicating the AI system as the inventor, submitted in 17 jurisdictions, were mostly rejected at the level of intellectual property offices and as a result of court appeals. In general, the applicant failed to persuade the IP courts and agencies with his arguments, despite differences in national law and patent systems.

The main provisions of the draft law «On Amendments to the Law of Ukraine» On Protection of Rights to Inventions and Utility Models «on the regulation of relations arising in relation to inventions and utility models created using artificial intelligence» are considered. It is concluded that the Law on the Protection of Rights to Inventions and Utility Models excludes computer programs from patented objects. Their minority is stated in the total number of filed applications and issued patents. Between 1980 and 2018, only 740 such applications were published (1.26% of the total). The rules for compiling, submitting and reviewing an application for an invention (utility model) in Ukraine are outdated and do not reflect aspects of AI. Only a comprehensive approach (changes in legislation and improvement of expertise) will solve this problem.

Keywords: intellectual property, artificial intelligence, inventor, software, examination, patent, digital transformation

 

Kovalenko T. Trademark registration in the European Union. The development of economic integration of European countries has created the need to create a single system of legal protection of trademarks, as it should contribute to the formation of a common market, the conditions of which are the possibility of competition and free movement of goods and services in European countries. One of the legal instruments to meet these conditions is the trademark, which must be used in the European Union. The creation of a common economic space in Europe has contradicted the national laws of each of the member states of the European Union. Therefore, there is a need to create a single European system of trademark protection.

According to the EU Regulation, one of the main functions of an EU trademark is to guarantee the origin of goods and services sold or provided to consumers under that trademark. The EU trademark is unitary. As it is registered for all member states of the European Union through a single procedure, it acquires rights only if it is accepted in all member states of the European Union. An EU trademark is acquired only through registration, not use.

The EU regulation provides for the free movement of goods and services between member states. Accordingly, the owner of an EU trademark cannot object to the use of such a registered trademark in the European Union. Moreover, the EU regulation defines not only the registration criteria, but also the examination procedure, including the possibility of objections to registration made by third parties, and the procedure for filing claims for infringement of trademark rights.

Either party may appeal the decision on the objection to the Board of Appeal of the European Union Intellectual Property Office. Thereafter, any issue can be appealed to the Court of Justice of the European Union, which can only annul or change the decision.

Once the EU trademark application has been published, the pre-emption holder has three months to file an objection. Obtaining an EU trademark is essential for a successful brand protection strategy. Since its inception, the EU trademark system has become one of the most important tools available to both legal entities and individuals who want to effectively protect their trademark rights in Europe.

Keywords: trademark, EU Regulation, EU trademark, European Union, European system of trademark protection

 

Muzyka-Stefanchuk O. Fintech startups in Ukraine in the context of digital economy development. The article deals with the particular problems of today’s digital economy. Particular attention is paid to the development of Fintech startups in Ukraine. The foreign experience of creating and implementing Fintech startups is analysed. The reasons for the failure of Fintech projects in Ukraine and other countries are considered.

Features of the innovative domestic mobile banking project Monobank (since 2017), which was launched in partnership with the Fintech Band, are considered. The shortcomings of Monobank are analysed, including the following: customers who do not have smartphones cannot use the product; Monobank does not have its own terminals and ATMs to top up the card and withdraw cash. It uses iBox services and resources of other banks; not everyone can get a credit limit.

Historical examples of the creation of «virtual» banks are studied. The first one is Security First Network Bank (SFNB) appeared in the United States in 1995, and in Germany in 1996, it was called Advance Bank. The emergence of virtual banks later became a prerequisite for the creation of online banking (e-banking), which allows a person to manage their bank accounts.

It is proved that the era of electronic financial services requires the creation of conditions to prevent fraud and abuse, and to this end should increase the level of financial literacy of the population. There are prerequisites for further development of fintech in Ukraine. In this context, the USAID Financial Sector Transformation Project of the National Bank of Ukraine (NBU) and the Independent Association of Banks of Ukraine (IABU) is analysed.

The activity of innovation park in Ukraine in the field of fintech industry UNIT.City is considered.

Special attention is paid to mobile applications with augmented reality.

