Intellectual property right

Zaykovskiy O., Onistrat O. Peculiarities of intellectual property protection in exercising of military-technical cooperation.

P. 5–17

The article considers the special aspects of intellectual property protection (IPP) in the implementation of international military-technical cooperation (MTC) of Ukraine depending on the specifics of this activity. It has been analyzed the legislation of Ukraine that regulates activities related to the MTC. It has been indicated the importance of IP protection for national security at all stages of MTC.

As far as Ukraine is not able to produce all the necessary range of weapons and equipment, the role and importance of international military-technical cooperation (MTC) significantly increases, and functional use is changing. The function of MTC as a source of revenues to the state budget from the exports of goods and services for military and dual use should retreat into the background, giving a way to solving current tasks of upgrading and reweaponing of the Armed Forces of Ukraine and integration of the military-industrial complex (MIC) into the European defense industry sector with the aim to obtain access to modern know-how, technologies, scientific developments and their introduction to design and manufacture more sophisticated weapons and equipment for the Armed Forces and export potential on the arms market.

MTC, which provides shared with foreign partners’ new weapons and equipment developments for their own use, as well as joint sales and services of military and dual-use, should become one of the main components of military and economic security of the state.

To convert MTC to a new level of interaction – sales of products of military and dual-use (MDUP) to trade the latest technology, Ukraine must solve a complex of issues related to the protection of IP. And to solve them usefully, it is necessary to define and analyze the features of IPP in the implementation of international MTC reckon with resolving the complex of questions about the ownership of the results of intellectual activity. These features are associated with the specifics of MTC.

The purpose of MTC is to ensure national interests and national security, to provide the Armed Forces with modern weapons and equipment, and other military goods, to develop of export potential of the defense industry, to increase scientific, technical and technological potential of the defense industry of Ukraine.

That is why the specifics of MTC, as part of the state’s foreign policy, lays in necessity to ensure national interests and national security in various forms and at various stages of mutually beneficial cooperation to use the results which have been obtained mainly in the performance of state defense order.

Today the armaments market is increasingly guided to the purchase of efficient technological solutions. Technology transfer is an integral part of most weapons contracts, and customers of Ukrainian special products are increasingly going to get products and include the access to technology of production. However, Ukraine’s lack of experience in trading technology leads to situations when the defense technology is transferred to foreign customer for nothing.

One of the main conditions for successful export of military technology is the effective functioning of IPP system that complies with requirements of international standards.

The question of IPP is very important in the context of the international market of weapon where military technology is often the lever of economic and political influence.

That’s why experts agree that to import and export of military technology successfully Ukraine has to improve the quality of IPP significantly.

So the identification and analysis of features of IP protection is important in the implementation of international MTC Ukraine.

As MDUP products are based on PRIP, the rights to these objects require adequate protection, the implementation of which at MTC has its own characteristics. These features are associated with the following:

  1. The need to ensure national interests and security, the preservation of classified and confidential information.
  2. The need to ensure IP protection at different levels of interaction of MTC.
  3. PRIP is generated during the performance of different projects.
  4. The various forms of legal protection of PRIP.
  5. Use of PRIP, which rights are owned by different entities.
  6. The need to ensure the protection of PRIP at various stages of MTC.

Key-words: intellectual property, military sphere

 

Contractual arrangements

Vakhonieva T.  Elements and procedure for the conclusion of copyright agreement

P. 18–27

The article researches the basic elements and constituent parts of copyright agreement, defines the order and procedure for the conclusion of copyright agreement, and determines characteristic features of its constituent parts. While analyzing the principal elements of copyright agreements, the author pays particular attention to the legal status peculiarities of contracting parties, defines the subject and the object of copyright agreement, and elucidates the form, price and term issues of copyright agreement.

Practically all subjects of copyright agreement can be contracting parties of copyright agreement. Their legal status is determined by legal norms that regulate their status as of the subjects of copyright legal relations. In specific cases a disabled person who needs a detailed regulation from the legislator for the protection of minors’ rights can be a contracting party of copyright agreement.

