Download Journal №4, 2014

Kashyntseva O.
The Human Rights and Patenting of Medical Methods of Diagnostic and Treatment of Human Body and the Reforming of Healthcare System

Ukrai-nian legislation of intellectual property allows the patents to the methods of medical treatments and diagnostic of human body. Such provisions of Ukrainian legislation contradict the European doctrine of Intellectual Property. Intellectual Property Research Institute of National Academy of Law Sciences of Ukraine has repeatedly raised the issue of the need to reconsider the legal nature of the objects of patenting in the healthcare sector. The Center for Harmonization of Human Rights and Intellectual Property Rights of Intellectual Property Research Institute of National Academy of Law Sciences of Ukraine determined this legal issues as very actual and important for Ukraine in its Scientific and Research Conception on Harmonization of Human Rights and Intellectual Property Rights in the Sphere of Medicine and Pharmacy.In May 2014 the Ministry of Health of Ukraine presented the Concept of Reforming of New National Public Health System. This Project is uniquely distinguished from earlier providing clear goals and ways to achieve it. As a member of the Public Council of the Ministry of Health of Ukraine, the author stressed the need of reforming the Intellectual Property Legislation in the sphere of patenting of methods of medical treatments of human bodies and diagnostics of human diseases. According to the analytic researches of the practice of patenting of the methods of diagnosis and treatment of human bodies in Ukraine it is arising the question: what is this feature — the scientific pragmatism or human rights violation?The purpose of the author of this article is not only to attract the attention of the scientific legal community to this problem, but also to persuade the colleagues in the necessity to create the theoretical background for further legal steps on providing the reform of Intellectual Property Legislation in the mentioned sphere.

Koval I.

Problems of commercialization of rights on the objects of intellectual property by higher educational establishments

The current legislation of Ukraine and project of Law of Ukraine is analysed «On higher education» in relation to the legal mode of intellectual property rights, created in higher educational establishments, and their commercialization. The problems of the legal, organizational, financial providing of commercialization of intellectual ownership rights are exposed by higher educational establishments and the ways of their decision are offered.

Trotska V.

The essence of the free use of copyright and related rights

The article contemplates the problematic aspects of legislation terminologies, touching the free use of copyright objects and related rights. Research showed there are different terms in the legislation, scientific literature, practical activities such as: the «free use», «fair use», «limitation of property rights», «exception and limitation», «withdrawal from a copyright», «permissible use».

It has been analysed the corresponding norms of international agreements and legislation of countries. Based on the conducted analysis has been made the conclusion in relation to the tendencies of application of terms.However, it has been contemplated the scientific ways of different scientists to the definition of this concept. In spite of numerous researches it has been made a conclusion that terminology on affected questions requires a revision.The characteristic signs of the free use are defined and analysed. It has been made a conclusion that signs of the use of copyright objects and related rights by any persons are:
1) without the permission of copyright subjects and related rights;
2) without paying the compensations to the subjects of these rights;
3) with the observance of certain conditions which are envisaged by a law;
4) only in special cases which are envisaged by a law.
Based on this signs it was proposed an author’s definition «the free use».Proposed definition has got same positive moments. Firstly, it covers all signs of concept. Secondly, it contemplates about the case limits of the free use. Thirdly, it provides the term observance of the free use, which are defined in a law. And finally, the concept spreads not only on works but also objects of the related rights.

