№ 4 (102) 2018
Copyright protects works as the results of intellectual creative activity, expressed in any objective form. The term «intellectual» is used to differentiate mental and physical labor, creativity and crafts. However, the intellectual component is inherent in many spheres of human life and the presence of only this component is not sufficient in copyright law. To provide a certain object of legal protection, it should be the result of not only intellectual but also creative activity.
Creativity is the phenomenon of human intellectual activity which combines the subconscious and conscious. At the subconscious level, the creative process is carried out; there is an appearance of the image. The role of the consciousness is to give certain specificity to this image and to make a decision on how it can be implemented in an appropriate form. Conscious comprehension of all that arose in the subconscious is necessary in order for a person, using some tools, to express their intention in an objective manner. With the use of consciousness images acquire development, completeness, embodied in the work.
Creative activity is characterised by two traits, originality and novelty. Originality means authenticity, identity, when the work does not reproduce other works but is the result of the author’s own creative work. Originality in copyright law is individuality: the work is an original of itself, and not a copy of any other work. If originality correlates with the results of creative activity of other people, then the novelty correlates with the person of the author themself. New in creativity is not copying previously created work but the creation of something new which previously did not exist among the achievements of this author.
There are three types of creativity in copyright law: artistic, scientific and technical. The artwork is aimed at creating artistic images that can be expressed in a text (literary works of artistic nature), a static image (fine arts, photography), a moving image (audiovisual work), a dance-plastic composition (choreographic work), and others like that. Unlike artistic creativity, the scientist does not invent, does not dream but explores, looks for links between objects, patterns, justifications, explanations, put forward hypotheses, finds problems, offers ways to solve them. Scientific creativity is quite rightly regarded as a social phenomenon because it is aimed at knowledge, on the development of existing knowledge or the formation of new ones. Technical creativity belong the field of innovation, scientific and technological progress and has a direct connection with scientific discoveries, inventions, industrial designs, useful models. However, the results of technical creativity are also copyrighted works the form of expression of which contains a mandatory technical component (computer programs, electronic databases, etc.).
For copyright, it does not matter whether it is possible to identify which fields (science, literature, art) and the result of which creativity (artistic, scientific, technical) is the object. Sufficient reason to provide of copyright protection is that this object arose as a result of creative activity.
Key words: creative activity, creativity, originality, novelty
Chomakhashvili O. State program as a system document in the field of protection of industrial property rights
As the sphere of industrial property is known the environment with an internal unity in which a set of various types of creative and intellectual activity of a person are carried out, covering various spheres of economic and social life, as a result of which intellectual property objects are created (signs for goods and services, inventions, commercial names, geographical indications, etc.) whose rights are protected by the current legislation and their nature is non-material.
State targeted programs are divided into: national programs of economic, scientific, technical, social, national- cultural development, environmental protection (hereinafter — national programs) are programs that cover the entire territory of the state or a significant number of its regions, have a long-term period of implementation and are carried out by central and local executive authorities; other programs whose purpose is to solve certain problems of the development of the economy and society, as well as the problems of development of individual economic sectors and administrative-territorial units requiring state support.
The development of the State Program in the field of industrial property rights protection is the necessary continuation of the process of improving the intellectual property sphere in Ukraine. This is also due to the need for radical changes aimed to the use of the intellectual property as a strategic source in the system of forming national wealth and improving the competitiveness of the country’s economy, accelerating innovative development and integrating Ukraine into the international economic space.
The aim of developing state targeted programs is to promote the implementation of state policy in the priority areas of the development of the state, individual economic sectors and administrative-territorial units; ensuring the concentration of financial, material-technical, other sources, production and scientific-technical potential, as well as coordinating the activities of central and local executive authorities, enterprises, institutions and organizations for resolving critical issues.
The modern world community has passed to the stage of economic development called «knowledge-based economy». Therefore, the main goal of state policy in the intellectual sphere for the medium term is to promote the formation and implementation of a modern model of integrating the nation’s intellectual potential into the domestic and world markets, taking into account both the national specifics of the processes of transforming intellectual property into competitive products, and the corresponding world experience. Ensuring the sustainable development of the Ukrainian economy requires a full-fledged use of scientific and technical potential in the process of modernization of the economy, directing it to meet the real needs of the country’s economic development on the basis of an innovative model.
