Interface between Competition law and Intellectual Property Rights: A Comparative Study of the US, EU and India

It is indicated that each state must ensure fair competition in its market in order to support economic growth. This provision is also relevant for the European Union, within which the primary importance is to ensure free competition for the further development of a single system of circulation of goods, works and services, promotion of innovation and creativity, job creation and increased competitiveness, as all this is necessary for the EU to compete in global economy. This article provides a general analysis of the correlation and interaction between the provisions of intellectual property law and the provisions of competition law in the European Union (EU). In particular, the author examines the peculiarities of legal regulation of economic competition and intellectual property protection at the EU level, the state of compliance with EU competition law in the process of exercising and protecting intellectual property rights, and the role of court decisions in determining the balance between intellectual property protection and competition law requirements. The author emphasises that despite different objectives, competition law and intellectual property law have a common basis and therefore actively interact, i.e. these two systems are synergistic. The author analyses possible options for the relationship between protection against unfair competition and intellectual property laws, including the means that would reduce the often existing «tension» between them. Due to the need for a common regulatory framework to ensure that laws are in line with dynamic trade practices, the EU’s unfair competition laws are mostly flexible and general in nature. The author identifies the measures currently being taken by the EU to optimise the rules in this area. The author concludes that intellectual property protection, as well as effective antitrust regulation, are the most important legal mechanisms created to ensure economic growth based on the development and expanded use of innovations. The author also examines the measures currently being taken by the EU to optimize the rules in this area. It is concluded that the general trend of further development and improvement of interaction between antitrust and intellectual property legislation in the EU should be, first of all, overcoming regulatory and institutional dispersion.

The encouragement of creative, scientific, inventive activity and business competition largely depends on the solid protection of intellectual property and related rights on the internet. The problem of such protection lies in the transnational nature of the internet, the absence of a unified centralized management, the difficulty of proving infringements, as well as in the insufficient regulation of this issue. This article analyses the protection of intellectual property rights on the internet in Ukraine, the potential and real threats to them in the cybernetic domain, and the key areas of related activity of state bodies and individuals. The research uses a method of synthesis and analysis, comparative legal analysis, and systemic and formal-logical methods. This article analyses the normative legal documents of Ukraine on intellectual property and rights on the internet, points out their shortcomings, and provides advice on their use. Recommendations are given on how to ensure the protection of intellectual rights through preventive measures and subsequent judicial and extrajudicial proceedings, indicating ways to ensure cybersecurity in relation the intellectual property of individuals.

IP Law Reform and the Treaty of Lisbon

The constitutional bases of mediation in intellectual property cases related to the complex interdisciplinary legal institution of self-protection of rights are analyzed. The urgency of the topic is due to a combination of public and private law principles in modern legal regulation and the general process of constitutionalization of private law and intellectual property law, in particular. It is noted that the proclamation of the constitutional right to self-defense means the inclusion in the comprehensive system of human rights protection of additional ways that increase the effectiveness of its other components and enrich the constitutional human rights mechanism as a whole. In recent years, mediation has been recognized as one of the effective and promising ways of self-protection of intellectual property rights. Ukraine is just beginning to build the institution of mediation as a way to protect intellectual property rights. The research of Ukrainian scientists analyzes the situations when it is expedient and profitable to use mediation to resolve disputes in the field of intellectual property. At the same time, in some works of Ukrainian researchers, in the author�s opinion, there is an element of a certain underestimation of public law support for the right to self-defense, in particular copyright. We believe that the constitutional provisions on self-protection of rights should be used more widely in the development of doctrinal issues of mediation intellectual property matters, which should strengthen the civil aspects of the right to selfdefense and give the problem a broader human significance. The author is convinced that the methodology of the modern system of protection of intellectual property rights should be based on an anthropological approach, which means that the provision and protection of intellectual property rights should be carried out from the standpoint of guaranteeing individual rights. It is concluded that the practice proves the profitability and effectiveness of the use of mediation in disputes related to the protection of intellectual property rights. The full implementation of this institution in Ukraine will contribute not only to improving the protection of intellectual property, but also to ensuring the constitutional rights of man and citizen.

