Download Journal №5, 2014

Afanasyeva (Gorska) K.

Changes of conceptual foundations of copyright regulation in a globalized information space.

This article is devoted to the study of new trends and concepts of copyright and legal regulation in the global information space changes. Particular attention is paid to the need of legislative provisions in copyright law inte-rests of civil society in the preservation of cultural heritage and access to it. It is also examined possible mechanisms of regulation of copyright to maintain the balance of interests of all participants in the process of creating and disseminating of information.

O. Matskevych.

Copyright under digitization and digitalizing.

The specifics of the Ukrainian language doesn’t allow the finding of the strict translation for the word «digitization». The reason for this being that this term expresses both the general tendency of producing creative works in digital environment (using digital technologies etc.) and the process, action of transformation of analogues works into digital. That is why the author proposes to use two different words to express the notions: digitization — for the tendency, and digitalizing — for the action. That is reflected in the title.

As it follows from the above mentioned, the problems of copyright under digitization and digitalizing will be different. The deliberation of those problems is the aim of the article.

The author considers different points of view on the problem of digitalizing of analogue works. Some scholars believe that the process of digitalizing creates a new form of existing of a work. Other specialists think that digitalizing is a new way of exploitation of a work. There is also a point of view that digitalized work is a derivative work. After the analysis of the mentioned beliefs, the author makes a conclusion that digitalizing is a sui generis action of reproduction of the work.

There are also many problems of digitization that has not been solved up to date, not only in Ukrainian legislation but worldwide as well. Among them are: the possibility of making copies of works extremely fast, at low cost and without any loss in quality, vulnerability to manipulation by third parties, almost impossibility of controlling the exploitation of individual protected works and achievements in global data networks.

The appearance of new types of works, such as multimedia, creates the new problem of including them into current laws and doctrine. The existing list of copyrightable types of works is not suitable for multimedia and needs to be revised. Talking about the problems of licensing of new multimedia works there must be distinguished between the following problems – multiplicity of rights, multiplicity of right owners, overlapping rights, legal insecurity etc.

As a result of study some conclusions were made:

The work after digitalizing cannot take a rank as a new or derivative;

It is required that practical solutions are created to address the problem of the creation of a global system of copyright protection in the digital environment, as well as upgrading the legislation of Ukraine and other countries in the world, which would take into account new technologies.

Romanyuk M.

General characteristics and basic trends in development of legislation in the sphere of protection of related rights.

The article gives a general description of the Ukrainian legislation in the sphere of related rights protection. The main directions of adaptation of national legislation to the EU legislation, the changes that occur in international law are revising. The current Ukrainian state system of intellectual property protection is broadly consistent with international norms and standards. However, while improving the legislation the international legal regulation of the innovations in this field should be taken into account. Legislation relating to the protection of related rights should be developed through the implementation of modern international standards and eliminating of the contradictions that exist in the current edition of the special laws of Ukraine, Codes of Ukraine and international law acts.

The author analyzed a number of provisions of the directives of the EU Council and the European Parliament. The key provisions of international law that must be con-sidered in the legislation of Ukraine are highlighted. This applies to the process rights of the owner of the rights in dealing with litigation, harmonization of the rules of broadcasting across Europe and the use of audiovisual works. The directives establish the conceptual apparatus associated with the broadcast and defines the conditions of the right to broadcast. Technological development of society has led to the need for legal protection against the circumvention of technological tools, objects which are protected by copyright and related rights and the revision of the scope of rights to the use of copyright and related rights. The exception to the reproduction right is temporary reproduction, which is defined as the part of the process.

The authors concluded that the need to revise the terms of protection of related rights; set into law the procedure for payment of equitable remuneration.

Shtefan O.

Compliance with procedural form of claim as a condition of the right to sue for copyright protection.

Claim and right on action are fundamental concepts of civil procedure law, in connection with which the problem of action forms of rights protection are constantly in the centre of attention of scientist of civil procedural law. However, the attention of scientists who study the action form of protection focuses on the definition of the claim. At the same time, the question of the observance of procedural expressions of the claim in the literature was not comprehensively investigated.

For the realization of the right to sue a claim from copyright relations it is required not only the presence or absence of certain conditions stipulated by the civil procedural law, but compliance of the established procedural order of suing for a civil case in court, including a separate place of the observance of procedural expressions of action.

