Intellectual property rights in international and Russian investment law

The author emphasizes the complex nature of legal regulation of information relations with the priority of using the tools of civil law. It is also argued that STI as an object of intellectual property rights includes such a set of features as: creative nature; originality; novelty; objective form of expression. In addition, the article proves, that information (or scientific and technical information) may fall under the legal protection of both copyright law and legislation on the protection of industrial property rights, provided that they have signs of these objects of intellectual property law. The article analyzes the basic concepts of understanding the rights arising from the objects of intellectual property rights: 1) the theory of understanding the objects of intellectual property rights as objects of property rights (the so-called proprietary theory); 2) the theory of exclusive rights to objects of intellectual property rights, including scientific and technical information. Also the author proves the correctness of the transition to the concept of exclusive property rights to information as an object of intellectual property rights, in connection with a set of such arguments: 1) the right to scientific and technical information and ownership of the thing in which it is embodied, do not depend on each other; b) when the right to scientific and technical information is transferred, there is no transfer of ownership to the form in which it is materialized; c) a thing that is a form of materialization of scientific and technical information is a document, information product, information resource, etc. The author argues that the concept of exclusive intellectual property rights is characterized by such a set of features as: a) includes both property and non-property rights to the objects of intellectual property rights; b) the absolute nature of exclusive rights; c) a specific set of powers, including: the right to use and the right to dispose of this use. d) the right to dispose of an exclusive right, exists in two forms: granting the right and transfer of the right; e) the ownership of all rights to the object of intellectual property rights only to the subject of this right.

Keywords: results of creative activity, intellectual property law, creative freedom,subjective and objective aspects of intellectual property law, subjective and objectiveaspects of creative freedom At the present stage of intellectual property science developmentresearchers continue discussions on the nature of intellectual property law and itscomponents. In the intellectual property law history, the legal doctrine and legislationadmit a certain connection between creators and their results of intellectualcreative activity as well as the relations that arise as a result of their creation. Consideringthe basic approaches to intellectual property rights we cannot ignore its obviouscomponent attribute of ideal nature, so the system of intellectual propertyrights protection includes not only property or exclusive intellectual property rights, but also personal non-property rights. Intellectual property law in the objectiveacceptation is a system of rights. In the subjective acceptation it always combinestwo components: non-material and material. Legislative rights to the object ofintellectual property rights are a legal confirmation of the existing and inviolableconnection between the creator and their object of intellectual property rights. Intellectualproperty law combines personal, intangible and property interests of thecreator. It is aimed to combine all these interests with the interests of other people.The law determines the procedure for using and receiving remuneration as a resultof intellectual property rights realization by the creator or their legal successors.The subject of intellectual property rights is a person who owns personal non-propertyand (or) exclusive property rights of intellectual property. The subjective aspectof intellectual property rights reflects the interests that the creator seeks tosatisfy by creating an object of intellectual property rights. There are three main interestsof the creator which they can satisfy by exercising intellectual propertyrights: recognition interest, financial reward interest and interest in their intellectualproperty rights protection. The object of intellectual property rights is a resultof intellectual and creative work of the subject who always owns personal intangibleintellectual property rights on the basis of natural law and legislation and this isproceeding from the very beginning of the process and as a result of creation of intellectualproperty rights object. It is worth mentioning that according to the lawthe personal intangible intellectual property rights remain in force without limit oftime and cannot be alienated (transferred) except it is expressed by law.

The article is devoted to the content of the concepts «intellectual property» and «right of intellectual property» and to the issue of the possibility of using them as equivalent concepts. The author considersthe features of a broad understanding of the concept of intellectual property, in which it is revealed as a complex set of social relations arising at all levels of public life. With this approach intellectual relations are only one of the varieties of intellectual property relations, the totality of which is subject to legal regulation only in part.Taking into account the above, the difference between the meanings of the concepts «intellectual property» (in the sense of this concept as a social relation) and «intellectual property right» is reflected in the content of the structural elements of the relations that denote these concepts: 1) Subjects of intellectual property rights are determinedon the basis of compliance with certain legal requirements regarding legal personality, as well as the acquisition of subjective legal rights and obligations, which are provided to them by legal norms (by using their legal personality); the subjects of intellectual property become participants of social relations of different levels, including those, which are outside of the legal regulation. Such interactions may be related to realization of creative abilities of a person, mental activity, etc; 2) In the centre of understanding of the concept «object of intellectual property rights» is the content of intellectual property rights as a totality of personal non-property and property rights.The defining aspect of legal protection is the right to the created object of intellectual property rights. At the same time the object of intellectual property is a value in sociophilosophical sense that satisfies the social, cultural, mental and other needs and interests of people. In this sense the object by its nature is a good for man; 3) Social connections between the subjects of intellectual relations are revealed through corresponding rights and obligations of the participants of these relations; in the relations of intellectual property social relations manifest themselves as interaction between people in different spheres of social life, based on the corresponding social statusesand roles, in which individuals carry out creative activity, realize their mental and cultural needs, etc. Understanding the concept «intellectual property» as identical with the concept «intellectual property right» is based on a normative approach. This approach shows that the concept of «intellectual property» and «intellectual property right» are used in the legislation in the same sense and can denote both objects of intellectual property right and rights about such objects.

