Download Journal № 5 (127) 2022

Kapitsa Yu. Modern trends in the development of protection of intellectual property in the European Union in the context of the integration of Ukraine and the EU. The modern development of EU intellectual property law in 2017-2022 is studied. The active role of the European Commission in analysing the effectiveness of EU acts and determining plans for the development of the sphere of intellectual property in the EU is noted. Attention is drawn to the expediency of using European Commission documents within the framework of the integration of Ukraine and the EU regarding IP (IP action plan, COM/2020/760 final; IP enforcement system, COM(2017) 707 final; guidance on Directive 2004/48 /EC, COM(2017) 708 final, standard essential patents», COM(2017) 712 final etc; evaluation of design designs protection, 2020; system of supplementary protection certificate, 2020; geographical indications protection, 2020 etc.

The essential importance of the DSM Directive (EU) 2019/790 with introduction of a sustainable system of payment the fair remuneration to authors and performers as well revocation mechanism regarding licence or the transfer of rights where there is a lack of exploitation of that work, and the relevance of the implementation of these provisions in the legislation of Ukraine are emphasized.

It is relevant to take into account the Guidance of the Commission on Directive 2004/48/EC, in particular, that the right holder could demand that the damages set as a lump sum are calculated not only because of the single amount of that hypothetical royalty/fee, but also based on other appropriate aspects. Regarding Commission evaluation of the Regulations (EC) No. 469/2009 and No. 1610/96 concerning the supplementary protection certificate for medicinal products and plant protection products, it is relevant to take into consideration in the legislation of Ukraine not only the provisions of the specified regulations, but also the decisions of the ECJ on the interpretation of the specified acts.

Regarding geographical indication protection for craft and industrial products in the EU-registration of GI for non-agricultural products is possible in Ukraine. However, the activities of the ministries need to be particularly strengthened, considering the experience of Poland, Moldova and other countries that envisage support from government authorities for the identification of promising geographical indications, assistance in creating associations of individuals to submit GI applications and in the preparation of applications, as well as stimulating activities for the protection of GI.

The relevance of the adoption in Ukraine of the Strategy for the Development of the Intellectual Property Sphere in Ukraine, which was developed in cooperation with WIPO back in 2019 and contains European oriented guidelines for the development of the sphere of intellectual property in Ukraine, is noted.

Keywords: protection of intellectual property rights, European Union, integration of Ukraine and the EU, enforcement of intellectual property, copyright protection

Shtefan A. A natural person-entrepreneur as a party to the contract for the disposal of copyright. The possibility of using copyright in the economic activity of an individual entrepreneur and the conclusion by them of agreements on the disposal of copyright is not directly provided by law. Taking into account that the owners of copyright are only individuals and legal entities, the question of whether an individual entrepreneur may be a party to a contract aimed at the transfer of copyright or granting permission to use a work, or whether such contracts should be concluded by them only as a natural person, is relevant. This issue has not received proper doctrinal coverage and remains almost unexplored. Giving a clear answer to this question is very important in order to avoid mistakes in the contractual regulation of the relations and to find out whether the income received as a result of the disposal of copyright is included in the income of a physical person-entrepreneur.

It was determined that the status of an entrepreneur is an additional legal status of a natural person which is combined with their legal status of a person and a citizen. In economic relations, a natural person acts from the position of an entrepreneur, in any relations outside of entrepreneurship — as a person and a citizen. At the same time, entering into economic relations, the entrepreneur has all the civil rights previously acquired by them as an individual, and continues to acquire new civil rights as an individual, in particular, the copyright for new works. Being the subject of copyright as a natural person, an entrepreneur can use the corresponding work and dispose of the rights to it as individual entrepreneur without the need for additional documentation of the fact of copyright ownerships, in particular, without concluding an agreement on the transfer of these rights between him/her as a natural person and him/her as a natural person-entrepreneur. The remuneration received by a natural person-entrepreneur as a result of the disposal of copyright in their economic activity is included in their income as a natural person-entrepreneur.

