Legislative innovations

Shakel N. Responsibility for storage for the purpose of distribution of counterfeit works in the law of the Republic of Belarus

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In early 2016, the Code of the Republic of Belarus on Administrative Offenses was amended, which introduced responsibility for a new type of action – storage for the purpose of distributing works digitally. The author of this article provides the content of the provision. The author draws attention to the sanctions established by the new provision of the Code of the Republic of Belarus on Administrative Offenses, and justifies proposals for their mitigation.

It should be notes that from the moment of its appearance in the law this norm caused difficulties in its application in practice, due to an ambiguous understanding of the term «distribution» in the legal literature. Based on the content of the analyzed publications, most authors broadly interpret the new provision, believing that with the entry into force of the new standard, virtually all actions in digital and mobile networks will be banned: transferring files between users, downloading them to digital devices, storing programs on computers, etc.
This article is devoted to a deep study of this new provision of the Belarusian legislation. It is indicated which works are considered counterfeit, taking into account its technical features that are singled out in practice and in the doctrine. It is noted that basically illegal actions are prohibited by the Law of the Republic of Belarus on copyright, among which the largest place is occupied by violations of copyright property rights. The list of author’s rights, fixed in the legislation of the Republic of Belarus, is considered; attention is drawn to the fact that such a list is not closed. At the same time, from the moment of establishing responsibility for storage for the purpose of distribution of counterfeit works in the law of the Republic of Belarus, according to a new article of the said Code, it becomes possible to hold person accountable for actions that are not included in the number of the author’s property rights.
A comparative analysis has been made with the relevant provisions of Russian and Ukrainian law. It is established that, despite the fact that the right to distribution is available in the legal systems of these countries, it has different content. Conclusions and proposals on improving the legal regulation in this sphere are made.
Keywords: copyright, counterfeit work, administrative responsibility, copyright holder, distribution, reproduction

 

Shtefan А. Camcording, Card Sharing, Piracy: New Law Provisions on Types of Violations of Copyright and Related Rights

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After amending the Law of Ukraine on Copyright and Related Rights the list of infringements of copyright and related rights was clarified. It includes two new types of violations, camcording and card sharing, and the concept of piracy is significantly extended. In new version of the law piracy is considered as publishing, reproducing, import into Ukraine, export from the customs territory of Ukraine and distribution of infringing copies of works, including computer programs and databases, phonograms, video grams, illegal disclosure of programs of broadcasting organizations, camcording, card sharing and Internet piracy as taking any actions under this article that are recognized as infringement of copyright and/or related rights via the Internet.
In the first part of this definition the piracy is identify with the counterfeit. In fact, the counterfeit is the reproduction (production) of copies of works, phonograms, video grams, made without the permission of the relevant entity. Such production itself, without the distribution of reproduced copies, infringes copyright and /or related rights since the use of the object was not authorized by the right holder. Piracy (in the context of counterfeit) is not the production but putting into circulation, distribution of counterfeit copies, their imports and exports.
Camcording is the video recording of the audiovisual work during its public demonstration in cinemas or other establishment institutions by persons, present in the same room where there is such a public demonstration, for any purpose without the permission of the copyright or related rights holders. This definition shows that camcording itself is a type of production of infringing copies of works which is not piracy but the separate type of copyright and related rights  infringement.
Card sharing carries out the removal, deactivation or other bypass of technical protection measures, which provide the access to relevant programs of broadcasting through a subscription card code and more. As a result of the disclosure of the code (password) and typically with using special software and local area network or the Internet, persons who does not belong to subscribers can get the access to the program of broadcasting organization.
Card sharing is a kind of circumventing of technological protection measures but not piracy.
Related rights of broadcasting organizations arise not by virtue of creation of a program but because of its publication. At the time of the illegal publication, related rights to this program are not yet protected, the facility already exists but rights may arise by virtue of publication, carried out with the consent of the broadcasting organization. So what kind of violation of related rights comes from, if they have not emerged yet?
The legal definition of online piracy also raises criticism; it leads to mixing of different concepts and combining them into one category. Consequently it will create collisions: the publication of the work under the name of another person in a printed publication will be recognized as plagiarism, the same action on the Internet — as piracy; the amendments to work against the will of the author in the real world may be qualifies as a violation of the moral integrity of copyright, the same action on the Internet — as piracy. Not every act of violations of copyright and related rights on the Internet should be considered as Internet piracy. It should be linked to the distribution of copyright and related rights objects on the Internet without the permission of right holders.
As shown by the analysis, definition of piracy has become more imperfect than it was in the previous version of the law. List of types of infringements should be clarified and coordinate and clearly delineate. These issues should be devoted to a separate study.
Key-words: piracy, counterfeiting, camcording, card sharing, violation of copyright and related rights

