Download Journal № 6 (98) 2017

Shtefan А. Evidence and sources of evidence in civil process

P. 5-12

Evidence is the information about the facts on the basis of which the court can draw conclusions about the existence or absence of circumstances relevant to the case.

The perception of factual data is possible due to the work of the human senses. In the vast majority of cases, evidence is perceived through vision or hearing or a combination of them, material evidence can also be perceived through touch and smell. In order for information to be heard or seen, comprehended, analyzed, evaluated, it must be expressed in a certain form which creates the possibility for one person to convey this information and for another person to perceive it. Information about facts relevant to the case may be perceived by the court only through certain means in which the information is recorded. Therefore, in the procedural doctrine it is logically formed the conclusion about the unity in judicial evidence of information and its medium.

Evidence and sources of evidence are correlated with each other as the content and form of its fixation. Evidence shows what information it carries, sources of evidence shows in what objective form it is expressed.

Types of sources of evidence are stipulated by the standards of the procedural law in the form of an exhaustive list. However, the formation of evidence also affects the rules of substantive law. For written evidence the substantive law establishes the form of the transaction, the competence of the state authority to issue a certain type of act etc. For witness testimony the substantive law defines the official’s or professional position of the person and their access to information which must be kept secret by law, which makes it impossible to interrogate this person about such information. Thus, in some cases sources of evidence must satisfy the requirements of norms of procedural and material law both.

Evidence in the civil process may be characterized on the set of such features: 1) it is actual data, information about the facts, expressed in an objective manner; 2) it has the connection with at least one circumstance of the case; 3) the objective form of expression of the actual data corresponds to the essence of one of sources of evidence provided by the procedural law; 4) the source of evidence is directly filed with the court (written evidence, certain types of material evidence), or indicated in the procedural document as the one whose investigation is required to establish the circumstances of the case, including the need to seek evidence (testimony witnesses, certain types of material evidence), or formed on the basis of a court order (expert’s conclusion).

Key words: evidence, sources of evidence, civil process

Nedogibchenko Ye. Scientific integrity: compound elements

P. 13-21

Scientific integrity, plagiarism, self-plagiarism, duplicate of publication. About all these phenomena and concepts a lot of the language is going on recently in periodicals, conferences and the environment of scientific events, both in Ukraine and in the world.

In connection with the adoption by Ukraine of a course on the EU, the process of reforming various spheres of life in the country has long been started in the country. The reform of any sphere of life and activities of the state and society begins with the development and adoption of new legislation.

Within the limits of this article, an analysis of the concept of «Scientific integrity», which is enshrined in Article 42 of the Law «On Education», and in particular of part 4, defines the violation of academic integrity, is interesting.

However, there is no definition of self-plagiarism in the Law of Ukraine «On Copyright and Related Rights», nor in the Great Explanatory Dictionary of Modern Ukrainian.

If we consider the essence of the definition of «self-plagiarism», then we can conclude that this meant the violation of the principles of academic integrity during the duplication of publication.

A well-known psychologist at St. John’s University in New York, ph.d., Miguel Roig, has been studying plagiarism for many years from this point of view.

The issue in the duplicate of the publication relates to the hidden reuse of the already published data displayed in the duplicate publication as new data.

Key words: аcademic virtue, plagiarism, self-plagiarism, duplicate publication

Trotska V. Digital sampling in the context of the compliance of copyright of the musical works

P. 22-31

The author in the article explores the content of such a phenomenon as digital sampling.

The author contemplates the following issues in the article:

  • which fragment can be considered using the musical work;
  • which volume of such use is not considered as the infringement of copyright;
  • how to use the fragment of the musical work;
  • is it possible to use free (uncontracted) fragments of the musical work.

The usage of each of whole and parts of the musical works, without the permission of the authors (or other persons who have copyright), except cases of free use of works, is an infringement of copyright, including that can be recognized as a plagiarism in music.

The use of the fragment of musical work of another author is considered to be fragmentary, if the fragment is a creative, original, has objective form of expression, and can be used independently.

Digital technologies allow you to reproduce the sound: a correction of the tempo, «slicing» and imposing one sound on others, creating reverses, adding of a new sounds, which lead to a change of rhythm, melodies of sample in a new musical work.

In case of using a fragment of a popular song, there is no need to reproduce the fragment of this song, since the purpose of the use is its recognition in the new musical work.

The use of a fragment of the musical work is allowed on the basis of an agreement, concluded with the author (or other person who has the copyright). The fragment of the musi­cal work can be used after obtaining the licenses, concluded with music libraries, production libraries, which greatly simplifies the procedure of concluding agreements with many of authors of musical works.

