№ 5 (121) 2021

Download Journal № 5 (121) 2021

Ostapenko H. Would architecture be a creative industry in Ukraine? The article is devoted to analysis of the legal position of architect has in relations with the client. Architecture is regarded as a creative industry in Ukraine, therefore the attention payed to protection of intellectual property rights in this sphere is important. The idea implemented in architectural model should be protected according to the protection of copyright. The industry remains creative until the level of creativeness is high in this economic sector and the number of people involved in production due to the effectiveness and demand for the product is increasing or remains constant. The result of art and of the architecture is not only the object of property, owned by a client, but also a piece of art protected as creation under copyright. The subject of such rights is an architect. The legal status of architect in Ukraine is provided by the right to supervision during the building process, demand of sighing a final act completing the construction, which means, the building is lead astray without breaking authors copyright. Other special rights are provided such as a right to make a photo of the object before destroying it.

Despite regarding architecture objects as protected by copyright the draft law is adopted in the first reading that limits the rights and influence of architect has in the process of building. The draft law proposes an option for architect to transfer rights, being apart from the process of building. This can cause a situation when the building will be constructively changed, the creation will be changed without the authors participation. If this proposal will be implemented, the level of the creativeness in architecture would decrease and even lost. So, the total sphere risks losing the status of being creative. It is underlined that respect to the copyright in architecture is necessary to the industry and its development. In particular. such rights of the architect as a subject of intellectual property law will be under threat: the freedom of creativity, the right to the inviolability of the work, economic rights. Another thing which is of concern is the responsibility of the architect. The removal of the architect during the construction process poses a risk of absence of the culprit in case of deformation or destruction of the object, caused by a structural defect or defect of the project.

Keywords: creative industry, architectural creation, architectural solution, architect, authors rights of architect

Mamchur L., Syttsevoi V. Correlation of terms «orphan work» and «public domain work» in the modern copyright law. The authors insist on the need to differentiate the terms «orphan work» and «public domain work». It is connected with the necessity to follow reasonable balance between the property interest of the author or his successors and the public interest in reasonable use of the work in order to improve the current legal field.

It is substantiated that the existing copyright system, which provides to pay royalty for every use of the work for its author for 70 years or more, conflicts with the needs of society in modern digital age. It is necessary to get permission from the copyright holder to digitize a work to make it available. For orphan works it is difficult. The traditional copyright system should provide an exception for orphan works. It is formulated that permission to use such works must be granted by a specially authorized state body if there is any evidence that the user has taken all possible measures to find the copyright holder, but has not been successful.

Analysis of the content of theoretical and legal definitions of the terms «orphan work» and «public domain work» shows that the presence or absence of ongoing protection of property rights of the author is a key factor in the difference. Such rights are still valid for orphan works, and therefore the permission of the right holder to use such a work is required. Meanwhile, the «public domain work» includes works which the term of copyright has expired. Therefore, the work can be used without permission. So, the approach that an orphan work becomes public domain is incorrect.

On a basis of analysis of legislation conclusions is drawn that it is inexpedient to use too voluminous definition of the term «orphan work». It is argued that the system of issuing permits for use of orphan works by the state bodies at request of a potential user must be defined in legislation.

Keywords: orphan work, copyright, work digitization, public domain, property rights of the author, term of copyright

Ulitina O. Legislative regulation of publishing in Ukraine. Publishing is an important element for the development of many areas of human activity. The impact of publishing on culture, education and tourism in any country cannot be underestimated. Publishing is of great importance for the development of literature, both within one country and in the world as a whole.

Today, publishing faces many challenges, including piracy, the difficulty of distributing digital copies of literary works and insufficient funding, along with a relatively low interest in legal publications. However, publishing is defined in Ukraine as a creative industry and now the state’s position on strengthening publishing as an industry in Ukraine is becoming more active. That is why the issues of legislative regulation of activities in this area, as well as its connection with intellectual property rights, are relevant. The creation of the list of economic activities that belong to the creative industries in Ukraine indicates the government’s intention to gradually transfer Ukraine’s economy to a more modern model, where industries related to the creative industries are of the greatest importance for the economy and the development of the state as a whole.

The article is devoted to the issue of publishing legislative regulation in Ukraine. The author analyses the most important laws in this area, considering publishing primarily as a creative industry. The state policy in this sphere is considered, which is directed first on development of publishing and on support of publishing the Ukrainian-language editions.

