№ 6 (116) 2020
Zerov K. Copyright protection for computer programs. The article discusses the main approaches to the legal protection of software, particularly computer programs, in accordance with the current legislation of Ukraine and foreign practices. It is concluded that copyright allows to adequately protect the forms of expression of a computer program: object and source codes of the program. It is noted that a computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation, and no other criteria shall be applied to determine its eligibility for protection in Ukraine. Like any other copyright object, a computer program has «legally indifferent» and «legally significant» elements of the form of expression. The legally indifferent elements of a computer program should include a) elements dictated by the efficiency of a computer program; (b) elements that are dictated by external factors; and (c) elements that the original programmer had taken from the public domain. The main approaches to the use (copying) of the source or object code of computer programs as part of other computer programs are given: «literal copying» and «non-literal copying.» It is concluded that «non-literal copying» of a computer program cannot violate the copyright law in Ukraine since the ideas and principles on which any element of a computer program is based are not protected by copyright. It is assumed that the modification of a computer program by eliminating technical means of protection and further use of computer program gives grounds to qualify such actions as two separate types of copyright infringement: infringement of the copyright holder’s property rights and deliberately circumventing technical means of copyright protection. It is noted that in some scenarios, the use of works under the limitation of copyright without circumvention of technical means may be impossible. The proposal to legislatively provide for the possibility of a person who has the right to freely use work to contact the copyright holder with a request to remove technical means solely for such use, as well as cases of permissible circumvention of technical means, has been made.
Keywords: computer program, copyright, literal copying, non-literal copying
Shtefan O. The concept infringement of subjective copyright: a theoretical aspect. The article examines the problem of protection of subjective copyright at the doctrinal level. The source base analyzed in the article revealed the lack of a unified approach to the definition of copyright infringement, the criteria for classifying infringements and their characteristics. The author ‘s approach to the solution of the outlined problem is offered in the article.
In particular, the proposed following definition of copyright infringement is a culpable, unlawful, punishable act (action or omission) that harms or infringes on the personal non-property and / or property rights of the copyright holders for which the legal liability arises. The basis of protection of rights is called by civil law “non-recognition of rights”. Summarizing the existing definitions of this term in the doctrine, the author proposes to understand the non-recognition of rights as a passive denial of a person’s copyright to a work, which does not directly harm the subjective right of the copyright subject, but creates uncertainty in the legal status of the holder. including in its relations with third parties regarding the use of the object of copyright.
In the article, the author, based on the analysis of case law, examines the misuse of the work, as any use of copyright both within the contract and outside the contract, which violates the property rights and personal non-property rights of copyright subjects. The most common are non-contractual copyright infringements related to the illegal use of works. Such violations include, in particular: posting works on the Internet sites for free (paid or free) access without the permission of the relevant subject, presentation of works in cafes, bars, restaurants for a fee or without them (without royalty payment), work or part of it in the memory of a mobile phone for a fee or without such, etc. The article concludes that, as a rule, intangible copyrights are infringed at the same time as property rights, is a derivative of infringement of property copyrights related to the use of the work. Therefore, copyright infringement is complex. The article concludes that copyright infringement is complex.
Key words: copyright, infringement, classification of infringements, signs of infringement, infringement of subjective copyright
Kedya Y. Work of collaboration in the creation of literary works under the legislation of Ukraine and France. This article highlights particular legal frameworks, definition and practice of applicability of co-authorship (works done in collaboration) by publishers and co-authors. In addition, we will cover the differences between the co-authorship upon creation of a work and collective works. The analysis is based, inter alia, on comparison of French Ukrainian laws, thus, giving an opportunity to crystalize particular shortcomings and advantages of set forth by Ukrainian laws related to above matters.
The research formulates a comprehensive overview of the defining and basic rules of co-authorship, comparative analysis of (a) collective works with (b) works of collaboration, as well as analysis of shortcomings and advantages set forth by Ukrainian laws. The author reviews and analyzes main provisions in Ukrainian legislation, suggests possible solutions of the main problems, deliberates ways of laws development in future. The paper is based on author’s professional experience.
