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Patent law

Kashyntseva O. Compulsory licensing of inventions in the field of pharmacy: prospects for Ukraine and EU experience

Р. 5–9

In order to protect the Right to Life and Health and due to the numerous cases of its limitation by the patent monopoly the international legal doctrine of Intellectual Property provides the mechanism for issuing compulsory licensing for inventions in health care for the purpose of non-commercial use.

According to the European Legislation economic and legal backgrounds for the using of compulsory licensing mechanism at the national level as the instrument for expanding access to treatment is the availability of relevant economic indicators and member countries of the WTO and the Organisation for Economic Cooperation and Development (OECD), there are the followings:

  • WTO members that are on the list of developing countries;
  • Countries not members of the WTO Council referred to the country with the lowest level of least developing countries;
  • Countries not members of the WTO, OECD are assigned to low-income and GDP per capita of less than USD 745.

Legal grounds for the use of compulsory licensing mechanism for countries specified in Article 31 of the TRIPS Agreement, among them indicated:

  • non-commercial use in the public interest;
  • use by the onset of a state of emergency and urgency;
  • use to avoid doing anti-competitive practices;
  • the interdependence of patents.

In the Health Care there may be all of the mentioned reasons. Analysis of the world experience of compulsory licensing in Health Care it is possible to make a conclusion that the first two reasons are widely used in countries that are developing and the underdeveloped, while in the EU the most common grounds for compulsory licensing in health care is driving anti-competitive practices.

TRIPS Agreement does not limit the possibility of clarifying of the mentioned backgrounds in the level of national law, but they require proper determine in the national legislation. Such experience takes place in France, Israel and Lithuania.

It is obviously that for Ukraine following clarifying circumstances shall be operations against terrorism, the need to ensure the treatment of people who are temporarily displaced from the occupied territories, uncontrolled migration and objective growth of socially dangerous diseases.

Keywords: inventions, medicines, compulsory licensing, intellectual property

 

Armaza-Armaza E. J., Pysieva V. General review of the new object of patent law which correlates to the new biological weapon and relating to pharmacogenomics

Р.  10–16

This article discusses the issues associated with the new modern object for patent law, which are the results of the study pharmocogenomics; the determination the role of the patent protection for pharmacogenomics invention accordance with the legislation of Ukraine and to compare them with the criteria according to EU. Also in this article described the problem of possible appearance personalized bioterrorism, which would considered depends on the genotype of the human. For the end article examines the main legal acts which  in general  provide the rules on the scope and limitations of patent protection for biotechnological inventions for Ukraine and EU.

Key words: pharmacogenomics, bioterrorism, medicines, inventions, intellectual property, patents

 

Forensic

Prokhorov-Lukin G. Forensics: the concept and types of intellectual property objects

Р. 17–24

The article deals with theoretical questions of intellectual property forensic examinations relating to the concept of the object, the general classification and mechanisms of the reflection of these objects.

Key-words: intellectual property theory, the concept of objects, the general classification of objects, forensics

 

Copyright  

Ulitina O., Yakusha E. Cosplay and сopyright

Р. 25–30

The article deals with the modern cultural phenomenon of cosplay and its correlation with the norms of Copyright. The authors presume that cosplay works should be considered as the derivative works. There are some cases when cosplay could be made under the restrictions of the fair use. But in general it should be considered as a derivative work, which requires the permission of the author or the rightholder to use the initial work, which is protected by the copyright laws.

The Copyright Act of 1976 defines derivative works as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

107. Limitations on exclusive rights: Fair use of The Copyright Act of 1976 claims that the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4) the effect of the use upon the potential market for or value of the copyrighted work.

Speaking about characters and their copyrightability, it is very important to understand the difference and the connection between the idea and it’s expression/ Certain elements of any character will be part of the public domain, but it is the unique expression and combination of elements that makes a character copyrightable. So the characters are protected under the copyright, the exceptions are only stock characters.  Stock character is a character in literature, theater, or film of a type quickly recognized and accepted by the reader or viewer and requiring no development by the writer. So these characters do not have enough specific features to become copyrightable.