Intellectual property (IP) rights are embedded as an asset under the definition of investment in most international investment agreements. These agreements ensure protection and promotion of investment. Where IP rights are treated as an investment, they do benefit from the protection standards afforded by the international investment agreements. However, it is highly debated that to what extent an IP right constitutes an investment. Does the inclusion of IP rights under the investment definition of agreement suffice to be qualified as an investment? Or are there any other requirements? Over the last few years, these questions have attracted considerable scholarly interest. This article aims to analyse protection of IP rights as an investment and legal issues deriving from intersection between IP law and international investment law. Accordingly, it will attempt to answer the question as to when IP rights constitute an investment. In this sense, the article will initially discuss the inclusion of IP rights under the definition of investment afforded by several investment agreements. Subsequently, protection of IP rights in ICSID Convention will be discussed critically. Thirdly, the article will try to underscore the roles of international investment law and domestic law in determining whether an IP right is investment.

In our work, we consider the peculiarities of the protection of intellectual property rights in Ukraine, USA and EU countries (Germany, France). Intellectual property is a unique creation of the human mind and one of the important achievements of every developed and democratic country. The field of law in the field of intellectual property is currently in a state of active and unceasing development: legislative norms are constantly regulated, the experience of successful countries in the field of intellectual property is analyzed and borrowed. Taking into account the possibilities of modern technologies, intellectual property rights are increasingly subject to violations, which determines the specifics of their protection in Ukraine and the countries of the European Union (USA, Germany, France). Taking into account the above and on the basis of scientific approaches and legally established provisions, the concepts of «intellectual property», «intellectual property right», «protection of intellectual property rights» have been defined. In the course of the analysis of national and foreign legislation, normative legal acts were established, according to which intellectual property rights were established in the studied countries. Detailed attention is paid to the peculiarities of the protection of intellectual property rights in Ukraine, the USA, Germany and France, and to the identification of similar features and opportunities for borrowing better experience in the protection of intellectual property rights. Attention is focused on the peculiarities of judicial protection in Ukraine under the conditions of martial law. The article analyzes the methods of protecting intellectual property rights, taking into account the peculiarities of Ukraine, the USA, Germany and France, namely, the civil-law, criminal and administrative means of protection of Ukraine and the USA, the organizational and economic mechanisms of Germany and Ukraine, proposed for even more effective protection intellectual property rights and the reduction of violations in this area, to implement the successful experience of France regarding the obligation of citizens to patent and obtain a license for inventions and the experience of the French Republic in improving the judicial system and judicial protection of intellectual property rights.