Fedorova N.
TV-format as an object of legal protection

One of the most powerful technological inventions of the modern world is the television and its organizational and intellectual creative product, which in practice is called «TV-format». As to legis-lative regulation, unfortunately, not teleformat exist in any country of the world.The purpose of of this study is to examine the legal protection methods are applied in the television industry for the protection teleformat.Practice shows that in the production of TV programs based on teleformat going to use many intellectual property rights. Thus, the basis for the filming of the program is the script (literary work). The name of the program can be protected as a copyright object (the name of the script), and as a trademark (such as in the case of registration in the manner prescribed by law). Also used during the filming of guidelines and recommendations of teleformat that are the result of practical experience in creating television and actually make the know-how, according to domestic law, can be classified as a trade secret. But it is not always possible to use them to achieve the desired result — to protect the rights of all people, creative intellectual work which was created by the television format. It therefore remains important to find effective ways to solve this problem.So, based on practice, you can identify the following elements of television format as a complex object of intellectual property rights, which are the most common:•objects of copyright and related rights to them (screenplay programs, decorations, performance, etc.);•means of individualization of goods and services (trade marks, geographical indications, trade names);•non-traditional intellectual property rights (trade secrets, know-how)These objects have a mode of legal protection and that, taken together, may to some extent to ensure the safety and protection of the individual elements that make up Teleformat, but the full problem of security and protection on the specified object of creative activity in a manner not solved.

Kovalenko T.
Plagiarism: types and responsibility

The author makes a general conclusion that copyright infringement occurs when a work that is copyrighted, use by reproduction, translation, adaptation, demonstration, public performance, distribution, broadcast, without the consent or permission. Copyright is not protected by their own ideas or facts. Copyright protection gives way to express these ideas. To avoid plagiarism, one must express this idea your own, unique, original style.

O. Zaykivskiy, O. Onistrat, L. Lotokha

Intellectual property and the state

The article explains the relevance and priority of the protection of intellectual property owned by the State, examines the requirements of the Constitution of Ukraine, the Commercial and Civil Codes of Ukraine, other legislative and normative — legal acts for the settlement of state ownership of intellectual property created for the budget or that relate to national security and defense. In particular, according to the current legislation of Ukraine the state is not recognized as a subject of intellectual property rights, however, intellectual property can be gifted, inherited by the state and transferred to the State on the results of research, development and technological works, or by court order.

Simultaneously, the international law allows the state at the legislative level to protect its national interests on intellectual property, with regard to national security and defense, which appears in the laws of many developed countries.The authors justified the need to define a special status of intellectual property of the military, special and dual purpose, in particular objects, which can be attributed to the sphere of national security, as well as the structural unit which will determine the intellectual property relating to national security, as well as the conditions for the acquisition and exercise of the right of ownership of intellectual property rights relating to the field of national security. Addressing these issues will ensure the protection of the public interest in the use of the results of research, development and technological works of military, special and dual purpose, which in turn will contribute to the state’s defenses.

V. Romanyuk

Peculiarities of taxation of incomes of non-resident-individuals received from dealing with intellectual property rights

Article mount theoretical and practical issues of income tax non-residents – individuals that they get from dealing with intellectual property rights. We consider the initial foundations for international tax treaties concluded by Ukraine, and their uses. Analyzes the provisions of the current tax laws of Ukraine in the income tax, the calculation of royalties, lump payments, etc., and recommendations for improvement of legislation.

The problems referring to the cost of production royalties. Determined that the Tax Code provides a limitation on the inclusion of royalties earned by non-residents in other costs. This approach means that in the absence of restrictions royalties accrued to non-residents, such as the use of a patented industrial design in the corporate style retail, be attributed in any amount to the cost of the taxpayer, thus decreasing the tax on profits.Analysis of current legislation and practice reveals some limitations in the use of royalties.Identified the following limitations: limits on the size of accrued royalties; restrictions for non-residents, having offshore status, ie for non-residents located in the territory offshore area; limit for non-resident who is not a person to whom accrued royalties; non-resident is liable to tax in respect of royalties to the state, of which he is a national; restrictions on royalties charged for the use of intellectual property rights which first emerged in Ukraine resident.

N. Patsuriіa

Economic and legal discourse regarding the problems determining the consumer of insurance services

This article concerns the possible extension of legal insurance provisions of the Law «On Protection of Consumers’ Rights» which areactually implemented during the relevant law enforcement.

