Abstract
In recent years, the rapid development of both technical progress and activities on the Internet, including the economic one, could not but affect the improvement of existing and the emergence of new mechanisms for violating the rights of intellectual property subjects, gives rise to various disputes between participants in the relevant relations, and such disputes is no exception, since each category of court cases has its own peculiarities of consideration. However, analyzing the judicial practice, a number of procedural problems related to evidence and proving in the field of intellectual property rights protection on Internet sites were identified. – Object of Research: What is the key of proof? – Where? and Who? need to collect evidence? – What is meant by belonging and admissibility of evidence? – What are the ways of securing facts as means of proof on the Internet? Investigated problem: to give a legal assessment not only to the norms of national and international legislation, but also to the practical experience of using the institution of proof in the protection of intellectual property rights raised on sites on the Internet. The main scientific results: the procedural nuances of proving the violation of intellectual property rights on sites on the Internet are highlighted, problematic points are identified, and the proposed optimal ways to overcome them, both in pre-trial and in court. The area of practical use of the research results: fixation, preservation of the evidence itself, their assessment, both in pre-trial and in court. Innovative technological product: an algorithm (technical and legal) securing factual data from the Internet site for submitting them to court. Scope of application of the innovative technological product: the application of the algorithm for securing factual data from the Internet site when protecting intellectual property rights should be carried out in accordance with the rules of the current Economic Procedure Code of Ukraine, namely Chapter 5 "Evidence" of Section 1.
Highlights
Analyzing the judicial practice, a number of procedural problems related to evidence and proof in the field of intellectual property rights protection on Internet sites were identified, and the following objects of research were identified:
Materials and methods Research carried out in modern Ukrainian legal science does not create a holistic view of the procedural mechanisms for collecting and fixing evidence, especially the use of the institution of proof in the protection of intellectual property rights raised on Internet sites, but disclose only certain aspects of the institution of proof, and the existing today the level of scientific development of this issue is not enough
Until scientists have developed a comprehensive legal mechanism for collecting evidence in support of the violation of intellectual property rights on sites on the Internet, individuals believe that their rights have been violated, must adhere to the following algorithm of actions to collect evidence of such a violation, namely: 1) record the content of the website by video and photographic recording with the preparation of a properly executed protocol signed by at least three people who must be present during the video recording of this offense on the network, including an independent representative of an organization specializing in the maintenance of telecommunication computer systems, which will be able to confirm the ownership of evidence; 2) duly recorded evidence should be notarized as soon as possible by an appropriate person who has the authority to do so in accordance with the legislation of the state, so that the given factual data become adequate evidence to convince the court; 3) the fact of violation must be reported to the Cyber Police Department of the National Police of Ukraine in order to properly record the corresponding violation on the Internet and enter information into the Unified Register of pre-trial investigations; 4) after performing these actions and obtaining proper evidence, the person must apply to the court with a properly substantiated statement of claim and at the same time submit an application for securing evidence in this case, to obtain help (log files), from the owner of the host server, includes information about the actions of users regarding the placement of this information; 5) order an expert study of intellectual property objects, which will properly confirm the fact of a real violation of the plaintiff’s rights
Summary
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