The world community recognizes that intellectual property and intellectual rights are one of the foundations of the modern business world. The issues of choosing ways to protect intellectual property rights are the subject of constant discussions. The authors analyze the problem in two aspects: from the point of view of state and international policy and from the point of view of the possibility of protecting their intellectual rights by participants in civil turnover. The purpose of the study is to study the mechanism of intellectual property rights protection, as well as to study the problems of compensation for moral damage and self-defense in the field of intellectual property. When preparing the article, general scientific logical methods were used, as well as a private formal legal method. The authors note that the conflict between the interests of the copyright holder of exclusive rights, on the one hand, and the general rights of participation and access, on the other, is a characteristic feature of modern society and culture, therefore intellectual property and intellectual rights are of interest not only as a legal institution, but also as a cultural model and socio-economic mechanism. With the development of digital technologies, the very principle of exclusivity of intellectual rights is increasingly being questioned both in theory and in practice, which naturally leads to a revision of existing ideas about the protection of these rights.

Intellectual Property Rights and Standard-Setting Organizations

Intellectual property rights are legal rights that protect intellectual assets, which hold signifi cant value for individuals and even greater importance for the economy and society as a whole. Liability insurance against the infringement of intellectual property (IP) rights is becoming increasingly relevant as a mechanism for managing unforeseen risks arising from third-party proprietary claims and from unauthorized use of intellectual property rights. This paper fi rst examines the nature and scope of various intellectual property rights, alongside the advantages of liability insurance in cases of infringement of such rights. It then explores what may constitute the subject-matter of insurance coverage, based on the nature of intellectual property rights, general insurance principles, and contractual frameworks. The aim is to distinguish this specifi c type of liability insurance within the broader context of IP protection. Finally, the paper examines the scope of insurance coverage in relation to specifi c costs incurred when the insured appears as a defendant in legal proceedings, as well as when the insured takes actions to protect and enforce their intellectual property rights.

Author(s): Lemley, Mark A. | Abstract: The role of institutions in mediating the use of intellectual property rights has long been neglected in debates over the economics of intellectual property. In a path-breaking work, Rob Merges studied what he calls collective rights organizations, industry groups that collect intellectual property rights from owners and license them as a package. Merges finds that these organizations ease some of the tensions created by strong intellectual property rights by allowing industries to bargain from a property rule into a liability rule. Collective rights organizations thus play a valuable role in facilitating transactions in intellectual property rights.There is another sort of organization that mediates between intellectual property owners and users, however. Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners).How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is open or closed. It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves.Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSO intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have studied the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries. This is no accident; interface standards are much more prevalent in those industries than in other fields. In Part I, I provide some background on SSOs themselves, and discuss the value of group standard setting in network markets. In Part II, I discuss my empirical research, which demonstrates a remarkable diversity among SSOs even within a given industry in how they treat intellectual property. In Part III, I analyze a host of unresolved contract and intellectual property law issues relating to the applicability and enforcement of such intellectual property policies. In Part IV, I consider the constraints the antitrust laws place on SSOs in general, and on their adoption of intellectual property policies in particular. Part V offers a theory of SSO intellectual property rules as a sort of messy private ordering, allowing companies to bargain in the shadow of patent law in those industries in which it is most important that they do so. Finally, in Part VI I offer ideas for how the law can improve the efficiency of this private ordering process.In the end, I hope to convince the reader of four things. First, SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives in different industries. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, the law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. And enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law, issues that will need to be resolved if SSO IP rules are to fulfill their promise of solving patent holdup problems.My fourth conclusion is an optimistic one. SSOs are a species of private ordering that may help solve one of the fundamental dilemmas of intellectual property law: the fact that intellectual property rights seem to promote innovation in some industries but harm innovation in others. SSOs may serve to ameliorate the problems of overlapping intellectual property rights in those industries in which IP is most problematic for innovation, particularly in the semiconductor, software, and telecommunications fields. The best thing the government can do is to enforce these private ordering agreements and avoid unduly restricting SSOs by overzealous antitrust scrutiny.

The rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

The article considers the legal analysis of the contract on the transfer of exclusive property rights of intellectual property. The author analyzes the legal nature of this contract and the state of its legal regulation, doctrinal views on understanding the concept and content of the contract on the transfer of exclusive property rights of intellectual property. It is established that contractual structures for the disposal of property rights of intellectual property are different, and one of them is the contract on the transfer of exclusive property rights of intellectual property. It is proved that the legislation in the field of industrial property requires significant additions in terms of determining the features of the conclusion, content, termination of the contract on the transfer of property rights of intellectual property, since as of today the relevant special laws contain only provisions on the possibility of concluding such a contract. It is substantiated that it is possible to alienate part of the rights (a certain percentage of rights) to objects of intellectual property rights under the contract on the transfer of exclusive intellectual property rights, since the law allows the possibility of transferring rights "in part or in full", this rule is universal, applies to all objects of intellectual property rights, but can be carried out taking into account the specifics of a particular object of intellectual property rights and the features established by special legislation. It is emphasized that the relevant legislative acts in the field of industrial property should be supplemented by introducing legislative certainty regarding the possibility or impossibility of alienating part of the intellectual property rights. It is stated that the contract on the transfer of intellectual property rights can be both real and consensual, since the moment of transfer of rights may not coincide with the moment of conclusion of the agreement. It is established that the legislation on copyright and legislation in the field of industrial property does not contain cases that link the state registration of the contract with the moment of transfer of rights under it to the acquirer. It is substantiated that in order to avoid double interpretation of the content of Part 2 of Article 1114 of the Civil Code of Ukraine, it is necessary to make amendments or additions to it, determining the legal consequences of its non-compliance, or clarifying what registration of the fact of transfer of exclusive property rights to intellectual property means, since special legislation does not provide a clear answer to this question. Keywords: intellectual property, property rights to intellectual property, objects of copyright, industrial property, trademark.