 

Shtefan A., Zerov K. Termination of Copyright and Related Rights Infringementson the Internet: a Review of Legislative Novelties

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The procedure of termination of violations of copyright and/or related rights via the Internet (hereinafter – Procedure) may apply to violations of property rights.
The Analysis of Articles 19 Civil Code of Ukraine and 52-1 of Law of Ukraine on Copyright and Related Rights indicates that the application of the Procedure means only the right of the person concerned, it is not necessary and does not restrict to use other ways, methods, and techniques that are not prohibited by law.
The applicant makes an application for the termination of abuse solely through an attorney. This attorney should confirm the presence of the applicant’s rights to terminate the violation of which is pushing demand. This position does not take into account that the right to establish the presence or absence of certain rights of a person is the exclusive competence of the court, an attorney can only confirm that he had been given certain documents.
The application of the Procedure is not limited by territorial binding, which means that this application may apply to persons in different jurisdictions.
A positive feature of this Procedure consists of a ruling that blocking of access by default may apply only to the electronic (digital) information that specified in the request for termination of the violation.
It must be observed that copyright and/or related rights may be violated by making available on the Internet individual objects in digital form without a permission of the copyright / related right holder, not by the mere fact of the existence of a web page.
On the web page may be simultaneously lawfully placed other objects/information and blocking of access to which may constitute a violation of the rights and interests of third parties. Thus, it appears that blocking of access to a website in general only appropriate in cases where access to the work or other subject-matter was placed without a permission of the copyright / related right holder cannot be disabled otherwise because of technical reasons (e.g., protocol, HTTPS).
In addressing the issue of preventing access (web blocking) to an electronic (digital) information it must be taken into account the role and scope of the website, access to which can be blocked. In the case of Cengiz and Others v. Turkey (applications nos. 48226/10 and 14027/11), the European Court of Human Rights held that there had been a violation of Art. 10 of the European Convention on Human Rights. The case was concerned about the blocking of access to YouTube. The Court held that the applicants, all academics in different universities as active YouTube users had been prevented from accessing to it. The blocking order had affected their right to receive and impart information and ideas. The Court also observed that YouTube is a single platform which provides not only a distribution
of copyrighted works, but also enables information of specific interest, particularly on political and social matters, to be broadcast and citizen journalism to emerge.
Certain provisions of the article 52-1 of Law of Ukraine on Copyright and Related Rights require clarification. Research problems of protection of copyright and relatedrights on the Internet remain uncontested relevant.
Key words: copyright, related rights, Internet, termination of infringements, selfprotection

 

Copyright

Drobyazko V. World Copyright Convention 1971

P. 27

The article is devoted to the review of the revision of the World Convention in Paris (1971), in particular, the scientific analysis of issues: recognition of property rights, the possibility of making exceptions from these rights (Article IVbis); licenses for translation and reproduction provided by the competent authority to developing countries (Articles Vbis, Vter and Vquater); the temporary suspension of the Berne Convention’s inapplicability clause in favor of developing countries (new paragraph in the Additional Declaration in relation to Article XVII); other differencies from the 1952 Convention.
Keywords: copyright, property rights, license for translation, license for reproduction