While signing the copyright agreement, it is important to pay attention to the legal status peculiarities of some subjects of copyright agreement that act as the contracting parties of copyright agreement. They are co-authors, translators, founders, collective management organizations, etc. Positive dynamics of contractual relations with such subjects depends on the compliance of all formalities while signing the copyright agreement, which are connected with the respect for the rights of other copyright subjects.

The subject matter of copyright agreement is not a work but property rights connected with the possibility to use it in different ways. While signing the copyright agreement, the issues about types and character of rights that are transferred by this agreement, and all the work related issues must be agreed. The concepts of «object and subject»of copyright agreement are so closely interconnected that they should always be considered inseparably. The object of copyright agreement should correspond to all features that are peculiar to copyright objects, in certain cases it should correspond to those requirements placed on it by contracting parties of copyright agreement, and sometimes it should correspond to the norms of copyright and other laws. The basic negative consequence of non-compliance of the simple written form of copyright agreement is the impossibility of reference to witness testimony in case of dispute.

Minimum rates established by law serve as a peculiar guiding line for determination of copyright award and the order of its calculation by contracting parties of copyright agreement.

The term is legislatively determined by copyright agreement conditions, and in case it isn’t determined, the agreement may be declared invalid. Contracting parties of copyright agreement independently determine the term of copyright agreement.

Key words: copyright agreement, contracting parties of copyright agreement, the subject of copyright agreement, the object of copyright agreement, the form of copyright agreement, the price of copyright agreement, the term of copyright agreement

 

Defence and remedies

Trotska V. Prevention and detection of plagiarism in higher education (according to research materials in the EU and Ukraine).

P. 29–38

The article contemplates the issues of plagiarism in higher education in accordance with European and national practices on the basis of the carried out research.

The first research named «The Ìmpact of Policies for Plagiarism in Higher Education Across Europe», carried out in 2013 in the EU.

A report was prepared for each of the 27 EU member states surveyed, detailing relevant findings and making recommendations for future developments, institutionally and nationally. Selected participants from each country were involved in reviewing and commenting on the reports prior to their publication. The second research named «All-Ukrainian sociological research «Academic culture of the Ukrainian students: major factors of formation and development», carried out in Ukraine (2014–2015).

According to this research students and teachers in 25 universities in Ukraine were interviewed.

European and Ukrainian researches present a comparison of results, especially looking at the sequence approaches, practices and examples of evidence which should make effective efforts to strengthen the educational policies and practices.

For example, in Germany, 50 % of scientific works contain plagiarism, 58% of university teachers faced plagiarism in the UK. For comparison, according to the research in Ukraine, the level of plagiarism among students is 90 %.

European and Ukrainian students among the reasons of  plagiarism on the first place define — lack of time, the need to perform a large amount of work during the academic semester/year.

At the same time,  оn the second place, as Ukrainian students say, is repeatability/no relevance topics  papers/ the gap between themes and modern/relevant/interesting needs.

The author concludes that the іnfringement of copyright in the form of plagiarism in higher educational institutions both in the EU and Ukraine are common.

However, in the EU countries the level of plagiarism is smaller than in Ukraine. Students and teachers more aware in the moral and ethical issues of dishonesty of stealing other people’s results of creative works. The main issue is a moral choice of norms, rules and principles of behavior in relation to themselves and colleagues.

The author contemplates the reasons and provides suggestions of how taking into account the European experience, have a smaller level of plagiarism in higher education of Ukraine.

Key words: copyright, copyright work, copyright infringement, plagiarism, universities, teachers, students

 

Koval I. About the legal status of the Supreme Court on intellectual property.

P. 39–44

The article is devoted to study of particular aspects of the legal status and activities of the Supreme specialized court on intellectual property on the basis of analysis of norms of the Law of Ukraine «On judicial system and status of judges», scientific approaches, foreign experience.In the study the expediency of clarifying the title of this court, the determination of the issue of location, procedural framework of the proceedings, appeal review of cases.

The aim of this research is clarification of theoretical and practical aspects of legal status of the Supreme specialized court on intellectual property and development of proposals for its improvement.

