№ 6 (104) 2018

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Semeniuk K. Violations in the field of copyright: incorrect citation and plagiarism

P. 5-19

The paper addresses common violations of copyright law: incorrect (un­lawful) citation and plagiarism. These violations have certain common features, but the author’s paper aims to differentiate them through comparison; investigates indi­vidual problem issues arising when quoting, which can lead to violations or when identifying unlawful borrowings (plagiarism); analyses national legislation and inter­national documents that have been ratified by Ukraine or to which Ukraine has joined, as well as judicial practice.

The results obtained indicate that incorrect (unlawful) citation includes: non-com­pliance with the requirements of the citation volume; quoting small volumes works without respecting good customs; citing works that were unlawfully published; use of quotations in scientific works without observance of the general rules of citation; use of quotations without informational, critical, polemical, scientific purpose; wrongful, unlawful or incorrect author indication of the borrowed excerpt or sours of borrowing. While plagiarism is: not indicating the name of the author and the use of a passage of someone else’s work under one’s own name, or when the author who borrowed the passage indicates the name of the person, except his own name, who is not the author of this work or a part thereof. Plagiarism is the appropriation of others’ creative activ­ity results, while the incorrect (unlawful) quotation only violates the limits and condi­tions of permissible free use of others works established by the current legislation.

In the author’s paper provides a general theoretical and practical characteristic of each individual case of making incorrect (unlawful) citation and plagiarism; indicates that incorrect (unlawful) citation and plagiarism may lead to a violation of personal non-proprietary and exclusively property rights of the author, human rights or acade­mic integrity, and therefore require special attention in indicating these offences and in conducting further research. In addition, it should be remembered that non-compli­ance with certain requirements of the legislation concerning conditions for the free use of quotations does not imply violation by the author of copyright legislation. In ad­dition, there are cases of involuntary plagiarism, which can not be considered a viola­tion of copyright.

Therefore, despite the considerable amount of scientific works devoted to prevent­ing and detecting plagiarism, as well as adherence to the conditions for the free use of quotations, the issue of differentiation of incorrect (unlawful) citation and plagiarism is rather controversial and relevant. The author draws attention to the fact that the solution of the matter whether the work contains plagiarism or incorrect (unlawful) quotation is solely imposed on the competence of the court based on the expert’s con­clusion. In order to eliminate possible differences in the practical application of the rules governing the use of others’ creative results for one’s own creative work, it is ap­propriate to develop common guidelines that can be applied both in the academic en­vironment and in the arts, in view of ensuring a private and public balance of inter­ests. This will create a solid foundation for further cultural, scientific, innovative, artistic development of the country.

Key words: copyright law, free use, cite, incorrect citation, unlawful citation, pla­giarism

Kovalenko T. Examination of trademarks that contradict public interest, principles of humanity and morality

P. 20-29

An analysis of the history of the de­velopment of Ukrainian and international trademark law (trademarks and service marks) contains a prohibition on the registration of trademarks that are in conflict with the public interest, the principles of humanity and morals. The article deals with the differences between the concepts of «public interest» and «principles of humanity and morality», and their characteristic features. The possibility of con­ducting forensic research on compliance with the principles of humanity and morality, the public interest of trade marks.

However, the incorrect definition of their legal nature, ignorance of differences between them, may lead to their misuse and protection and, accordingly, violation of rights. For example, an unregistered trademark has no protection from the state side, and the commercial (firm) name is identical or similar to the one that may be confused with an earlier registered trademark of another person, deprives them of the possibility of selling goods or providing services that are subject to legal protec­tion trademark Therefore, the ability to branch out a trademark and commercial (firm) name helps market participants realize and protect their exclusive rights.

Key words: trademark, brand name

Samovolova N. Comparative study of copyright objects and industrial designs as a part of the court expertise of the intellectual property objects

P. 30-36

Pic­tures as result of creative activity may be considered as object of copyright and industrial property — industrial design. The article is dedicated to the comparative analysis of the Ukrainian legislation in this sphere. The advantages and disadvantages of these legal regimes for the matters of court expertise are the main theme of the article. The research and analysis presented in the article are based on the real court expertises.

In the article the concept of «use of an object» is also defined. The comparison of the use of the intellectual property object as an object of copyright and an industrial design is made.

