№ 4 (108) 2019

Download Journal № 4 (108) 2019

Petrenko I. Legal protection of atypical works in Ukraine and other countries of the world

DOI: https://doi.org/10.33731/42019.175707

P. 5-14

The article is devoted to the legal protection of certain types of works: those that have a minimal creative character, for example, short phrases, slogans; fonts. It can be difficult to determine this type of a work as an object of copyright.
This article analyzes the current legislation of Ukraine, in accordance with which copyright, laws of other states in the field of copyright are protected, as well as the practice of protecting copyright on the above objects.
A characteristic feature of untypical (non-classical) works is representing the minimum of creativity, which complicates their protection as an object of copyright. However, copyright protection for such work is carried out in different countries.
For example, fonts may be protected by copyright law if they are a computer program. Nowadays, most of fonts used in electronic computing devices and communications are computer programs. Raster fonts are computer visualizations and they are not protected by copyright law. However, scalable fonts, as they are included in the program, are subject to protection as copyright objects.
For example, in the United States fonts and short phrases (slogans) are not subject to copyright protection, and in Ukraine and France such works may be protected. But even in the USA, a font can be protected as a copyrighted object.
A good example of this is the Coca Cola headset. In this case, the font is a customization of the inscription and is used as part of the logo design, although it is not protected by copyright in the United States. So, the logo design can be protected as a work of art, taking into account the arrangement of letters, the use of space, nuances, color composition and other creative aspects of design. Thus, when it comes to the original design of the font, it can certainly be protected as an object of copyright.
Despite the fact that some works are not included in the list of copyright objects, they are subject to protection if they have certain criteria: having an objective form of expression and having of the result of the author’s creative intellectual work. At the same time, the level of creativity when creating such works is usually minimal. This aspect should be noted when classifying non-classical works as objects of copyright.
Keywords: atypical works, neologism, advertising slogans, slogans, protection of font design, minimal creativity, original phrases

Diduk A., Yurovskaya G. «Protected Interest» in relation to confidential information (trade secrets and know-how)

DOI: https://doi.org/10.33731/42019.175708

P. 15-22

This research paper is devoted to the issue of protection of a legally protected interest in respect of confidential information (trade secrets and know-how). It reveals the distinction between the concepts of subjective rights and interests protected by law, and the study of terms and interest legally protected interest.
In the science of civil law, there are different points of view regarding the understanding of subjective law and interest. To properly resolve the issue of the correlation of these concepts with respect to confidential information (commercial secrets and know-how), one has to find out what needs to be understood as interest. Although the current civil law of Ukraine is widespread and uses the term «interest», it does not contain a clear definition of the concept of «interest», «interest protected by law», a legal and substantive characteristic, which leads to different interpretations of it in judicial practice.
Following the opinion of certain EU lawyers, the «right of access» to confidential information (commercial secrets and know-how) is not considered by the authors of the article as a classical subjective civil law, namely, «protected by law», since such information may only be a factual monopoly (de facto), in contrast to subjective exclusive civil law, which arises, for example, from a patent (de jure).

Thus, following the traditional positions of continental law, the authors advocate the notion that information (as well as confidential information (commercial secrets and know-how) can not give rise to ownership (possession, use and disposal) and, accordingly, there is no sub-intellectual property right, including intellectual property rights, since this notion is arbitrary. In essence, it is an exclusive right (monopoly). However, since commercial secrets and know-how relate to intangible objects that do not have the characteristics of intellectual property objects (exclusive rights), such a monopoly will only be
de facto, and not legal (de jure), on for example, from a patented invention.
Given this, and taking into account the current civil law, it would be advisable to use the term «protected by law» in relation to such an unusual object as information, confidential information (commercial secret and know-how).
Therefore, proceeding from the above, cases in the court on the protection of confidential information (commercial secrets and know-how) should be considered not as an overridden or disputed subjective right, namely, as an interest protected by law.
And since civil law in Ukraine refers both to the protection of rights and to the protection of interests, it shows that even the legislator proceeds from the doctrine according to which interest is not included in the content of subjective law, but exists independently, for its boundaries.
If these hypotheses are correct, then questions arise for which scientific community needs to be answered. They will be of purely practical importance, in particular, for describing (formulating) the subject matter of the dispute, the subject of the action and its grounds in the case of the protection of the interest protected by law regarding confidential information (commercial secrets and know-how). Therefore, it seems that the legislator hastened to «bring» confidential information and, in particular, commercial secrets under the legal regime of the object of law, and not under the legal
regime of the object of information.
Key words: a legally protected interest, the interest, of a subjective right, confidential information, commercial secret, trade secrets, now-how, know-how