Main conclusions of comparative analysis of legal regulation definition of co- authorship definition in Ukraine and France are as follows:
- According to Intellectual Property Code of France only physical persons may be considered co-authors, including literary works. At the same time, Ukrainian law is silent on this matter. It must be noted that according to the Law of Ukraine «On Copyright and Related Rights» (the «Copyright Law»), co-authors are persons whose joint work creates a literary work. At the same time, the definition given to the author by said law limits creative participation to physical person;
- The Copyright Law defines the concept and set forth the pre-conditions for co-authorship. However, unlike the French Code of Intellectual Property (Article L113-2), no due attention has been paid to the concept of a collective work. The authors believe that it is advisable to supplement Article 19 of the Copyright Law by (i) the definition of a collective work and (ii) to distinguish between the concepts of a composite work and a collective work;
- It is necessary to harmonize the conclusion of an agreement between co-authors in the Civil Code of Ukraine and the Copyright Law;
- Research uncovered certain flaws in the conclusion of agreements between co-authors on creation of a collective work;
- Examining the Intellectual Property Code of France was helpful for finding the difference between collective works and co-authorship of a particular work.
Key words: work of collaboration, composite work, collective work, copyright, intellectual rights, literary work
Fedorova N. Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry. The article focuses on studying the issue of protecting the design of artistic jewelry and bijouterie. The concept of “functionality” for jewelry is analyzed, namely, it is determined that the «functionality» notion is the quality of servicing the useful purpose. For example, a chair manufacturer cannot claim the four legs of a chair as a copyright. These four legs are a useful and functional aspect of this chair. If a competitor also manufactures a chair with 4 legs, it does not infringe any manufacturer’s right, since these legs are for functional purposes only. The concept of «functionality» in jewelry means that the last cannot be protected as a normal work, since it is purely utilitarian. For example, the hands or numbers on the dial of a watch are considered as functional because the exclusive use of these aspects seriously impedes healthy competition in the watch industry. On the other hand, unique jewelry design cannot be considered functional as it has the exclusive use of its particular elements’ combination.
The analysis of European legislation and US judicial practice is carried out. Under applicable US copyright law, jewelry is a subject to copyright. Under normal circumstances, the law does not require prior registration of jewelry copyright. However, in order to protect jewelry or bijouterie under the US Law on Copyright, it must meet certain conditions. The complaining party must provide evidence of illegal copying of the work and prove copyright infringement. In case of violation of copyright for jewelry, the author or the jewelry house must prove:
- the originality of design;
- the uniqueness in the elements combination in the process of jewelry design development.
The object of an industrial design can be a shape, pattern, color, or their combination that determines the appearance of an industrial product. The main criterion for the industrial design patentability is its novelty. However, in practice, an examination for novelty when registering a designation as an industrial design, according to Alexandra Odinets, is not carried out, and the patent is issued «under the responsibility of the applicant».
With regard to unfair competition in the jewelry market, according to the US jurisprudence, it is more often an offense in this context than a violation of trademark rights or copyright infringement. It is unfair competition that misleads a consumer. A competitor, by assigning a good name and an reputation established, is trying to get profit. The definition of unfair competition is carried out in a comprehensive manner, here the court will not focus on one feature of a piece of jewelry but would consider all its inherent features. In particular, it is a combination of unique elements that provide the originality of the product.
The article provides recommendations for jewelry and bijouterie authors on copyright protection.
Key words: copyright, jewelry, bijouterie, unfair competition, trademark, litigation
Yudina H. A new approach determining the scope of legal protection of industrial designs in Ukraine. This article analyzes the norms of the Law of Ukraine «On the Protection of Rights to Industrial Designs» as amended on October 14, 2020, in the part that regulates relations as to the establishment of the scope of legal protection for an industrial design. A comparative analysis as to the norms of wording the Law of Ukraine «On the Protection of Rights to Industrial Designs» dated on October 14, 2020, and the norms of the said Law as of 05.12.2012, has been carried out, and as a result of which it was found that the norms of wording the Law as of 05.12.2012 concerning legal relations pertaining to the establishment of the scope of legal protection and the fact of the use of an industrial design in a product or later registered industrial design, as well as the requirements for means by which the scope of legal protection was found, differ significantly from the norms wording the Law as of 05.12.2012. In particular, it was established that prior to the adoption of the Law as amended on 14.10.2020, the scope of legal protection for the industrial design, instead of being based on the impression produced on an informed user, was determined by the set of essential features presented on the images of the product and given in the description of the industrial design. There are also differences in means used to establish the scope of legal protection for the industrial design. If in the wording of the Law as of 14.10.2020 only pictorial means are used, then in the wording of the said Law as of 05.12.2012 — together with pictorial means descriptive verbal means are also taken into account (the list of essential features of the industrial design is given in the description). Also distinctive is that the wording of the Law as of 14.10.2020 did not provide legal protection for the appearance of the product solely due to its technical functions, the appearance of the product, the size and the shape of which must be accurately reproduced in order that one product can be mechanically connected to another one or located inside, around or in front of another product in such a way that each one can perform its function and the features embodied or used in the product as part of the assembled make and are being invisible during normal use of the product.