Keywords: pictures, object of copyright, industrial design, industrial property, court expertise

Zaykivskyi O., Onistrat O. State policy improvement towards responsibility for violation of intellectual property rights in the defense sphere

P. 37-45

The legis­lation of Ukraine regulating activities related to the development of armaments and military equipment, as well as the implementation of international military-technical cooperation, concerning the responsibility provided for violation of intellectual proper­ty rights in the sphere of defense is considered. The importance of improving the leg­islation on the settlement of issues of responsibility for violations of intellectual prop­erty in the defense sector and the proposals for improving it are elaborated.

Ukraine as an independent state is undergoing a rather difficult stage of its forma­tion, overcoming many problems on its way. However, in general, they are associated with one problem — the lack of responsibility for their actions or inaction, the decisions taken or vice versa has not been taken, and at all levels — from a citizen to the presi­dent. This is what generates corruption and theft of the budget, even in the war, repair­ing roads in the rain or snow, and all our other disadvantages. Therefore, as long as we are not responsible for the violations committed, regardless of party affiliation or family and other ties, radical changes in the public life of our state will not occur. This also ap­plies to violations of intellectual property rights.

During the years of independence, Ukraine has not really formed a state policy on in­tellectual property, nor has developed strategies for the development of this important segment of public life. At the beginning, we laid the foundation and built our own struc­ture, and for more than 10 years we reformed what was not completed. There is no strategic vision of what we want to achieve, so all changes and reforms take place in a haphazard and chaotic way. And because of this, the number of violations only increas­es, so our state can never completely get rid of the stigma of one of the biggest violators of intellectual property rights.

The problem of responsibility for violating intellectual property rights is particu­larly important in the defense sector, although not everyone understands it. Indeed, when developing of armaments and military equipment and its subsequent using, es­pecially when exported to other countries, significant financial losses for authors and producers, as well as image losses for the whole state are possible. And with the tran­sition of our military-industrial complex from the repair and modernization of arma­ments and military equipment of Soviet standards, to the development of the latest models of own samples of armaments and military equipment or in cooperation with foreign partners, the issue of responsibility for the violation of intellectual property rights has become even more acute.

The current state of intellectual property protection in the defense sector indicates the need to improve the regulation of issues of the formation and implementation of state policy, the principles of state control in this area, as well as the powers and re­sponsibilities of all actors involved in the defense sector.

The imperfection of the legal framework gives the legal possibility of unauthorized use of objects of intellectual property rights created during the execution of the state de­fense order, including (especially) the implementation of the military-technical coopera­tion. This is facilitated by the lack of responsibility for actions that create a threat of vi­olation of intellectual property rights or contribute to the violation.

The great amount of all violations can be prevented by state contractors with prop­er work on a contractual basis in the event of a responsible attitude towards ensuring national interests and proper performance of their functions by public officials. At the moment, possible actions or inaction of state-owned customers that directly violate the norms of intellectual property rights, or indirectly, the commission of which seems to have no direct relation, but leads in the future to serious violations of intellectual property rights.

For solution of this problem is necessary to systematically and comprehensively ap­proach the improvement of intellectual property legislation, especially regarding the de­finition of liability for violations in this area in the development and use of armaments and military equipment.

Key words: national security and defense, intellectual property, defense sphere, ob­jects of intellectual property rights, armament and military equipment, military-techni­cal cooperation

Shabalin A. Some issues protection of intellectual property rights Directive 2004/48/EC «On the protection of intellectual property rights»