Intellectual property should become a fundamental and strong instrument for creating the conducive environment for creative activity and free competition, as the basic bases for the economic, social and cultural development of our state.
The issue that should be given special attention during the development of the state program in the field of industrial property: improving the legal and organizational support for the transfer of knowledge in scientific institutions and higher education institutions in Ukraine; the establishment of the functioning and activity of the departments for the protection of intellectual property and the transfer of technology in universities and enterprises; open access to scientific publications; signing the contracts with enterprises, etc.
Keywords: industrial property, intellectual property, protection of rights, state program
The article is devoted to an analysis of the use of design patent as an object of industrial property in the pharmaceutical industry, namely for medicinal products.
The result of creative human activity in the field of artistic design in medicinal products is reflected in several variants, in particular: in the designer’s external form of the tablet form of a medicinal product; in the form of an injectable drug ampoule; in the form of packaging of the medicinal product.
Considering that the pharmaceutical market is, first of all, a socially oriented sphere of economic activity, and also, taking into account that in the vast majority of cases the consumer of such a product is well-informed about the active substance in the corresponding medicinal product and its therapeutic effect, which is offered for sale by several manufacturers, one of the decisive factors influencing the consumer’s choice to buy the particular product is its aesthetic appeal.
As practice shows, the success of the sale of a medicinal product is not always due to its novelty or improved efficacy and therapeutic effect, which in theory may be the subject of a legal invention and grant a monopoly right to the manufacture and sale of such a medicinal product. Quite often, well-known drugs, undergoing the so-called rebranding of the manufacturer, receive a new geometric form of release or a design solution that leads to a new stage in the market life of such a drug.
In turn, in order to ensure the proper legal protection of the result of creative activity, the object of intellectual property right is traditionally used — a design patent including the medicinal product.
In general views the study of an design patent as an object of industrial property, which is used for the legal protection of an artistic solution of a medicinal product, is to determine the legal features of obtaining such a legal protection and its correlation with the state registration procedures necessary for the withdrawal of the medicinal product into the market and establishment of the link ‘s gaining a competitive advantage in the market for homogeneous goods, and additional protection against counterfeiting.
In the conditions of high level of competition in the market of pharmaceuticals, regulatory state restrictions are the guarantor of the proper quality of medicinal product and adherence to the rules of advertising for medicinal products, but the main role belongs to mechanisms that provide a monopoly of rights for a certain period of time for the manufacturer and the general attractiveness of the goods, especially in the case of prescription free medicines.
Also in this article, the author pays attention to the role of an individualized artistic solution for a drug as an effective counterfeit product.
Keywords: intellectual property, design patent, medicines (drugs), pharmaceutical, patent, individual form, counterfeit product
The article describes the invention and utility model as the object of the contract on the order of intellectual property rights. Particular attention is given to establishing the validity of patent rights, the scope of rights conferred by the patent for invention and utility model patents, the probability of recognition of the patent invalid in whole or in part. The necessity of a detailed study of the subject and object of the contract is shown before the conclusion of the agreement to reduce the risks associated with its implementation.
Key words: inventions, utility models, object of civil contract, scope of legal protection, reliability of patent, intellectual property rights
Possible violations of intellectual property rights in the defense sector and responsibility for their implementation are considered. The legislation of Ukraine regulating activities related to the development of armaments and military equipment, as well as the implementation of international military-technical cooperation, concerning the protection of intellectual property, is analyzed. The importance of intellectual property protection and the necessity to improve the legislation on the regulation of issues of intellectual property protection in the defense sphere are noted. Ukrainian legislation theoretically allows you to protect the rights of intellectual property owners. In the case of violation of intellectual property rights, its protection is carried out in accordance with the procedure established by administrative, civil and criminal law.
However, all these norms do not protect against possible violations of intellectual property rights, and all subjects involved in the development of armaments and military equipment — central executive authorities, acting as customers of the state defense order, enterprises and organizations that are developing (modernizing) of armament and military equipment, and employees of these enterprises, which themselves create objects of intellectual property rights.
Responsibility of the customer for a number of violations of intellectual property rights in the development of weapons and military equipment is not defined.