So it is obvious that cosplay is a derivative work, which is based on the character protected by the copyright.

But mostly the big companies, such as game developers and publishers (Blizzard), rightholders on book or film franchise (Harry Potter or The Lord of the Rings) do not consider cosplay as the copyright infringement. They use it for promotion of their product.

That is how the delicate balance between the rights of copyrightholders and the creativity of the fans is kept. All in all, fans is the most valued audience of any type of product of entertainment industry — the game, book or film.

Key words: copyright, derivative work, copy, cosplay, copyright infringement, fair use

 

Defence and remedies

Fedorova N. Basic approaches to the protection of rights teleformat in the USA

Р. 31–36

Author of this article explores the property and property rights on Teleformat. In their studies, the author reveals the format, as a separate product market, which requires a sound legal protection. To draw conclusions about the need for revision of the laws on the protection of television formats in Ukraine, based on the study and analysis of the experiences of other countries.

The need for legal protection Teleformat caused primarily by economic factors.To protect the necessary foundation, both legal and political. Without such a framework, any attempt to resolve the dispute over Teleformat will depend on the individual approach of the courts. Therefore, today it leads to inconsistent and often contradictory to the results.

Identify opportunities legislation for protection and Teleformat is important, given the importance of the television industry, which is so rapidly improved thanks to new technological processes.

In the absence of effective protection of TV formats as intellectual property rights at the legislative regulation of market participants began to rely on local regulation on the creation and use of Teleformat via contracts, such a solution maintains and Practice.

A similar problem occurs in the film industry and writers. However, the main difference is that screenplays work is recognized and protected by copyright, while a television formats do not enjoy such protection official. This problem exists not only in Ukraine but also in European countries. Very interesting experience accumulated information security format in the USA.

Recommendation: for employees of the television industry would be useful to develop guidelines, to reduce or eliminate the risk of possible loss of rights to Teleformat or control over their use in the search for potential manufacturers of Teleformat at the stage of agreeing contracts.

Keywords: teleformat, idea, television industry, producer, broadcaster, intellectual product, reputation, agent, integration

 

Designations 

Senchuk V. On the issue of protection of official names of states against misuse

Р.  39 –46

The article explores the problematic issues for the protection of official names of states against misuse. The author substantiates the role of European legal values and legal standards in the process of harmonization of the Ukrainian legislation. Analyzes practical questions about the granting of permits for the use of the name of the state in a sign for goods and services, demonstrates the need for qualitative improvement of national legislation.

As for the names of states, we believe that the protection of official names of States against unfair use is an integral part of the protection of the sovereignty of any state as a whole.

According to Article 6ter (1) (a) of the Paris Convention [8] The countries of the Union agree to refuse or to recognize as invalid the registration, and to prohibit by appropriate measures the use, without authorization of the competent authorities as trademarks or as elements such marks of armorial bearings, flags and other state emblems of Union and any imitation from a heraldic point of view. At the same time citizens of each country who are authorized to use the state emblem, may use them even if they are similar with the same signs of another country. State-Member of the Paris Union are required to refuse to register such marks that use or mimic state symbols (emblems, flags) and other state emblems that fall under its regulation. This provision prohibits the registration and use of state symbols as signs or as elements of marks without permission of the competent authority of the state to do so.

After all stipulated restrictions on the use of the official name of the state, its international codes, stylization and imitation taken only for protection against encroachment on state sovereignty and the protection of consumer rights, the possibility of misleading regarding the manufacturer, product, service, quality or origin because of the possible association of products such signs marked with Ukraine. In the author’s view, it is necessary to enter rules that would explicitly prohibited the use, without the consent of the competent authority, or an imitation of the official name of the state «Ukraine» and its two-letter and three-letter code «UA», «UKR» and the domain «UKR».

