RESPONSIBILITY FOR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS IN THE DEFENSE SECTOR

Abstract

Intellectual property question in national security issues researches. Possible violations of intellectual property rights in the defense sector and responsibility for their implementation are considered. The legislation of Ukraine regulating activities related to the development of armaments and military equipment, as well as the implementation of international military-technical cooperation, concerning the protection of intellectual property, is analyzed. The importance of intellectual property protection and the necessity to improve the legislation on the regulation of issues of intellectual property protection in the defense sphere are noted. Ukrainian legislation theoretically allows you to protect the rights of intellectual property owners. In the case of violation of intellectual property rights, its protection is carried out in accordance with the procedure established by administrative, civil and criminal law. However, all these norms do not protect against possible violations of intellectual property rights, and all subjects involved in the development of armaments and military equipment — central executive authorities, acting as customers of the state defense order, enterprises and organizations that are developing (modernizing) of armament and military equipment, and employees of these enterprises, which themselves create objects of intellectual property rights. Responsibility of the customer for a number of violations of intellectual property rights in the development of weapons and military equipment is not defined. For violation of the conditions of the state contract, the parties' liability is stipulated. But the turn if in these conditions are not defined or not clearly defined, requirements for carrying out measures concerning the protection of intellectual property is not provided for liability. As a result, the customer may receive an example of armament and military equipment that is already morally obsolete and also with material claims. The foregoing results in the fact that when the customer executes the control over the execution of the state defense order, namely, measures to protect intellectual property, the availability of patent documentation for products and technology for its production are not verified, and moreover, the use of intellectual property created (used) in the course of execution the state contract, is carried out without a separate contract with the definition of the rights of the customer. The law also does not specify the responsibility of the executor for non-compliance with the requirements related to the protection of intellectual property rights in the execution of a state contract for state defense orders and the further use of intellectual property rights objects. This situation leads to the «leakage» of intellectual property rights from the legal market of goods, to the so-called "shadow" circulation of objects of intellectual property rights. The grounds for possible violations are laid down in the statutory documents of the developer, in particular the absence of a collective contract stacked in the organizations executing the state defense order, the provisions of the protection of intellectual property rights: (the exclusive property right for a service object of intellectual property rights belongs to the employer, and non-property rights belong to the authors who are paid the author's reward, the size, terms and procedure for payment of which are determined by an employment contract (contract) between the author and the employer). This contract in most cases doesn’t set up, or there are no position of the size and procedure for payment of the author's remuneration for a service object of intellectual property rights. Uncertainty in collective and labor contract provisions regarding the observance of intellectual property rights leads to the loss of property rights, as well as non-proprietary rights to intellectual property rights, by authors, and non-remuneration for their use. However, the authors themselves may also violate the requirements of the law. Particularly, these violations are notable to the development of weapons and military equipment, as they can lead to the damage of the national interests of Ukraine. To date, the legislation does not define the responsibility of the authors of the service objects of intellectual property rights for the implementation of such violations. Thus, the issue of intellectual property protection, in particular regarding the definition of responsibility for the commission of offenses concerning the use of intellectual property rights in the defence sector, has been paid insufficient attention by our legislators, who have not been able (or not wanted) to solve existing problems in this area. And this is the most fundamental violation for which central (central and executive) central executive authorities responsible for developing state policy in the field of defence and ensuring its implementation, as well as specific officials of these central executive bodies, should be held accountable. After all, the lack of legislative regulation of the problems of intellectual property protection in the development of weapons and military equipment and in the process of military-technical cooperation leads to a number of violations. This is due to only one - the lack of attention and interest from the central executive authorities in ensuring the rights of the state and other entities in relation to objects of intellectual property rights, as is the case in the advanced countries of the world. The current state of intellectual property protection in the defense sector indicates the need to improve the regulation of issues of the formation and implementation of state policy, the principles of state control in this area, as well as the powers and responsibilities of all the subjects involved in the defense sector. The imperfection of the legal framework gives the legal possibility of unauthorized use of objects of intellectual property rights that are created when performing the state defense order, including (especially) the implementation of military-technical cooperation. This is facilitated by the lack of responsibility for actions that create a threat of violation of intellectual property rights or contribute to the violation. In order to warn and prevent violations of intellectual property rights, it is necessary to improve the legislative and normative-legal basis for the regulation of issues of intellectual property protection in the defense sphere.