For violation of the conditions of the state contract, the parties’ liability is stipulated. But the turn if in these conditions are not defined or not clearly defined, requirements for carrying out measures concerning the protection of intellectual property is not provided for liability. As a result, the customer may receive an example of armament and military equipment that is already morally obsolete and also with material claims.
The foregoing results in the fact that when the customer executes the control over the execution of the state defense order, namely, measures to protect intellectual property, the availability of patent documentation for products and technology for its production are not verified, and moreover, the use of intellectual property created (used) in the course of execution the state contract, is carried out without a separate contract with the definition of the rights of the customer.
The law also does not specify the responsibility of the executor for non-compliance with the requirements related to the protection of intellectual property rights in the execution of a state contract for state defense orders and the further use of intellectual property rights objects.
This situation leads to the «leakage» of intellectual property rights from the legal market of goods, to the so-called “shadow” circulation of objects of intellectual property rights.
The grounds for possible violations are laid down in the statutory documents of the developer, in particular the absence of a collective contract stacked in the organizations executing the state defense order, the provisions of the protection of intellectual property rights: (the exclusive property right for a service object of intellectual property rights belongs to the employer, and non-property rights belong to the authors who are paid the author’s reward, the size, terms and procedure for payment of which are determined by an employment contract (contract) between the author and the employer). This contract in most cases doesn’t set up, or there are no position of the size and procedure for payment of the author’s remuneration for a service object of intellectual property rights.
Uncertainty in collective and labor contract provisions regarding the observance of intellectual property rights leads to the loss of property rights, as well as non-proprietary rights to intellectual property rights, by authors, and non-remuneration for their use.
However, the authors themselves may also violate the requirements of the law. Particularly, these violations are notable to the development of weapons and military equipment, as they can lead to the damage of the national interests of Ukraine. To date, the legislation does not define the responsibility of the authors of the service objects of intellectual property rights for the implementation of such violations.
Thus, the issue of intellectual property protection, in particular regarding the definition of responsibility for the commission of offenses concerning the use of intellectual property rights in the defense sector, has been paid insufficient attention by our legislators, who have not been able (or not wanted) to solve existing problems in this area. And this is the most fundamental violation for which central (central and executive) central executive authorities responsible for developing state policy in the field of defense and ensuring its implementation, as well as specific officials of these central executive bodies, should be held accountable. After all, the lack of legislative regulation of the problems of intellectual property protection in the development of weapons and military equipment and in the process of military-technical cooperation leads to a number of violations. This is due to only one — the lack of attention and interest from the central executive authorities in ensuring the rights of the state and other entities in relation to objects of intellectual property rights, as is the case in the advanced countries of the world.
The current state of intellectual property protection in the defense sector indicates the need to improve the regulation of issues of the formation and implementation of state policy, the principles of state control in this area, as well as the powers and responsibilities of all the subjects involved in the defense sector.
The imperfection of the legal framework gives the legal possibility of unauthorized use of objects of intellectual property rights that are created when performing the state defense order, including (especially) the implementation of military-technical cooperation. This is facilitated by the lack of responsibility for actions that create a threat of violation of intellectual property rights or contribute to the violation.
In order to warn and prevent violations of intellectual property rights, it is necessary to improve the legislative and normative-legal basis for the regulation of issues of intellectual property protection in the defense sphere.
Key words: national security and defense, intellectual property, defense sphere, objects of intellectual property rights, armament and military equipment, military-technical cooperation
In the article, as a result of the analysis of the Civil Procedure Code of Ukraine and the Regulation (EC)No. 861/2007 of the European parliament and of the Council of July 11, 2007, a comparison was made between the procedural institute of insignificant cases in Ukraine and the procedure for examining small claims — the existing European Small Claims Procedure in EU countries. Disclosure of the topic has also contributed to the study of jurisprudence on this issue.