Global biological data poses particular challenges for organizing and managing intellectual property. Issues concerning the industrial property branch, such as patent protection, have generally not been the librarian's concern. However, for the librarian and information management professional specializing in the organization of biological knowledge, the knowledge domain includes intellectual resources eligible for industrial property rights protection. An intellectual resource can be deemed industrial property eligible for rights protection if the resource is a patentable invention and has an industrial application. Traditionally, libraries and natural history museums have been concerned primarily with the copyright branch of intellectual property as it pertains to access to intellectual resources. It is primarily the first sale doctrine and the fair use of copyrighted resources that enable libraries and museums to meet the educational and information organization and dissemination goals of their charter. With respect to the organization of biological knowledge, the intellectual property issues include the traditional issues surrounding the copyright branch as well as issues pertaining to industrial property protection. Access for current and future biological knowledge management has become more complicated. This is not to say that the intellectual property questions on the immediate horizon for biological knowledge management are necessarily new questions or are necessarily unique to the library and information science discipline. But the following issues concerning access to intellectual resources are new questions for library and information management practitioners and are of particular concern for those specializing in the organization of biological knowledge. The definition of biological objects is important for whether an intellectual resource falls under copyright protection or is eligible for industrial property protection. In other words, is the biological object a discovery or an invention? This definitional distinction is important because it affects whether the biological object is patentable and thus eligible for industrial property protection. That is, if the biological object is considered a discovery, then the biological object is not the scientist's creation. The creation of the scientist is the publication disclosing the discovery. Hence, copyright applies to the published findings and the protection of intellectual property rights is protection of the copyright. This protection is particularly important in biology where a person's name is associated as the authority for the first published treatment of a new species. On the other hand, if the biological object itself is considered a creation of the scientist, then the biological object is an invention and is a potentially patentable object. Whereas the scientist's publication disclosing the invention would fall under copyright protection, the issuance and protection of patents fall under the industrial property branch of intellectual property rights: the protection of intellectual property rights is protection of the industrial property, the invention. The classification of the biological object is not simply a matter of differing epistemological positions. A May 2002 Science article, "DuPont Ups the Ante on Use of Harvard's OncoMouse," details a recent intellectual property debate between private enterprise and academic scientific research where the biological object itself is a patented "mouse engineered to develop cancers." Another Science article, "Patents, Secrecy, and DNA," published in 2001, indicates "more than 25,000 DNA-based patents were issued by the end of 2000" on various genomics inventions, including patents for gene fragments and sequences. It is, as it were, a matter of the relations between publicly supported scientific research and commercial for-profit ventures in free-market capitalist economies. For the library and information management practitioner, the disposition of the biological object — whether it be discovery or invention — affects the approach to and management of access. For management of access to copyrighted creations, the first sale doctrine and fair use principle would certainly seem applicable guidelines. Although access to copyrighted creations becomes more complex when it involves property rights for physical objects in natural history museums. Museums may "own" (with caveats discussed below) the specimens in their collections but if these objects are digitized, the museums must claim copyright protection for the digital representations. Some museums may fear that even with the copyright protection regime, they may lose control over the value of their collections. In contrast, the organization of information to support patent protection of inventions would entail denying unauthorized access, as denial of access for unauthorized parties is the underlying assumption that makes patent protection possible. The Convention on Biological Diversity's "Report on the Role of Intellectual Property Rights in the Implementation of Access and Benefit-Sharing" (www.biodiv.org/doc/meetings/abs/abswg-01/official/abswg-01-04-en.doc) is exclusively concerned with the industrial property branch of intellectual property protection. The 2001 report makes plain that for international biological information networks, the most pressing intellectual property issues revolve around patents and patent procedures, adjudicatingcontesting claims for rights and protection, and trade agreements. All factor into decisions about the organization and management of biological knowledge, and all pertain to the commercial potential of biological resources. In addition, the Convention on Biological Diversity specifically focuses their attention on and makes recommendations for addressing the often-conflicting interests between developed and developing countries with respect to commercialization of biological resources. Natural history museums hold many specimens of species from around the world, as collectors from industrialized countries have aggressively gathered specimens from developing countries over the past 300 years. The potential financial consequences are enormous as many of these materials, such as botanical pharmaceuticals, are patentable. The Convention's Panel of Experts on Access and Benefit-Sharing identified four key intellectual property issues under their auspices: prior informed consent; traditional knowledge related to genetic resources; access and benefit-sharing agreements; and scope, prior art and monitoring. Library and information management practitioners would likely be concerned with all four, as each involves questions of information and knowledge organization and management. Prior informed consent pertains to incorporating patent application procedures for documenting "identification of the source of genetic material used in the development of subject matter which is to be protected by intellectual property rights" and "proof of the prior informed consent of the competent national authority of the provider country." Essentially, the panel maintained that holders of traditional knowledge and of the rights to innovations based on traditional knowledge must give informed consent prior to granting access to genetic resources, and that such consent must be documented. The panel's report on traditional knowledge related to genetic resources defines "traditional knowledge," discusses the limits of property protection for traditional knowledge and proposes the sui generis model for