Shtefan O. Participation of state authorities and local governments in civil cases arising out of copyright relations.

P. 5-14

This scientific article is devoted to study of legal status of state and local authorities as members of civil procedure in cases arising from the disputed copyright relations. The article also examines the grounds for claims of these authorities to court for protection of rights, freedoms and interests of other persons. Special attention is given to clarification in civil procedure of the legal status of the State Intellectual Property Service of Ukraine, which belongs directly to the central state executive authorities, as well as of «Ukrainian Agency for Copyright and Related Rights» as subjects of protection of rights, freedoms and interests of other persons. On the basis of existing legislation analysis, jurisprudence and doctrinal approaches, it was concluded that the «Ukrainian Agency for Copyright and Related Rights» has a representative plaintiff procedural status, thus it can not be attributed to government agencies seeking to court statements of protection of rights, freedoms and interests of other persons, if there are valid reasons which prevent self-treatment of these persons to court to protect their rights, freedoms and interests. However, «Ukrainian Agency for Copyright and Related Rights» refers to legal entities that in cases established by law may apply to the court for protection of rights, freedoms and interests of others.

Key words: civil procedure; copyright disputed relationships; public authorities; local governments; protection of rights, freedoms and interests of others.

Matskevych O. Features of copyright protection in digital media environment.

P. 15-25

This paper aims to provide a study of the specifics of copyright protection in digital media environment. The aim is achieved by the analysis of theoretical developments and judicial practice.

The author investigates the means of defense of civil rights. The peculiar attention is driven to self-protection of copyrights and related rights which is the fastest mean for author to protect their rights in digital environment for now. It’s also shown that some means of civil rights protection may be used within a self-protection too. These means can be: the prohibition of the dissemination of information, restoration of the situation that existed before the infringement, termination actions violating the right, etc.

Such way of defense as refutation of misinformation in digital media is considered more particularly. It’s proposed to use following procedure of refutation in Internet mass media: the correction of mistake in original material; indication in the same place that there was a mistake, and posting of a separate, new message about the elimination of violation.

As the result of analysis of courts cases and features of electronic mail correspondence it was proved that it may be а due evidence in civil cases. So the author proposed changes to Civil Procedural Code of Ukraine and the Law «On Copyright and Related Rights» to set out this kind of evidences.

Notary certification as an evidence at a trial is also investigated. The author makes the conclusion that it’s possible to use it with simultaneous video recording of actions of notary public.

Some scholars consider technical means of protection to be self-protection means. At the same time it is proven they are the means of self-guarding.

Key words: self-guarding, self-protection, digital environment, digital media, evidences, technical means of protection

Zerov K. Hyperlink in the system of regulation and copyright protection to works placed on the Internet.

P. 26-35

The article gives a description of hyperlinks in the system of regulation and copyright protection to works placed on the Internet.

The key issues of the article are: understanding and legal nature of hyperlinks; classification of hyperlinks; comparison of hyperlinks with copyright objects and domain names; the possibility of recognition hyperlinks as a use of the work.

The author focuses on the fact that there is no legal definition of hyperlink.

The author reveals that hyperlinks have some specific features: they do not create new work and refer to something that already exists. Hyperlink is not the object of copyright protection, although it may contain the work or part of the work. It consists of mandatory and optional elements.

Placing hyperlinks to works that are on the Internet is not using of the works and does not require a right holder’s permission. However, such authorization is required for works that are placed in limited access on the Internet.

The author offers to understand hyperlink as a set of instructions that redirect to another element on the Internet in the case of activation.

Keywords: hyperlink, Internet, web-site, use of the work, communication to the public

Trotska V., Petrenko S. Temporary reproduction of works on the Internet: legal aspects and judicial practice.

P. 36-44

The article contemplates the problematic aspects of temporary reproduction of works on the Internet regarding free use of this copyright objects.

The author notes that the use of works in digital form has its own features compared to analogue form. These features caused by technological processes associated with the creation of temporary copies in transactions processing and transmission of information by computer. On the basis of these features in the legislation in the field of copyright and related rights has great practical importance. Thus, reproduction of works on the Internet may be temporary. In this case, the reproduction of works by any person does not need permission from its authors. This reproduction is free. The free use of works gives an opportunity to balance the rights for authors and societies for the free access to the information, knowledge and cultural heritage.

The author analyzes the international legislation on this issues. The article contemplates norms of European legislation such as: article 5 (1) Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society. The author analyzes the conditions under which the reproduction is temporary. The article contemplates the research of foreign authors concerning the conditions of the free temporary reproduction of works.

Сopyright laws in many countries of the world are identified norms which provide for the use of works without author’s permission and without paying a compensations to them іn case of temporary reproduction of works. The author analyzes the relevant norms of the laws in certain foreign countries.