The author points out the existence of certain differences in the legislative regulation of book publishing and publishing of the periodicals in Ukraine.

The article considers the data of the Ukrainian Book Institute on the current state of publishing in Ukraine. According to these data, one of the biggest problems in the publishing is the significant number of copyright infringements and IP rights infringements in general.

Given the high rate of copyright infringement and IP rights in general in the publishing, it is necessary to review the mechanism of influence on combating them, as well as increase liability for such infringements.

Keywords: creative industries, publishing, book publishing, copyright, IP rights, copyright infringement, IP legislation

Zerov K. Intellectual property in the field of information and communication technologies. The article discusses the main issues regarding IP-protection in the sphere of information (information and communication) technologies — one of the largest creative industries in Ukraine. Development and capitalization of information technologies are impossible without proper legal protection of intellectual property because the basis of the creative industry is the creation of creative products — goods and services created/provided by cultural (artistic) and/or creative expression and have high added value and are objects of intellectual property rights, which determines the relevance of this study.

It is noted that basic types of economic activity that belong to the creative industries are defined at the resolution of the Cabinet of Ministers of Ukraine and are aimed at creating and distributing intellectual property rights to already created copies (or copies) of software. It is assumed that the tax legislation of Ukraine stipulates that certain business transactions for the “publication” of software must be carried out based on contracts for the supply of software and not based on contracts for the transfer of intellectual property rights.

A brief description of copyright objects in the field of information technology and the possibilities of their legal protection, namely a computer program, databases, and website, is given. It is noted that the website may combine different intellectual property rights.

The issue of intellectual property rights distribution on the object created in connection with the implementation of the employment agreement (contract) and on the object created by the order is investigated. It is concluded that the law of Ukraine. “On Stimulating the Development of the Digital Economy in Ukraine” eliminated the conflict between the Civil Code of Ukraine and the Law of Ukraine “On Copyright and Related Rights” on the distribution of property copyrights on official works. The current approach to the distribution of economic copyright rights is harmonized with European standards.

Keywords: IT, computer program, copyright, creative industry

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

Burov О. The impact of cybercrime on the digital economy. The article considers factors of cyber hazards for the world economic system that appeared during the pandemic COVID-19, as well as transition of the economy to the «new normal», in the context of digitalization in the following aspects: digitalization and new working conditions, use of hybrid work, biological pandemic and cyber-pandemic and their influence on changes in the economy, factors of cyber threats to business. It is highlighted that the pandemic and the abrupt transition to the use of remote forms of work have become extraordinary events in the world over the past two years. The objective precondition for such a change in the socio-economic and military features was the reorientation of the world’s leading economies (primarily the United States and China) to the powerful digitalization of all spheres of human life and, above all, the creation of new technologies. It is noted that China invests more than other countries (including the United States) in advanced technology and training of highly qualified specialists, especially with a doctor degree that requires a high level of digital technology and appropriate literacy, and provides effective adaptation to any working conditions including hybrid.

The emergence of a hybrid working ecosystem and hybrid workforce is analysed, as well as their advantages and disadvantages are substantiated. It is noted that the digital economy has several new aspects compared to the traditional one. The emergence of hybrid work, the corresponding changes in the emergence of hybrid workforce and in the organization of production management are the most dynamic components of change. However, even faster changes are taking place in the security of business, more precisely  — in the growth of its vulnerability due to the rapid development of cyber threats in the digital environment, which the economy has only begun to actively master, but has not yet created the necessary system of self-defence. Remote form of work has given rise to new forms of business — the creation and use of cyber threats. The emergence of a cyber-pandemic as a result of rapid digitization due to the COVID-19 pandemic and the transition of labour to remote form is analysed. The most important factors of cybersecurity for the successful operation of companies are highlighted.