protection of traditional knowledge. Traditional knowledge related to genetic resources is defined as "manifestations of knowledge and innovation" evidenced in indigenous creative practices, classifications systems, empirical observations and environmental management practices. Because of the collective nature of and lack of systematic documentation about traditional knowledge, the panel considered whether intellectual property rights are applicable to traditional knowledge; as argued by pharmaceutical industry interests, the panel recognized that intellectual property rights, in particular patents, could be viewed as and used toward protection of traditional knowledge. The panel recommended implementation of sui generis systems for protection of traditional knowledge rights. Among their proposals for legislation were the recognition of ancestral community rights; recognition that intellectual property rights can be collective; and the "distinction between the rights over genetic resources (where vested in the State) and rights over knowledge associated with such resources (vested in local and indigenous customs)." Components of sui generis systems for protection could include systematic documentation of traditional knowledge, traditional knowledge registries and various patent and innovation systems, all of which present opportunities for library and information science management. The panel discusses various access and benefit-sharing agreements at length, highlighting various possible arrangements between countries, industries, ministries and legal apparatuses. Access, for the Convention's purposes, tends to mean access to the actual genetic or biological resources for cultivation, harvesting and exploitation, and benefit-sharing means the protection of and compensation for the holders of intellectual property rights to such genetic or biological resources. In other words, access and benefit-sharing agreements pertain primarily to legal and binding financial arrangements between interested parties across the globe. How such legal and financial agreements affect library and information management practitioners seems to depend upon the particular situations as determined by employers, be they governmental, non-profit or for-profit organizations. Related to, but different than, prior informed consent is prior art. The Convention's panel and the World Intellectual Property Organization's (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore are both exploring and advocating recognition that traditional knowledge be viewed as prior art. The categorization of traditional knowledge as prior art affords opportunities for library and information management practitioners to compile existing traditional knowledge literature; create registries for and repositories of traditional knowledge; and examine ways to improve search and access to traditional knowledge documents, collections and databases. This information could be organized around the species descriptions used in western taxonomy or in the taxonomy assigned by the holders of traditional knowledge about the species in the native environment. One of the most interesting intellectual property problems facing current and future biodiversity knowledge management concerns relations between developed and developing countries and involves repatriation of biological intellectual resources. While international and national policy decisions regarding repatriation are beyond the scope of the individual library and information management practitioner, the practitioner should be aware that repatriation law, agreements and treaties will have ramifications for organizing and providing access to biological resources. The global mission of many biodiversity projects to identify, name and classify the world's species certainly warrants attention to repatriation issues. The emphasis Global Biodiversity Information Facility ( www.gbif.org/GBIF_org/what_is_gbif) places on data repatriation suggests the issue is crucial for the successful organization and management of a global biodiversity information network. The repatriation of biological intellectual resources differs from the repatriation of refugees, of human remains and of cultural heritage objects typically housed in developed countries' museums and libraries. Whereas the actual persons, actual remains or actual cultural heritage objects are returned to their respective countries of origin, the actual biological specimens are not. Rather, as the Organization for Economic Cooperation and Development's (OECD) working group on biological informatics points out, with respect to biodiversity resources, repatriation concerns the repatriation of data generated about the specimen. In other words, a data surrogate replaces the original biological specimen as the object repatriated. The original biological specimen is held and maintained by the natural history museum, organization or institution that generated the specimen data. In this manner, the natural history museum seems to serve a custodial role, as opposed to explicitly claiming ownership of the specimen, although claims for ownership seem implied through maintaining possession of the original biological specimen. Data repatriation poses an intriguing problem not only for governors, ministers and administrators of state, but also for scholars interested in globalization, the world economy, geopolitics and post-colonialism as data repatriation makes evident the historical, political milieu in which the present state of biological knowledge is immersed, and perhaps, from whence it originates. For data repatriation to be successful, the data repatriated must conform to internationally recognized standards and exist in formats of demonstrable value to the country of origin. Moreover, the replacement of the original specimen with its data surrogate must be satisfactory to all international parties involved. This question will probably be asked of natural history museums in developed countries: if the data surrogate be the virtual equivalent of the specimen, why not repatriate the specimen to the country of origin, generally a developing country, and maintain the surrogate in the developed country? In principle, unlike cultural artifacts, it would be possible to gather another specimen of the same species from its native environment. It is probably an understatement to remark that identifying, naming and classifying all of the world's species is a gargantuan, utopian goal. But that is the goal toward which many in the biological sciences devote their working lives. Achieving progress toward that goal necessitates significant contributions from many allied disciplines and practitioners, including those that organize and manage access to all of the actual current and possible future intellectual manifestations of biological knowledge. While much work remains to be done and many unknowns have yet to unfold, one thing is certain: where there are intellectual resources to organize and manage, there are intellectual property issues that affect how the work of library and information management practitioners proceed. We need to be aware of the intellectual property issues debated, the many parties and varied interests involved, and the organizational and managerial possibilities for enabling the desired type of access. This is part of our contribution toward knowledge of our vast world. Gwen L. Williams is currently enrolled in the Master's program at the Graduate School of Library and Information Science, University of Illinois at Urbana-Champaign.