The Colour of Copyright

Intellectual Property: The Promise and Risk of Human Rights

Мақолада интеллектуал мулк объектларига нисбатан мутлақ ҳуқуқларни суд орқали ҳимоя қилиш борасидаги миллий ва хорижий тажриба ўрганилган. Интеллектуал мулк объектларига нисбатан мутлақ ҳуқуқларни муҳофаза қилиш усуллари ичида суд орқали ҳимоя қилишнинг ўрни ва ўзига хослиги, мазкур масаланинг ҳуқуқий асослари, миллий қонунчилик аҳволи, судловга тааллуқлилиги, бу борадаги суд статистикаси, суд амалиёти ҳамда хорижий давлатлар тажрибаси таҳлил қилинган.
 Бугунги кунда интеллектуал мулк объектлари билан боғлиқ бўлган низоларни ҳал этиш масаласи судлар фаолиятидаги энг долзарб масалалардан бири эканлиги, чунки интеллектуал мулк ҳуқуқларининг бузилиши мавзуси бутун дунёда бўлгани каби Ўзбекистонда ҳам жиддий ижтимоий муаммога айланиб бораётганлиги эътироф этилган ҳолда унинг ижтимоий-иқтисодий ва ҳуқуқий оқибатлари асослаб берилган.
 Жаҳон мамлакатлари тажрибасида интеллектуал мулк объектлари билан боғлиқ ишларнинг судловга тааллуқлилиги масаласи қандай ҳал этилганлигини чуқур таҳлил қилиш асосида интеллектуал мулк объектлари билан боғлиқ низоларни кўришга ихтисослашган алоҳида судларнинг ташкил этилиши низоларни сансалорликларсиз, қисқа муддатларда кўриб чиқилишига ҳамда қонуний, асосли ва адолатли суд қарорлари қабул қилинишига замин яратиши тўғрисида хулосага келинган.
 Мақолада судлар амалиётида интеллектуал мулк билан боғлиқ масалаларни кўриб чиқишда асосан икки тоифадаги муаммо мавжудлиги таъкидланган. Биринчиси, субъектив омиллар билан боғлиқ бўлса, иккинчиси, объектив қийинчилар эканлиги кўрсатилган. Субъектив муаммолар қаторида судларда мазкур тоифадаги ишларнинг барчасини ҳам кўриб ҳал этиш бўйича тажрибанинг мавжуд эмаслиги айтилган. Объектив омиллар сифатида судлар томонидан ушбу тоифадаги ишларни кўриб чиқишда муайян ҳуқуқий асоснинг мавжуд эмаслиги ёхуд тегишли қонун ҳужжатларининг лозим даражада такомиллашмаганлиги, шу боис, бу борада ягона суд амалиётининг шаклланмаганлиги эътироф этилган.
 Бозор иқтисодиётига асосланган ижтимоий муносабатларнинг тобора ривожланиши, интеллектуал мулкнинг давлат ва жамият ҳаётидаги аҳамияти ва ўрнининг кескин ошиб бораётганлиги Ўзбекистонда ҳам ителлектуал мулк билан боғлиқ низоларни кўриб чиқишга ихтисослашган судларни ташкил этиш заруратини келтириб чиқараётганлиги ҳақида хулоса қилинган. Шу сабабли, Ўзбекистон Республикаси Олий судида интеллектуал мулк билан боғлиқ низоларни кўришга ихтисослашган судлов ҳайъатини ташкил этиш мақсадга мувофиқлиги асосланган. Шунингдек, Ўзбекистон Республикаси Судьялар олий кенгаши ҳузуридаги Судьялар олий мактабида судьяларни интеллектуал мулк ҳуқуқига доир низоларни кўриш бўйича қайта тайёрлаш ва малакаларини ошириш тизимини йўлга қўйиш ҳамда бу борада Бутунжаҳон интеллектуал мулк ташкилоти ва Интеллектуал мулк агентлиги билан ҳамкорликни ривожлантириш лозимлиги таъкидланган.
 Қиёсий тадқиқот усуллари асосида Ўзбекистон Республикасининг Фуқаролик процессуал кодекси, Иқтисодий процессуал кодекси, Маъмурий суд ишларини юритиш тўғрисидаги кодексига интеллектул мулк ҳуқуқига оид низоларни судда кўришнинг ўзига хос хусусиятларини акс эттирувчи нормаларни жамлаган боб киритиш, ушбу бобда даъво аризалари, аризалар, шикоятларга қўйиладиган талаблар, судга мурожаат қилиш муддатлари ва уларни кўриб чиқишнинг процессуал муддатлари, бу турдаги ишларни кўришнинг бошқа тоифадаги ишлардан фарқли бўлган жиҳатларини ёритиб берувчи барча ҳолатларни ифодаловчи нормаларни назарда тутиш, интеллектуал мулк ҳуқуқи соҳасидаги маъмурий ҳуқуқбузарликлар учун маъмурий жавобгарликни, шунингдек интеллектуал мулк объектларидан ноқонуний фойдаланганлик учун жиноий жавобгарликни кучайтириш масалаларини ҳам кўриб чиқиш зарурлиги исботлаб берилган.

To safeguard intangible cultural heritage across borders, there is a need to adopt intellectual property rights, which are suitable to protect, from potential misappropriation, communal rights. Intellectual property rights are territorial and thus, need to be registered in each country one would like to protect. However, in cases of transnational disputes on intellectual property rights, the Brussels system applies an exclusive jurisdiction rule, which implies multiple parallel proceedings. This may raise the risk of conflicting judgments, considerable litigation costs, and inequalities between parties, in particular when intellectual property owners are intangible cultural heritage bearers. Yet, distinct from transnational disputes concerning intellectual property rights, those regarding geographical indications do not fall into the exclusive jurisdiction rule of the Brussels system. Unlike Regulation (EU) No 1151/2012 that regulates quality schemes for agricultural products and foodstuffs for geographical indications, Regulation (EU) No 2017/1001, which regulates EU trade marks, does establish a system of cross-border enforcement. Under this Regulation, EU trade marks do not fall within the scope of the Brussels System and consequently the exclusive jurisdiction rule does not apply to them. Thus, the systems regulating EU geographical indications and EU trade marks allow for the consolidation of litigation before a single competent court. This consolidation would be in line with recent international academic proposals, among which is that of the International Law Association Committee on Intellectual Property and Private International Law. Such consolidation of international intellectual property rights litigation provides one solution to the limitations of trade marks and geographical indications for safeguarding intangible cultural heritage in transnational misappropriation cases. Another proposition is the use of intellectual property rights as part of a ‘broad positive strategy’ for safeguarding intangible cultural heritage. This positive strategy encompasses the use of intellectual property rights alongside other legal and marketing safeguarding tools, with the aim of enhancing the reputation of and encouraging respect for the heritage in question. In turn, this may create a virtuous circle, with the enhanced reputation of and respect for the intangible cultural heritage resulting in non-community members and the public being more aware of the intangible cultural heritage, leading to fewer misappropriations and therefore resulting in greater transnational safeguarding for the heritage in question.