Key words: scope of legal protection, informed user, overall impression, degree of author’s freedom, registered industrial design, unregistered industrial design
Myronenko N. The series of trademarks: theory, legislation, law enforcement. The article, based on the analysis of the doctrine of intellectual property law, legislation of Ukraine, law enforcement practice, examines the state and prospects of providing legal protection of a series of trademarks. To overcome the existing gap in the legislation of Ukraine, the need to amend the Law of Ukraine «On Protection of Rights to Marks for Goods and Services» is justified. It is proposed to define «a series of marks as a set of trademarks belonging to one owner of interdependent rights, interconnected by the presence of the same dominant verbal, figurative or combined element, having phonetic and semantic similarity, and may also bear minor graphic differences that do not change the essence of the trademarks. The lack of definition of the term «dominant element» in the legislation is emphasized. Based on the provisions of the philosophy and doctrine of intellectual property law, the dominant element means the smallest indivisible component of the trademark, which is original and not descriptive. Based on this, its main features are distinguished: originality and indivisibility.
It is proved that the same position of the dominant element in the structure of all signs is necessary to create a stable image of consumers in relation to a particular product and its manufacturer. Examples of court decisions on recognition or refusal to provide legal protection to trademarks are given.
In the context of reforming the legislation of Ukraine in terms of its approximation to EU legislation and the development of relevant case law, which must meet European standards, the expediency of using the legal positions of such a leading democratic court as the European Court of Justice is justified. Attention is drawn to the fact that the decision of the ECJ is not a source of law for resolving disputes of this category by the courts of Ukraine. At the same time, they are a source of harmonious interpretation of the national legislation of Ukraine in accordance with the established standards of the legal system of the European Union. It is proved that this conclusion is consistent with the purpose and objectives to be solved in the country in the process of implementing the provisions of the Association Agreement in the legislation of Ukraine. Proposals are formulated to improve the quality of legislation in the field of IP law.
Key words: trademark, series of signs, dominant element, originality, resolution
Homeniuk A. Changing paradigm of supplementary protection of inventions in the national legislation of Ukraine. The article is mainly aimed at distinguishing two mechanism: patent term extension which used to be applied in Ukraine before the patent reform, and supplementary protection certificates which were introduced to national legislation in 2020.
Patent term extension in the way it was provided in the Ukrainian Patent Law is a rather simple mechanism that didn’t require much regulations. It used to provide additional period of patent monopolies which was equal to the period which elapsed between the date on which the patent application was filed and the date of the marketing authorisation, not more than 5 years. Since there were no limitation on the type of patent (basic patent) or requirement of the first marketing authorization, this regime provided an opportunity to extend not only basic patent term, but also all secondary patents related to one drug. This created a situation when duration of patent monopoly for one drug exceeded 35 years.
Provided that national pharmaceutical industry is oriented on manufacturing of generic drugs, supplementary protection certificates are more appropriate for Ukraine. Firstly, this is due to the limitation of effective patent life to 15 years which is more feasible considering the national context. Another positive thing about SPCs is some uncertainty in relation to definition of the subject matter and scope of SPC protection. That means that the country can have some freedom in determining the ways of its interpretation. However, it should be noted that such indeterminacy is a grey zone. Thus, it is necessary to consider how the country can benefit from the supplementary protection regimen. Since the pharmaceutical sphere is very sensitive, the SPC issues have direct effect on public health and access to treatment. So, the article justifies the general idea that implementation of new legislation provisions shall be aligned with both ensuring pharmaceutical innovations and guaranteeing that the public health needs are still a priority. Therefore, considering the long-term negative effect of the patent term extension regimen, the new SPC approach should be as balanced as possible.
Key words: patent term extension, supplementary protection, supplementary protection certificate, drug patents, patent legislation reform
Tverezenko О. Exercise of economic intellectual property rights to well-known trademarks. The exercise of intellectual property rights is the realization by the subject of intellectual property rights of moral and / or economic intellectual property rights, the content of which in relation to certain objects of intellectual property rights is determined by the Civil Code of Ukraine and other laws. The exercise of intellectual property rights is also the realization of economic intellectual property rights by other persons on the basis of the permission of the person who has the right to allow the use of such object of intellectual property rights.
The Law «On Amendments to Certain Legislative Acts of Ukraine Concerning Strengthening the Protection and Protection of Rights to Trademarks and Industrial Designs and Counteraction to Patent Trolling» (which entered into force on August 16, 2020) has аmended the Law of Ukraine «On Protection of Rights to Marks for Goods and Services» (hereinafter — the Law). The amendments have removed the provision that a well-known trademark receives the same legal protection as the trademark for which the certificate is issued. Such changes have created a gap in the legislation in part of defining what does the exercising of intellectual property rights to well-known trademarks include.