 

Foreign experience

Postrygan T. Development of science parks at the US universities: historical and legal aspects

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The article reveals the important historical and legal aspects of the establishment and activity of science parks in the USA.
The author studies US law on the questions of activities of universities and procedures for small business investment, technological innovation, for securing rights for products and technologies, intellectual property rights obtained under public financing of projects and other issues.
The author has traced the history of development of science parks in the United States since their inception to the present. Kinds of innovation parks and their features were considered. Researches of scientists were analyzed on state-legal regulation of higher education, research institutions, science parks.
It was characterized the current state and trends of science parks in the USA.
Keywords: science park, science, regulation, technology, innovation

 

Kashyntseva O. Compulsory Licensing of Medicines: EU experience

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The basic civilizational heritage is the Rule of Human Rights beyond of any others. The Rights on Health and on Life should not be in competition with Intellectual Property Rights in the sphere of Health Care.
Such consensus we see, for example, in a mentioned below cases. So, in 2000, Roche appealed to the German government to issue a compulsory license to a device for screening blood for HIV / AIDS in patent owned company Chiron. Note that Roche and initiatives clearly expressed political will of the government to issue a compulsory license and it was enough in order to have in May 2001 Roche and Chiron entered into a license agreement, the price of which satisfied both sides. This example is proof that the mere presence of a legal instrument of compulsory licensing and active demonstration of the presence of the political will of the state is already sufficiently powerful search mechanisms balance public interests and intellectual property rights.
In the early 2000s, the active position of the French public about the patient too high price to test for breast cancer (patent owned by Myriad) are led in 2004 to conduct an appropriate legislative initiative and to amend the Intellectual Property Code of France. Changes to Article L 613-17 provided if needed in health care and in the absence of voluntary agreement on the proposal of the Minister of Industry and Minister of Health may be issued compulsory license for the drug, medical device for in vitro diagnostics and in in vivo and needs associated with such therapeutic products. Pay attention not only to the drug, but also the whole accompanying équipement.
The mechanism of compulsory licensing to ensure the interests of society that were affected by the conduct of anti-competitive actions were effectively used in Italy in 2005. The Committee on Competition and Market (AGCM) issued a compulsory license for antibiotic Imipenem cilastatina company Glaxo. In 2007, the Committee on competition and the market has made the company Merk issuing voluntary licenses for finasteride two years before completion of the SPC.
The success of the mechanism of compulsory licensing as a tool for expanding access to treatment is effective and transparent regulation depends on the national legislation and the political will in the country. We believe that the EU in the near future will provide us new examples of such liberalization in the health sector, as cannot long maintain stability epidemiological invasion of migrants and refugees expensive branded drugs. Numerous publications in European media about the appeal of the patent or its derogation is worrisome marker for branded companies and hope for the end consumer of medicines.
Key words: compulsory license, medicines, access to medicines, human rights, health care, intellectual property, antitrust legislation

 

Forensics

Sopova К. A sign for goods and services (trademark) – the name of the medicinal product as an object of examination of court expertise

P. 43

The article considers methods of determining the similarity of the names of medicines that are registered or used as signs for goods and services that differ from the established methods for determining the similarity of signs in other classes of the Nice Classification. The phases and features of the study of the names of medicines for determining their similarity are compared with the domestic judicial and expert practice and practice of the European Union.
In addition to standard methods for determining similarity of signs must be taken into account other factors: features of functional purpose and regulations for the names of drugs, their selling on the market and that the choice of drug is determined by intermediaries (doctors and pharmacists).
There is no general rule that should be applied to determine the similarity of the names of medicines. A distinct complex of circumstances must be considered and assessed in each case.
It is also important to consider the functional features of naming drugs (identification of drugs and information about its effect and purpose), and special conditions for their treatment procedures in Ukraine.
Key words: name of the medicinal product, trademark, court expertise, similarity of signs