Keywords: justice, civillitigation, simplification proceedings, costofaction, European standards of justice, small claims
Artamonova N., Lerantovich E. Technology blokchein as an industrial property object: patent activity characteristic
The article gives an assessment of the current state and technological profile of blockchain in the global innovation space. Comparison of the level of inventive activity in the global scale of the blockchain development sector made it possible to identify countries with higher efficiency of scientific and technical activities — the USA and China. An increased patent activity of world corporations was noted, which indicates the use of patenting as a tool for creating a temporary monopoly on the market and for creating new markets based on the principle of «primacy» of access to the consumer. The active patenting of blockchain in the international PCT system, more than 30 %, indicates its high importance and prospects. The race of corporations for leadership changes the patent landscape every month. Today, IBM, nChain Holdings Limited, takes the first place, and MasterCard International Incorporated has moved to the third place. The structure of the technological profile of blockchain in the global innovation space is defined, which includes: a hybrid blockchain; methods and systems of blockchain using digital signatures; software testing, computerized scoring based on text and visual feedback; integration of market exchange and processing of issuers of transactions; blockchain security; identity management service to ensure the certification of transactions, etc. Conclusions are made about the high patentability of blockchain, its prospects and the need to further highlight specific aspects in the legal and technological field of the blockchain. However, understanding the existing limitations and disadvantages of the approach, the analysis of patent information can be actively used to understand the key trends in technological development, providing the necessary information basis for the formation of effective evidence-based scientific, technical and innovation policies.
Key words: blockade, patent analysis, inventions, data base Patentscope, IT technologies, innovations, objects of intellectual property, patent landscape
In this article reviewed decisions and orders of the Ukrainian SRR on rates of royalties at 1925-1935 years, investigated formation and development of the national system of payment of royalties. It is noted at that time copyright was adapted to economic conditions: as users of works began to act not private organizations, but only state (organizations). State, system of state organizations acted as the only monopoly consumer of the results of creativity protected by copyright. There was no need for the author to have exclusive property rights to use the works. Property rights were reduced to royalties, which became normalized (minimum and maximum remuneration rates were determined), and some cases it was fixed. For public performance, the remuneration was determined as a percentage of the actual fee, for each act or (of) the actual fee for the entire program. Minimal norms of authors fee for literally works were mainly fixed and depended from rules of circulation for one edition.
Keywords: copyright, copyright fee, minimum amount of royalties, public performance of works
Getmantseva N. Development and development of labor law how to promote unity of private and public beginners
The article is devoted to the historical digression of the formation and development of labor law as an independent branch of law. It is noted that not dip into the history of the issue, it is impossible to find that heredity, terminology, views that originated and manifested itself in the formation of labor law as a field and its basic institution — the employment contract. The scientists explained the complex structure of labor law as a field, including in the labour relations of the employer and the worker. Supervisory relationships and the relations on consideration of labour disputes. The main problem was the problem of the labor contract (work agreement, contract industrial worker).
The establishment of Soviet labour law as an independent branch was not so much a consequence of the tendency of the allocation of the employment contract of civil law, as the attempt of the bolsheviks to create a new socialist law, which was fundamentally different from the bourgeois. In the Soviet legal system historically there was no distinction between private and public law, as this fact was not included in the plans of the bolsheviks.
Further the new economic and political realities, legislative changes have caused the transformation of ideas about the method of legal regulation of labor. The specificity of the social relations that constitute the subject of labor law, largely determines the features of the method of their legal regulation. For labor relations, this specific feature is the combination of private and public started.
It is concluded that labor law as a branch of law is a manifestation of the unity of private and public started. The focus is that the emergence of labor law, with its Central institution of the «labor contract» related to the justification of labor as a special object of legal regulation, which does not fit into the framework of civil construction recruitment of labor, as different from any object of civil rights. It is the special nature of the work and its specificity, which is inseparable from personality, has resulted in the emergence of a new branch of law. In addition, labor law is seen as «the symbiosis of private and public» elements, with its fundamental principles (not in name but in content), which had evolved historically and is characteristic only of this branch of law.
Key words: private law, public law, labor law, civil law, labor contract, labor relations, state regulation, contractual regulation, state, method of labor law
Dniprov O. Conceptual bases of the executive authorities study in the system of Ukraine state authorities
The article deals with the issue of scientific research analysis on the problems of executive state authorities. We indicate a sufficient number of scientific works within the theoretical jurisprudence, administrative and constitutional law. However, the emphasis was made on the need for a thorough rethinking of the legal nature of the executive authorities, its relationship with compatible categories and its role and place in the overall system of power relations in the aspect of reforming the legal system in Ukraine.
Key words: state, state-building, administrative law, executive power, legislative power
Review of the monograph by T. Mikhailinoi «The role of integrative rights of publication potential reforming the legal system»