P. 46-54

In the article explores the protection of intellectual property rights in the European Union. Attention is paid to the provisions Directive 2004/48/EC On the protection of intellectual property rights. The application of this Directive 2004/48/EC is studied as at the general European level, and the features of the legal application of the directive in the legislation of individual EU member states are studied. In this article says that the main goal of this Directive is to create an effective mechanism for the protection of intellectual property rights in the common European space (EU), for the further de­velopment of an innovative economy. The analysis of the peculiarities of enforcement practice in the implementation of the EU-2004/48/EU Directive in certain EU mem­ber states (Hungary, Austria, etc.), identifies the main issues related to the applica­tion of the provisions of the above-mentioned Directive, in particular, points to the dif­ferent understanding of «additional payments» in some EU member states: Germany, Czech Republic. There is in practice the question of the question of how to obtain the creator of supplementary payments (compensation). So, in Austria, the Czech Repub­lic, Germany, Romania, the basis for determining the amount of additional compensa­tion is double the amount of royalty. In 2016, the European Commission prepared a new report on the enforcement of intellectual property rights in EU member states. In this report, the Commission emphasizes that the IPR procedures contained in EU/2004/48 have greatly contributed to raising the level of protection of intellectual property rights in the EU, contributing to the creation of a unified legal framework. The report also states that the Directive is consistently and effectively integrated into the right of EU member states. Now (o date), the provisions of EU/2004/48 Directive have been implemented in virtually all EU member states. For example, in Latvia — the Law «On Trademarks and Geographical Names» (as of 010.010.2016), the Law «On Patents» (as of 01.01.2016), the Law «On Copyright» (as of 01.01.2014) ; in Lithuania — the Law «On Industrial Designs» IX-1181 (as of July 1, 2008); Romania — Law «On the Protection of Industrial Property Rights» No. 280/2005; Spain — The Law «On Protection of Intellectual Property and the Settlement of Sim­plification of the Application of EU Procedures» No. 19/2006 of 05.06.2006, as well as the corresponding amendments were made to the Law of Spain «On Civil Procedure» No. 1/2000 of January 7, 2000; Greece — Law on Transfer of Technologies, Removals and Innovations No. 1733/1987; Hungary — Law on the Protection of Trademarks and Geographical Indications.

An analysis of the implementation of the Directive leads to the conclusion EU / 2004/48 Directive has become widely implemented in the European space and is an actual document for EU member states in their system of legal protection of intellec­tual property rights.

Key words: EU, Directive 2004/48/EU, protection of intellectual property rights, European Commission, EU Court, protection of intellectual property rights in the EU

Shtefan O. Some issues of application or non-application of medical and tech­nological documents as grounds for judicial protection

P. 55-70

The article covers certain is­sues of the civil procedure for the protection of the basic human right — the right to health — the time of application or non-application of medical and technological documents on the standardization of medical care, when the initiator of the process are those who did not take part in the case if the court decided the issue about her rights and responsibilities.

On the basis of the analysis of international legal acts, it was concluded that the right to health also includes the right to availability of quality medical care on the basis of the specification and in strict conformity with the standards (Article 8 of the European Char­ter of Rights of Patients of November 15, 2002). This approach has been implemented in national legislation. Thus, the Constitution of Ukraine declares that everyone has the right to health care, medical care and medical insurance (Part 1, Article 49), and in Part

• of Art. 284 of the Civil Code of Ukraine established the right of an individual to provide her with medical assistance.

In its turn, Art. 129 of the Constitution of Ukraine fixed the basic principles of legal proceedings. These principles are constitutional guarantees of the right to judicial protec­tion. According to Art. 13 of the Constitution of Ukraine, everyone is guaranteed the right to appeal in court decisions, actions or inactivity of state authorities, local self-gov­ernment bodies, officials and officials. Part 1 of Art. 4 The Civil procedure Code of Ukraine determines that each person has the right, in accordance with the procedure es­tablished by this Code, to apply to the court for the protection of their violated, unrecog­nized or disputed rights, freedoms or legitimate interests.

According to Part 12 of Art. 272 of the Civil Procedure Code of Ukraine, a person who did not take part in the case, but on which the court decided on his rights, freedoms, inter­ests and (or) duties, may receive in the court which considered the case as a court of first instance a copy of the decision that is in the materials of this case, passed by the court of any instance. In turn, in accordance with Part 1 of Art. 17 of the CPC of Ukraine persons who did not take part in the case, if the court has decided on their rights, freedoms, inter­ests and (or) duties, have the right to appeal the case and in cases determined by law — on a cassation appeal of a court decision. This provision of the law corresponds to Part 1 of Art. 352 of the Civil Procedure Code of Ukraine — persons who did not take part in the case, if the court has decided on their rights, freedoms, interests and (or) duties, have the right to appeal in full or in part in the appeal decision of the court of first instance.

Thus, the right granted to persons who did not participate in the case if the court de­cided on their rights, freedoms, interests and / or duties is a guarantee of the implemen­tation of the principle of access to court in the meaning of Art. 6 Convention for the Pro­tection of Human Rights and Fundamental Freedoms 1950.