Keywords: human capital, remote work, cybersecurity, hybrid workforce, digital economics

Borko Yu. Economic and legal aspects of the use of computer programs. The article deals with the economic and legal aspects of using computer programs in business operations. In particular, certain problems of taxation relating to the creation and use of computer programs are considered.  There have been considered ways and means of representations in the accounting of the following operations: purchase of intellectual property rights to a computer program, supply of a computer program from a non-resident (resident) to a resident. The principles of the formation of the cost of a computer program, depending on the terms of purchase, have been outlined. The has been defined the concept of royalties from the use of a computer program in the economic activity of an enterprise. The article indicates that the supply of services (performance of work) related to software products and that introduce changes to the software are deemed to be any updates, changes, additions to expand their functionality. Such an operation is referred to as the supply of software products using IT benefits. The supply of services that do not introduce changes, namely: installation, configuration, testing, identification and rectification of deficiencies, information, and consulting support is referred to operations that are subject to VAT at the general rate. The article states that VAT is charged on operations for the supply of software products from a non-resident (resident) to a resident in the customs territory (customs territory) of Ukraine, which, in turn, is not subject to VAT. At the same time, if as a result of the provision of technical support services for software products (including software products provided for use under the license agreement) there are no changes in software products (for example, training staff to work with the program, installing the program, configuration of office equipment, etc.), then operations for the provision of such services are subject to VAT in the generally established manner in the amount of 20 percent.

There has been determined the need to improve economic and legal regulation of the creation and use of computer programs in the economic activities of companies in terms of taxation.

Keywords: computer program, economic and legal regulation, taxation, license agreement, initial cost, value added tax, royalties

Kharchenko О. Objection to the trademark application or the action of international registration of a trademark in Ukraine. The article analyses the main approaches to the practice of filing and the consequences of filing objections of third parties against trademark applications or international trademark registrations based on a study of the provisions of regulations of Ukraine and foreign countries. The filing of an objection to an application for a trademark is defined as the right of any third party to state its views on the inconsistency of the designation applied for registration with the conditions of granting legal protection. It is concluded that this procedure in Ukraine is not fully harmonized with the practice of the European Union: Ukrainian law does not provide for the submission — of observation of third parties, when the trademark cannot be registered ex officio. Such observation can be submitted by any person free of charge, but this person will not become a party to the proceedings during the designation examination.

It is determined that this right in Ukraine can be exercised within several instances:

1) Objection of a third party, which is filed at the stage of examination of the designation;

2) Objection of a third party, which is submitted to the Appeals Chamber of the National Intellectual Property Authority;

3) Appeal of the approved decision of the Appeals Chamber of the National Intellectual Property Authority in court.

The article provides suggestions for improving the procedure for filing objections to an application for a trademark or the action of international registration of a trademark in Ukraine:

1) granting the right to third parties to submit to the National Intellectual Property Authority free observations against trademark applications that do not relate to «relative» grounds for refusal of the legal protection of the designation.

2) increase the fee for filing an objection to a trademark application or international trademark registration to reduce the number of filing of unscrupulous objections, the purpose of which is to increase the term of registration of the applicant’s trademark.

3) extension of the terms of payment of the state fee for issuing a certificate of Ukraine for a trademark and the fee for the publication of the issuance of a certificate for up to five months for those applications for trademarks against which third parties have filed objections.

Keywords: objection, opposition, trademark, appellate chamber, period of opposition

Kapitsa Yu. Intellectual property rights in research and development collaboration/ contract agreements between research institutions, universities and firms: part 2 — Ukraine, New Independent States. The practice of regulating intellectual property issues in R&D cooperation agreements/contracts between academic institutions and companies in Ukraine and other New Independent States (Belarus, Kazakhstan, Russia) (NIS) is studied. It is shown the undevelopment of modern approaches to the distribution of IP rights in R&D agreements, including the lack of, as a rule, the allocation of Background IP and New IP and payments to academic institutions for the use of such IP.

The changes in the legislation of Ukraine are substantiated, as well as the need to develop standard IP provisions for different options for relationships between academic institutions and national and foreign companies. The necessity is shown of (a) making changes to Chapter 62 of the Civil Code of Ukraine and the Law of Ukraine “On Scientific and Scientific-Technical Activity”, other legislative acts related to IP in R&D contracts; (b) adoption by the Ministry of Education and Science of Ukraine and the Ministry of Economy of Ukraine of Recommendations on IP policy in research organizations and universities; (c) developing, at the level of public authorities or academies of science, leading academic institutions model IP provisions for R&D agreements for various options for relationships with companies; (d) at the state level, promoting a new model of relations between academic institutions and companies, which stipulates that can receiving by academic institutions significantly more funds through payments in addition to the cost of R&D contract, the license fees for the Background IP and New IP.