The features of legal status of the Supreme court on intellectual property matters are considered; special requirements to the judges; legislative approach to defining its jurisdiction, which covers all disputes related to the violation, rejection, contestation of intellectual property rights, irrespective of subject structure of participants of dispute, nature of dispute, the object of intellectual property.

It is emphasized that the name of the specified court to the phrase «Supreme court» creates a false impression of his belonging to the courts of appeal, when the court will act only as a court of first instance. «Court on intellectual property matters» or «Court on intellectual property» is offered.

It is suggested to decide the question of location and territorial jurisdiction of the Supreme Court on intellectual property matters.

It is proved that the question of the type of proceedings, which this court will exercise, can be solved by making changes in the sectoral procedural laws that would reflect the peculiarities of such cases, either by adopting a separate procedural law.

On the basis of analysis of statutory provisions about legal status of the Supreme Court intellectual property matters drawn conclusion, that in Ukraine two-tier specialization is entered in the field of consideration of the businesses related to the intellectual ownership rights : the first level is the first instance, that is presented by the specialized court (Supreme Court on intellectual property matters) that will examine all cases in the field of intellectual property; second level — appeal and cassation instances examining indicated cases only within the limits of the jurisdictions. Such approach requires further study, because it can lead to problems of delimitation of the jurisdiction of the courts of appeal and cassation and the formation of various practices of consideration of cases on protection of intellectual property at the time of their viewing.

Key words: specialized court, legal status, intellectual property rights, protection of rights, proceedings, cassation revision

 

Patent law

Kashyntseva O. National patent reform in the sphere of health care: main approaches.

P. 45–48

Because of the lack of political will and the lacks of or clear wordings of the relevant provisions in national legislation Ukraine does not use the opportunities provided by the international law on intellectual property regime for implementing legal protection of patents, which are not contrary to fundamental human rights to life and health enshrined in the Universal Declaration of Human Rights.

In particularly the strategy of the National Patent Reform is determined in accordance with the «Reforms Strategy–2020» which accompanied the following areas: Health Care reform, reform of the legal protection of Intellectual Property, reform in the areas of Competition Law and Antitrust Laws.  All of the mentioned spheres are determined in the international obligations imposed on Ukraine by the Association Agreement between the European Union and Ukraine.

In reforming national patent law should impalement European criteria for patentability of inventions for medicines that would appear in raising the criteria inventive step, excluding the medicines from patentable object of the utility models.

Pursuant to the provisions of the Association Agreement between Ukraine and the EU to comply the provisions of national patent laws with the provisions of the European Patent Convention in the bill should include implementation procedures of patent oppositions (opposition) not only at the stage already adopted a decision on the application (post-grant procedure) but at the stage of the application (pre-grant procedure) a national executive body that implements the state policy in the field of intellectual property, and provide the right to submit reasoned objections to such application by any interested party who believe that given application violates their rights.

At the present stage of reforming national legislation and the entire system of intellectual property protection we express the hope that we will have appropriate political will on a national patent reform in particular in the field of medicine and pharmacy on the principles of the rule of law and human daunting considering the economic situation in the country.

Keywords: intellectual property, health care, human rights, patients’ rights

Kapitsa Yu. EU supplementary protection certificate for medicinal products and the extension of the term of the patents for inventions in Ukraine.

P. 49–57

The article devoted to the analysis of effectiveness of EU system of supplementary protection certificate for medicinal products in comparison with other countries models which use the extension of the term of the patents for medicinal products.

It is noted that problematics of SPC had been discussed by Trever Cook, Bucura Ionescu, Jeremy Phillips, Peter L. Kolker and other specialists, issues of approximation of Ukrainian legislation to SPC Regulation № 469/2009 by Vladimir Vorobyov, Yuriy Kapitsa.

The complexity of SPC application is shown in connection with a different scope of legal protection for drugs determined by the patent for invention and certificate.

It is shown that the aim of adoption of the Council Regulation (EEC) No 1768/92 concerning the creation of a SPC in 1992 was to introduce equal conditions of competition for the creation of drugs compared to the US and Japan and promote the development of the pharmaceutical industry of the EU Member States. However, the practice of the Regulation, a significant number of requests for interpretation to the Court of Justice demonstrates the ambiguity of its provisions, and the difficulty of solving by the Regulation of new issues arising from the pharmaceuticals R&D. Repeated appeals to the Court of Justice led to the request of the Court as to the possible revisions or corrections of the Regulation.

