According to the Ukraini-an Law «On Protection of Rights on Invention and Utility Models» the legal protection shall be granted to an invention (utility model) that does not contradict the public order, humanity and morality and complies with the requirements of patentability. So, Ukrainian patent system has social and ethical dimensions, which differ according to the type of invention. Actually in considering reforming of the Ukrainian patent system (as it applies to the results of biomedical researches, genetic materials and technologies) the economic dimensions of the patent system cannot be divorced from their social or ethical impact into the patent system and it also has social and ethical dimensions, which differ according to the type of invention. In Ukraine the lack of the ethical norms in national legislation in the sphere of protection of human rights in biomedical researches is a great obstacle to national biomedical researches and makes them invalid for international scientific community. Despite the fact that Ukraine is a member-state of major international legal documents in the sphere of Human Rights and protection of human beings in the field of biomedical researches, it has no proper domestic legislation with enough level of protection of individuals in such sphere.
In Ukraine there is a lack of such kind of scientific works which could be the doctrinal background which consolidate modern morality, ethics of science and law on the basis of the secular background. The fulfilling of humanity, the implementation of principles of respect for human dignity in the sphere of scientific researches should be implemented into the national Ukrainian legislation on the basis of common sense morality. The research of the ethical aspects of biomedicine researches includes the following issues: ethical justification and scientific validity of biomedical researches involving human beings (ethical responsibility in a protocol design); the social and law-making role of ethical review committees; ethical review of external sponsored research including the ethics of ensuring risks and potential benefits; ethical and psychological aspects of individual informed consent (comprehension, renewing, cultural consideration, use medical records and biological specimens collected for other purposes, wave of consent requirements, consent of vulnerable individuals); ethics of using identifiable and non-identifiable materials of human beings; ethics of researches using health-related registries (databanks of genetic, cancer registries etc.); ethical and moral requirements of the patentability of the intellectual property objects.
Thіs artіcle reflects the іntellectual property rіghts of subjects on tradіtіonal knowledge іn the sphere of Health Care. The tradіtіonal knowledge іs a lіvіng body of knowledge that іs developed, sustaіned and passed on from generatіon to generatіon wіthіn a communіty, often formіng part of іts cultural or spіrіtual іdentіty.
The tradіtіonal knowledge іs generally regarded as collectіvely orіgіnated and held, so that any rіghts and іnterests іn thіs materіal should vest іn communіtіes rather than іndіvіduals. Іn some cases, however, іndіvіduals, such as tradіtіonal healers, mіght be regarded as the holders of tradіtіonal knowledge or tradіtіonal cultural expressіons and as benefіcіarіes of protectіon. So the subject of іntellectual property rіghts on tradіtіonal knowledge іs іndіgenous peoples, іndіgenous communіtіes, local communіtіes, tradіtіonal communіtіes, іndіvіduals, as a group of people lіvіng іn the terrіtory, whіch dіffer from other communіty socіal cultural or economіc lіvіng condіtіons, wіth theіr own tradіtіons and customs legіslatіon and іn some cases іndіvіduals, such as tradіtіonal healers.
The lіvіng nature of tradіtіonal knowledge means that іt should be protected by the specіal іntellectual property legіslatіon.
The tradіtіonal forms of creatіvіty and іnnovatіon must be protectable іntellectual property to protect tradіtіonal remedіes and іndіgenous art and musіc agaіnst mіsapproprіatіon, and enable communіtіes to control and benefіt collectіvely from theіr commercіal exploіtatіon.
However, unlіke the other countrіes іn Ukraіne tradіtіonal knowledge іs protected by conventіonal іntellectual property systems. Іn our country there are not any specіfіc systems for protectіng tradіtіonal knowledge.
The maіn іdea of the artіcle іs to provіde the analysіs of the some іntellectual pro-perty rіghts of subjects on tradіtіonal knowledge.
The author provіdes the іdea to amend the legіslatіon of Ukraіne and make a legal іnstrument would defіne what іs meant by tradіtіonal knowledge who the rіghts holders would be, how competіng claіms by communіtіes would be resolved, and what rіghts and exceptіons ought to apply.