The form of civil procedural action is the claim set forth in writing on a fixed content (art. 119 of the CPC of Ukraine). Thus, the most common in the modern theory of civil procedure is a point of view, according to which the claim is an external expression of the form of action, mode of existence of the claim as a demands for the protection of rights, freedoms and legitimate interests. In this regard, the form always has an official appointment, that means that official role of a lawsuit as a claim form is that it displays elements of the claim (subject, ground and parties), and other information necessary for proper and quick resolution of civil cases. Purpose of the lawsuit as the claim forms is to bring to the attention of the court and other persons involved in the case the essence of the plaintiff that appeals to court to protect freedoms and legitimate interests of them or of others, in certain cases prescribed by the law.

The analysis of civil procedural law and judicial practice have been concluded that adherence to procedural claim form is of great importance in the implementation of the person concerned of the right to sue. Compliance or non-compliance with procedural law on the content of the claim gives rise to the onset of substantive and procedural law of positive (appearance of civil procedural relations) or negative (leave the claim without movement) effects. Compliance of the requirements for content of the claim also promotes fast and effective protection of violated rights and legitimate interests.

Shtefan A.

Restore the situation that existed before the violation of the right and renovation of right as ways of protecting copyright.

Restore the situation that existed before the violation of the right covered a wide range of activities. Committing these activities may require the offending writer or other person who owns the copyright as the protection of the moral rights of authors and the protection of property copyrights. Restore the situation that existed before the violation of the right includes the renovation of subjective rights and also helps to stop the violation and to prevent offenses.

Implementation of restore the situation that existed before the violation of the right is possible under the following conditions:

1) copyright after the violation shall not terminate its existence and can actually be restored by removing the effects of the offense;

2) the existence of copyright is obvious to the court, the right is not contested and is not unrecognized.

The need for restoration of the right may arise when the right partially or completely terminated because of violation. Copyright holder loses the opportunity to use the right. But copyright holder can act in their own interests by the way of restoration of rights.

Restoration of the right as a way to protect copyright can be used by all of the following conditions:

1) the right shall be violated. In the case of threat of violation or failure to recognize this method cannot be applied;

2) violation of the right shall be the resulted of decisions, acts or omissions of public authorities, authorities of the Autonomous Republic of Crimea, local authority, person or entity.

The judgment of the restoration of violated rights can solve such problems:

1) restoration of the legal status of the relevant entity;

2) recovery of unlawfully infringed relations;

3) termination in violation of the right or threatening to infringe;

4) the forced sale of unfulfilled duties in relation to the entity whose rights have been violated;

5) compensation for lost wealth, property and non-property;

6) the possibility of recognizing

Kasyntseva O.

Ethical validity of researches on human beings as the objects of patent law in Ukraine.

The article analyzes the development trend of legislation in the field of intellectual property through the prism of international ethical standards for biomedical research involving human being. Ukrainian legislation is considered from the perspective of integration into the European legal matter.

G. Yudina.

Concept of industrial design in Ukraine and EU.

In connection with signin of the Agreement on Partnership and Cooperation between Ukraine and the European Communiry and the Member States, Ukraine commits to continue improving the protection mechanisms of intellectual property rights in order to ensure protection on the level that is existing in the EU.

In this paper, reference is made to the analysis and comparison of the defined concepts for industrial design used in Directive 98/71/EC of the European Parliament and of the Council of 13.10.1998 on the Legal Protection of Designs and the Law of Ukraine On the Protection of Industrial designs.

The notion of concept for industrial design is of special importance in the EU Directive because the definition of that is a fundamental norm in any system pertinent to the legal protection of industrial designs. Objects that are not covered by the legally defined concept cannot be legally protected as an idustrial design.

Moreover, an emphasis is made to the analysis and the comparison of the list of objects that can be legally protected as the industrial designs, as well as those that cannot be protected therein, as per Ukrainian legislation currently in force, the draft of the Law «On Amendments to some Laws of Ukraine on Intellectual property», as well as the European legislation.

In line with the results of the comparative analysis, proposals are made as to the improvement of the Ukrainian legislation pertaining to the legal protection of the industrial designs, in particular:

the concept definition for ‘industrial design’, as per Art.1 of the Law of Ukraine on the Protection of Industrial design, issue in a new edition

add to Point 2 of Art. 5 of the Law of Ukraine on the Protection of Industrial Designs the concept definition for ‘select’.

wide the list of objects that cannot be legally protected as the industrial designs given in Point 3 of Art. 5 of the Law of Ukraine on the Protection of Industrial Designs.

O. Butnik-Siverskiy, V. Trotska.

The theoretical and methodical aspects of correlation of license agreement and lease contract in the context of the accounting and tax legal system.