In this connection the following questions arise: (1) can the right to use a well-known mark (as well as the mark for which the certificate is issued) be the subject of a license agreement, a commercial concession agreement; (2) whether it is possible to contribute economic intellectual property rights to a well-known trademark to the authorized capital of a legal entity; (3) whether it is possible to transfer such rights on the basis of an agreement on the transfer of economic intellectual property rights or to provide as collateral. We believe that these issues should be addressed through the adoption of appropriate amendments to Art. 25 of the Law.
In our opinion, the right to use a well-known trademark may be the subject of license agreements and commercial concession agreements. According to the current legislation of Ukraine, it is impossible to transfer economic intellectual property rights to a well-known mark to another person.
It is expedient to make changes to Art. 25 of the Law, which would provide necessity of creation and functioning of the State register of Ukraine of well-known trade marks.
The introduction of the proposed amendments to the legislation of Ukraine in the field of economic intellectual property will help to improve the relevant legal relations related to the exercise of property rights to well-known trademarks.
Key words: trademark, well-known trademark, economic intellectual property rights, exercise of economic intellectual property rights, assignment (transfer) of economic rights of intellectual property
Dmytruk A. Intellectual property law as a system of creative activity results protection. At the present stage of intellectual property science development researchers continue discussions on the nature of intellectual property law and its components. In the intellectual property law history, the legal doctrine and legislation admit a certain connection between creators and their results of intellectual creative activity as well as the relations that arise as a result of their creation. Considering the basic approaches to intellectual property rights we cannot ignore its obvious component attribute of ideal nature, so the system of intellectual property rights protection includes not only property or exclusive intellectual property rights, but also personal non-property rights. Intellectual property law in the objective acceptation is a system of rights. In the subjective acceptation it always combines two components: non-material and material. Legislative rights to the object of intellectual property rights are a legal confirmation of the existing and inviolable connection between the creator and their object of intellectual property rights. Intellectual property law combines personal, intangible and property interests of the creator. It is aimed to combine all these interests with the interests of other people. The law determines the procedure for using and receiving remuneration as a result of intellectual property rights realization by the creator or their legal successors. The subject of intellectual property rights is a person who owns personal non-property and (or) exclusive property rights of intellectual property. The subjective aspect of intellectual property rights reflects the interests that the creator seeks to satisfy by creating an object of intellectual property rights. There are three main interests of the creator which they can satisfy by exercising intellectual property rights: recognition interest, financial reward interest and interest in their intellectual property rights protection. The object of intellectual property rights is a result of intellectual and creative work of the subject who always owns personal intangible intellectual property rights on the basis of natural law and legislation and this is proceeding from the very beginning of the process and as a result of creation of intellectual property rights object. It is worth mentioning that according to the law the personal intangible intellectual property rights remain in force without limit of time and cannot be alienated (transferred) except it is expressed by law.
Keywords: results of creative activity, intellectual property law, creative freedom, subjective and objective aspects of intellectual property law, subjective and objective aspects of creative freedom
Nedohibchenko E. Criminal protection of objects of individualization in Ukraine and abroad. Problems of criminal law protection and protection of means of individualization among the participants of economic circulation has not found its coverage and analysis in the legal literature.
Legal regulation of industrial property protection at the international level takes place within a number of agreements: the Paris Convention for the Protection of Industrial Property of 1883, the Madrid Agreement Concerning the International Registration of Marks of 1891, the Hague Agreement Concerning the International Registration of Industrial Designs of 1925, and others.
The article examines the experience of criminal law protection of trademarks of the following countries: USA, Great Britain, Germany, Switzerland, Ukraine.
The author speaks about the need to unify approaches to criminal prosecution in Ukraine. This will facilitate effective litigation. Establish liability for infringement of trademark rights. Will contribute to the improvement of the national system of protection of intellectual property rights. Increase safeguards to protect intellectual property rights. It will raise Ukraine’s image in the world.
The laws of the countries define in detail the scope of rights of owners to intellectual property. The law provides a list of actions that are considered a crime.
In the United States, a criminal case is initiated by the federal government or the state. In the Federal Republic of Germany, most infringements of intellectual property rights are governed by civil law. An offense is a criminal offense if it is committed with intent.
Ukraine also has special legislation. Criminal liability is established in the relevant articles of the Code. These articles are in different sections of the Criminal Code of Ukraine. Such placement of norms negatively affects the punishment of violators.
