№ 4 (120) 2021
Shtefan A. Legislation in the field of copyright: evaluation of effectiveness. The effectiveness of legislation is its ability to cause for the participants of social relations the expected consequences due to the purpose of legal rules, including the ability to satisfy the interests of the participants of these relations. Effective legislation is characterized by such features as quality, the ability to act, stability, dynamism, sufficiency. These properties reflect the level of reproduction in legal acts of the needs and trends of development of society, technical characteristics of legislation, its ability to comprehensively and optimally determine all the necessary means of protection and regulation of relations without excessive and unjustified interference in the behaviour of the subjects of these relations.
The Ukrainian copyright system comprises two basic laws: the Civil Code of Ukraine and the Law of Ukraine «On Copyright and Related Rights». In addition, there are a number of laws that regulate certain areas of creation and use of works. This applies in particular to architecture, theatres, publishers, media. However, the existence of an extensive system of regulations is not a guarantee of the effectiveness of legislation in the field of copyright which has a number of shortcomings, in particular:
- the lack of unification of terminology when in different laws different terms are used for the same phenomenon. For example, the subject of copyright in some cases is called «right holder» or «person owning the copyright»;
- the presence of collisions when the same aspect of relations is regulated differently in different acts. For example, in Art. 29(2) of the Law on copyright the group of persons who can protect the inviolability of work after the author’s death is limited by the heirs while Art. 439(2) of the Civil Code includes not only heirs but, also a person authorized by the author to carry out such protection and other interested persons. In Ukraine, there is no clear clarification of which rule is to be applied in case of collisions that causes problems in practice;
- the presence of outdated provisions that do not correspond to the modern development of science, technology, and society, and therefore cannot be effectively applied;
- the presence of provisions that cannot be implemented due to the lack of appropriate legal mechanisms. These are cases in which the law declares a certain rule or standard which must act in the manner prescribed by law but, this legal regime does not exist. This applies, for example, to the extension of the sui generis right to non-original databases mentioned in Art. 10(1)(e) of the Law on copyright, while the legislation contains no provision for this right;
- gaps in the legal regulation associated with the essential needs that have been objectively formed in society. Copyright legislation does not contain rules for the use of orphan works, some important exceptions and limitations that exist in many other countries. Due to these and other gaps, legislation incompletely and non-exhaustively regulates relations in the sphere of creation and use of works.
This negatively affects the effectiveness of legislation and can significantly complicate law enforcement. Therefore, the improvement of copyright law is one of the most important tasks of today.
Keywords: effectiveness of legislation, criteria for assessing the effectiveness of legislation, copyright, intellectual property
Trotska V. Out-of-court settlement of disputes in accordance with European copyright and related rights in the Digital Single Market. The article is devoted to the study of the norms of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, and Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market.
The purpose of this article is to conduct a legal analysis of the EU Directive and Guidance, and determine the features of protection of copyright and related rights through out-of-court settlement of disputes, in the new realities of digital market development, and the feasibility of taking into account the relevant norms in the legislation of Ukraine.
Article 17 of this EU Directive and the provisions of the reference, are analysed in details.
Rights and obligations of all participants in legal relations arising in the digital environment are considered: right holders, users, online content-sharing service providers (hereinafter — providers).
The definition of the new term «online content-sharing service providers», proposed in the EU Directive, has been explored. It is stated that providers have the right to provide access to legal content, uploaded by users. At the same time, they are obliged to act on the basis of the permission received from the right holders, do not affect on users who are using the online content-sharing services in order to legal upload and access to information, to prevent the availability of unauthorized content, uploaded by users.
In the article explores the norms about out-of-court mechanisms of compensation for damage and the settlement of disputes. Its advantages are defined. The disadvantages that may arise in the practical application of the norms are indicated.
In particular, in the Article 17 of the EU Directive and the Guidance do not provide a clear answer to certain questions, such as: the status of the person who will have the authority to resolve the relevant disputes; what will be the decisions made by such a person; the procedure, amount and terms of compensation for damages; cross-border application of decisions.
A comparison is made between the norms of the legislation of Ukraine on copyright and related rights and the relevant norms of European legislation. It is noted that in the Law of Ukraine “On Copyright and Related Rights” there is a procedure for termination of infringements of copyright and related rights on the Internet by providers. Out-of-court settlement of disputes is not provided for, but it is not prohibited. The provider restores access to the object if the right holder has not provided him with confirmation of the opening of legal proceedings to protect his rights to the object of copyright and (or) related rights in respect of which the application for termination of the violation was filed.
Unlike the provisions of the Law, according to Art. 17 (9) of the EU Directive and the Guidance, the user can appeal the decision of the provider to block, delete content. Access to content can be restored on the basis of out-of-court settlement of the dispute, i.e. without going to court.
