№ 4 (108) 2019

Download Journal № 4 (108) 2019

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

P. 5-14

The article deals with the legal protection of certain types of works: those that have minimal creativity, for example, short phrases, slogans; fonts that cannot be identified to which object of copyright they belong to, and legal protec­tion as objects of copyright. This article analyzes the current legislation of Ukraine according to which copyrights are protected, the laws of other states in the area of copyright, as well as the practice of copyright protection of the above objects.

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)

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

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

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

P. 48-52

The article deals with the problems of criminal law protection of intellectual property rights in the field of industrial property (industrial designs, inventions and utility models) under the Criminal Code of Ukraine. During the writing of the article were considered and analyzed the rules contained sec­tion V of the Criminal Code of Ukraine. The analysis of approaches of scientists con­cerning issues of passing the norms of the criminal code of Ukraine concerning the re­sponsibility for violation of intellectual property rights in the field of industrial property outside the scope of Section V of the Criminal Code of Ukraine is carried out.

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

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

P. 53-58

The article reveals important aspects of the creation and activities of sci­entific and technopark structures in Germany. The author examined the legislation of Germany on the activities of universities, mechanisms for supporting innovation, pro­tecting the rights to intellectual property, 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 research areas with high potential for innovation, which are also reflected in current federal funding programs.

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)

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

P. 70-75

On January 01, 2019, the Law of Ukraine «On the Application of Trans­plantation of Anatomical Materials to Man» came into force, which replaced the «moral- ly» 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.

Key words: transplantation, donor, anatomical materials, information, consent for donation, transplant coordinator

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

P. 76-85

The author of the study has determined:

  • the correlation between the terms «the emergence of intellectual property rights» and «acquisition of intellectual property rights»;
  • legal grounds for the emergence (acquisition) of intellectual property rights;
  • primary and derivative grounds for the emergence (acquisition) of intellectual property rights;
  • whether 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 intellectual property rights are 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;
  • types of legal facts that are grounds for emergence (acquisition) of intellectual property rights.

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