Zaikivskyi O., Onistrat O. National interests concerning intellectual property in the european integration process

DOI: https://doi.org/10.33731/42019.175709

P. 23-38

The process of adaptation of Ukrainian legislation to EU legislation and its influence on national interests is con­sidered. The legislation of Ukraine concerning the regulation of issues of intellectual property protection in the implementation of international scientific and technical co­operation is analyzed. The necessity of improvement of the legislation on protection of national interests is indicated.

The winding path that Ukraine was walking through to Europe eventually led to a straight line. However, there are many obstacles on this straight line that Ukraine needs to overcome to join the community of democratic European states. One of these obstacles is the discrepancy of our legislation with European standards, including in the area of intellectual property.

However, when implementing the legislative reform in the field of intellectual property, one should proceed from the understanding that the national interests should be in the center of attention.

Since the objects of intellectual property rights are created mainly in the course of scientific and scientific and technical activities, this is the area where it is necessary to ensure their proper protection, especially during the international scientific and technical cooperation

Intellectual property protection during the international cooperation should be en­sured, first and foremost, by bilateral agreements on this issue, which should be en­tered into with the initiation of cooperation in any sphere, as well as agreements on the protection of classified information. These agreements should define the basic principles for the conclusion of contracts (contracts) and be aimed at mutual protec­tion of information, prevention of violation of rights to the results of intellectual activ­ity when used in cooperation.

Since the interstate agreements on intellectual property protection are absent, so at the level of direct participants in international scientific and technical cooperation, in concluding agreements on cooperation, in most cases, there is no harmonization of the order of protection and distribution of rights for intellectual property rights ob­jects created by each of the parties.

Therefore, when adapting the legislation in accordance with European norms, it is necessary to introduce appropriate measures to prevent and avoid the above-men­tioned errors and violations in international scientific and technical cooperation and to protect both the interests and rights of scientists and authors of intellectual prop­erty rights objects and national interests concerning intellectual property.

Key words: European integration, intellectual property, national interests, international scientific and technical cooperation, objects of intellectual property rights

Kryvolapchuk V., Fyl S. Protection of the rights of intellectual property of the National police and the Ministry of Internal Affairs of Ukraine

DOI: https://doi.org/10.33731/42019.175710

P. 39-47

The arti­cle describes the content of the activities of the National Police and the Ministry of In­ternal Affairs of Ukraine as subjects of legal protection of intellectual property. It was clarified that in the structure of the National Police of Ukraine the Department of Economic Protection has been established, which is carrying out measures for the de­tection and termination of the facts of violation of intellectual property rights and the Department of Cyberpolicies, which provides counteraction to infringement of copy­right and related rights on the Internet. The types of administrative offenses and crimes against the violation of intellectual property rights are considered. It was found out that administrative responsibility is stipulated for infringement of rights to objects of intellectual property right, illegal distribution of copies of copyright works, violation of copyright and related rights on the Internet and violation of legislation regulating the production, export, import of disks for laser reading systems. It was es­tablished that criminal liability is stipulated for violation of rights to objects of copy­right and related rights, industrial property objects and illicit circulation of disks for laser reading systems and control marks. It is substantiated that insufficient level of knowledge in the field of intellectual property of police officers, lack of common meth­ods of conducting expert appraisals on the fact of violation of intellectual property rights and low number of experts in the field of intellectual property is negatively re­flected in the fight against counterfeit and pirated goods.