A key problem is more narrow and different from patent protection subject matter of protection by the SPC. Jurisprudence of the EU failed to change the Regulation or to have definitive judgments on interpretation.

However these difficulties should not take place in countries that used the extension of the term of patents for the drugs. Such an approach complies with the provisions of Art. 63 of the European Patent Convention.

The comparison of the use of SPC and extension of the term of patent in countries other than the EU, including the CIS shows that in these countries the extension of the patent provides for foreign, including EU and domestic medicinal products manufacturers more favourable and more certain legal environment. Thus, the use in the EU of extension of the term of patent instead of SPC regime would result in the absence of the majority of SPC Court of Justice cases on issues related to different scope of legal protection afforded by patent law and sui generis regime.

The approximation of the CIS countries legislation with the requirements of Regulation № 469/2009 lead to: a decrease in extension of terms of protection of drugs for the period of obtaining marketing authorisation 1–9 years; to narrower protection of drags than provided by patent for invention; unpredictable practice in connection with a different systems for issuing authorisation to use the medical products in the CIS countries, that have differences from the Regulation № 726/2004; inconsistencies with EU practice due to the inability to provide constant change of national laws in connection with the Court of Justice decisions on interpretation of the Regulation № 469/2009.

The above said shows that the interests of drug manufacturers in the EU and CIS countries would be more satisfied by keeping the existing system of extension of patent terms in these countries or by adoption of calculation of terms of protection in accordance with Regulation № 469/2009 with preservation existing system of extension of the patent terms.

Key words: supplementary protection certificate, medical products, inventions, intellectual property.

 

Trade secret

Dmitrenko V. Problems of regulation of «know-how» in the legal system of Ukraine.

P. 58–65

The article analyzes the national legislation, judicial practice and legal doctrine concerning definition of essence of concept «know-how» in Ukraine. In modern conditions of constant dynamic development of production, engineering and technologies, the rapid development of innovative technologies, the construction of modern information society is of particular relevance to the improvement of the protection of human rights to the results of their intellectual activity. One of the problem and actual questions is the protection of right to know-how, because today there is no clear definition of the essence of this concept, is not defined the legal nature and, accordingly, there is no mechanism of protection of human rights to their special form of intellectual activity.

The purpose of this article is the analysis of the existing problem of the ambiguity of the determination of concept «know-how» in the legal system of Ukraine, that proof of the need for further study, analysis and generalizing the problem of the determination of know-how for the purpose of the effective protection of the rights of inventors, creators and other persons to the results of intellectual activity.

The relevance of the study consists in the lack of a common approach to determine the nature and place of know-how among the objects of the law of Ukraine. The definitions of know-how, given the current legislation of Ukraine, are different. As a result, the courts have different interpretations of the concept of know-how, through the use of different normative-legal acts of Ukraine, which differently define the object. Also, in the scientific literature, the issues of know-how are debatable — there is no consensus on its legal regime that would allow forming a clear view about this object. Today there are different points of view which consider know-how as the component of trade secrets and on the contrary, as the separate object of intellectual property rights, as the synonym of the secrets of production and trade secrets. Additionally, there are many authors’ positions relative to the definition of essence and legal regime of know-how, but they are radically different. We consider that the differentiation between the concepts of know-how from other legal categories is indeed a difficult question.

So, there are many legislative and authors’ positions in regard to the definition of know-how, they are different, indicating the need for further study, analysis and generalization of this problem at the doctrinal and legislative levels for the effective protection of human rights to results of intellectual activity.

Keywords: know-how, information, trade secret, secrets of production, confidential information, results of intellectual activity, scientific experience, technology

 

Copyright

Shtefan A. Parody of the Musical Work with Lyrics in the Order of Copyright Limitations

P. 66–74

Parody is an audiovisual, literary, musical or other work that is the result of the creative processing of another lawfully published work or a part, when its content has obvious comic, satire character or it is directed to the ridicule of some events or people.