Key words: brands, misuse, Paris Convention, the official name of the state, «UA», «UKR»

 

Development of intellectual property sphere

Sesitsky Ye. WIPO activities at the current stage. Support for IP policy development at universities and research organizations, and the Model Intellectual Property Policy of WIPO

P. 47–53

The article analyzes the features of WIPO activities at the present stage, in particular, the main objectives and strategic goals. Using the definition of strategic objectives of WIPO member states in implementing their national policy objectives is aimed at building an innovative ecosystem. In doing so the ecosystem can not be limited by national boundaries, it is global. It is connected directly to the activities of its constituent elements such as universities and research institutions. After all, these institutions are the basis for innovation. The author studied the directions to support the development of intellectual property policy at universities and research organizations. The author proposed the method of development in intellectual property policy, as far as each organization must develop its own policy. Institutional policy in the field of intellectual property is an official document. This official document regulating the ownership of intellectual property and the right to use intellectual property serves as a guide for decision-making on intellectual property for the various stakeholders. The document concerns universities or state research institutes (teachers, researchers, students, guest researchers etc.) as well as commercial partners (companies, sponsors, consultants, non-profit organizations, small and medium enterprises or public bodies). It should be noted that in order to increase awareness WIPO organized programs for government agencies, universities and research institutes to explain the benefits and goals of institutional policies on intellectual property. WIPO also prepares publications, information materials and other resources such as a new database that contains political strategies, tutorials and typical deal of research institutions around the world. The Model Intellectual Property Policy of WIPO is considered. The provisions of the Model Intellectual Property Policy are based on existing intellectual property policies of several universities such as Oxford University, Cambridge University, University of California, King’s College London, University of Glasgow, Bournemouth University, Debrecen University, Plymouth University, and Oxford Brookes University.

Key words: WIPO, intellectual property policy, universities, research organizations

 

Kadetova O. Impact of European legislation on the development of legislative regulation of the sphere of intellectual property in Ukraine

Р.  54–61

The paper examines the impact of European legislation on the development of legislative regulation of the sphere of intellectual property in Ukraine. In particular, the implementation process of the provisions of European legislation. An integral part of the national intellectual property system is the availability and quality and effective national framework legislation in this area closer to European standards in accordance with the signed and ratified by Ukraine Association Agreement with the EU. Investigate ways of solving tasks aimed at implementation of such a large extent based on the European Commission adopted the Strategy on Intellectual Property Rights.

Subject to reforms entire array of national legislation on copyright and related rights to industrial property rights, including means of individualization, geographical indications, protection of plant varieties and more. This approach does not just ensure compliance of national legislation with European legal standards of intellectual property, but also significantly improve the quality of regulation and enforcement in this area in Ukraine, provide the appropriate level of protection and enforcement of intellectual property rights, given the legal mechanisms used today jurisdictions and leading European countries generally correspond to the international standards in the field of intellectual property.

In addition, the modifications should be made to the book and IV of the Civil Code of Ukraine in order to remove existing to this day conflict between the Code and special laws on intellectual property and to ensure common approaches.

Key words: EU, implementation of EU legislation to protect the rights, the EU Court of Justice

 

Law and innovations

Postrygan T. The history of legal regulation of creation and activity of technological parks in Ukraine on the basis of higher education institutions

Р. 62–68

The article reveals important aspects of regulation and creation of technological parks in Ukraine.

The author has analyzed scientific researches upon the problems of regulation of technological parks, proved the necessity of improving the law, amendments to laws and other legal acts of Ukraine, which govern the creation and activity of technological parks, with the participation of research institutions and high educational institution and traced the history of technological parks in Ukraine from their creation till the present days.

It was held the analysis of recent researches by national scientists upon the problems of creation and operation of technological parks in Ukraine.

It has been characterize the current state and trends of their activities, outlined the main problems and obstacles on the way of the development of technological parks and proposed solutions.