The article is devoted to the theoretical and methodical aspects of license agreements comparison for use of intellectual property objects and lease contracts.

This is noted about identification inexpediency of these agreements from the legal regulation position of contract relations in the field of intellectual property, lease, charging taxes and demands of accounting requirements.

Based on the comparative analysis is defined the common and distinctive characteristics of license agreements and lease contracts and also economic and legal features of payments according to this agreements.

It is noted that the rights of property owner (thing) and proprietary rights of intellectual property subject differ.

Attention is accented on the legal regulation specific of the contract relations.

Scientific researches of different scientists are analysed, they compare the non-proprietary character of intellectual property objects and proprietary (material) character of commodities that are given in leasing.

It is clarified, when proprietary rights can be a subject of lease contract.

Based on the conducted analysis has been made the conclusions. Certainly, that license agreements and lease contracts are independent agreements.

Therefore the right of intellectual property should be considered as a separate civil-law institution. So the license agreement and lease contract have some features regarding the legal regulation of contract relations. It requires a distinct reflection in a law.

For this reason to bring the corresponding changes in the Civil Сode of Ukraine is offered.

In this article the legislation aspects of accounting and taxation of income are discussed.

Here the norms of Ministry of Finance of Ukraine orders for accounting are аna-lysed. It is proved the necessity of norms clarification, touching the leased non-current assets, taking to account the legislation norms in the field of intellectual property.

Also, special attention is spared to taxation of income in the forms of royalty, lumpsum payments (one-time payments) and leasing payment.

In this article it is discussed the problematic aspects touching the legislation norm of taxation of income in the form lumpsum payments.

It is indicated on weak points in the legislation of taxation of income in the form of these payments. So, a concept «lumpsum payments» is absent in the Tax Code of Ukraine. It is offered to define this concept and insert other corresponding changes to the Code.

А. Olefir.

Legal enforcement of intellectual property and innovation relations in the Association Agreement with the EU for Ukraine.

Economic usefulness of the patent system is not the same for different states. States exporters technologies receive the benefits of improved patent systems around the world, as income that gives them exclusive possession, license fees cover the cost of patenting. On the other hand, technologically backward state pay increasingly high prices for patented products and seldom or never even receive income from patenting. It is similar asymmetry causes significant contradictions in the development of international patent law.

Provisions of the Association Agreement between Ukraine and the EU on legal protection of intellectual property include a significant expansion of status holders, strengthening the regime of innovative facilities (additional legal remedies and protection mechanisms, extension of legal protection, more stringent public control over observance of legislation) leaving the government flexibility in the use of some tools.

It should summarize the main consequences of taking these commitments by Ukraine, in terms of national interests, divide them on negative and positive: (1) negative: (a) implementation of the legal protection of critical and scientific publications that have become public domain, impede access to them from domestic consumers, as well as sharing them, the same is true of audiovisual works, which in Ukraine almost created; (b) reform of the national system of geographical indications require adjustment of marketing strategies Ukrainian companies, advertising companies, additional investments; (c) guarantees high protection of intellectual property and product quality lead to substantial price increases; (d) in the case of international cooperation with other countries in the new format, the object of which relate to the subject of the Association Agreement with the EU, Ukraine is obliged to carry out appropriate consultations with the EU; (e) harmonization of significant legislation on the protection of intellectual property rights with the relevant EU regulations require significant budgetary costs; (2) positive: (a) activation of still inert domestic intellectual property market, the prospects for a competitive offer on it from domestic sources; (b) increase competition, strengthen the protection of the interests of holders stimulate innovative activity of local researchers (with the exception of computer programming, where the property rights of the author limited interests of the employer) and innovative enterprises; (c) increase the security of investments in innovation, which mainly relate to foreign capital, but in the long term, subject to effective state regulation of the economy, can stimulate the modernization of the country; (d) wealthy consumers have sufficient assurance that they are high quality and original products.

Thus, the Association Agreement between the EU and Ukraine is of complex economic and legal problems, primarily the state and national business associations for which it is necessary to develop a program to support national producers, with a view to effective integration into the European market (using the supplied economic opportunities). Even with securing high standards of intellectual property rights in Ukraine, for example, in a land market, this is not enough for the development of national scientific and technological capabilities, providing social sovereign-economic needs. However, optimism is recognized in the text of the Agreement formalities existing cooperation and to intensify its plans. Same main conclusion is that, taking into account the current socio-economic situation in Ukraine, the EU proposed terms of the contract should be assessed positively in general.

№ 5 (79), 2014
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