Key words: intellectual property rights, protection, violation of rights, National Police of Ukraine, the MIA of Ukraine

Bahareva E. Problems of criminal legal protection of intellectual property rights in the field of industrial property

DOI: https://doi.org/10.33731/42019.175711

P. 48-52

Intellectual property is of particular importance in legislation of Ukraine. One of the priority tasks of Ukraine is to criminal law protection of intellectual property rights. Ukraine’s desire to strengthen its international authority, as well as the country’s international commitments in the field of intellectual
property, determines the fulfillment of this task.
The author explores the problematic issues of protection of intellectual property rights in the Criminal Code of Ukraine regarding industrial property objects under the Criminal Code of Ukraine. The article focuses on the following objects: industrial designs, inventions and utility models.
The Criminal Code of Ukraine rules of law related to infringement of industrial property rights are concentrated in different sections 5 and 6. The article has studies and analyzes the rule of law in the following articles:
•Article 177 «Infringement of the rights of invention, utility model, industrial design,
topography of the integrated circuit, plant variety, rationalization proposal»;
•Article 176 «Infringement of copyright and related rights»;
•Article 203-1 «Illicit circulation of disks for laser reading systems, dies, equipment and
raw materials for their production»;
•Article 229 «Illegal use of marks for goods and services, trade name, qualified indication
of origin of goods»;
•Article 231 «Illegal collection for the purpose of using or using information of a commercial or banking secrecy»;
•Article 232 «Disclosure of Commercial or Banking Secrets».
In the article the author shows the opinions and positions of various scholars on improving the criminal protection of intellectual property rights.
One suggestion is to place the above rules in another section. Such a proposal can be implemented by creating a separate section in the Criminal Code of Ukraine. This section of the code should contain criminal law rules on intellectual property rights.
Scientists’ point of view is based on studies that show that crimes against intellectual property rights do not violate electoral, labor, «other personal human and citizen rights.»
The author considers it necessary to consider the proposal of scientists to submit articles related to the objects of intellectual property rights in a separate chapter of the Criminal Code of Ukraine. This chapter will be titled «Crimes Against Intellectual Property»/The study revealed shortcomings in the Criminal Code of Ukraine. This drawback is the absence of several crime scenes. Scientists consider it necessary to supplement the criminal code of Ukraine with such crimes: «scientific discovery» and «breed of animals». The author of the article believes that changes in legislation will have a positive impact on the protection of scientists in Ukraine.

Keywords: Criminal defense, property, Intellectual Property, Intellectual Property Crimes, industrial property crimes

Postryhan T. Legal regulation of scientific and technopark structures of Germany

DOI: https://doi.org/10.33731/42019.175712

P. 53-58

The article reveals important legal aspects of the creation and activities of scientific and technopark structures in Germany.
The author examined the legislation of Germany concerning on the activities of universities, mechanisms for supporting innovation, tax benefits, protection of intellectual
property rights, obtained under state financing of developments and other issues. The author traces the development of scientific and technopark structures in Germany. Innovative structures and their features are considered. The analysis of researches of scientists concerning state-legal regulation of higher education, research institutions, technological parks is carried out.
The modern condition and tendencies of activity of scientific and technopark structures in Germany are characterized. The author states that financial support for innovation in Germany is carried out through grants. The Bavarian Financial Regulation stipulates that the grant recipient must provide evidence of the targeted use of the grant. In addition, the right to audit the competent service or its representative should be established.
The author notes that, with regard to research funding, the federal government focuses on six priority tasks of the future within the framework of a modern high technology strategy to strengthen Germany’s innovative capacity. These are researchareas with high potential for innovation, which are also reflected in current federal funding programs.
Subject funding for the Federal government is usually is channelled through the tender once a year. Though exist an exception from the repeated tender of times in two years. Grants typically include grants to finance project-related costs or the fixed rates on the project.
In the free State of Bavaria of the program of financing provide to technical colleges and colleges of applied science an opportunity to introduce applied science in issues of development of the companies.