The Letter of the Supreme Court of Ukraine «On judicial practice civil proceedings arising out of insurance contracts» from July 19, 2011 indicates that some courts during the deciding of disputes of this category do not apply to the cases, arising from insurance contracts, the provisions of the Law of Ukraine «On protection of consumers’ rights». The courts considers that the subject of the dispute is not the subject of the insurance services, therefor the rights and obligations of the parties under the terms of the insurance contract are not regulated by the mentioned Law.The author proves that the legal position of non-extending of the Law of Ukraine «On Protection of Consumers’ Rights» to legal insurance is incorrect. Indeed, in accordance with the Law of Ukraine «On Financial Services and State Regulation of Financial Markets» the insurance services, which are directly provided by financial institutions, the insurance companiesare belongs to the market of financial services. The purpose of this Law is to create a legal framework to protect the consumer’s rights of financial services. According to the Law of Ukraine «On Protection of Consumers’» consumer are protecting by the law, by the court, and at the same time consumers are protected by the way of exempting from payment of court fee for claims related to the violation of their rights. Given that the Law of Ukraine «On Protection of Consumers’ Rights» does not define the limits of the action, according to the legal enforcement practice of courts of general jurisdiction of Ukraine, to the relationship which are arising of the insurance contracts are under the jurisdiction of the mentioned Law.The presented in thisarticle system of interpretation of the current legislation of Ukraine, the court practice, the provisions of EU law, the European Court and the provisions of the scientific doctrine and the arguments of the necessity to improve the norms of the protection of the consumer’s rights to the protection of the subjects of entrepreneurial activity. The mentioned arguments will allow to move away from the «narrow» legislative approach to the interpretation of the term «consumer» and to extend the special legislation for those who actually consume any service (work items). These are legal and / or individuals, which can be used under conditions of information and contractual imbalances in the process of consumption, which puts them in a position of «weak party to the contract» insurance. This approach will allow to apply to the mentioned persons the specific general instruments of the legislation in the sphere of protection of consumer’s rights to the subjects of the insurance activity (Law of Ukraine «On Protection of Consumers’ Rights») under the specific legal instruments of the insurance market.

Kurowski S.

On the effect of the banking legislation and judicial practice on banking activities in Ukraine

This article examines the complex nature of banking legislation, its impact on the formation of the banking law as a complex area of law. We study the theory of banking law and regulations of the banking legislation of Ukraine in terms of determining the features of banking regulation. Defining feature of the banking legislation and the place of legal acts of the National Bank of Ukraine in the system of banking legislation. Essential place in the management of banking relationship holds National Bank of Ukraine, because in his work implemented function as a regulator of banking, drafter, and the supervisory authority. For business banking relationships will be compulsory compliance of normative acts of the National Bank of Ukraine. Instead, enforcement and contractual acts of the NBU are legally binding for the central bank as the initiator of such acts or parties in the relevant contractual relations. Emphasized systemic banking legislation. Explores the importance of judicial practice in the regulation of banking activities. We analyze the jurisprudence in dealing with disputes concerning breach of performance of credit agreements and deposit agreement. The conclusion on how to improve banking legislation and the need for further generalization of judicial practice in dealing with disputes in violation of banking legislation.

Cherednyk N.

Institute for the free use of copyrighted works in Ukraine and foreign countries – the problems and prospects of development

Comparative legal analysis. In the article the legal analysis of the legislation on the free use of the Institute of treaties, legislation USA, UK, Ukraine. Free use of copyright law is a separate institution, whose presence is inherent in most countries. The emergence of this institution due to the need to balance the interests of authors and society.

Due to the significant difference from the principles of free use of copyright enshrined in the Berne Convention, special attention approach to the law on the institute of free use of copyrighted works used in the United States. Countries that joined the Berne Convention, given the peculiarities of its own national law and practice that has developed in dealing with these issues differently implement principles of three-tier test in national legislation on the free use of copyrighted works.The emergence of new forms of use should not be recognized illegal, based on the exceptional nature of the purpose of use, tightly regulated by law. Search and development purposes to use neutral factors or the presence of non-exhaustive list is relevant and interesting for further study, due to the growing needs of society in new forms of free use of copyrighted works.The recommendations for the use of positive international experience in the improvement of legislative approaches Ukraine in this area.

№ 4 (78), 2014
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