However, the article contemplates the foreign judicial practice on these issues. The author analyzes the applicable norms of the Law of Ukraine «On Copyright and Related Rights». Author alerts attention of the lack of norms on free temporary reproduction of this Law. Сomplimented by this the author proposes to amend this Law. Based on the analysis proposals and conclusions were submitted.

Key words: reproduction, Internet temporary reproduction, temporary copies, process, free use of works

Davydova N. Issues of patent law in higher education sphere (experience of the USA and Ukraine).

P. 45-53

Patent law and copyright are critical to higher education’s research mission. Both Ukraine and the USA have constitutional provisions about intellectual property. Article I, section 8, clause 8 of the Constitution of the United States authorizes Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. The current legislation of Ukraine and the USA about patent law in higher education sphere is analyzed. Patent law in Ukraine and the US has many similar features because it is based on international intellectual property treaties such as 1883 Paris Convention for the Protection of Industrial Property and 1970 Patent Cooperation Treaty.Research universities rely on patent law to obtain ownership to patentable inventions made by their faculty and to license their patents to companies positioned to turn patented discoveries into profitable commercial application.

Since the first Patent Act in 1790, patent law has operated on the premises that rights to an invention belong to the inventor. Legal regulation of the work-for-hire employees is a dominant issue in higher education sphere because faculty, research staffs, and general employees usually make new inventions working on or arising from programs supported in whole or in part by funds, space, personnel, or facilities paid for and provided by theUniversity. Most American institutions of higher education have required faculty and other employees to assign or to agree to assign their rights to any patentable invention that results from employer-sponsored research activities made within the course and scope of their employment — to the employer. The list of people who are covered by work-for-hire law should include all types of trainees or postgraduate fellows.

Organizations and universities use invention assignment clauses in employment contracts and patent policies to clarify the legal ambiguity that might otherwise result from the employee inventing something using company/university resources. Such agreements are usually intended to accomplish the legitimate purpose of prohibiting an employee from using for his or her own benefit, or for the benefit of a subsequent employer, any inventions resulting from the resources provided by or work performed for a previous employer. In order to avoid possible conflict of interests and court trials it is prudent to utilize the American practice of resolving issues about work-for-hire inventions. The problems of Ukrainian legal regulation of work on hire are exposed. It is suggested that the present tense wording “do hereby assign any future inventions to university” rather than a “promise to assign inventions to university” is necessary to prevent faculty from wittingly or unwittingly assigning away rights to university-owned intellectual property.

The institution of higher education has a specific legal status that grants some privileges, for example the possibility to use, in certain cases, patented inventions without the consent from the patent holder. The suggestion to change the article 31 of the law of Ukraine “On the Protection of Rights to Inventions and Utility Models” is made: it is not an infringement of a patent holder right to use the patented invention (utility model) <…> with scientific purpose or in an experiment without commercial purpose or gain”.

Key-words: patent, institution of higher education, work made for hire, employee patent agreement

Androschuk Н., Davymuka S. Art market and resale right in the eu and ukraine: economic and legal analysis.

P. 54-63

Gives economic and legal analysis and projections for the development of Ukrainian and world art-market. The art market is a system of cultural and economic relations that define: the scope of supply and demand for works of art, the monetary value of works of art, and infrastructure and specific services for servicing this market. Particular attention is paid to the establishment and development of economic and legal institution of the route, the analysis of the EU art market compared to the major markets of other countries. The main positive and negative aspects caused by the adoption of Directive 2001/84/EC «on the resale right for the benefit of the authors of original works of art» (Resale Rights Directive). The conclusion of the need of sustainable art market of Ukraine by the Member States for the purchase and sale of works of art, harmonization of national provisions of law following the provisions of the Directive 2001/84/ЄС on the basis of existing problems and above experience in its implementation mechanism

Keywords: art-market, royalties, sales, resale right, works of art

Patsuriia N., Reznikova V. Essence of insurance activity: economic and legal analysis.

P. 64-71

The articlei concerns current issues of economic and legal essence of the insurance activity as a system of insurance category relations in the sphere of management. Location and types of insurance activity in the system of modern economic relations. Abstract signs and the legal framework of the insurance business.

Keywords: insurance, insurance activity, types of insurance, forms of implementation of insurance activity

Andreyev D. Features of intellectual communication power and society in conditions of global informatization.

P. 72-79

The rise, formation and evolution of informational relations in contemporary political and legal discourse have important place in the process of social development. The concept of «information», «intelligent communication», «mass media» and «information space» became widespread in the scientific literature and in modern everyday life.