Key words: scientific park, technological park, high technologies, legal regulation, innovation

Androshchuk G. Trends in the development of artificial intelligence technologies: the economic and legal aspect fo. 2)

DOI: https://doi.org/10.33731/42019.175713

P. 59-69

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

Tereshko K. Changing normative paradigm of transplantation in Ukraine: some aspects

DOI: https://doi.org/10.33731/42019.175714

P. 70-75

The analysis of regulatory changes in transplantology related to the adoption of the Law of Ukraine «On the application of transplantation of anatomical materials to humans» is carried out. The right of minors to donate hematopoietic stem cells is disclosed, provided that they are informed and their consent is obtained. The legal provisions on the procedure for obtaining consent and refusal of transplantation by donors and their legal representatives are examined.
On January 01, 2019, the Law of Ukraine «On the Application of Transplantation of Anatomical Materials to humans» came into force, which replaced the «morally» obsolete and ineffective Law of Ukraine «On Transplantation of Organs and Other Anatomical Materials». The new law regulates issues related to the transplantation of human organs and other anatomical materials to save the lives of others.
In the world of medical practice, transplantation from a deceased donor takes place on the basis of the principles of expressing the will of a potential donor. They are divided on the presumption of consent and the presumption of disagreement. In the first case, the person in his life filed a statement about her reluctance to become a donor in case of death. In the absence of such an application, it is considered that the consent to become a donor is granted by default.
By presumption of disagreement — on the contrary, a person must document his consent to become a donor after death.
Adoption of the Law of Ukraine «On Application of Transplantation of Anatomical Materials to humans» is only the first step on the «thorny» path to the development of transplantation in Ukraine. The state should ensure the implementation of an active information policy in the field of application of transplantation of anatomical materials to a person aimed at forming a positive attitude towards life-long and posthumous donation of anatomical materials by informing the population about transplantation as an alternative method of rendering medical care used for saving human life and , including through social advertising, and raising public awareness of legal regulation in the field of transplant application and transplantrelated activities.
Key words: transplantation, donor, anatomical materials, information, consent for donation, transplant coordinator

Tverezenko O. Grounds for the emergence (acquisition) of intellectual property rights

DOI: https://doi.org/10.33731/42019.175715

P. 76-85

The author of the study has determined: legal grounds for the emergence (acquisition) of economic intellectual property rights; primary and derivative grounds for the emergence (acquisition) of economic intellectual property rights.
The article proves that:
• the terms «the emergence of economic intellectual property rights» and «acquisition of economic intellectual property rights» are synonymous;
• the term «emergence of rights» applies to primary copyright and related rights;
• the term «acquisition of rights» applies to primary subjects of industrial property
and to secondary subjects to intellectual property rights;
• the customer and the employer are the primary subjects of the intellectual property right according to Art. 429 and Art. 430 of the Civil Code of Ukraine.
The author has proved that the provisions of the bill «On Amendments to the Civil Code of Ukraine regarding the regulation of legal relations arising in the event of a fair acquisition of property» (the registration number 7394 dated 13.12.2017) regarding the good faith acquisition of economic intellectual property rights are not consistent with the legislation of Ukraine in the field of intellectual property.
The article provides recommendations on the improvement of intellectual property legislation of Ukraine regarding the issues above, in particular, recommendations on amending the Civil Code of Ukraine in part of defining:
•some essential terms of intellectual property contracts;
•grounds for the emergence (acquisition) of civil rights and responsibilities.
Furthermore, the author provides recommendations regarding the types of legal facts that are grounds for emergence (acquisition) of economic intellectual property rights. Such legal facts are:
1) creation of a copyright object;
2) the first performance of the performance, the production of a phonogram or videogram,
the first implementation of a broadcast (program) of a broadcasting organization;
3) obtaining a patent for an invention, utility model, industrial design, trademark certificate, geographical indication, layout of the integrated circuit;
4) recognition of the trademark as a well known in Ukraine;
5) recognition of the proposal containing technological (technical) or organizational solution as innovative;
6) first use of the business name;
7) legitimate classification of information as a trade secret;
8) establishment of previously unknown objectively existing laws, properties and phenomena of the material world, which bring fundamental changes to the level of scientific knowledge;
9) creation of an object of intellectual property right connected with the performance
of an employment contract;
10) the creation of an intellectual property object connected with the execution of the
contract on the creation and use of the intellectual property object;
11) contracts for the disposal of intellectual property rights;
12) introduction of property rights of intellectual property as a contribution to the authorized capital of the legal entity;
13) court decision;
14) inheritance of material intellectual property rights;
15) other legal facts.
Key words: grounds for acquiring civil rights, primary and derivative subjects of intellectual property rights, acquisition of intellectual property rights, emergence of intellectual property rights