№ 4 (90) 2016
Nowadays the question of modernization of existing and the development and implementation of modern weapons and military equipment based on the latest scientific and technological achievements; ensuring the protection of intellectual property created by the state budget, implementation of promising scientific developments into production; technology transfer; encouraging further development of scientific potential is urgent for Ukraine’s defence capability. Therefore one of important issues that requires constant attention and support from the state, is the further development of intellectual property protection in military and technical sphere.
Every newest development by definition includes intellectual property rights based on which these developments are created. Therefore, if the state develops arms and military equipment, it must ensure and protect its rights on the objects of intellectual property created while developing new designs of weapons and military equipment. It is the military and technical sphere where the objects of intellectual property are created; they belong to the sphere of national security and defence, and the state is obliged to ensure their protection and ownership of these objects. This will allow increasing the competitiveness of the domestic defence industry and will make impossible any claim under the mass production of weapons and equipment for their own needs and for export.
Despite the visible progress made in recent years to ensure the legislative protection of intellectual property, its imperfection is still one of the factors that hinder the creation of an effective system of intellectual property in Ukraine, especially in the military and technical sphere.
The problems of intellectual property protection are systematic and they are in several interconnected areas: political, legal (legislative), economic and administrative.
Practice in application of law has identified a number of issues related to ensuring effective protection of rights for objects of intellectual property both generally in the country, and especially in the military and technical sphere.
The increasing role of patent and legal protection of new technologies and technical solutions causes the need to improve the system of legal protection of intellectual activity results, especially those related to national security and defence.
Legal protection creates a basis for protecting the interests of authors, customers and manufacturers of armament and military equipment for the results of intellectual activity in the process of their treatment, which is governed by civil law.
One of the most important is the question related to the distribution, acquisition and implementation of rights for objects of intellectual property that are created by the state budget, and their entry into economic circulation.
The existing legislation of Ukraine on Intellectual Property provides that the conditions of the distribution of rights for intellectual property should be set out in the agreement (contract) for performance of works.
However, the particular owner of the rights for objects of intellectual property is not clearly defined.
According to the legislation obtained scientific-technical products can be transmitted to economic entities (users of the product) for practical application in compliance with the rights and economic interests of the state, order performers and owners of property and moral rights for the objects of technology and intellectual property objects created in the course of order. Procedure and conditions of the transfer and use of rights to scientific and technical products are determined by agreements between the customer, the performer and user of this product.
Intellectual property protection in military and technical area is performed generally as in the state as a whole, according to the same laws and the same procedure, but has its own peculiarities.
One of the main reasons for the lack of efficiency of state influence on the scope of intellectual property is the absence of a clear interaction between state authorities at all stages of development and implementation of state policy in the field of intellectual property.
Especially significant influence thus have government customers for weapons and military equipment.
The Ministry of Defence of Ukraine is one of the largest scientific-technical customer of military, dual-purpose and special production in Ukraine in the process of development of which the objects of intellectual property are created. Ensuring legal protection and effective use of such objects is an essential element at all life cycle stages of objects of intellectual property rights in the Ministry of Defence of Ukraine.
Key-words: intellectual property, military sphere
Chess was already almost one and half a millennium but ancient game still enjoys extraordinary popularity and conceals many secrets.
From the second half of the nineteenth century began to be held regularly offi-cial national and international competitions leading players. Began to appear chess professionals for which the chess was the main profession. From the beginning of the chess tournaments organizers understood that the chess games have their value for chess fans and they tried to earn some money. But when chess players also began to demand a share of revenue from the realization of own chess games, they are often received refusal.
Since then have passed more than one and half a century, but chess games have not gained recognition as works up to now.
Berne Convention, the Civil Code and the Law of Ukraine «On Copyright and Related Rights» don’t include the chess games in the objects of copyright. However, these laws allow for the presence of other works, which are not directly specified in them. Article 10 of the Law of Ukraine «On Copyright and Related Rights» gives a comprehensive list of facilities that are not protected by copyright. Chess games are not mentioned in it.
Thus, opponents of recognition chess games object of copyright can only refer to paragraph 3 of Article 8 of the Law of Ukraine «On Copyright and Related Rights». It says:
«3.The legal protection stipulated in this Law shall be extended only to the form of expression of a work, and shall not apply to any ideas, theories, principles, methods, procedures, processes, systems, manners, concepts, or discoveries, even if they are expressed, described, explained or illustrated in a work».