The significant increase of channels for getting information and its chaotic distribution lead to the situation when the fragmented information flows are difficult to be regulated. It is difficult to struggle with the uncontrolled mass-media content distribution by means of the legal regulatory mechanisms. The fast growth of the media content distribution in the Internet requires new approaches towards its effective regulation. The author of the article provides the analysis of the existing regulatory models and evaluates their effectiveness in conditions of media transformation and changes in the priority of their distribution channels. The review of foreign innovations regarding the media content distribution shows the possibility of their adaptation to the media sector of Ukraine. The initiatives on regulation from the part of the mass-media have shown good results proved by the positive dynamics of the pirate and legal content balance in the Internet. The mass media organization representatives consider the priority not in the fight against piracy but in its gradual replacement by the legal content. Nevertheless, the environment of contemporary media is under constant change and the offered methods of the media content regulation are not the final or ideal, especially in terms of law and regulation. The sector itself is in search of new models as in order to prevent the illegal content distribution so with the aim of the sector regulation in general.
In the article the author writes about the fact that the legislation of Ukraine, under which the copyright of literary works is taking place, as well as legislation of most countries, does not disclose the concept of «literary work». Thus, the term «literary work» usually covered not only creative works that belong to works of fiction, but such as examination tests, technical manuals, texts of a computer program, advertising slogans, etc. However, not every piece of literature is a subject of copyright protection but only those that meet the requirements of copyright protection. The author’s article outlines the concept of the term «literary work» as well as providing legal characteristics of a literary work as an object of copyright.
By conducting an analysis of the legislation under which Ukraine protects literary works and it is reviewed the existing definition of the term «literary work». Based on research the author points the drawbacks in the legislation and proposes to eliminate them by making appropriate changes. Thus, in accordance with Article 9 part of the work that can be used independently, including the original title, and is regarded as a work protected under this Act and paragraph e) of Article 10 stating that the database that do not meet the originality criteria are not objects to be protected, that is, the database that meet the criteria of originality of copyright. This means that the law contains a condition under which the sign of «originality» must be available only in certain types of works, while signs of «originality» in other kinds of works is not explicitly required. The author cites the examples of the legislation of the European Union (the United Kingdom and Romania) where the presence of the «originality» characteristics in the work is necessary for all types of works without exception. It is proposed to set such norm, the availability of original features in work of any kind, into the Law of Ukraine «On Copyright and Related Rights».
The paper defines the conditions necessary to assign to a literary work protected by copyright when there are verbal expressions, fixing orally or in writing, and the presence of originality. Also it is proposed a definition of literary works, literary work — a complete or incomplete, original result of creative work of the author, of any content that has a verbal form of expression and fixed orally or in writing.
In the article the analysis of provisions of Agreement about an association between Ukraine and European Union is given that touches institute of the geographical indications: legal and economic value, negative tendencies, economic consequences and ways of overcoming. Research is not limited exceptionally with text of Association Agreement, but touches history of its preparation and negotiation process. Considerable attention is spared to the prospects of protection of European geographical indications in Ukraine and Ukrainian — in Europe. Through the prism of provisions of Association Agreement in the article the present consisting of legal protection of geographical indications in Ukraine is lightened up and the circle of the expected problems is outlined. At recommendations related to overcoming of problems foreign experience of implementation of similar to Association Agreement provisions is used in the article, in particular, Moldova.
The processes of integration and harmonization observable in the society practically comprehend all the sectors of legislative relations pertaining to home and foreign economical aspects. Thus, the integration into the EU is one of the prime political strategies of Ukraine. The legislative harmonization into EU is essential act on the way to getting together with the Community. Ukraine, as per Agreement on Partnership and Cooperation with the EU member – states, is obligatory for improving the legislative protection and defence mechanisms similar to those of EU. The right for intellectual property protecting the entity right for the finished product of intellectual activity, descriptive in the legislation, is designated in one of the sections of the Agreement. These results are particularly up to designs. The analysis of the legislation currently in force in Ukraine and EU pertinent to the legal protection of designs makes it possible to affirm that some of the requirements for registration procedure are proved to be different. In such a case, of essential today is the improvement of the design registration procedure by way of harmonization Ukrainian and EU legislations.