Keywords: technological park, science, technology, innovation

 

Andreyev D. Innovative development of small and medium business: ways of improvement of state policy

Р.  69–76

The experience of successful countries, as we usually call countries with developed market economy, indicates that small and medium-sized innovative enterprises are an important factor of the steady economy, and their number and the degree of consistency determines what the level of a socially oriented market the country’s economy has reached.

As more detailed analysis of the structure of economies of successful countries shows, a significant number of their economic potential are small and medium-sized enterprises (SMEs). According to statistics, for example, the share of SMEs accounted for 99 % of the total number of all enterprises in the EU, they create 65 million jobs. In the US economy small businesses create more than 80 % of new jobs.

Just a few figures to illustrate this general trend, the essence of which is that the SMEs give innovative impetus to a market economy. In countries with developed market economies the number of entities employed in small entrepreneurship, as a rule, exceed 50 % of the population of working age (EU countries), sometimes it could be closer to 80 % (Japan).

Improving the innovative and intellectual capacity of small and medium enterprises, generally, should be one of the main directions of state policy. We emphasize that we are talking about the development of the innovation component of SMEs. Innovation, as it is known, is determined by the final result of innovation activity, which is used in the form of new or improved product introduced on the market, new or improved technological process used in practical activities or a new approach to social services.

Note optimistic that in the domestic law, the activities of SMEs regulated enough. Now the principles of innovation policy are enshrined in more than 70 legal and policy documents. However, we note that this is an external side of the coin. Regarding the content, even the latest legislative initiatives regarding the improvement of SMEs, have almost not been implemented, and require further development and a clear road map of reforms.

In addition to the current crisis the Ukrainian private sector also faces with many challenges and deep obstacles, including corruption, weak investment climate and low level of innovation. But the key problem of Ukraine is connected with implementation of reforms, primarily economic, in particular, legislative initiatives to support SMEs. With sadness we note, as a result, the amount of expenses from the state budget for the development of SMEs in 2014–2015 reduced to near zero.

Financial support in the form of grants and tax incentives may contribute to the development of innovative activity. Communication between entrepreneurs and research institutions remain weak. Introduction of the newest forms of financial support for innovative SMEs, for example, venture funds funding should help to resolve this issue. Therefore, according to scientists the systematic measures tax benefits, the possibility of obtaining interest-free loans or loans on preferential terms, receive state orders and funding programs of the scientific institutions to develop an innovative product or technology are extremely important for innovative entrepreneurship, especially small and medium.

Keywords: a state policy, an intellectual potential, an innovative development, a legislative practice, small and medium-sized enterprises, a developed market economy

 

Economics of intellectual property   

Semchyk V. The meaning of intellectual property in formation of property of Ukrzaliznytsia (Ukrainian railway): civil law aspects

Р.  77–85

The article analyzes issues of Ukrzaliznytsia (Ukrainian railway) property in the process of reorganization into PJSC. It is emphasized that the process of reorganization of the railway sector in Ukraine was caused by the need to improve the efficiency of enterprises, institutions and organizations of railway public transport, the development of competitive market of rail transportation, the improvement of railway management system through the separation of commercial functions and state governance, execution of effective state regulation of natural monopolies etc. At the same time the basic issue was the definition of a place of intellectual property rights in the formation of the statutory fund of PJSC «Ukrzaliznytsia».

Along with that it is necessary to resolve issues of determining the nature and sense of intellectual capital as a component feature of Ukrzaliznytsia assets and its businesses. The pointed capital must be researched, identified and taken into account, and used effectively in the combination of institutional, consumer and human aspects of the process of the ongoing business. Only under such approaches Ukrzaliznytsia can properly capitalize extremely large volumes of intangibles assets that it must posses and commercialize the received results.