There is a need to unify approaches to prosecuting offenders. This will facilitate effective litigation. Establish liability for violations of the law. Will contribute to the improvement of the national system of protection of intellectual property rights. Increasing guarantees of protection of intellectual property rights. It is necessary to do so by introducing the relevant into the Criminal Code of Ukraine.
Keywords: object of individualization, trademark, mark for goods and services, criminal liability, criminal legal protection
Zaikіvskyi O., Onіstrat O. Intellectual property in theory national security. Theoretical aspects of national security, the interconnection of values, interests and goals of the individual, society and the state, their influence on the formation of national values, interests and goals in order to develop a state policy on national security and defense of Ukraine are considered. The need to take into account intellectual property issues in these processes has been investigated. The importance of further research on developing a unified approach to improving the intellectual property protection system and defining it as an integral part of the national security and defense of Ukraine is outlined.
National security theory is built around a framework that is shaped by the so-called triad: national values — national interests — national goals. National security is based on national interests established on national values.
Therefore, national values, interests and goals are the stumbling blocks in the development of guidelines for national security (laws, concepts, doctrines, strategies, programs, etc.). At the same time, national values and interests play a key role.
Intellectual property issues are at the intersection of a set of core values, interests and goals of the individual, society and state.
Intellectual security nowadays is a leading component in the national security system because, on the one hand, it is connected with the growing role of intellectual labor, protection of intellectual potential from destruction, and on the other hand – guarantees the security of human intellectual development, protects knowledge as the most valuable intellectual resource and its the media is the person who creates the intellectual products. Intellectual security of Ukraine guaranteeing implies making adequate management decisions and taking consistent, well-structured organizational measures.
The threat to national interests and national security of Ukraine in the defense sphere are also intellectual property problems that arise in the development of weapons and military equipment and in cooperation with foreign defense industry companies (investments, joint production, procurement of technology, etc.).
Ineffective state policy in the field of intellectual property protection (or lack thereof) has a negative impact on national security. Under these conditions, developing a science-based public policy on intellectual property protection is now an important task. Such state policy should consider intellectual property taking into account not only economic and scientific and technical indicators, but also threats to the national security of Ukraine.
Keywords: national security, national values, national interests, national goals, intellectual property
Bahareva Е. Objects of intellectual property rights: general terms of protection. Intellectual property is the result of human creativity: works of art and science, inventions and utility models in all fields of human activity, industrial designs, trademarks (marks for goods and services), commercial (brand) names, information products, selection achievements, etc. Intellectual property is created as a result of purposeful mental work of human intellect, the result of which is something new, characterized by uniqueness, originality, uniqueness.
According to the provisions of the Civil Code of Ukraine, an intellectual property right is a person’s right to the result of intellectual, creative activity or another object of intellectual property right, defined by this Code and another law. Intellectual property rights are personal non-property intellectual property rights and (or) property intellectual property rights, the content of which in relation to certain objects of intellectual property rights is determined by this Code and other law. Intellectual property rights are inviolable. No one may be deprived of intellectual property rights or restricted in their exercise, except in cases provided by law.
The Commercial Code of Ukraine provides a list of intellectual property, leaving it open and states that the general conditions for the protection of intellectual property rights to objects are determined by the Civil Code of Ukraine. In the Civil Code of Ukraine, the fourth Book «Intellectual Property Law» is devoted to the issue of intellectual property. The Civil Code of Ukraine provides a more extensive list of objects of intellectual property rights, defines their concepts.
According to Article 420 of the Civil Code of Ukraine, the objects of intellectual property rights, in particular, include: literary and artistic works; computer programs; data compilation (database); implementation; phonograms, videograms, broadcasts (programs) of broadcasting organizations; scientific discoveries; inventions, utility models, industrial designs; arrangement of semiconductor products; innovation proposals; plant varieties, animal breeds; commercial (brand) names, trademarks (signs for goods and services), geographical indications; trade secrets.
The purpose of my article is to summarize information about the objects of intellectual property rights, disclosure of their concepts with reference to relevant regulatory sources. Therefore, to simplify the reader’s perception and search for concepts in different sources, it was decided to group them in one text. I hope that the information provided will be useful.
Keywords: wine go and brown models, promises, sort of roslin that breed of twarin, trade marks (marks for goods), commerce (form) naymenuvannya, geographic significance, komertsiyna tamnytsya, computer programs
Burov О. Remote work and human capital: new challenges and threats (international experience). The article considers the role of human capital in the transition to the remote work. The analysis of world changes in the field of safe and effective use of digital business environment and qualification of workforce in the conditions of growth of remote work is carried out. The analysis was conducted in the following areas: general features of the digitalizing in crisis and innovation, a new paradigm of business «Data is the new gold», the organization of the workforce in the transition to teleworking, the priorities of today’s professions, the problems of cybersecurity in teleworking.