A natural person-entrepreneur can alienate copyright on the basis of the relevant contract, as well as grant permission to other persons to use the work by virtue of ownership of copyright to them as natural persons and without any formalities. An individual entrepreneur may obtain permission to use a work from another person on the basis of a license agreement without any restrictions. The lack of legislative specification of this aspect gives rise to disputes about how the legal statuses of a natural person and a natural person-entrepreneur are combined and interact in economic activities related to the creation and use of works. In this regard, in the provisions of the Economic Code and the Civil Code, it is expedient to determine that an individual entrepreneur uses intellectual property rights in their economic activity belonging to them as individuals and disposes of these rights, including the rights acquired by them as individuals as a result of the implementation economic activity.

Keywords: disposal of intellectual property rights, legal status of a natural person-entrepreneur, subjects of copyright

 

Mashkova V. Evolution of the system of collective management of property copyright and/or related rights in Ukraine (1991–2022). The article is devoted to the study of the evolution of the system of collective management of the rights of subjects of copyright and/or related rights. During the research, the author analysed the main regulatory legal acts, based on which the legal regulation of collective management activities in the field of copyright and related rights was carried out. Considerable attention is paid to state bodies, institutions, enterprises and organizations, which in different periods of the development of the collective management system were responsible for the implementation of state policy in the specified area.

Based on the data obtained during the analysis, the author singled out several main stages of formation and development of the system of collective management in Ukraine: 1) 1991–1999; 2) 1999–2011; 3) 2011–2018 years; 4) 2018 is the present. Within each of these periods, the peculiarities of collective management activities at the time, as well as control over the implementation of such activities, were characterized. The author characterizes the first period of the development of the specified system as the period of formation of such a system with the presence of duplication of powers to exercise collective management both in state institutions and in non-state organizations specially created for this purpose. The next period was marked by the separation and streamlining of the powers of specially created collective management organizations to carry out rights management activities. The main achievement of the development of the collective management system at the third stage was the creation of a separate state authority responsible for the implementation of state policy in the field of intellectual property, and in particular the collective management of rights. The final stage of the path described in the article was the adoption of a special law aimed at regulating the field of collective management of copyright and/or related rights.

Based on all of the above, the author concluded that the conducted research will contribute to the search for ways to further improve the system of collective management in the field of copyright and/or related rights.

Keywords: organization of collective management, copyright, related rights, collective management, system, legal act

 

Grynchuk V. Protection of industrial property rights in the context of patent legislation reform. The right of intellectual property is the leading driving force of the economy of any state; therefore its legal protection requires proper legal regulation and constant improvement through the adoption of new laws, amendments to current legal acts, and the introduction of innovations in judicial activity.

On 21.07.2020, Ukraine adopted the Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine on Strengthening the Protection and Protection of Rights to Marks for Goods and Services, Industrial Designs and Countering the Abuse of Patents» and the Law of Ukraine «On Amendments to some legislative acts of Ukraine regarding patent legislation reform». These laws were important steps in the field of legal protection of intellectual property.

These laws essentially complete the procedure for updating legislation in the field of industrial property. They have positive features, but also have some disadvantages.

The article is devoted to the consideration of the peculiarities of the protection of industrial property rights in the context of reforming legislation in the field of intellectual property. The publication emphasizes that today in Ukraine there are a significant number of cases of violation of intellectual property rights, which cause significant damage not only to the rights holders, but also to the state as a whole. Despite the positive changes in legislation in the field of industrial property protection made in recent years, it should be emphasized the presence of certain shortcomings and contradictions in the legal regulation of the procedure for acquiring and protecting rights to inventions, useful models and industrial objects. Projects, which is primarily due to the lack of necessary changes regarding the implementation of legislative norms at the sub-legal level. It is noted that measures to ensure the effective protection of intellectual property rights should be directed not only by the state and its bodies, the main role in this should be played by the activities of the right holders themselves in monitoring the observance of their rights and preventing violations.