At the same time, civil procedural law establishes a certain procedure for implement­ing the principle of availability to the court.

Realization by persons who did not take part in the case if the court decided on their rights, freedoms, interests and / or duties of the right to appeal the decision of the court of first instance in full or in part (Part 1 of Article 17, Part 12 of Art. 272, part 1, Article 352 of the Civil Procedure Code of Ukraine) should not have any signs of abuse of procedural law (Article 44 of the Civil Procedure Code of Ukraine) and violate the principle of the final judgment.

The medical protocol, as a medical-technological document for the standardization of medical care, does not fall within the scope of legal acts, and thus does not fall under the broad understanding of the «law», which is identified with the term «legislation». Thus, the application or non-application of a medical protocol can not be regarded as an incor­rect application of substantive law, which may result in a significant judicial error that is fundamental to the judicial system.

Based on the analysis of the case-law of the European Court of Human Rights regard­ing the application of paragraph 1 of Art. 6 of the European Convention for the Protec­tion of Human Rights and Fundamental Freedoms of 04.11.1950 grounds for renewal of the term for filing an application or appeal are reasons which do not depend on the will of the persons concerned, and the purpose of correcting the «error» which is of fundamental importance for the judicial systems. If, however, the renewal of the terms of appeal for a decision of the court of first instance is exclusively for the purpose of re-examination and approval of a new decision, there is a violation of the principle of legal certainty and the «right to a court» within the meaning of clause 1 of Art. 6 of the Convention for the Pro­tection of Human Rights and Fundamental Freedoms of 04.11.1950.

The course of the filing of the appeal, fixed in part 6 of Art. 268 of the Civil Code of Ukraine for persons who did not take part in the case, if the court decided on their rights and obligations, begins the next day from the date of registration in the journal of is­suance of court cases on its familiarization with the case and is ten days.

Key words: medical-technological document, medical protocol, person who did not par­ticipate in the case, but on which the court has decided on its rights, freedoms, interests and (or) duties, civil process, the right to a court, a miscarriage , the time limit for lodging an appeal

Sopova K. Expertise, reports of patent attorneys and other specialists in trademark cases

P. 71-82

The article analyses the expertise as a means of provingintrade- markcases, and other documents (reports of the patent attorney, reports of sociological surveys, reviews of expertise, etc.), which submit the parties in support of their claims and objections and to clarify circumstances relevant to the case. Also, cases were consid­ered when courts came to the place of average consumers and independently established the fact of similarity of signs in such a way that they could be confused.

In trademark rights cases, there is a need for research based on the use of special­ist knowledge and involvement as one of the means of proving the expertise. The fea­tures of trademark expertise are defined, which consists in the fact that trademarks are being researched in a complex of comparison of their characteristics, close connec­tion with the goods and services for which they are registered, and from the position of their perception by the average consumer.

It was suggested that reviews of expertise, provided outside the procedure for re­viewing the expertise’s of court experts and expert studies, approved by the Ministry of Justice of Ukraine, should be assessed by the court as inadmissible evidence.

When establishing the similarity of signs by a court, it is necessary to justify this similarity in the decision with the reflection of all factors that can be relevant for es­tablishing such a circumstance.

Key words: court expertise, report of the patent attorney, review of expertise, re­port of sociological surveys, sign for goods and services, trademark

Fedorova N. Directive on the return of cultural objects illegally removed from the territory of Member States

P. 83-92

The article explores the development of the legal mechanism for the export, importation and return of cultural property from Ukraine to the European Union. The mechanism of registration of the legal move­ment of historical and cultural monuments from the limits of the customs territory and to the territory of Ukraine is considered.

The directive 93/7 EEC was adopted in order to simplify the process of returning cultural property to illegally exported from the territory of the EU member states. Ukraine is still a cultural mystery, a phenomenon in the international arena, there­fore, there is a need to establish a perfect legal mechanism for the export, importation and return of cultural property illegally exported from the territory of an EU member state.

The main principle of the Directive 93/7 EEC provides that the authorized bodies of the Member States adhere to the established procedure, which simplifies the procedure for returning cultural property. A member state of the EU is obliged at the request of an­other EU state to search for the corresponding cultural value and find out the identity of the owner.