Today it is almost impossible to imagine any sphere of being that would

not was in the area of information relations the effectiveness of which would not be provided by media. Communication relationships between the authorities and society through the media mutually determine each other.

It also means that the concept of intellectual communication is a crucial factor for the definition of the information society. In other words, the mass communication theory should be based on two aspects: 1) one aimed at the concept of the public system; 2) other one aimed at the concept of communication.

However, the current stage of development of human civilization is accompanied by a factor of hyperdevelopment of the media, which in the process of convergence loses gradually established worldview and methodological traditions and turns into innovative means of constructing an information space. Actually, the mass media are also constructor of new models of communication’s steps to form the foundation of mutual responsibility of the state, society and the individual.

We should agree that models of the communication interaction may be different in form. Communication are interpersonal that are implemented using individual tool (or channel) of the delivery of information and also operates using a particular means of communication – the mass media system, that is, to be the mass communication. Here we can assume that today the concept of «communication» has metamorphosed with structural changes. It cannot only be reduced to the concept of communicative action and try to establish a dominant participation of the only institution in it, like the effect of the media influence through the mass media. Communication, above all, is an intellectual interaction aimed at the dissemination of certain knowledge. In other words, mass communication performs not only a technical function; it is in conjunction with other factors acts as the object of intellectual communication system. We note that in an authoritarian and limited from the point of view of democratic’ factors societies the function of the implementation of the communication connection is performed mostly unilaterally by the authorities with the help of controlled communication channels.

Keywords: information, dialogue between the authorities and society, intellectual communication, mass media, information space, information society, global informatization.

Kashkanova N. Legal regulation of clinical trials of medicines and their role in biomedical research of individuals.

P. 80-88

The concerns the ethical and legal aspects of clinical trials as a kind of biomedical researches, which are essential for obtaining and selection of new safer and more effective drugs. Recently, the role of clinical trials has increased in connection with the introduction of practical public health principles of evidence-based medicine.

Under the Ukrainian legislation a clinical trial of medicines — is the research scientific work, which aims to research involving human subjects research intended to discover or verify the clinical, pharmacological and / or other pharmacodynamic effects of one or more investigational medicinal products and / or identify any adverse reactions to one or more investigational medicinal products and / or to study absorption, distribution, metabolism and excretion of one or more drugs to confirm its (their) safety and / or efficacy.

The practice of conducting clinical trials in Ukraine is significant. From 1996 to the present time in Ukraine applicants clinical trials received 4019 positive conclusion on the possibility of clinical trials as domestic manufacturers, foreign manufacturers in international multicenter clinical trials.

During the 1st half of 2014 in Ukraine there is a positive dynamics of the number of the findings of the Centre for clinical trials: 155 conclusions, including international multicenter clinical trials — 108 findings (in the first half of 2013: 123 including international multicenter clinical trials — 93 conclusions).

Under the legislation studied the protection provided by assessing the risk / benefit ratio as prior to each clinical trial, including on the basis of previous studies, and during its implementation through oversight by the State Expert Center of Ministry of Health of Ukraine (hereinafter — Center) and ethics Committees with appropriate health institution.

In Ukraine, the implementation of international principles of clinical trials began with the adoption of the Law of Ukraine «On Medicines», Art. 7 and Art. 8 is devoted to the examination of the clinical trials, their conduct and protect the patients (volunteers) and above Ministry of Health of Ukraine Order № 690 On approval of clinical trials and expertise of clinical trials and Model Regulations of the Ethics Committee. Therefore, clinical trials are allocated in Ukraine as a separate type of biomedical research.

Ukraine’s participation in the conduct of multi-center clinical trials carried out simultaneously in many countries, is important for patients and doctors in general. For patients – is an opportunity to get free treatment with new drugs to physicians — a familiarity with new technologies treatment for the country — the possibility of further registration of drugs with proven efficacy and safety.

The other ethical and legal problems in clinical trials of medicines are placebos. Placebo – a pharmaceutical product containing no active principle. For comparative studies with placebo in shape, color, taste, smell, method of appointment and so on completely mimics the study drug.

Data obtained in the placebo group, a «background», which is due to the natural flow of events during a clinical trial, without the use of study therapy. Assessment of the results obtained in the active treatment group is against this background. The study, which compared the effect of each other active treatment and placebo is a «placebo-controlled study.» His role in the accuracy of information overestimated, and the difficulties at the same time as the ethical and legal regulation.

Summarizing the above, the author holds positions need to develop the Law of Ukraine «On biomedical research involving human subjects» which would also regulate the procedure for clinical trials of medicines.

Key words: human rights, biomedical researches, clinical trials, medicines, placebo, informed consent

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№ 4 (84), 2015
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