Law and innovation

Butnik-Sіversky O. Formation of neo-economics in the sphere of intellectual property from the position of intensification processes

P. 57

In the article the author considers the issue of a gradual transition of the economy from one development stage to another, which is a proof of the stage-by-stage development of the innovative activity sphere, as a result of the intensification of the intellectual property sphere. There is substantiated the use of the  “intensification” concept in the intellectual property sphere, as a new scientific view on the processes of extension and deepening of innovation activity due to dynamics in rising of intellectual property rights commercialization, the fullest use of intellectual capital. In relation to the intensification of the processes in
intellectual property sphere, it is proposed to use diversification tools and foresight technologies, including advancing or so-called “innovative” modernization, which are most suitable for technical and technological modernization of the Ukrainian economy, taking into account the effective commercialization of intellectual capital.
Key words: new economy, intensification of the processes in intellectual property sphere, modernization, diversification tools and foresight technologies

 

Scientist’s view

Kushnir I. On the issue of the principles of taxation in the field of construction

P. 68

The article deals with the approaches of financial, economic and financial-legal sciences to understanding the principles on which the tax system is formed. It is  emphasized on the application of various schemes in relation to the concept of principles (principles of tax law, principles of taxation, principles of the tax system, etc.). It is emphasized that these concepts are not identical, at the same time, the development and legislation usually does not emphasize the definition of their different legal nature. On the basis of the analysis of the provisions of the Tax Code of Ukraine, it is concluded that the principles on which the tax legislation is based, is to be applied to the field of construction activity. The principles that ensure implementation of the constitutional order are singled out, and the specifics of application of separate principles in the field of construction are determined. The provisions of the Tax Code of Ukraine, which establishes the principles on which
the tax law is based, are researched. The analysis that was made allows us to say that each of them should be applied in the field of construction. The share of these principles (the universality of taxation, the equality of taxpayers, the inevitability of legal responsibility, a single approach) should be considered as principles that ensure the implementation of the principles of the constitutional system. E.g., the principle of equality is reflected in the process of taxation of various subjects of construction activity, regardless of what financial mechanisms are involved in the construction process. A number of other principles (in particular fiscal sufficiency, social justice, economy and tax neutrality), which, although they must be universal, have specificities regarding implementation in the construction industry. It is concluded that this is due to more specific tax policy and enforcement than the very nature of such principles. It turns out that the Tax Code needs to expand the list of tax principles. It requires the addition of at least the principles of limiting tax pressure, integrity, etc. It is emphasized that the construction industry is an example of an industry in which the observance of the principles stipulated by the legislation in real time and in full amount should be a
priority.
Key words: construction, taxation, tax legislation, principles of taxation

 

Legislation reforming

Kadyetova O. Reform of intellectual property in Ukraine through the prism of European intellectual property legal doctrine

P. 77

The article examines the impact of European legislation on the development of legislative regulation of intellectual property in Ukraine. In particular, the process of implementation of the provisions of European legislation. The ways of solving tasks aimed at such an implementation are explored through the prism of the European doctrine of intellectual property. The practice of the European Union and the actions of the European Commission in the area of further harmonization
of legislation in the field of intellectual property, in particular regarding the copyright regulation, is analyzed.
Key words: reforming of legislation, harmonisation, intellectual property

 

Senchuk V. Legal basis of protection of the official names of states and their inclusion into designations

P. 87

The article covers the legal principles of legal protection of the official names of the states and their inclusion into the designations from the positions of the theory of civil law, international law and practice of WIPO. The approaches to legislative regulation of the registration procedure of trademarks, which include the designation containing Ukraine, the official name of the state, and the influence of institutional reform in the field of intellectual property on these processes, are studied.
Key words: designations, name of a state, reforming of intellectual property

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№ 3 (95) 2017