The purpose of Directive 93/7/EEC was to ensure the physical return of cultural objects to a Member State from whose territory the objects mentioned were illegally exported, regardless of property rights, applied to such objects.

The scope of this Directive is to be extended to all cultural objects which a Member State classifies or defines in accordance with national law or administrative proce­dures as part of national treasures of artistic, historic or archaeological value. This Directive should therefore cover items of historical, paleontological, ethnographic, nu­mismatic interest or scientific value, whether they belong to state or other collections, or whether they are separate objects, irrespective of the origin they are from planned or illegal excavations, provided that they have been classified or designated as nation­al values. In addition, cultural objects classified or designated as national values should no longer fall into categories or meet the thresholds for their age and / or fi­nancial value in order to be returned in accordance with this Directive.

Keywords: cultural values, moving, export, import

Rabotiagova L., Androshchuk G. The extension of patent term for an invention, the object of which is a drug product

P. 93-103

The article devoted to the analysis of United States Code Title 35-Patents, Manual of Patent Examining Pro­cedure, Code of Federal Regulation Title-37 (37 CFR). There are considered regula­tory issues the extension of the term of a patent, which claims a human drug prod­uct, a method of using a human drug product, or a method of manufacturing a human drug product.

The extension of patent term is necessary because a human drug product has been subject to a regulatory review period, which conducts Food and Drug Admin­istration (FDA) before its commercial marketing or use.

A regulatory review period consists of two periods: a testing phase and an ap­proval phase. For human drug product, the testing phase begins when the exemp­tion to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submis­sion of an application to market the human drug product and continues until FDA grants permission to market the drug product.

There are considered an agreement between the FDA and the United States Patent and Trademark Office, which establishes procedures for the exchange of in­formation between these government agencies to determine a regulatory review period. The determination of the length of the regulatory review period is shown on the example of the human drug GlucaGen®.

If the patent is found to be eligible for extension, the United States Patent and Trademark Office then calculates the length of extension for which the patent is el­igible under the appropriate statutory provisions (35 U.S.C. 156(c); 37 CFR 1.750). The period of extension is calculated using the FDA determination of the length of the regulatory review period published in the Federal Register.

Key words: patent for invention, a drug product, the extension of patent term, permission for the commercial marketing or use of the product

Petrenko S. Claims of invention (useful model) forensic examination investigation limits

P. 104-110

The article breaks down the differences in the approaches to research of inventions (utility models) on compliance with the «novelty» feature of patentability during qualification examination of application materials for in­ventions (utility models), and forensic examination of inventions (utility models).

The emphasis is placed on the point that in case of invention (utility model) compliance with the criterion of «novelty» forensic examination and qualification examination, experts work with different objects. In the first case, the object is claims for intellectual property object with clearly defined scope of rights, and in the second case — claims that describe a potentially patentable technical solution.

The article considers disadvantages of the Methodology for conducting forensic examinations related to inventions and useful models (universal), which is used by forensic experts in determining the information on the level of technology of a set of essential features of the invention (utility model), are considered. One of the drawbacks is lack of a separation of features of the invention (utility model) into features of independent and dependent items of claims of the invention (utility model) during the examination.

As a result of the aforementioned shortcomings, the forensic examination con­siders the criteria on compliance with the «novelty» feature of patentability more widely than the qualification examination, which is unacceptable.

Keywords: invention, utility model, forensic examination, qualification exami­nation, application, novelty, conditions of patentability

Drobyazko V. Procedural issues concerning the protection of copyright in the Ukrainian SSR in the 30th years of the 20th century

P. 111-116

This article consid­ered procedural questions about copyright protection of in the Ukrainian SSR in the 30th years of the 20th century.

Investigation of the issue of jurisdiction of disputes about royalties, limitation peri­od, exemption from payment, like State Duty, court orders, court of claims, com­plaints about the actions of a bailiff, acceptance by the bank of executive documents about exemption of royalty, responsibility about exemption of royalty.

At that period of time, copyright was adapted for new economic conditions: in the role of work-users were not private organizations (like before that), but only state. Country system of state organizations was only one monopoly consumer of the results of creative work, which is protected by law.

In the Ukrainian SSR in the 30th years of the 20th century the dynamics of forma­tion of procedural law in the field of copyright-law relation was established.