Given in this paper is the analysis and the comparison of the requirements pertinent to the Ukrainian and EU legislations in association with the design registration procedure, particularly the list of documents to the application for a patent on a design necessary for the identification of the date of application submit in Ukraine and EU.
On the basis of the analysis of reference, propositions as to improvements in the Ukrainian legislation necessary for the design protection are made. An emphasis is placed on Point 3 of Art. 11 of the Law of Ukraine on the Protection of Industrial Designs, as well as on Point 3.1 of the Guidelines for Writing and Submission Application which are to be issued anew.
The article discusses the establishment of the parties to the license agreement the use of objects of patent law in the construction, as well as the question practical implementation of the relevant treaty on disposal of intellectual property rights in construction industry, namely the determination of the construction phase, in which it is advisable to enter into a specified license agreement.
The article is devoted to the theoretical and methodical aspects of license agreements comparison for use of intellectual property objects and lease contracts.
This is noted about identification inexpediency of these agreements from the legal regulation position of contract relations in the field of intellectual property, lease, charging taxes and demands of accounting requirements.
Based on the comparative analysis is defined the common and distinctive characteristics of license agreements and lease contracts and also economic and legal features of payments according to this agreements.
It is noted that the rights of property owner (thing) and proprietary rights of intellectual property subject differ.
Attention is accented on the legal regulation specific of the contract relations.
Scientific researches of different scientists are analysed, they compare the non-proprietary character of intellectual property objects and proprietary (material) character of commodities that are given in leasing.
It is clarified, when proprietary rights can be a subject of lease contract.
Based on the conducted analysis has been made the conclusions. Certainly, that license agreements and lease contracts are independent agreements.
Therefore the right of intellectual property should be considered as a separate civil-law institution. So the license agreement and lease contract have some features regarding the legal regulation of contract relations. It requires a distinct reflection in a law.
For this reason to bring the corresponding changes in the Civil Сode of Ukraine is offered.
In this article the legislation aspects of accounting and taxation of income are discussed.
Here the norms of Ministry of Finance of Ukraine orders for accounting are аna-lysed. It is proved the necessity of norms clarification, touching the leased non-current assets, taking to account the legislation norms in the field of intellectual property.
Also, special attention is spared to taxation of income in the forms of royalty, lumpsum payments (one-time payments) and leasing payment.
In this article it is discussed the problematic aspects touching the legislation norm of taxation of income in the form lumpsum payments.
It is indicated on weak points in the legislation of taxation of income in the form of these payments. So, a concept «lumpsum payments» is absent in the Tax Code of Ukraine. It is offered to define this concept and insert other corresponding changes to the Code.
This article focuses on study the main forms of state regulations of technology transfer (TT) in Ukraine. TT means transfer of scientific and applied results, objects of intellectual property rights and know-how, that is made by drawing up bilateral or multilateral agreement between individuals or legal entities according to which rights and responsibilities concerning these objects are established, changed or terminated.
The Law of Ukraine «On the State Regulation of Activity in the Sphere of Technology Transfer» provides that state institutions and state entities need to get a permission from Ministry of Education and Science of Ukraine to conclude TT agreement in such cases: when technology procured by the state budget or when technology, created or acquired for the state budget, transferred to legal entities registered in other countries or individuals – foreigners or stateless persons. The Law envisages performance of state expertise of such technologies. And the conclusion of inspection is the basis for granting the approval of Ministry of Education and Science of Ukraine to conclude TT agreement.
It is emphasized that enshrined form of regulation of technology transfer is unlikely to succeed to improve the business climate or increased investments in intangible assets. Permissive nature of concluding such kinds of agreements on the ground of state expertise is unusual for US and EU legislation.
Despite the fact that the legislative provisions for the mandatory approval of certain types of technology transfer agreements are in force more than two years, the government hasn’t developed appropriate procedure of such approval. Actually, domestic participants of innovation process denied legal possibility to import (buy) technology for public funds or export technologies created or purchased with public funds.
It is concluded that the solution to this problem lies in the plane or the cancellation of the relevant legal provisions or replacement them on the provisions of the registration of such agreements by Ministry of Education and Science of Ukraine with the ability to check for compliance with all essential and restrictive conditions of TT agreements that are enshrined in the Law «On the State Regulation of Activity in the Sphere of Technology Transfer».