The typical problems faced by developers of fintech startups are analysed. These are, in particular, the following reasons for the loss of projects: the Ukrainian market for investment is not so big; not enough resources for successful work in this market; market regulation issues etc.

Keywords: finance, bank, virtual bank, digital economy, Fintech, startup, account, financial institution

Senyuta I. National normative tendencies in the field of biological safety and biological protection. The strategic vectors of development of national legislation in the field of biological safety and biological protection (hereinafter the “BSBP”) through the analysis of the legal basis of Ukraine and draft laws are highlighted. Based on the Decision of the Council of the European Union (CFSP) 2019/1296 of 31.07.2019 it is revealed the problems in the field of BSBP in Ukraine, namely: 1) there is no framework law on BSBP in Ukraine, which would outline the system of the BSBP and its proper functioning; 2) there are no mechanisms of state control over compliance with the requirements of biological protection when working with biological agents; 3) there is no register of business entities that work with harmful biological agents on the territory of Ukraine; 4) business entities that work with dangerous biological agents are not required by law to have the appropriate permits (licences); 5) there are no tools to control the reliability of staff and protect confidential information.

Based on the draft legislation, the ways of overcoming the outlined issues are defined. The main provisions of the draft Law of Ukraine «On Biological safety and Biological Protection», the defining feature of which is the principle of «common health», which is the foundation of building a system of BSBP in Ukraine is found out. Among the key provisions of the draft law: 1) defining the principles of state policy to ensure BSBP; 2) creation of a special body in the field of BSBP — the Interdepartmental Commission on Biological Safety and Biological Protection; 3) introduction of classification of biological agents into four risk groups depending on the degree of their individual and social danger, as well as the availability of means of treatment and prevention of infectious diseases caused by them: from the first to the fourth as the danger increases; 4) introduction of several control tools: a) notification of the start of activities with biological agents; b) inclusion of the business entity that plans to carry out activities on the circulation of biological agents to the State Register of the objects with increased biological danger; c) licensing the activities of economic entities of the circulation of biological agents of 2-4 risk groups.

The common area for research of safety problem and pharmaceutical activity — the subject of antibiotic resistance and normative measures to counteract it is analysed.

Keywords: biological safety, biological protection, antibiotic resistance, draft law of Ukraine «On biological safety and biological protection», common health, biological agents

 

Kashyntseva О., Iolkin Ya. Intellectual Property as a Part of State Biosafety in Healthcare: disputable issues and identification of key areas of research in wartime. The Decree of the President of Ukraine of December 17, 2021 approved the Strategy of Biosafety and Biological Protection (hereinafter — the Biosafety Strategy), which radically changed the approach to defining the concept of biosafety of the state. Prior to the adoption of the Biosafety Strategy, which was developed in response to the challenges of the COVID-19 pandemic, biosafety has been considered only as a component of environmental protection with a focus on limiting the use of genetically modified organisms. Instead, the pandemic of COVID-19 and the war posed new challenges to society, including the necessity to identify and to determine the content of legal institutions that can ensure the biosafety of the state in the field of healthcare.

Even in the pre-war period, the necessity of relevant scientific research was approved at the level of the National Academy of Legal Sciences of Ukraine with the determining of the scientific field “Intellectual Property as a component of biosafety of states in the field of health care”. The study had been started in January 2022 on the basis of the Department of Intellectual Property and Human Rights in the Field of Healthcare of the Intellectual Property Scientific Research of National Academy of Legal Sciences of Ukraine (hereinafter — the Institute). The leaders of the scientific research are the Director of the Institute Dr Oleksandr Doroshenko and the Head of the department Dr Oksana Kashyntseva.

However, the beginning of the active phase of the war on February 24, 2022 set new challenges, adding to the challenges of the pandemic the challenges of war. Today, experts of the Institute are part of the working group to develop a Recovering Plan of Ukraine’s from the effects of the war for 2022–2032 particularly in Healthcare System. At the State level, the Intellectual Property possess the proper effective instrument to ensure the biosafety.

Keywords: intellectual property, biosafety, biosecurity, healthcare, biotechnology, medicines, TRIPS flexibilities, TRIPS security exceptions

№ 3 (125) 2022