The article is devoted to the issues of coverage of intellectual property protection. Ukrainian and partially European legislation is analyzed. The main theoretical and practical problems related to the protection of intellectual property are highlighted. The main legal aspects and their role in solving the problems are highlighted, as well as a comparison of intellectual property law and property rights. This article describes the trends in the legal development of the institution of intellectual property, as well as the possibility of its improvement and acceleration through an updated mechanism for its protection. Prospects for the development of legal techniques in the field of intellectual property protection are covered, some innovations are proposed, in particular, insurance of intellectual property, as well as their role and main directions of work on them. The article considers the problem of judicial protection of intellectual property rights through national and international judicial bodies, comparison of their powers and capabilities in terms of recommendations of international organizations, including WIPO. A comparison was made on the main aspects of the basic concepts and concepts of protection of property rights and intellectual property rights, on the basis of which differences and legal aspects of their use are considered. Possible negative and positive aspects of protection of intellectual property rights under the legislation of Ukraine and the possibility of bringing it into line with European legislation, which is potentially important due to the likely accession of Ukraine to the European Union.

The Interface of Competition and Intellectual Property Law – Taking Stock and Identifying New Challenges

Interface between Intellectual Property and Competition Law: Essential Facilities Doctrine

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

A Human Rights Approach to Intellectual Property and Access to Medicines

From a legal perspective, analyze the connotation and logical relationship of intellectual property rights in Emei martial arts, point out the Legal dilemma in protecting Emei martial arts intellectual property rights, and then propose solu-tions to the problems. The study believes that the intellectual property rights of Emei martial arts refer to the intellectual property rights based on the intellec-tual achievements and commercial logos of Emei martial arts. The legal dilemma in the protection of intellectual property rights in Emei martial arts mainly manifests as follows: the identity of the rights subject of intellectual property rights in Emei martial arts and the intangible cultural heritage of Emei martial arts is the root cause of the conflict between public and private interests; to some extent, the sports nature of the intellectual property rights of Emei martial arts has influenced the legal recognition of this part of Emei martial arts intel-lectual property rights in the academic community; the inadequacy of the legal system is the fundamental reason why the intellectual property rights of Emei martial arts are difficult to obtain comprehensive protection. Based on this, the study proposes that technological innovation is a logical prerequisite for the protection of intellectual property rights in Emei martial arts. It can be achieved by extracting the classic techniques of Emei martial arts, constructing repre-sentative martial arts routines, and creating Emei martial arts competition pro-jects; The improvement of the legal system is the legal foundation for the pro-tection of intellectual property rights in Emei martial arts. In this process, it is necessary to particularly strengthen the important position and role of the Sports Law in the protection of intellectual property rights in Emei martial arts, and improve the basic position and auxiliary function of relevant intellectual property laws in the protection of intellectual property rights in Emei martial arts; The enrichment of theory is a powerful argument for the protection of in-tellectual property rights in Emei martial arts. Strengthening theory must be combined with the characteristics of sports, in order to build a solid legal foun-dation for the protection of the object of rights. In addition, the protection of intellectual property rights in Emei martial arts should focus on benefits, which requires balancing public and private interests and promoting the realization of public welfare through private rights protection

The purpose of this study was to examine the mechanisms for regulating and protecting intellectual property rights in the context of the production of personal protective equipment in the context of a threat to national security. To this end, the study analysed Ukrainian legislation and international regulations governing intellectual property rights, particularly those of manufacturers of personal protective equipment. Thus, in the context of a threat to national security, the intellectual property rights of Ukrainian manufacturers of personal protective equipment were found to be crucial due to the military conflict and the need to protect both the population and the armed forces. The state must guarantee access to vital technologies while respecting the rights of producers, which makes the issue of intellectual property particularly relevant considering the growing demand for the latest developments in the personal protective equipment sector. Cooperation with international partners in the field of technology and intellectual property protection can help develop national production of personal protective equipment and reduce dependence on imported supplies. Government agencies should focus on developing policies that promote the protection of intellectual property rights and provide mechanisms to support manufacturers in critical situations. Raising awareness of producers about their rights and opportunities to protect intellectual property is a crucial step in strengthening their market position. It is essential to strike a balance between the protection of intellectual property rights and the needs of society in the context of a threat to national security. Governments should consider temporary relaxation of rights in times of crisis to ensure overall security

««Вестник Санкт-Петербургского университета. Право» — международный научно-теоретический рецензируемый журнал, публикующий материалы в следующих рубриках: Публичное и частное право: прикладные исследования Криминология Криминалистика Судебная экспертиза Исследования права с позиций социальных и гуманитарных (неюридических) наук Правовая жизнь: научно-практические заключения, комментарии и обзоры Сравнительное право Зарубежное право