Economic usefulness of the patent system is not the same for different states. States exporters technologies receive the benefits of improved patent systems around the world, as income that gives them exclusive possession, license fees cover the cost of patenting. On the other hand, technologically backward state pay increasingly high prices for patented products and seldom or never even receive income from patenting. It is similar asymmetry causes significant contradictions in the development of international patent law.
Provisions of the Association Agreement between Ukraine and the EU on legal protection of intellectual property include a significant expansion of status holders, strengthening the regime of innovative facilities (additional legal remedies and protection mechanisms, extension of legal protection, more stringent public control over observance of legislation) leaving the government flexibility in the use of some tools.
It should summarize the main consequences of taking these commitments by Ukraine, in terms of national interests, divide them on negative and positive: (1) negative: (a) implementation of the legal protection of critical and scientific publications that have become public domain, impede access to them from domestic consumers, as well as sharing them, the same is true of audiovisual works, which in Ukraine almost created; (b) reform of the national system of geographical indications require adjustment of marketing strategies Ukrainian companies, advertising companies, additional investments; (c) guarantees high protection of intellectual property and product quality lead to substantial price increases; (d) in the case of international cooperation with other countries in the new format, the object of which relate to the subject of the Association Agreement with the EU, Ukraine is obliged to carry out appropriate consultations with the EU; (e) harmonization of significant legislation on the protection of intellectual property rights with the relevant EU regulations require significant budgetary costs; (2) positive: (a) activation of still inert domestic intellectual property market, the prospects for a competitive offer on it from domestic sources; (b) increase competition, strengthen the protection of the interests of holders stimulate innovative activity of local researchers (with the exception of computer programming, where the property rights of the author limited interests of the employer) and innovative enterprises; (c) increase the security of investments in innovation, which mainly relate to foreign capital, but in the long term, subject to effective state regulation of the economy, can stimulate the modernization of the country; (d) wealthy consumers have sufficient assurance that they are high quality and original products.
Thus, the Association Agreement between the EU and Ukraine is of complex economic and legal problems, primarily the state and national business associations for which it is necessary to develop a program to support national producers, with a view to effective integration into the European market (using the supplied economic opportunities). Even with securing high standards of intellectual property rights in Ukraine, for example, in a land market, this is not enough for the development of national scientific and technological capabilities, providing social sovereign-economic needs. However, optimism is recognized in the text of the Agreement formalities existing cooperation and to intensify its plans. Same main conclusion is that, taking into account the current socio-economic situation in Ukraine, the EU proposed terms of the contract should be assessed positively in general.
The questions of economic competition are investigated in the article. The necessity of providing of her is examined effective legal defense. European experience is analyses in development of economic competition. The basic acts of the European legislation, that regulate this sphere, are determined. There is a necessity of input of the European standards in the field of economic competition to the national legislation of Ukraine. We study the role of scientific bases in shaping the legal principles of economic competition. Going of science of economic right is examined near an economic competition. The value of economic competition is investigated for development of sphere of industrial property. It is shown that the presence of free market competition leads to equality of economic conditions for the participants of this relationship, which without proper governmental influence can be achieved. Competition law principles provide a framework for the regulation of economic competition. Among these principles, the initial principles of economic competition determine general legal and special principles regulating competition. Positions of the European legislation are analyses in relation to protecting of intellectual ownership rights from an unfair competition. We study the following documents: Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007; the Communication from the Commission: EUROPE 2020. A strategy for smart, sustainable and inclusive growth; the EU’s economic governance explained; Lisbon Strategy: Presidency Conclusions (Lisbon European Council).
This article analyzes the theoretical approaches to the protection of intellectual property rights in Ukraine. The problems that exist in the protection of rights. The theoretical constructions arising from the protection and enforcement of intellectual property rights. It is shown that a significant role to play in the civil ways and methods of protection of intellectual property. This leading role to resolve disputes relating to IPR infringements, take judicial bodies. The necessity of adherence to balance private and public interests. We study the EU legislation governing the protection of intellectual property.