It is concluded that these European standards are noteworthy and need further study in the context of the application of out-of-court mechanisms of the settlement of disputes that arise between rightsholders, users and providers in the digital environment.
Keywords: copyright, providers, rightsholders, users, content, downloads, interactive access, out-of-court settlement of disputes
Kostiv O. Features of the expanded collective management of copyright and (or) related rights objects under the updated legislation of Ukraine. The article examines the features of extended collective management of copyright and (or) related rights, as one of collective management types provided by the updated legislation of Ukraine in the study area. The author points out that the expanded collective management extends to the entire territory of Ukraine and is carried out on the property rights of all right holders in the relevant category in the areas for which the organization is accredited, including those who have not concluded an agreement on management of copyright and (or) related rights with an accredited organization, regardless of the method chosen by such right holders to manage their rights.
Among the areas of expanded collective management are: public performance of musical non-dramatic works with text and without text, including those works that are included in the audiovisual works; public announcement of musical non-dramatic works with and without text, including those works that are included in the audiovisual works, except for cable retransmission; the right to a fair remuneration, common to performers and producers of phonograms (videograms), for the public performance of phonograms and performances recorded in them or a public demonstration of videograms and performances recorded therein, published for commercial use; the right to a fair remuneration common to performers and producers of phonograms (videograms) for the public notification of phonograms and their recorded performances, videograms and fixed performances published for commercial purposes other than cable retransmission.
Analysing the areas of expanded collective management, the author concludes that the position of the legislator in the question of completeness of the list of such areas is right, although the areas themselves, in the author’s opinion, are not quite correctly defined. Agreed that expanded collective management somewhat limits the rights of the right holder, the list completeness of its application areas contributes to the clarity of its application and does not create risks of involving other areas by analogy. The author notes that for each area of extended collective management, one accredited organization is determined in the case of absence of any conflicts of interest between the main category of right holders, in whose interests such an organization operates, and other categories of right holders. The remuneration collection system during extended collective management is also analysed by the author.
Considerable attention in the study is paid to the issue of legal status and features of the additional accredited organization. Determinant in the issue of effective management of copyright and related rights is the right holder’s right to revoke his rights from an additional accredited organization.
Keywords: collective management of rights, copyright and related rights, extended management, organization of collective management, accreditation of the organization, remuneration, revocation of rights
Zaikіvskyi O., Onіstrat O. The role of intellectual property in security defense capacity of the state. The conceptual issues of the legislation of Ukraine, which determine the state policy in the field of national security and defence, regarding the settlement of issues related to ensuring the state defence capabilities are considered. The scientific publications on actual questions in this sphere concerning problems and prospects of increase of defence capability of Ukraine are analysed.
The role of intellectual property in all components of Ukraine’s defence system has been studied, and it has been noted that unresolved problems in the field of intellectual property management pose an increasing threat to Ukraine’s national security.
The importance of ensuring the protection of intellectual property in the process of implementing measures to improve the defence capabilities of the state and the need to improve legislation in this area is defined.
Recommendations for improving the regulatory framework for national security and defence in order to address the problematic issues of intellectual property in this area are submitted.
State defence capability is the ability of state to defend itself in the event of armed aggression or armed conflict. It consists of material and immaterial elements and is a set of military, economic, social and moral and political potential in the field of defence and appropriate conditions for its implementation.
Resolving the issues of reforming not only the Armed Forces of Ukraine, but first the entire state, modernization and rearmament of the Ukrainian army has become a vital necessity. Only the solution of this issue will allow to raise the defence capability of our state to the proper level for the preservation of independent Ukraine.
Ensuring the military security of Ukraine largely depends on equipping the Armed Forces of Ukraine with modern types and models of weapons and military equipment, developed on the basis of intellectual property rights.
It is the military-technical sphere where the objects of intellectual property rights belonging to the sphere of national security and defence are created, and the state is obliged to ensure their protection. This will increase the competitiveness of the domestic defence industry and make claims impossible for anyone in the mass production of weapons and military equipment for their own needs and for exports, which directly affects defence capabilities.
And this requires proper protection of intellectual property rights both in the process of own production of weapons and military equipment, as well as in military-technical cooperation.