From our point of view it is very important to give the precise definitions. During the chess game player «scrolls» in the head a many different variants of the game. It forms the «content» of the game, which cannot be protected by copyright. Chess game as a work is a consistent set of moves. A record game in some chess notation is an objective form of expression of the work, suitable to obtain copyright protection.
The criteria for legal protection of the objects of copyright include:
1) the creative character of work;
2) the originality of work;
3) the objective form of expression of work.
Let us turn to the definition of originality, situated in one of the court documents, which shares a number of reputable professionals.
«Originality is understood as uniqueness, non-duplication in the case of parallel work: when two authors are working independently they cannot create identical original results. If as the result of their work anyway received the same works, they cannot be recognized as original and therefore not protected by copyright».
In our opinion, the possibility of parallel creativity in chess games do not affect the recognition them as the object of copyright in general. In this context, we can talk only about the specific individual chess games that proved to be unoriginal as a result of parallel work. Of course, if the lack of originality in such chess game is proved, it cannot be protected by the copyright.
Thus, the denial of copyright protection based on the possibility of parallel creativity should be limited to certain specific cases, but not at all creative direction in general.
All of the above gives us reason to believe that the relatively high probability of achieving the same result with the creation of creative chess games cannot be a reason for the refusal to admit them subject to copyright.
Keywords: copyright, criteria for legal protection, originality, chess, chess games
The analysis of EU Directive for Audiovisual Media Services (Directive 2010/13/EU) and the overview of its provisions are made.
The author pays attention to the aim of the Directive 2010/13/EU adoption, terminology of the document, criteria for their classification into linear and non-linear («on demand services»). It should be noted that Ukrainian legislation does not contain provisions regarding the regulation of services «on demand».
The provisions concerning exclusive rights and short news reports in television broadcasting (Chapter V of the Directive 2010/13/EU) were under more detailed study of the author due to their connection with the sphere of copyright and related rights.
The comparative analysis of provisions Ukrainian and European legislation was made as well. As result a conclusion was made that terminology used in current Ukrainian laws differ from that used in the Directive 2010/13/EU.
Chapter VII of the Directive 2010/13/EU is devoted to television advertising and teleshopping. Some of the norms set out in the chapter coincide with correspondent norms of Ukrainian legislation namely with the provisions of the Law of Ukraine «On Advertising».
Key words: Directive 2010/13/EU, copyright, broadcasting, audiovisual media services
Aiming to originality, some manufacturers want to use the slogans and pictures as a brand. The result is that this brand will combine multiple security systems.
The objective of the article is to examine the examples of trademarks and copyright objects, to consider their proper use, the advantages and disadvantages of registration of trade marks and works.
The article aims to highlight the specificity of registration of trade marks and copyright.
Key-words: trademark, copyright
This article is devoted to disclosure of certain expression of plagiarism. The attention directly focuses on plagiarism in science. The article proves the artificial nature of the term «academic plagiarism» because the scope of the offense does not affect the qualifying attributes of plagiarism and bringing to responsibility of perpetrators under the legislation of Ukraine. The analysis of the legislation on copyright and litigation allowed the author to conclude that plagiarism is a complex infringement, which violates moral rights of an author of a work as well as property rights of copyright holders as a result of trespass on the object of copyright by illegal (wrongful) use of the work via promulgation (the publication) in full or partially under the name of a person who is not the author of the work. It is also proved that to initiate the defense of copyright, violated as a result of plagiarism, only can copyright holders owning personal and/or proprietary copyrights. They are party in interest in protecting their rights and interests.
Keywords: copyright infringement, plagiarism, plagiarism in science, academic plagiarism, the subjects of copyright
The plagiarism is promulgation (publication), in full or in part, of the work under the mane of a person who is not the author of this work. Criteria which create the legal structure of the plagiarism in their interrelation are:
1) the unlawful use of a copyrighted works or works that have fallen into the public domain after the copyright has expired. The unconscionable loans of works that have never been protected may consider as s violation of moral and ethical standards but not as a violation of copyrights in the absence of legal protection;
2) the denotation the name of another person than that one who created the work. The quotation with the correct reference to the author and the source of borrowing, even if the extent of this quotation makes up the majority of the work, does not relate to the plagiarism;
3) the promulgation of the work which reproduces another author’s work in full or in part. Creation of an object, which reproduces another author’s work in full or in part, is not the plagiarism. The violation of copyright occurs when a person carries out actions aimed at the public disclosure of this object.