The criterion of limits of creating any parody is the following principles of civil law, like fairness, reasonableness and good faith (point 6 of part 1 of Art. 3 of Civil Code of Ukraine). According to part 2 of Art. 13 of Civil Code of Ukraine, in the exercise of their rights person are obliged to refrain from acts that could violate the rights of others. The criterion of limits of creating any parody is also the unacceptability of distortion, disfigurement or other change of work or any other encroachment that may harm the honor and reputation of the author, and the author’s right to oppose such changes (point 4 of part 1 of Art. 14 of Act on Copyright and Neighbor Rights of Ukraine).

Creating of a parody responds to the legal nature of the derivative work. As it noted in doctrine, in most cases the copyright owner is likely to value the ability to insulate themselves from criticism much more than the potential parodist can afford to pay in license fees. The rules that allow the free use of works to create a parody actually provide the living of this genre so the limitation of copyright for such purpose is clear. I share the expressed opinion that the exemption of criticism and parody as such does not conflict with a normal exploitation with copyrighted material in the sense of the three-step test.

The specificity of the musical work with lyrics is in the combination of two separate, independent objects – musical and literary works – into one. They are interconnected and influencing of each other: one-sided impact when the lyrics are creating for an existing music or vice versa, or mutual, when the music and lyrics are created simultaneously, in parallel. Despite the obvious connection between music and lyrics, they are separate copyrighted objects which have different forms of expression, with different legally significant elements of the form of expression. That is why the parody of the musical work with lyrics occurs only after the creative remaking of music and lyrics both.

If we analyze the experience of using of musical works with lyrics in entertainment shows and programs, we can see that in many cases the parody effect is achieved by processing of lyrics only. And the music remains unchanged or with its new arrangements which can occur as a complication or simplify of the musical texture, however the comic character musical work is not provided. Such using of the musical work with lyrics transformed to a parody does not response to principles of the three-step test. So such using of musical work requires the permission of its author. But the sense of creating parodies, caricatures and potpourri in cases of copyright limitations is to release the parodist of the need to coordinate the processing of primary work to its author.

In my opinion, the legal regulation of creating of parodies need to consist the right of a parodist to use primary musical work (without remaking or to create the new arrangement) with the parody that is made on the base of lyrics of such musical work without the permission of the musical work’s author but with paying him royalties.

Key-words: free use of work, musical work with a text, parody, musical parody, parody to a musical work with a text

 

Scientist’s view

Kalaur I. Contract in the mechanism of legal regulation of relations on the transfer of property in use

P. 75–83

The role of contract in the mechanism of legal regulation of relations on the transfer of property in use is investigated in the article. It is found that in modern legal regulation of relations dispositive approach to their organization dominates. Since, the contract in the mechanism of legal regulation of these relations performs not only the role of legal fact, which causes their emergence, change and termination, but is the main regulator of the above relationships. With the help of the contract the employee and the employer, making typical contract, may settle the questions of business relations which are not covered by acts of civil law. Two parts of the law relations may deviate from the dispositive provisions of civil law and regulate their relations at their own discretion. However, the law allows conclude agreements on the use of property that are not covered by the acts of civil law, provided that these contractual structures correspond to the general principles of civil law (making atypical contracts).

The paper defines the role and characteristics of standard and sample contracts on the transfer of property in use.

The role of contract in the mechanism of legal regulation of relations on the transfer of property in use is investigated in the article. It is found that in modern legal regulation of relations dispositive approach to their organization dominates. Since, the contract in the mechanism of legal regulation of these relations performs not only the role of legal fact, which causes their emergence, change and termination, but is the main regulator of the above relationships. With the help of the contract the employee and the employer, making typical contract, may settle the questions of business relations which are not covered by acts of civil law. Two parts of the law relations may deviate from the dispositive provisions of civil law and regulate their relations at their own discretion. However, the law allows conclude agreements on the use of property that are not covered by the acts of civil law, provided that these contractual structures correspond to the general principles of civil law (making atypical contracts).

The paper defines the role and characteristics of standard and sample contracts on the transfer of property in use.

Key-words: property, contract, transfer of property, legal regulation

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№ 5 (91) 2016