Keywords: protection of rights, intellectual property; patent, industrial design, invention, utility model, appeals chamber, patent trolling

 

Samolovova N. Protection of intellectual property rights in Ukraine: design solution. The law of the fashion industry is a branch of law that regulates public relations arising in connection with activities related to products of the light and cosmetic industries. Creative products, such as fashion designs expressed in products, may be protected as intellectual property rights. A design solution embodied in a particular product may be protected by one or more intellectual property institutions.

Design solutions in the field of fashion are not directly defined in the legislation, but their properties are reflected in the features of various objects of intellectual property rights. The design solution embodied in the product may include copyright, industrial design, utility model, trademark, geographical indication, trade name. However, if the product contains several objects of intellectual property rights at once, the author currently registers not all, but one/two due to the cost of registration (obtaining a certificate or patent). There is an example of a bag given in the article, which shows how protection for an industrial design and a trademark can be received immediately. But there is no procedure for providing protection by design solutions.

For comprehensive protection of a design solution in the system of cross-border protection of intellectual property rights, foremost it is necessary to introduce the concept of «design solution» by law. Furthermore, since design solutions in the fashion industry are seasonal and short-term, the law should give «accelerated preferential treatment» to design solutions in the fashion industry. This means that, after a design decision is registered, it is protected for one year. After one year, the designers pay the fees to officially register the intellectual property rights. This way, the designers can understand the relevance and purchasing power of the goods and avoid paying high fees to register intellectual property rights.

Keywords: objects of intellectual property rights, trademark, utility model, copyright and/or related rights, industrial design, unregistered industrial design, utility model, commercial name

Androshchuk G . The growing role of intellectual property in Japan’s national economic security: legislative provision. The article examines the role of intellectual property, in particular, the Institute of Secret Inventions in the development of the Japanese economy, ensuring the national economic security of the state. An analysis of the new Law on Strengthening National Security through Comprehensive Economic Measures, adopted on May 11, 2022, is given. The organizational and economic mechanism for ensuring measures aimed at strengthening Japan’s national economic security is considered: a system that ensures a stable supply of critical materials, a system for supporting the development of critical technologies, and a secret patent system. Japan’s Economic Security Act gives the Japanese government the right to determine economic threats and risks associated with foreign economic activity. Focusing on four areas of economic security — supply chains, basic infrastructure, advanced technology and the publication of patents on sensitive technologies — the law allows the national government to intervene in Japanese companies’ deals with foreign companies. It is concluded that the economic and legal institution of secret inventions, which directly affects national security, will gain more and more importance. And certain provisions of the Law can be used in law-making and law-enforcement activities in Ukraine: a system for supporting the development of critical technologies, designated patent classifications (Designated Patent Classifications) in the fields of technology that can affect national security, guidelines for non-disclosure, security expertise, a system of preliminary determination secrecy, government compensation for restrictions in the form of payment of «ordinary damages», sanctions for leaking undisclosed patent information.

Keywords: intellectual property, innovation, national security, economic security, critical technology, critical infrastructure, inventor, non-disclosure guidelines, security expertise, secret patent

 

Butnik-Siverskyi O. Organizational and functional structure of the innovative and intellectual environment: concept and conception of interaction. In the article, the author examines the meaning of the concept of «innovative and intellectual environment» and, from a methodological standpoint, the economic and legal model of the organizational and functional structure of the innovative and intellectual environment. This allows to disclose the content of the components of the model, which are combined into functional connections, creating a productive field of directions of the transformation process in the production sphere of objects of intellectual property rights into innovative products for the purpose of commercialization of intellectual property rights on the market of intellectual property, innovative technologies and innovative products to profit-making purposes. It is noted that in the economic and legal literature today, there is no single approach to understanding the essence of the concept and content of the «innovative and intellectual environment». The concept of «innovative environment» is presented in a much broader sense. From an economic and legal viewpoint, the use of the term «innovative and intellectual environment» is justified, where priority is given to innovation as the basis for the transformation of intellectual property rights in the production sphere of activity into an innovative product, and also as the basis for the use of innovative technologies. There are considered from a theoretical and organizational perspective the target content components of the model, that include: the formation of human intellectual capital, which includes subjects of intellectual property rights; creation and organization of innovative infrastructure as a production sphere of activity; organizational combination of innovative infrastructure with intermediaries for the commercialization of intellectual property rights, which are catalysts for the transformation of objects of intellectual property rights into innovative products; commercialization of intellectual property rights, which refers to the innovative and intellectual sphere of activity; purpose and functions of the market of intellectual property, the market of innovative technologies and the market of innovative products.