Keywords: defense capability, intellectual property, regulatory support
Volynets I. Administrative principles of intellectual property rights protection against unfair competition on the pharmaceutical market in Ukraine. The article is dedicated to study for peculiarities of intellectual property rights protection on pharmaceutical market under administrative procedure. The paper enlightens importance of balancing the regulation of antitrust and intellectual property law, through legislative reform as well. It is emphasized on the specifics of the jurisdictional form of rights protection, which is comprised from judicial protection and administrative protection of infringed intellectual property rights. The author denotes that the administrative procedure is a special form of protection, which involves appealing to government agencies for violated rights protection. The study uncovers the following main state bodies, entrusted with the relevant functions and which consider applications on measures for violated rights protection: The Antimonopoly Committee of Ukraine and the Appeals Chamber of the National Intellectual Property Authority (NIPA Appeals Chamber). It is stated that the Antimonopoly Committee of Ukraine is qualified to consider offences in terms of protection against unfair competition, respectively, the NIPA Appeals Chamber considers objections against the National Intellectual Property Authority, appeals and applications for recognition of the trademark to be well-known in Ukraine. Emphasis is placed on the mechanisms of «post-grant opposition» (recognition of rights to inventions (utility model), industrial designs invalid) by the NIPA Appeals Chamber and «pre-grant opposition» (possibility of appealing decisions by third party to the NIPA Appeals Chamber). It is proved that the NIPA Appeals Chamber is a competent and qualified body in the intellectual property field, enabled to protect intellectual property rights, including against «patent trolling», «evergreen» patents and counteract indirectly with unfair competition. The paper proves that the administrative procedure for the intellectual property rights protection is speedier than the judicial procedure, but is as effective and efficient as judicial protection.
Keywords: administrative protection of intellectual property rights, unfair competition, pharmaceutical market, AMCU, NIPA Appeals Chamber, post-grant opposition, pre-grant opposition
Shulpin I. The concept of lost profit as a component of the concept of losses in the field of intellectual property: a category of law and economics. The article is devoted to the study and analysis of the legal and economic category of «lucrum cessans» (forgone benefit) in the property sphere and in the field of intellectual property (IP), as well as the author’s attempt to define the concept of «forgone benefit» in the sphere of IP. It should be noted that the concept of «forgone benefit» is the main component of the general concept of «damage» in the property sphere, where its definition is contained in subparagraph 2) of paragraph 2 of Article 22 of the Civil Code of Ukraine. The article compares the concept of «forgone benefit» both in the property sphere and in the sphere of IP in accordance with the economic and legal planes.
First, «forgone benefit» are considered as unearned income in the property sphere. Further, we are talking about the criterion for the implementation of measures and preparations as a fact to generate income in the production and sale of goods (services). The next important issue, which is covered in this article, is the problem of distinguishing between measures and preparations for obtaining income (profit) and reasonable measures to reduce losses. The next criterion includes the provision that the «forgone benefit» of the victim cannot be less than the income of the offender, which is one of the manifestations of the principle of Roman law.
All of the above in relation to the economic category applies both to the property sphere and to the sphere of IP. However, in relation to the legal category «forgone benefit» in the property sphere and in the sphere of IP has a complete difference, since it refers to different subjects (in the property sphere, this is the owner of the thing, property, and in the sphere of IP — the subject of intellectual property rights (IPR) or a person to whom such rights have been transferred), objects (objects in the property sphere are various types of things, property, any material objects, and in the field of IP these are objects of IPR) and rights (in the property sphere there are rights to things, rights to property , and in the field of IP — these are property rights to objects of IPR).
Further, the author of the article gives terms from the field of IP, the availability of rights in the field of IP, dwells on cases of violation of non-contractual (tort) legal relations and violation of contractual legal relations (mainly violation of a license agreement).
Based on the results of the material presented, the author of the article formulates a definition of the concept of «forgone benefit» in the field of IP and proposes to include such a legal norm in the fourth book «Intellectual Property Law», Chapter 35 «General Provisions on Intellectual Property Rights» of the Civil Code of Ukraine.
The material of the article can be useful to employees of the Ministry of Internal Affairs, forensic experts, lawyers and patent attorneys and other persons working in the field of law.
Keywords: forgone benefit, property rights of IP, object of IPR, subject of IPR, the right to own, use and dispose of IPR, contractual obligations, non-contractual legal relationships
Butnik-Siverskyi O. B., Androshchuk G. O. Methodological grounds of the patent landscape in the system of intellectual national security. The article examines intellectual national security in security science as a new direction of development, which requires the development of theoretical and methodological grounds in obtaining results that are fixed in the course of grounding of real external and internal threats. It is grounded the need for deep study of the development of an effective methodology of intellectual national security, which includes methods of the patent landscape, that determined the purpose of the study, which was the methodology of the patent landscape on the economic nature and patterns of development of intellectual national security in the direction of counteracting internal and external threats. It is noted that the patent landscape is not a tool that has features of completeness, but is considered as a research methodology that includes methods of search and analysis, evaluation of the results and their effectiveness of impact. It is considered the methodology of the research of patent landscape for the purposes of intellectual national security, which aims to generalize methodical approaches for various tasks of counteracting internal and external threats in the system of intellectual national security and includes technological analysis, competitive analysis, territorial analysis and analysis of patent portfolio (patented intellectual assets) of specific company or companies and requires concrete methodical support and standardization of reporting, and in some cases the establishment of standards or substantive restrictions. The methodology is considered as a large-scale variant of patent search and from the angle of the real state and prospects of transformation processes in the direction of researching threats to national security using known global databases of patent statistics and comparative economic statistics to identify benefits or waste of financial and material resources.