It has been articulated that the main requirements for the today’s workforce are intellectual and creative abilities, competence in the field of creation and use of ICT, big data (data science, data mining, data analytics) and artificial intelligence, the role of which has grown even more due to the COVID-19 pandemic. The human component of intellectual capital (in the form of knowledge, skills and competencies, as well as intellectual and creative abilities) is gaining new importance in the digital economy.
The analysis of relationship of the crisis and innovation made on the basis of the Clarivate Derwent report has demonstrated the impact of the pandemic on the global life cycle of research and innovation projects in the first half of 2020, namely that COVID-19 violated innovation strategy of the innovative leaders worldwide. The analysis has demonstrated: in the new conditions of accelerated digitalization, ingenuity and speed of decision-making and innovation are needed more than ever. These priorities will affect the world economy in the coming year.
Special attention in analysis has been paid to the new business paradigm related to use and role of data. It was highlighted that digitization generates vast amounts of data that offer many opportunities for business, human well-being, and the environment. As a result, new capabilities and opportunities arise for business with the ecosystem of cooperation and partnership, as well as collaboration of stakeholders.
The core of changes in digitalization is reskilling and upskilling of the workforce accounting new workplaces and new requirements for them. It is recognized that talent management and creative people selection can be the main engine in future transformation of economics, and workforce becomes an effective pole for investments. At the same time, it is argued that remote worker is outside the scope of corporate protection, and virtually any production information, like human capital, becomes much more vulnerable in such conditions and requires appropriate cybersecurity methods.
As a conclusion, it is articulated that the ability of companies to use big data is beginning to play a significant role in the economy, which in turn requires the involvement and training of data processing and analysis specialists. The direction of professions that is being actively formed recently — data science — is one of the most priority in the labor market. At the same time, the labor market needs skills and abilities in the field of interpersonal communication (soft skills), which are able to ensure the effective operation of people and systems of hybrid intelligence «human-artificial intelligence».
For the further research it has been recommended a comprehensive study of protection of objects and subjects of intellectual property in open networks.
Keywords: human capital, remote work, cybersecurity, workforce, digital economics
Androshchuk G. Сombating unfair registrations and using means of individualization in the conditions of digital transformation. The article examines the economic, legal and institutional aspects of combating unfair registration and use of means of individualization (trademarks, brand names, geographical indications, domain names) in the context of digital transformation. The formation of theoretical and methodological and methodological foundations for the protection of the rights of their owners, improving the efficiency of experts of intellectual property agencies, law enforcement agencies, tools for digital search and use of artificial intelligence (AI) to ensure the effectiveness of the institution of individualization. The economic and legal aspects of foreign (in the jurisdictions of China, USA, EU) and domestic legislative and law enforcement practices to combat the phenomenon of unfair registration and use of personalization, digital search tools and the use of AI are analyzed. It is shown that over the next five years, 30 to 50% of product searches will be by voice rather than text, so the impact of AI on the way a product is purchased will have significant economic and legal implications for individualization legislation. The means of counteracting unscrupulous applicants in the USA have been studied. The U.S. Patent and Trademark Office (USPTO) has developed rules under which foreign applicants and trademark owners must be represented by a U.S. licensed attorney when filing trademark applications with the USPTO. Emphasis is placed on the introduction of legislative liability of e-commerce platforms for counterfeit goods. The analysis of the last changes in the legislation of Ukraine on protection of trade marks is carried out. It is shown that the new rules change the approaches to registration and protection of trademarks, create the possibility of their fair use. Digitalization, transition to e-document circulation in the Customs Register, improvement of the procedure for destruction of counterfeit goods are important anti-corruption steps in the activities of Ukrainian customs in the context of digital transformation of the economy.
Key words: intellectual property, unfair competition, means of individualization, valuation, squatter, losses, digital transformation, artificial intelligence
Postryhan T. Legal regulation of Innovation Park of the Poland. The article reveals important legal aspects of the Poland innovation park, the creation and operation of science and technology parks in Poland. The author considers the legislation of Poland on the activities of science and technology parks, technological innovations, tax and other benefits. In particular, the Law of Poland «On Financial Support of Investments» was analyzed.The author traces the development of legislation governing the activities of science and technology parks in Poland. Innovative structures, their features are considered. An analysis of research by scientists on state and legal regulation of higher education, research institutions, science parks.The current state and tendencies of activity of scientific and technological parks of Poland are characterized.The functions of parks in Poland are analyzed, including the example of Gliwice Technopark and the oldest science park Adam Mickiewicz University Foundation — Poznan Science and Technology Park, which is a non-profit organization.