Analyzes the provisions of Directive 2004/48/EC on the enforcement of intellectual property rights and the TRIPS Agreement. This makes it possible to identify common approaches to the protection of intellectual property rights and to establish rules that complement their situation. Also analyzes the problems in the field of intellectual property. The ways to solve them through the development of appropriate legal mechanisms. It is shown that in the function of protection of intellectual property rights implemented security function. Determined to consolidate their national civil and civil procedural law of Ukraine. It is shown that in the function of protection of intellectual property rights implemented security function.
The article deals with the essence of patent justice. It is emphasized that the existence of the judiciary at the legislative and executive mandatory feature of a democratic state. We study the European experience in implementing patent proceedings. Experience of the Federal Patent Court of the Federal Republic of Germany, which is one of the oldest patent courts in Europe. We also consider the experience of the Swiss Federal Patent Court as one of the youngest patent courts. We study the creation of the European Patent Court. Identify positive features of patent introduction justice in Ukraine. It should remove dualism trial disputes infringement of intellectual property rights. The possibility of the involvement of judges who have legal and technical expertise, will eliminate the need for recourse to experts. Reduced examination of patent disputes should lead to a reduction in material costs and restore reputation. Patent litigation also eliminates the duality of the judicial system, which now exists regarding disputes on intellectual property infringement. The creation of appropriate conditions for the possibility of the rights by introducing specialized justice in the field of intellectual property, which stands Patent justice, should be seen as another step on the stage of democratic reforms that take place in Ukraine.
The specific feature of the continental European lawmaking is the system of codification. The codification is considered to be the necessary branch of legal norms as the background of the insurances system legislation.
According to the researchers, the codification creates the possibility of synthesizing of the above approach to ensure adherence to the combination of experience, taking into account the achievements of world civilization, especially in the regulation of economic relations. Availability of the codification of legislation makes it possible extension of the core, the fundamental laws that clarify their positions in relation to the development of society instead of infinite publication of many new laws. Dispersal laws shall not provide a consistently systematic, transparent regulation. A large number of laws has negative quality of legislation undermines its effectiveness, the degree of implementation.
From the point of the analysis of codification activities, researchers stress that the codification of the most perfect form of systematization of legislation enhances the stability of legislation, eliminate conflicts, creating a clear, based on the scientific basis of legal documents. It is a legal foundation for building a consolidated regulatory blocks codification systems. In the process of codification activity becomes possible to solve related tasks such as improving the content and form of legislation, and to ensure relative stability of its form and content. It should be noted that at present one of the key objectives of codification activities are primarily address the problem of the following: 1) multiplicity of laws and regulations in force for one and the same issues; 2) improving the substance of the legislation, which aims to address gaps in legislation, disputes between its individual norms; 3) elimination of conflicts, duplication, obsolete regulatory and legal requirements; improvement of existing institutions of law. The stabilization function to consolidate the legislation appears to act as a result of the codification only stable rules that are designed for a long period of time. This, in turn, will provide an opportunity to ensure stability in the regulation of social relations, legal continuity and orderly legislation, improve the efficiency of legal regulations. Fundamentally, the process of codification makes regulatory requirements that govern important, very broad scope of public relations. In turn, the codification acts containing these provisions, determine a hierarchy of Acts of the area, are regulatory basis for the establishment of intra-system.
The steps of codification insurance legislation of Ukraine in a view of the existence of certain preconditions should be the following: 1) it has to be constantly with internal cohesion and maximum compliance of insurance law and insurance law; 2) it has to be harmonized from the point of the practice of insurance law with scientific approaches justification for codification; 3) it has to bound to ensure a systematic approach to the formation of the insurance law.
It is undisputable that in the case of insurance law codification we provide the internal branch codification. The form of the same expression results codification should be a legal act in the form of the Insurance Code of Ukraine.
The process of codification of insurance legislation of Ukraine should have the following phases: 1) elaboration of a system of insurance law of Ukraine on the basis of which 2) the inventory insurance legislation; 3) identification of conflicts, gaps, repeats and «dead rules» in the legal regulation of insurance of economic relations and their elimination; 4) implementation of normative material processing according to the main principles of codification. It also should have the time between the enactment of the text; the preparation of the text changes and / or additions to existing legal acts; and preparing a list of acts that are subject to cancellation.