Keywords: research and development contracts, research and development collaboration agreements, intellectual property rights, research organisations, universities

Shtefan O. Certain aspects of possible codification of legislation of intellectual property law. The article examines the issues related to the possibility of codification of legislation in the field of intellectual property rights. Currently, in Ukraine there is a three-tier regulation of public relations in the field of intellectual property law. On the one hand, the Civil Code of Ukraine, the rules of which are characterized by a corresponding nature, terminological inconsistency with special legislation; special legislation regulating legal relations arising from the creation and use of certain objects of intellectual property rights; as well as the provisions of ratified international legal acts in this area. Such legislation does not contribute to effective protection or effective protection of intellectual property rights.

The updating of the Civil Code of Ukraine will not improve the situation regarding proper legislative support in this area, and may lead to new conflicts.

Based on the analysis of existing approaches in legal doctrine on the possible codification of legislation in the field of intellectual property law, it is concluded that it is possible if the latter is separated into an independent branch of law, characterized by the subject and method of legal regulation. The existing approach to the definition of the subject of regulation in the doctrine of intellectual property law coincides with the civilized approaches and does not reflect the specifics of legal relations that characterize the field of intellectual property. The subject of intellectual property law is not limited to private law relations, public law is also quite common. In this regard, it is proposed to understand the subject as a legal relationship arising in connection with the creation, use and protection of intellectual property rights. It is proved that the right of intellectual property can be separated into an independent branch of law and to codify its legislation. This will be facilitated by the interest of the state and the corresponding political will to do so.

Keywords: recodification of the Civil Code of Ukraine, codification of legislation on intellectual property law, subject and method of intellectual property law

Koval I. Grounds and methods of systematization of legislation of Ukraine in the field of intellectual property. The article is sanctified to research of the modern state of the legislative regulation of intellectual property relations in Ukraine and the ways of its improvement in the direction of systematizing the relevant legislation. Scientific approaches to determining the place of intellectual property law in the legal system of Ukraine are considered. It is shown that now in Ukraine there is a unique model of legislative regulation of these relations, which includes 3 levels: the Civil Code of Ukraine, the Economic Code of Ukraine, special laws regulating the protection of rights to inventions, utility models, industrial designs, trademarks, and other objects. Such division of legislative acts is based on different volume and subject of regulation of legislative acts. As a result of undertaken a study and taking into account foreign experience two alternative ways of codification of legislation are certain in the field of intellectual property: within the limits of operating the Civil code of Ukraine and Economic code of Ukraine taking into account the differentiation of the subjects of its regulation, or in the direction of individual codifications of copyright and industrial property law as institutions intellectual property law. It is substantiated that the second way has significant advantages over the unified (general) settlement of relations in the field of spiritual and scientific and technical creativity since it takes into account the essential specifics of these two components of intellectual property law, which is due to the difference in the subjects of their regulation. Guidelines for choosing the appropriate direction of codification are proposed.

Keywords: intellectual property law; systematization of legislation, codification, copyright, industrial property law

Myronenko N. Theoretical approaches to determining the principles of codification of legislation in the field of intellectual property. The article reveals theoretical approaches to defining the system of principles of codification, their place in the legal system, which characterize the content of law in a concentrated form, its structure, the relationship between sources of law, law and justice, law and government coercion and belief in legal regulation. It is proved that the system-forming criterion of the principles of law and the principles of legislation are their functional and purpose. The practical significance of the principles in the process of systematization of legislation in the field of intellectual property, including its type such as codification, is revealed. The correlation of principles of law and principles of legislation are investigated. It is established that there is a dialectical connection between law and law, which is manifested in the fact that: legislation is an external form of expression of law, a way of expressing its content; most of the law is substantively included in the legislation; the spheres of law and law do not coincide but intersect; in that part, in which law and law coincide, the principles of law are the essence of the principles of law and vice versa — the principles of law are the principles of law. At the same time, since the legislation is an external form of expression of law and does not completely coincide with the law and does not contradict it, its creation and development are subject to certain specific rules and technologies. The main methodological principles that influence the separation of the system of principles, their place in the theory of codification are determined; substantiates the need to include in the system of general and special principles of codification and sectoral principles, which are the theoretical basis and ensure those features are taken into account in the process of codification of individual branches of legislation. It is proved that there is a dialectical relationship between the purpose of codification, its tasks and the principles on which codification activity is based, the dependence of its result on the degree of consistency of these elements of codification.