There is the uncontracted use of samples in practice you can often find.

Free use of samples (uncontracted) can be in cases, for example, of personal use or study, in the case of compliance with requirements of the copyright to such use. Fragments of classical music can be used without the author’s permission and without payment of remuneration.

The author in the article analyses the problems of application of the legislation in the field of copyright and related rights when using fragments of musical works, gives examples of foreign judicial practices.

At the end of the article the author draws conclusions.

Key words: copyright, musical work, fragment of musical work, sound, sample, digital sampling, sampling

Matskevych O. Website: the definition and the ways of possible protection by copyright law

P. 32-38

The article is devoted to the analysis of website definitions, an attempt to generalize existing approaches in the law and doctrine to the definition of the legal nature of the website. Analyze the possibilities of protecting the website as an object of copyright. In addition, examples of litigation concerning the website and its content are provided.

Keywords: website, copyright, copyright object, content

Fedorova N. Types of teleformat as an object of intellectual property

P. 39-43

The article deals with the general characteristics of television formats and highlighted several of its main types: scripted TV (script-based format) — this group includes audiovisual works, based on which the scenario is developed, such as drama, comedy (including script), serials, where actors are actors and non scripted TV (format without script) this type of format includes real-life shows, entertainment television, game shows and others that are not clearly written by screenwriters, but are the result of specific events taking place during the show itself. In its turn, the format without a script is divided into different subspecies. First of all: a gaming show («Who wants to become a millionaire»); talent show («X-factor»); real-show («From Little Girl to Girlfriend», «Bachelor»).

Teleformat is a concrete object created by a person carrying a plan, an object in which the central characters act, which carries a certain goal.

The above gives grounds to conclude that the television format is already at the stage of the idea with a detailed description of the plot, episodes, characters is an artistic concept of the program, which includes a script, or script plan of the original work (program), a description of the essential elements (including decorative and shorthand), as well as methods and techniques of its creation.

Keywords: teleformat, types of teleformat, scripted TV, nonscripted TV

Ulitina O. Co-authorship in photography

P. 44-50

The article is dedicated to the prob­lem of co-authorship in creating a photographic work. This issue today remains one of the most interesting and not fully developed questions in the field of copyright on photographic works.

The article deals with issues related to the co-authorship in photography. It analyses the questions concerning the model’s and the other participants’ copyright on the photographic work. The question of the expediency of using the Model Release while creating photographic work is also analyzed.

The article contains the analysis of existing Ukrainian legislation in this field, which regulates copyright questions between the photographer and the model.

There are different views on this issue, and the situation is even more complicated, because Ukrainian legislation concerning co-authorship in photography has significant gaps.

The article deals with the question about whether the model gets rights on photographic work or not. It is really possible for model to occur co-author, if her or his actions during the shot were creative enough and it influenced on the result of their with photographer joint work, which is fixed in the photographic work.

In order to avoid problems related to this point, it is necessary to conclude agreements with all the participants of the photo session and to distinguish between them all matters of copyright, financial issues and the further use of photographic work.

The author proposes to amend the legislation by adding the new definition of “the subject of the photography”. This definition may simplify the question of model’s copyright on photographic work.

The most suitable way to solve the problem of co-authorship in photography is to conclude a contract called Model Release, which now may cover all the legislation gaps. Model Release sets all the issues concerning the further use of the photographic work and the use of copyright on it.

Key words: copyright, photography, co-authorship, model release

Podolieva A. Features of the arising and exercising of copyright for works posted on the Internet

P. 51-56

In the article are explored features of the posting works on the Internet, it is determined under what conditions the work can be placed on the Internet and the scope of its legal protection, as well as approaches to the qualification of actions of posting works on the Internet. It is also identified the need for contractual regulation of relations in the sphere of exercising of copyrights for works placed on the Internet, and are explored potential ways of regulation of relations of such relations.