Keywords: copyright, procedural law, jurisdiction of affairs about royalty, limita­tion period, court costs, collecting royalty.

Ennan R. Legal regime of electronic documents and electronic signatures: international and European experience

P. 117-125

The research is based on current interna­tional legislation, legislation of EU and legislation of foreign countries. On the grounds of this documentary basis the notion of e-commerce is analyzed, legal relationships related to this notion, the use of electronic documents and electronic signatures is discussed.

The internationalization of international economic relations and globalization have necessitated the international unification and harmonization of legislation in the field of electronic document circulation, the purpose of which is to exchange infor­mation between participants in relations located in different states. In this regard, it is impossible to ensure the effective legal regulation of these legal relations within one country without taking into account the existing approaches in international practice and foreign legislation. The basis for the harmonization of rules on electronic documents and their use in contractual relations are the reasons of an economic and legal nature. One of these factors was the emergence and development of new means of communication, with the result that economic relations went beyond the frame­work of individual states and ceased to be tied to a specific national territory.

Among the reasons specific to this area, it should be noted the emergence of new ways of certifying authentic documents and new forms of documents, through the exchange of which it is possible to conclude, execute contracts, perform other legally significant for civil and international circulation of actions. The advantages of using new technical tools have necessitated the consolidation of legal requirements for such use. However, the publication of special acts at the domestic level will not contribute to the development of international trade, since the right of each state has its own characteristics, due to the centuries-old traditions and modern interests of the state in various fields.

The adoption of the EU Directives and their implementation in the national legis­lation of the EU member states led to the fact that if the electronic document circula­tion was initially widely used in the USA, then later it became the most popular in the countries of Western Europe. Thus, it can be stated that in international law, sig­nificant results have been achieved in the unification of the norms on electronic docu­ment circulation. Uniformity in the regulation of electronic information exchange is achieved not only through the unification of standards, but also through private unifi­cation by the parties to information exchange contracts using electronic means.

Strengthening the mutual influence of national economies and legal systems requires the improvement of the norms of national legislation in this area so that they meet inter­national standards. The existing differences in national legal regimes governing the elec­tronic exchange of information may, to a large extent, limit the ability of commercial en­terprises to enter international markets. Under these conditions, the importance of using foreign experience to improve the national legislation increases. Based on international experience in this area, it is necessary to build a legal regulation of electronic document circulation, which would regulate those relations that cannot be settled by the partici­pants of legal relations themselves. At the same time, it is necessary to take into account the principles of technological neutrality and functional equivalence.

Kew words: electronic commerce, electronic document circulation, electronic docu­ment, electronic signature

Petrenko A. Signs of the database as an object of copyright

P. 126-132

This article shows results of the research work and presents some authors conclusions on the sub­ject of signs of the database as an object of copyright. Author used to analyze struc­ture of known legal-scientific positions on the topic of defining databases and collec­tions of data. Each taken position was divided into array of independent separate signs, then similar entries in different positions where grouped, and the differences between them where compared. All this done in order to try to make a complete, well detailed picture of the legal meaning of databases or as it called so — collections of data. Most of all, by doing this research, author used to make another scientific try to look at the database from the legal complexity, civil social relations and modern infor­mation technologies point of view.

Key words: copyright, database, compilation of data, original, original composition, security criteria, legal civil relations

Blazhivska N. Limitation of intellectual property rights according to the case law of the European Court of Human Rights

P. 133-141

The purpose of our research is to identify the Limitationof intellectual property rights according to the case law of the ECHR, by the exampleof collision of intellectual property rights and the right to information. To achieve this goal, the following task has been set: to find out the con­ditions under which the right of intellectual property may be limited in favor of the right to information in accordance with ECHR case law.

At a result of the research, we arrive at the following conclusions. The right to in­tellectual property, without being absolute, may be subject to limitation under the condition of collision with other subjective rights. Often, the intellectual property right enters into a conflict with the right to information, which is due to their legal nature, object and content. At the same time, restrictions on intellectual property rights provided for in the current legislation should be interpreted expanded in cases where it is necessary to ensure a balance with the right to information.

Key words: intellectual property rights, case law of the European court of human rights, right to information

Review of the monograph by Stefan A. «The doctrine of the mechanism of evidence in civil justice»

P. 142-143

For infomation

P. 144-149