Keywords: law, intellectual property, codification and systematization of legislation, principles of codification, concepts, types and system of principles of codification

Kashyntseva О., Iolkin Ya. Ukrainian experience in implementation of the flexible provisions of the TRIPS Agreement in the context of European integration and the pandemic. The article concerns the analysis of global trends in the paradigm of intellectual property rights on the objects used in the diagnosis, prevention and treatment of COVID-19. The experience of the implementation of pharmaceutical nationalism policies provided by the EU, Canada and Israel are presented in the article. The authors provide the legal backgrounds of the need for Ukraine to be a co-sponsor of the IP waivers proposals, which are submitted to the TRIPS Council by some members of the WTO. The authors stress the need for Ukraine to use the historic opportunity for the development of the national pharmaceutical industry, which would contribute to the interests of the domestic patient, and make proposals for the necessary changes to national legislation.

The authors also stressed the position of the governments of Germany and France. Thus, in Germany there is the Law on Governmental Use of Patented Inventions during a Pandemic. The law provides, inter alia, for amendments to the Patent Law, according to which the Federal Ministry of Health has the right to authorize the use of relevant patents to ensure the production and supply of pharmaceuticals or medical devices. In 2020, France adopted the Emergency Law № 2020-290 to combat the COVID-19 epidemic, which introduced Article 3131 15 of the French Public Health Code. This rule authorizes the Prime Minister to issue orders to recover or seize all goods and services necessary to combat the disaster, to temporarily control the price of products and, if necessary, to take any measures to ensure that patients are provided with appropriate drugs to deal with the disaster, related to health. It is useful for Ukraine to use the experience of Canada in terms of facilitating negotiations with major vaccine manufacturers to establish national drug production and in terms of developing legislation in the field of compulsory licensing.

It is obviously, voluntary licences from patent owners, which provide for the full transfer of technology, and not just patent disclosure, are the most effective tool for the national production of biosimilars. However, international experience shows that pharmaceutical companies are holding back the issuance of compulsory licences. Therefore, our government’s biosecurity portfolio should include an effective tool for compulsory licensing or emergency use of biosimilars and generic drugs by the Government.

Keywords: intellectual property, human rights, patients’ rights, pharmaceutical nationalism, protectionism, vaccines, generics, COVID-19

Chomakhashvili О. Legal education on intellectual property. The article focuses on a comprehensive study of the concept and importance of legal education on intellectual property. Particular attention is paid to the social importance and significance of the entire sphere of intellectual property and is considered as a legal value. The author attempts to determine the relationship between the level and popularity of invention and general culture in the field of intellectual property. The stages and methods of obtaining knowledge on the basics of the intellectual property are considered.

The problematic issues concerning the necessary measures in the field of education on intellectual property issues are analysed. The concept of educational measures is described in detail, which is aimed at intensifying the understanding of Ukrainian society of the need for legal application of intellectual property rights. Proposals were made to increase educational activities on intellectual property issues and awareness of their value to society.

The purpose of the article is to study the general structure of legal education and to outline the place of intellectual property law in the general system of legal education. Find out the essence and importance of legal education on intellectual property issues.

In order to achieve the goal, we formulate the task: to consider the structure of legal education; formulate arguments in favour of studying the field of intellectual property and propose measures to promote intellectual property and inventive activity.

The article is devoted to the study of education in the field of intellectual property law, the essence of which is personal non-property rights of intellectual property and property rights of intellectual property.

The basis for innovative economic development is the widespread introduction of intellectual property. For this, highly qualified specialists are needed. The importance of constant training of specialists in the field of intellectual property and support of invention is substantiated.

A new concept of training specialists in intellectual property is considered, according to which the master’s program in the complex covers three areas: technical expertise of intellectual property, the economy of intellectual property and the law of intellectual property. This activity is focused on the formation of the necessary level of knowledge and education of respect for intellectual work and its results, which are embodied in intellectual property, as well as informing the public about possible losses and existing threats to the well-being and health of people that contain counterfeit and pirated goods.

The place of education on intellectual property in the system of general and higher education has been determined. The general characteristics of educational levels in the field of intellectual property is outlined.

Keywords: legal education, legal values, intellectual property law, invention