A distinctive feature of Ukrainian legislation is that it is formed in a transformation economy that affects the intensity of the legislative process and driven by the need to reform the society, its transition to a market economy and building the rule of law. Since independence, there is a steady trend towards rapid increase in the total number of legal acts, adopted the system of legislative and executive power. Thus, the Ukrainian legislation at this stage is difficult, diversified entity, which intersects the vertical and horizontal communication, legislative arrays are of different levels, and there have been persistent tendency to unification, which requires further research, and securing legal level of insurance regulations of Insurance Code of Ukraine.
Research issues of inter-parliamentary cooperation of Verkhovna Rada of Ukraine and its role in ensuring of the rights and freedoms of human and citizen has practical importance for further reform of the legislation of Ukraine in the context of the European integration of Ukraine, Ukraine’s international cooperation, development of Ukraine as a democratic and legal state.
International cooperation of countries in the form of inter-parliamentary cooperation in the field of ensuring of the human rights and freedoms are an important factor in their progressive development and the ability of citizens to defend their rights. Legal protection of rights and freedoms of human and citizen needs adjustment mechanism of regulation of all such relationships that includes inter-parliamentary cooperation. Democratisation of international relations with growth regulatory role of inter-parliamentary organisations, the development of international standards on human rights are determined the importance of the research of the problematic of that issue. Ukraine is a member of more than a dozen inter-parliamentary organisations, including: Inter-Parliamentary Union, Parliamentary Assembly of the Council of Europe (PACE), the Parliamentary Assembly of the Organisation for Security and Cooperation in Europe (OSCE PA).
Ukraine is a member of Inter-parliamentary Union. Ukraine also takes a part in the regional inter-parliamentary cooperation, in particular — PACE and OSCE PA.
The main influence of the PACE on the ensuring of the rights and freedoms of human in Ukraine are on the reform of the legislation of Ukraine in accordance with the requirements of democracy, rule of law and human rights, in accordance with obligations of Ukraine taken during the entering to the Council of Europe, passes of the Constitution of Ukraine, abolished of the death penalty, passes of new Criminal Code, Civil Code, Criminal Procedure Code and the Civil Procedure Code of Ukraine, recognised the jurisdiction of the European Court of Human Rights, implementing of European principles of local self-government.
It can be noted that there are two main directions of the development of parliamentary in international organisations — extension and deepening. Extension means that inter-parliamentary cooperation beyond the scope of an international organisation. Deepening characterised of increasing of the parliamentary component of international organisation and increasing of its duties. The development of inter-parliamentary cooperation characterised of strengthening of the legal power of decisions passes by inter-parliamentary organisations.
Spreading of inter-parliamentary organisations connect with processes of regional integration which determines the formation of inter-parliamentary cooperation. Inter-parliamentary organisations provide the sharing of parliamentary practice and state-building practice among its members. Inter-parliamentary organisations help to the strengthening of parliamentary democracy and protection of the rights and freedoms of human and citizen.
There are perspectives for further research in this area, including: bilateral inter-parliamentary cooperation of the Verkhovna Rada of Ukraine; inter-parliamentary cooperation of the Verkhovna Rada of Ukraine and the OSCE PA; inter-parliamentary cooperation of the Verkhovna Rada of Ukraine and the PACE.
Inter-parliamentary cooperation of Verkhovna Rada of Ukraine and its role in ensuring of the rights and freedoms of human and citizen are characterised in the given issue.
The paper analyzes the features of banking relationships as an object of financial regulation. It is emphasized that significant changes in the legal process of banking relationships suffered because of the global financial crisis and regulatory measures and enforcement of character that was introduced in connection with the public authorities. Identify features of banking relationships, their characteristics. To this end, analyzes the features of substantive regulation of banking law and banking law. Relations arising in banking, subject to different policies. Influence finances the development of the banking system. Identify features the participation of the National Bank of Ukraine in banking relationships. Proved that measure the impact of governmental regulator for the relevant financial services market may at certain moments or keep or undermine this market. This invariably affects the financial system of the country and its economy. Note that in professional literature on finance provides a significant number of definitions banking relationship, but they are all united by shared common approaches to the understanding of the object and the subject composition of such a relationship. This feature subject composition banking relationship plays a significant role in the judicial protection of participants banking relationship, including – in the process of economic justice. An example of judicial practice of arbitration in the system of economic justice, showing features of banking relationships.