Plagiarism is using of work and not of idea. When idea is using, works based on it can have some extent similarity but there will be differences in the elements of expressions. Any work has at least one idea that the author wants to convey to the public but the idea never holds a work or its individual elements. The difference between the idea and the form of expression of the work can be illustrated as follows: the idea is answering the question “what is this work about”, “what the author wanted to convey to the public” and the form of expression of the work — “how the author did it”. If we deal with the plagiarism, it is always the using of not an idea itself but of its concrete expression in the form of expression of a particular work.
Scientific works mostly have literary or oral form. But existing theory of elements of the form of expression does not approach to scientific works as far as there are no story plot, episodes, dialogues, characters in scientific works. This led to the need to develop the separate theory of elements of the fore of expression of scientific works.
Legally indifferent elements that are not protected and can be freely used by others are:
1) the theme of the work;
2) methods of scientific research (knowledge) that existed before the investigation started;
3) materials that existed or were known before the investigation started.
Legally significant elements covered by copyright protection are:
1) the language. In a broad sense it is the state language, minority language, foreign language, in the narrow sense it is the special aspects of author’s language, of its structure, a set of linguistic resources used in the work;
2) results of research in the form of hypotheses, arguments, reasoning, opinions, proposals, recommendations, conclusions and other achievements obtained by the author during the research and/or as a result of its implementation.
The plagiarism of scientific work is the using of research results that have always expressed through the language of the work. The language in the broadest sense cannot be borrowed but its legal value is manifested in the possibility of the separation of the original work and its translation. The peculiarity of the author’s language (the language in the narrow sense) facilitates the identification of borrowing and can detect plagiarism in many cases.
Key-words: work of science, scientific work, plagiarism, idea, form of expression of work
This article is dedicated to questions of legislation and judicial practice of the EU countries about the compensation of damages in cases of infringement of intellectual property rights. The article deals with issues related to implementation of the EU’s Directive on the Civil Enforcement of Intellectual Property Rights in legislations and courts’ practice of Member States. In this respect, great importance is the definition of the principles and purposes of compensation for damage caused by violations of intellectual property rights. In this connection, great importance is the definition of the principles and purposes of compensation for damage caused by the infringement of intellectual property rights as well as approaches to the determination of the extents of damages and compensations.
Great practical importance has the position that the state should ensure that all elements of direct, indirect and consequential economic consequences to the right holder that result from an infringement are compensated by damages in civil cases, regardless of whether the infringement has taken place on a commercial scale. Also the state should provide that lump-sum damages, reflecting all negative economic consequences that the right holder has been reasonably found to have suffered, are available at the right holder’s discretion at least as an alternative to any lost profits that can be proved.
Legislative and judicial practice of the EU countries in matters of compensation for damage caused by the violation of intellectual property rights, without any doubt, should be used to improve the legislation and judicial practice of Ukraine.
Key words: intellectual property, the EU legislation, litigation, damages
This paper examines issues related to the legal protection of inventions. The author notes the important role of innovative products and their impact on the evolution of the whole of humanity. On the basis of statistical data traced the relationship between the level of inventive activity in the leading countries of the world and the state of their economies. Attention is paid to how to develop the patent system in the European and other States.
In this article, the legal protection of inventions considered as a system of methods which contribute to the creation and patenting of inventions that further protects the legitimate rights and interests of their authors. This system has a way to certain features in each European country, which contributes to healthy competition in the market development of innovations on a given territory.
In more detail the author considers such European countries as Germany, UK, Ireland, Poland. The main laws and legal acts that regulate legal relationships entered into by entities in order to obtain a patent for the invention in those countries. Highlighted some of the features of patent regimes, which have a positive impact on the improvement of inventive activity. These features are related to national and regional development strategies, the interaction of subject who are involved in providing legal protection of inventions, judicial and other protection of the rights of inventors, tax benefits.
On the basis of the information received and taking into account the current state of legal protection of inventions in Ukraine, the author proposes a number of measures which will contribute to the holding of invention in Ukraine.
In general, the main purpose of the article is to draw the attention of public authorities to the problems of invention in Ukraine and to suggest possible solutions to these problems.
Keywords: invention, patents, civil-legal protection, patenting
The article discusses the development of the processes of globalization in the world economy in the 2nd half of the XXth century – the early XXI centuries. The author examines the economic phenomena that characterize the globalization of the economy in the XXI century, and also the spheres of the global economy at different levels of globalization.
Key-words: globalization, globalization, national innovation system (NIS)