The analysis of the current legislation and the Statute of PJSC «Ukrzaliznytsia» proves that in the list of property, which Ukrzaliznytsia is endowed in the process of reorganization, the cost of intangible assets is needed to be determined. Among these assets there are rights to trademarks, industrial property, copyright and related rights, goodwill and other intangible assets. These provisions confirm the fact that Ukrzaliznytsia may have intellectual property in its ownership, particularly in the form of formalized and evaluated intangible assets. The author analyzes the provisions of the Civil and the Commercial Codes of Ukraine to identify approaches to forming of property of business entity and emphasized the need for monetary evaluation of intangible assets. The author indentifies the ways of improvement of rail transport, to which should facilitate the use of intellectual property as intangible assets in public circulation of Ukrzaliznytsia and its businesses.

Keywords: intangibles, intellectual property rights, Ukrzaliznytsia

 

Scientist’s view  

Humega O. Impact of the principles of civil law on legal protection of intellectual property rights

Р. 86–93

The article investigates the influence of the principles of civil law and the legal protection of intellectual property rights. The author emphasizes that Ukraine has set itself the task of reforming the national system of intellectual property protection, to implement European standards to special legislation in the field of intellectual property, as well as significantly increase the quality and level of protection of intellectual property rights.

At the same time the execution of these reforms is influenced by the jurisprudence and practice, inter alia in terms of embodiment of the principles of law into norms of sectoral legislation, draft law that are being developed, as well as directly in the process of implementation of the law principles. The principles of law are revealed through provisions both the theory of law in general and civil law in particular. The author proves that acquiring of intellectual property rights by a person or an entity (under current legislation), and especially their realization and, in particular, protection of rights of intellectual property, should be based on civil law principles. The article emphasizes that both general principles of law enshrined in the Constitution of Ukraine and the general principles of civil law can be used to the sphere of intellectual property. Besides, it is advisable to spread the principles of civil law on the civil relationship of intellectual property. This is relevant, for example, to the extend of freedom of contract for transactions in the field of intellectual property; principle of combining of the interests of the individual and society, which is realized in the process of finding the balance between private and public interests in intellectual property. Also, to such relationships may be extended the principle of prevention of exercising of civil rights of intellectual property, which would be contrary to their purpose. The principle of fair conduct of an author, an inventor, an artist etc. as well as applicants is needed to be enshrined in law. The civil principles have also the essential value directly for the sphere of protection of intellectual property. Herewith the ongoing reform of intellectual property and judicial reform undertaken in Ukraine should solve many issues related to the realization of the principles of civil law regulation in the protection of intellectual property.

Keywords: civil law, principles of law, security and protection of rights, intellectual property

 

Radzyviluk V. Peaceful Settlement Association Link with Judicial Bankruptcy Proceedings

Р. 94–104

The article deals with the substantiation of a peaceful settlement association link with judicial bankruptcy procedures in a bankruptcy case that can be concluded in judicial bankruptcy proceedings. A possibility of application of such a procedure as peaceful settlement appeared in the national legislation only in 2000.

The first wording of the 1992 Law of Ukraine «On Bankruptcy» did not provide for the designated judicial procedure. Whereas the national legislation recognizes a peaceful settlement as an independent judicial procedure of bankruptcy (insolvency) alongside with such judicial procedures as disposal of debtors’ property, reorganization and liquidation procedure, the theories of bankruptcy law, both national and foreign, lack unity of opinions concerning a peaceful settlement exactly as a judicial bankruptcy procedure. Representatives of the legal theory of bankruptcy law consider in particular that a peaceful settlement is universal, that it does not have any independent significance being displayed in other judicial procedures; a peaceful settlement is not a bankruptcy procedure. Such a procedure is solely the process of peaceful settlement conclusion and performance, this procedure being devoid of the features inherent in other available bankruptcy procedures. A peaceful settlement is only one of the ways of terminating any bankruptcy procedure but not a bankruptcy procedure per se. However, the aforesaid views on the peaceful settlement judicial procedures have not been sufficiently substantiated.