Keywords: innovative and intellectual environment, subjects of intellectual property rights, innovative infrastructure, commercialization of property rights, market functions

 

Bakalinska O. Current legal trends of cyber security and intellectual property. The catalyst for changes in the sphere of cyber-security in our country has been the hybrid war unleashed by the Russian Federation with the use of both classic and non-lethal weapons, through cyberspace and across cyberspace included. Challenges and threats to the national security of Ukraine in the cyberspace led to the creation of the Cybersecurity Strategy of Ukraine.

The cyberwar in Ukraine showed the ineffectiveness of the current international legal deterrence mechanism. The most important aspect of the development of international humanitarian law is the formation of modern principles of counteraction to unfriendly actions of aggressors in cyberspace. Encouraging innovative activity and protecting rights holders from cyber threats is the main direction of state (national) intellectual property strategies, as a significant foundation for the rapid development of industrial potential. Cybersecurity prevents the infringement of intellectual property rights and also ensures the privacy of databases, trade secrets and know-how to rights holders. It is the effective state position in this area that will ensure the rapid recovery of our state after the end of the war.

Legislative regulation of cyber protection in Ukraine corresponds to international standards and modern cybersecurity strategies of the EU and NATO. In our opinion, the most promising directions of development of the national cyber defence system are: improvement of the legal basis of cyber defence for critical infrastructure facilities; implementation of the system of independent information security; development of international cooperation in the field of cybersecurity; increase in digital literacy of citizens and culture of safe behaviour in the cyberspace.

The cyberwar in Ukraine has shown the ineffectiveness of the current international legal deterrence mechanism. The most important aspect of the development of international humanitarian law is the formation of modern principles of counteraction in cyberspace and the protection of the interests of small countries from unfriendly actions.

Keywords: informational security, cyberspace, cybersecurity, intellectual property

 

Niewęgłowski A. Artificial intelligence from the perspective of polish intellectual property law. Selected issues. In Poland, as in other countries, there is an ongoing discussion on legal issues related to artificial intelligence. For many people, there is no doubt that this intelligence should be protected. The problem rather narrows down to what conditions must be met for this protection. Some Polish scientists want to wait for solutions to be developed in the European Union. Poland, as a member state of the European Union, must respect the regulations emerging at the EU level. These regulations are only being planned. There is a certain risk in introducing new regulations in Poland without waiting for EU solutions. It could turn out that the laws adopted by Poland would be incompatible, not in compliance with European law.

On the other hand, the software producers’ communities are pushing for the introduction of relevant legislation now. They claim that this is needed to protect the funds that are being invested in artificial intelligence in Poland. In their view, without proper legislation, investors will reduce financial support for the development of artificial intelligence. In fact, however, the computer manufacturers’ community is not at all concerned with protecting ‘mere’ artificial intelligence. It is protected in Poland and can be provided by copyright law in particular. The most important issue in Poland already relates to the protection of creations generated by artificial intelligence. This is in fact what the computer software development community and beyond cares most about.

However, the protection of creations of artificial intelligence is not only about benefits, but also about threats. This will be discussed further in the article. Some lawyers are considering how to interpret the existing legislation so that the protection of artificial intelligence creations is already possible. They want to use existing theoretical constructs to justify this protection.