With the release of the Outline for Building a Strong Intellectual Property Country (2021-2035) and the 14th Five-Year Plan for the Protection and Use of Intellectual Property Rights, the protection and use of data intellectual property rights have gradually become the focus of attention from all walks of life. Many places have successively carried out pilot work on data intellectual property rights, and data intellectual property pledge has gradually entered the public eye as an emerging financing method. However, in practice, the pledge of data intellectual property rights is faced with conflicts with the legalism of intellectual property objects, as well as the problem of the validity of real rights caused by violations of the legal principles of property rights, so that the pledge contract is partially invalid, and the right holder can only seek relief based on the liability for breach of contract. In addition, the pledge of data intellectual property rights is insufficient due to the obstacles to its disposal and realization. The core value of data asset guarantee is not limited to the single function of debt repayment, but is more reflected in promoting innovation and promoting the sustainable and healthy development of the data economy.

Problem setting. The urgency of the problem is caused by the fact that active innovation processes occurring around the world, informatization of society and transformation of knowledge into a source of progress indicate that the profitability of entrepreneurial activity in a market economy to some extent depends on the ability to dispose of the results of human intellectual activity, hence the importance of intellectual property, their value is constantly increasing, which requires the implementation of a special mechanism for determining their value (appraisal). Analysis of recent researches and publications. In the scientific literature the scientists such as V.S. Drobyazko, P.M. Tsybulov, O.O. Horodov, I.M. Bieltiukova, O.M. Vinnyk, A.O. Kodynets, O.R. Kibenko, O.O. Tverezenko, V.S. Shcherbyna, I.YE. Yakubivskyy have made a significant contribution to the development of the issues on valuation of property rights of intellectual property. Target of research. To analyze the mechanism for assessing the value of such group of intangible assets as property rights of intellectual property and identify the features of this mechanism. Article’s main body. Appraisal activity is a complex institution. Appraisal of intellectual property requires the integration of the economic concept of value and the legal concept of property. But the intangible character (ideal nature) of intellectual property objects distinguishes them from other civil rights objects and becomes a certain obstacle when it comes to determining their value. When it comes to appraisal of objects of the intellectual property rights, such actions are subjected not to intangible (ideal) objects, but to exclusive property rights to them. However, the Law “On Appraisal of Property, Property Rights and Professional Appraisal Activity” considered of objects of the intellectual property rights as intangible assets that, in turn, along with things, securities, units form a broader category “property”. If the legislator had given the object of valuation the exclusive property rights and classified them as “property rights that could be valued”, it would be more in keeping with their nature. The Law “On Appraisal of Property, Property Rights and Professional Appraisal Activity” distinguishes between the market value of property and non-market types of property values (ie other types of value that are different from market value). As a general rule, the market value of objects is determined. Thus the value of property rights of intellectual property is determined by the approximate price of market demand for them. Appraisal activity is carried out in cases established by the legislation of Ukraine, international agreements, on the basis of the agreement, as well as at the request of one of the parties to the contract with the consent of the parties. The legislation defines cases when appraisal shall be mandatory. Conclusions and prospects for the development. The commercialization of intellectual property objects requires the implementation of a special mechanism for determining their value (appraisal), and the improvement of current legislation in appraisal activity field. Property rights of intellectual property belong to those, which have a monetary valuation, and must be carried out under the legislation. Valuation of property rights of intellectual property may take place, in particular, in the following cases: 1) defining the valuation of the exclusive rights transferred under the contract in intellectual property field, in particular the license contract, and defining the license fee base; 2) contribution the property rights of intellectual property to the authorized (composite) capital of certain types of companies; 3) using property rights of intellectual property in joint activities without the creation of a legal entity (including in the form of a common partnership); 4) the pledge of the property rights of intellectual property.