Shortcomings of the 1992 Law of Ukraine that is in force” On Restoring Debtor’s Solvency or Recognizing him a Bankrupt” still raise ongoing discussions on peaceful settlement association link with bankruptcy judicial procedures. The major argument of scholars who oppose a peaceful settlement association link with bankruptcy judicial procedures is the one that the terms and conditions of a peaceful settlement are performed beyond the proceedings in a bankruptcy case. Research into the legal features of a peaceful settlement concluded in the proceedings in a case of bankruptcy and the discovery and analysis of the shortcomings as legal regulation both of the aforesaid legal phenomenon and theoretical conceptions with regard to this have become the basis for evidential bases that allow us to associate the peaceful settlement with the   bankruptcy judicial proceedings. A peaceful settlement has been proved to be a bankruptcy judicial proceeding. National legislation acknowledges a peaceful settlement as an independent judicial procedure; comparative research of historic development  of the legal regulation of the peaceful settlement and its analogues also bears testimony in favour of peaceful settlement classification as a bankruptcy judicial procedure within the limits of other judicial procedures, at various stages of proceedings in bankruptcy cases transition is occurring to the procedures  envisaged by legislation, a peaceful settlement is characterized by its inherent specially envisaged by the legislation  both general and specific order of its introduction the concluding stage of which is  the adoption of a relevant judicial act, it is possible to state that substantial peculiarities that are contained in legislative provisions are inherent and available when any of the bankruptcy judicial proceedings are introduced. Legislation shall envisage remedies aimed at debts regulation, prevention of debtor’s bankruptcy. It is mandatory required that a peaceful settlement shall also comprise  terms for debtor’s obligations fulfilment. It is incorrect to minimize a peaceful settlement significance solely to a procedural act, as a ground for a bankruptcy case termination, etc.

Proceeding from the existing world tendencies of developing bankruptcy (insolvency) legislation, competition legislation which aim not only at creating new economic legal forms mediating bankruptcy procedures but also at further optimization of the already existing procedures, it has been proposed to envisage a legislative provision in accordance with which before the day of the court hearing expected to examine the application requesting that the peaceful settlement be approved, creditors’ collegial bodies shall elect a person who will be supervising the execution of the peaceful settlement  terms. Moreover, the court may be at the same time granted the right to appoint, pursuant to the procedure determined by the 1992 Law of Ukraine” On Restoring Debtor’s Solvency or Recognizing him a Bankrupt”, persons or a person (possibly an arbitration official) who will be also exercising respective supervision in the process of which relevant reports on the execution of the peaceful settlement terms will be provided to the economic court with clearly specified frequency.

Keywords: peaceful settlement, judicial bankruptcy procedures, insolvency, bankruptcy

 

Kushnir I. On the peculiarities of taxation of intangible assets of real estate developers in Ukraine

Р. 105–112

In this article the author reveals the peculiarities of taxation of transactions with intangible assets, which are the objects of intellectual property rights, on the example of the developers in Ukraine. In particular, the example of JSC «HС» Kyivmiskbud», is a leader in the construction industry of Ukraine. In the domestic construction industry TIPR use is not common practice, as evidenced by the work of many enterprises. If that intangibles they use. In particular, it can be seen in JSC «Kyivmiskbud». The main shareholder, de facto parent and actual controlling party is the Kyiv City Council, which owns a 80% interest in the authorized capital of the group parent company which stands JSC «HC» Kyyivmiskbud», founded in 1955. Regarding transactions directly with TIPR, then they in this case acts primarily software. Indeed, in recent years, the Company does not conduct research and development and design using ready for their introduction in construction. Taxation of TIPR is made subject to the provisions of national law as taxation and accounting, as well as direct legislation, which defines the status of intellectual property. It should be noted that the display input into production, use and taxation of intellectual property rights as intangible assets of JSC «HC» Kyivmiskbud «is in compliance with applicable tax laws of Ukraine and the Civil and Commercial Codes of Ukraine and special legislation intellectual property, primarily the Law of Ukraine «On copyright and Related rights».

Key words: taxation of transactions with objects of intellectual property rights(TIPR),  software, JSC «HC» Kyivmiskbud»

№ 6 (92) 2016