Keywords: artificial intelligence, intellectual property law, copyright, industrial property law, computer programs

 

Кашинцева О. Як бути готовими до членства в НАТО крізь призму інтелектуальної власності. Стаття присвячена необхідності вироблені дорожньої карти в сфері підготовки національного законодавства інтелектуальної власності відповідно до Рекомендацій НАТО. У статті наводиться приклад молодих членів НАТО — Фінляндії і Швеції — на шляху до підготовки законодавства до членства НАТО. Незважаючи на дискусії щодо дати набуття Україною членства в Альянсі, Україні слід вже готувати юридичну платформу для належного захисту інтелектуальної власності в безпековій сфері. І мова іде не про адаптацію чинного законодавства, а про відкриття нової сторінки інтелектуальної власності — Право інтелектуальної власності країн НАТО.

І тут мова про багато планову роботу. Про підготовку особливого корпусу патентних повірених, які представлятимуть заявників країн-НАТО в Національному офісі інтелектуальної власності, налагодження взаємодії між Патентним Офісом та Міністерством оборони України в частині співпраці з відповідними інституціями країн НАТО.

Імплементація Рекомендацій НАТО щодо прав інтелектуальної власності складається з таких основних частин:

  • впроваджує норми, що регулюють патентування у сфері оборонної промисловості;
  • впроваджує норми, що регулюють порядок видачі патенту в країнах-членах НАТО;
  • імплементувати норми, що регулюють передачу технологій у сфері оборонної промисловості відповідно до безпеки НАТО.

Для України найбільш відповідний досвід можуть надати країни Балтійського регіону та досвід так званих нових членів НАТО. Перспективи розвитку інтелектуальної власності таких нових членів представлені в статті Ульфа Юхліна-Даннфельта «Чому вступ до НАТО може сприяти розвитку інтелектуальної власності в оборонній промисловості Швеції та Фінляндії». Автор підкреслює, що країни [Фінляндія та Швеція], які розвинули індустрії в оборонному секторі та приєдналися до НАТО, відкривають нові ринки для вітчизняних оборонних компаній в обох країнах, а також надають нові можливості в просторі інтелектуальної власності.

Відтак Україні слід вже розпочинати роботи з підготовки національної сфери інтелектуальної власності до правого режиму НАТО.

Ключові слова: інтелектуальна власність, НАТО, безпека, оборона, патенти, реформа законодавства, Міністерство оборони України

 

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 considering 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 allow for 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 consideration 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

 

Kulinich O. Implementation of the mission of enlightenment children in the sphere of intellectual property: the step towards activating the creative nation`s DNA code. The article is devoted to the issues of defining the mission of enlightenment in the sphere of intellectual property. The importance of studying intellectual property from childhood is argued. It is proved the advisability to create an integrated course or lessons in the school curriculum in order to highlight basic knowledge of intellectual property to children.

The mission of educating children is revealed and educational tasks are determined, the implementation of which is important for every child, society, state and achieving a positive effect of activating the DNA code of the creative nation in Ukraine.

Among the tasks of enlightenment activity, those have been defined, the implementation of which are aimed at the coming of a positive effect for a particular person, namely: the development of creativity in an individual; to cultivate respect rights of creators, intellectual property; the understanding importance and strength of creativity in human life, for society and country; the acquisition of knowledge about the mechanism of commercialization in the sphere of intellectual property; the awareness of the special status of a creator as a person to whom the special rights belong and on whom responsibility is assigned for the content of the creation created by him.

Among the tasks of enlightenment, which have a positive social effect for a state and society, the following have been defined: the training of a new generation in the spirit of respect the rights of creators, with a high level of literacy and legal culture in the sphere of intellectual property; the creating prerequisites for the innovative development of ecosystem and creativity; the formation of a powerful community of specialists in the sphere of intellectual property with the appropriate level of competence and qualification, taking into account modern digital trends in the development of society; the promoting the development and implementation of modern technologies for the development of the Ukrainian economy; the formation of own, recognizable brand Ukraine with a significant intellectual component.

It has been concluded that the achievement of the relevant tasks requires the development and systematization of effective tools and forms of enlightenment activities, also it has been defined the directions for subsequent research on this topic.

Keywords: intellectual property, creativity, enlightenment, creator`s rights, commercialization, social effect, brand of a state.

№ 5 (127) 2022