The author considered tax benefits from personal income tax. Polish legislation in the field of innovation provides for tax and other incentives. There are tax benefits for the acquisition of new technologies – the tax base can be reduced to 50% of the costs incurred for the acquisition of new technologies in the form of intangible assets, such as property rights, licenses, patent rights or utility models, know-how to improve existing goods / services can be deducted from taxable income. The tax deduction can be used for the next 3 tax years.Defined and considered tax benefits for personal income tax — PIT — Personal Income Tax and corporate income tax — CIT (Podatek dochodowy od osób prawnych, from the English. CIT — Corporate Income Tax).The author determined that in accordance with the EU strategy «Europe 2020» and the smart concept of specialization proposed by the European Commission, a system of national clusters has been formed.Also, the author notes that in Poland, special economic zones are also recognized as attractive investment instruments — separate areas of the country, intended for doing business on preferential terms. They were formed in accordance with The Act of 20 October 1994 on Special Economic Zones primarily to accelerate the economic development of regions by establishing new types of business activities, increasing the competitiveness of goods / services, developing new technical and technological solutions and their practical application, creating new jobs, development export.
Key words: technological, science park, science, legal regulation, high technologies, innovation
Chomakhashvili O. Activity of legal education regarding the popularization of inventive activity. The article is sanctified to the debatable question of necessity or impossibility of popularization of inventor activity. The review of concepts is done invention, inventor activity, inventor. Possibilities are considered as exactly the state must take care to the questions of creation of necessary terms for maintenance and strengthening of the intellectual potential, and also for the search of ways of him quality development. Foreign experience is analysed in the field of it. The special attention is spared to organization of work of young people through competitive activity, that became important direction of public policy of the almost entire industrially developed countries. Successful realization of scientific and technical and innovative politics in Ukraine is impossible without activation of creative individuality and invention, that it is directly related to development of both higher and professional education.
Successful implementation of scientific, technical and innovation policy in Ukraine is impossible without the activation of creative individuality and invention, which is directly related to the development of both higher and professional education. The material and technical base of many (especially technical) higher education institutions today is outdated, in need of updating, as well as teaching methods. The system of branch institutes of advanced training has also been destroyed, enterprises do not have the funds for in-house training, the motivation for inventive activity has decreased.
It is important to maintain a positive experience. The organization of youth creativity through competitive activities has become an important area of public policy in almost all industrialized countries. One of the main directions of the invention is the state programs for the development of technical creativity of youth. Ministries and departments, corporations and firms take part in the implementation of such programs. The WIPO conducted a study aimed at generalizing progressive forms and methods of state stimulation of inventive activity in industrialized countries.
The Ukraine, unlike industrialized countries, does not have such a long tradition in holding such competitions. But what has already been done is valuable to society. It remains to multiply this experience.
Keywords: inventor activity, invention, inventions, intellectual property
Shabalin A. The history of the development of civil procedural law of Ukraine on judicial protection of the property legal right to land. The article is devoted to the study of the historical and legal aspects of the judicial procedure for the protection of property rights to land in Ukrainian legislation. The author investigates the main stages of legal protection of property legal rights to land, in each historical period its own characteristics of the aforementioned procedure for the protection of the corresponding property right are determined. Considerable attention is paid to the issues of the peculiarities of legal regulation and judicial procedure for the protection of property legal rights to land. In this scientific article, the author pays considerable attention to the development of judicial protection of legal property rights to land in the historical period of the emergence of the independent state of Ukraine (1917−1918 yy). The author of the article writes that during this period the legal right to land received significant development: the land plot could be inherited, the right to rent the land could also be inherited. The procedure for the judicial protection of the legal right to land had no legal peculiarities.The author describes that during the Soviet period of Ukraine’s existence, there was no legal property right to land. Only the state could have legal property rights to land. This means that the courts did not protect the private property legal right to land. Only when Ukraine became an independent state did a private property legal right to land emerge. During this historical period, a significant number of legal instruments for the protection of proprietary legal rights to land appeared in the legislation of independent Ukraine. The property legal right to land was protected by the court. It is the judicial protection of the property legal right to land that is democratic and meets the European democratic standards for the protection of property rights. The modern features of the genesis of legal protection of property legal rights to land, which are protected by the court in the civil procedure of Ukraine, have been investigated. The author has created and described new stages in the development of civil procedural protection of legal property rights to land.