Key words: copyright, intellectual property, the Internet, property rights, reproduction, online licensing, creative commons

Butnik-Siversky O.B. Features of the new intellectual economy: innovative technological restructuring, intensification and breakthroughs

P. 57-67

In the article the author researches problematic issues concerning the revision of the steady theoretical terms of the classical economy, which, being under the influence of transformational processes, can’t characterize the existing changes in the old sense and interpretation in the conditions of sequential progress to a new intellectual economy. It is noted that improvement of the technological structure of the economy is possible only with the intensive implementation of innovations, investments and capital investments for technical reequipment and modernization in the innovation-intellectual direction of development, which is a feature of «innovative technological restructuring». This construction is supplemented by the term of “manufacturability” as a reproduction of the methodical approach of entering into new intellectual economy. The use of the term «innovative intensification of economic development», in the construction of which the «innovation» was inserted, allowed to consider intensification as a qualitative feature of economic development in the conditions of transformation processes in the intellectual economy. On the way to a new intellectual economy the use of the feature «innovative intellectual breakthrough», the construction of which was inserted with «intelligence», enhances the effective participation of human capital in a breakthrough renovation of the technical and technological environment.

Key words: neo-economics, innovation, technological capacity, restructuring, intellectual breakthrough, new intellectual economy

Androshchuk H. Intellectual property in the system Internet of things: economic-legal aspect

P. 68-78

The economic-legal aspects of the state and trends of the Internet-based technologies (IP) technology, the place of intellectual property in it are considered. It is shown that the Internet of Things creates conditions for the emergence of a synergetic effect from the combination of possibilities of artificial intelligence, cloud computing, set of sensors, mathematical algorithms for processing large data (Big Data), robotic devices of various purposes, data transmission systems (Internet), which allows to provide various services and perform various work with or without the participation of people. The role of the state in promoting the development of IP, the existing problems and ways of their solution are shown. Many governments in recent years are taking measures to analyze the state of affairs with the introduction of IP technologies, the localization of problems and threats that may or may occur in the future in order to formulate a common strategy for the development of industry for the production of IP technologies and their application in various sectors of the economy and public life.

The patent landscape of the IP is analyzed, the most productive companies and inventors of IP are discovered, the dynamics of patenting in the IP environment, the value of patents, patent research problems are shown. The problems of intellectual property protection in the sphere of IP, in particular, copyright, inventions, trademarks, commercial secrets, information security are considered. The intellectual potential and untapped potential of Ukraine in the development of IP technologies are considered.

It is concluded that in the widespread use of IP technologies, there is a significant potential for increasing the efficiency of any type of human activity. It concerns the real economy, industry and agriculture, health care, public administration, education, financial turnover, etc. The development of IP technologies is the most powerful stimulating factor in the innovative development of nanotechnologies, microelectronics, semiconductor technologies, microiminating of executive devices, telecommunications, radio technologies, software computing, robotics, and more.

Keywords: Internet things, intellectual property, innovation development, patent activity, patent information, patent landscape, potential, technology

Diduk A. The issues of the notion of know-how transfer contract

P. 79-86

The article is devoted the problem questions of concept of agreement about the transmission of now-how. Legal nature of agreement about the transmission of know-how remains properly not certain and investigational not enough. Complication arises up above all things in determination of concept of this agreement and formulation of his maintenance. It is conditioned almost complete absence of legal orders in relation to the order of conclusion, use and dissolution of such agreements, by their varieties, specific of maintenance and some other terms.

Keywords: know-how, agreement about the transmission of now-how, license, licence contract, licenziar, licensee, cesiya, cedent, cesionariy

Senchuk V. WIPO Approaches to Protect Official Names of States and to Include them in Designations

P. 87-96

The article focuses on the legal framework for the protection of official names of states and their inclusion in the designations from the positions of national legislation, international standards and approaches of WIPO. It is emphasized that the states, especially small ones, recognize the factor of influence of the state of protecting the names of the state and their inclusion in the designations of goods and services to the national economy. The work of the Standing Committee on Legislation in the Field of Trademarks, Industrial Designs and Geographical Indications is being studied in the consideration of this issue and the development of common approaches for the protection of the names of states and their inclusion in the designations. It is stated that at the moment work is under way to find ways of coinciding positions of national legislation in the part of developing unified approaches to regulating the issue of protecting the names of states and including them in the signs. Ukraine joins the discussion of this issue and actively participates in discussions and polls related to the search for common positions on the protection of the names of states. It has been argued that the mechanism for protecting the names of states should be fixed at the level of international standards and implemented in the national legislation of the WIPO member states. Subject to the adoption of relevant provisions at WIPO level, relevant changes should be made to both the Paris Convention for the Protection of Industrial Property and European instruments, in particular the European Council Directive 2008/95. Appropriate changes may also apply to the national legislation of Ukraine in this part, which should be considered as a purely positive factor.

Keywords: WIPO, protection of names of states, notation, trademark

Thematic Index of Articles and Materials Published in the Journal of 2017

P. 97-102

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№ 6 (98) 2017