Keywords: intellectual property, national intellectual security, research methodology, patent landscape, comparative economic statistics
Kapitsa Y. Intellectual property rights in research and development collaboration/ contract agreements between research institutions, universities and firms: part 1 — European Union, US. The practice of regulating intellectual property relations in R&D cooperation agreements / R&D contracts between research institutions, universities (academic institutions) and companies in the EU, USA, as well as in the recommendations of international organizations is studied.
It is noted the significant role given in the EU, the USA to the settlement of IP issues in R&D agreements. It is shown, that the development of model agreements in the United States is carried out mainly at the university level. In the EU it is significant the role of the European Commission, national government bodies in the development of the agreements.
The principal provisions of IP regime in the R&D agreements are noted, which include: identification of Background IP and New IP. Granting Background IP rights usually on the basis of a non-exclusive royalty license. Consolidation of New IP rights for academic institutions. Granting New IP rights on royalty-based licences or paid transfer of rights.
It is noted the importance of possibility of restitution of IP property rights to academic institution if the company does not commercialize the granted IP. Also, of the assignment of IP rights to academic institutions for research and training purposes in cases of granting exclusive licenses and transferring property rights.
The principles of distribution of intellectual property rights and use of research results in R&D agreements are determined, which should be applied in the practice of concluding corresponding agreements in Ukraine. Amendments to the Law of Ukraine “On Scientific and Scientific-Technical Activity” are proposed to provide for the indication of the types of R&D agreements, as well as the principles of using IP in agreements.
Keywords: research and development contracts, research and development collaboration agreements, intellectual property rights, research organisations, universities
Paduchak O. Legal regulation of bullying in the national legislation. The aim of the article is to analyse the new provisions of the legal acts of Ukraine in the sphere of prevention and counteraction to bullying. The term “bullying” has recently appeared in Ukrainian legislation from January 19, 2019. The Anti-bullying Law amended the Law on Education and the Code of Ukraine on Administrative Offenses. This Law for the first time introduced the concept of bullying of a participant in the educational process into the Ukrainian legal field, defined its typical features, forms, introduced administrative liability for bullying. Currently, the existing norms provide only for bullying of participants in the educational process, among the participants of which must be a child. A mechanism for responding to cases of bullying provides only in educational institutions (except those that provide adult education). Conflicts that arise between participants from different educational institutions can’t be classified as bullying. It should be noted that today the law does not cover cases of bullying by participants in the health and educational process in children’s health and recreation facilities, as well as bullying of participants in the training process in institutions of physical culture and sports.
There is an administrative liability for bullying in Ukraine. Children are prosecuted for bullying from the age of 16. If the bully is not 16 years old, the parents are responsible for it. Heads of educational institutions are also prosecuted if they do not report about bullying to the police. The statistics of bullying cases considered by courts in 2019 (248), in 2020 (265) show the implementation of anti-bullying legislation. Of course, these statistics are not indicative of the real scale of bullying. We can say that it still remains in a latent (hidden) state. A UNICEF survey in Ukraine (2017) found that 67% of Ukrainian children aged 11-17 have seen bullying in the last three months, 24% of children have been bullied and 48% have not told anyone. Nevertheless, the law is in action, it is new, and it takes time to implement it. Responsibility is a recognition at the state level that bullying is violence, it is not the norm, it must be understood by all participants in the educational process.
Bullying is the basis for civil liability. Bullying is an act of wrongful harm involving children. The court’s decision that establish the fact of bullying in accordance with the Code of Ukraine on Administrative Offenses is evidence in a civil case of compensation for moral and material damage.
Bullying is the basis for disciplinary action against teachers. Because bullying is an immoral act for which the teacher can be fired.
The author has analysed a significant number of court decisions that deal with bullying issues. On the basis of the study, the problematic aspects of legal regulation of bullying were identified and proposals were formulated to amend the current legislation.
Keywords: bullying, signs of bullying, forms of bullying, participants of bullying, children, violence in an educational institution, bullying of a participant in the educational process, anti-bullying legislation, judicial practice, liability for bullying, bullying prevention