Keywords: civil procedural protection, court, violation of private property rights to land, civil procedure
Pokalchuk О. Assisted reproductive technologies as a legal category. The author analyzes the legal concept of «assisted reproductive technologies», which is presented in the works of Ukrainian and foreign scientists. Given the nature and essence of the use of assisted reproductive technologies as social relations, the author concludes that the main part of the researches belongs to the Civil Law branch of scientific knowledge. It is because the right to assisted reproductive technologies is a part of the system of moral rights which are the part of the regulation of Civil Law. At the same time, within the legal literature the doctrinal understanding of assisted reproductive technologies have rather multifaceted, but ambiguous nature of its’ scope.
Thus, the content of the views of scientists which are analysing in the article, reflects the provisions on: a) the functional purpose of assisted reproductive technologies; b) the content of their application in the determined cases; c) their instrumental understanding as a set of manipulations (methods, techniques, etc.); d) the exceptional importance of these technologies as the main means of overcoming infertility and solving demographic problems of today; e) innovative nature of use in the medical field.
In addition, at the level of modern legal doctrine, the scientific researches of legal aspects of assisted reproductive technologies is multi-vector, especially in terms of studying their medical and legal nature, content and consequences, accompanied by increasing relevance of their knowledge under the influence of rapid medical development, invention and implementation of new medical technologies, including in the field of human reproduction.
Generally modern scientific researches on the legal aspects of assisted reproductive technologies is represented by a wide range of scientific works, but most of them are multi-vector in nature, and scientific conclusions are mostly scattered and not systematized. In fact, the «harmony» of the conceptual and categorical apparatus for assisted reproductive technologies is important for the formulation of a scientific problem and the definition of methods for its further resolving.
Keywords: moral rights, assisted reproductive technologies, legal category
Ponomarova O. Medical research: state and problems. In the article, the author conducted a study of medical research with human participation, analyzed the legislation of Ukraine and international documents and found that there is no unified concept of «medical research», but uses different terms, such as biomedical experiment, clinical trial, clinical trials, etc. The legal acts of Ukraine provide for a variety of terms, but do they all mean the same concept. It would be appropriate to enshrine at the level of the law the concept of broad meaning «medical research», which would include such types as: «medical and biological experiments», «clinical trials» and so on. Referring to international instruments on the search for the concept of «medical research» also revealed differences in the conceptual understanding of the concept of «medical research». Instead, it was found that all the legal acts analyzed in the article stipulate that medical examinations with human participation, as the object of research, begin only after the person has given voluntary informed consent to conduct research on him.
The procedure for conducting medical examinations with the participation of a person as an object of study in all legal documents referred to in the article provides for the mandatory voluntary consent of the person who is the object of research. Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Dignity of Biology and Medicine: The Convention on Human Rights and Biomedicine guarantees everyone the right to access any information collected about their health. However, the desire of individuals not to receive such information must also be respected. The rights of patients during medical research, as the object of research, including the study of their biological material and data, regardless of the country in which they live and where medical research takes place, national laws must guarantee ethical standards at the highest level of medical research and ensure strong legal basis for future medical research. The social function of the state is the vocation to protect the researcher and the subjects.
Keywords: medical research, ethical aspects of research, patient rights, as the object of research, informed consent
Orliuk O., Korogod N. Improvement of intellectual property management in Ukraine. In the below article, the intellectual property management is considered as one of the strategic goals of intellectual property development in Ukraine. The article emphasized the intellectual property and efficient copyrights protection as the basic pillar for the innovative digital economics of the country.
The triggers are defined which started the full-range reform of the intellectual property area development in Ukraine since 2016. The goals were: 1) implementation of the updated particular legislation for the intellectual property area in 2019−2020, which adopted the provisions of the Association Agreement with EU along with relevant European standards for the area; 2) roll-out of the institutional reform resulting in establishment of the lawful ground for the national governing body for intellectual property supervision.
The approaches to the economics theory, governing are analyzed along with national legislation provisions as for term «intellectual property management» and strategic directions for the intellectual property area development. It gives grounds that term «intellectual property management» is to be used not only on organizations and enterprises level as it is proposed for years by scientific works, but also at much wider scale — at economics areas and even national economics level. Considering the strategic planning and its practical implementation within short and long term prospective, the intellectual property management is proposed to consider at institutional level through the means of the tasks and functions setting up with their particular realization.
The problems are defined which hinder the intellectual property management processes as well as the factors of external and inhouse affecting the process. The principles for intellectual property management based on the science researches, are proposed to exercise upon the subject both at macroeconomics and enterprise level, taking into account their specifics.
The pace of Ukraine as the Eastern partnership country, towards the integration to the innovative digital environment of EU, is being analyzed. The further steps are proposed aimed at intellectual property management enhancement on the institutional level.
Keywords: the European Union, innovative development, intellectual property, commercial utilization, legal governance, management, digital economics