Subject Of Intellectual Property Rights Research Articles

An Overview of Intellectual Property Rights (IPR) in the Digital Environment in India

In the current environment, IPR awareness is essential for technical breakthroughs, and in the developing knowledge-based economy, its significance is anticipated to increase. Because it is become harder to demonstrate rights violations whenever they happen in the digital realm, it is crucial that information makers are aware of and knowledgeable about IPR. The current study addresses the subject of intellectual property rights (IPR) in the digital environment. We are concentrating on an overview of IPR in the digital environment of India.

Guaranteeing biological safety as a basis for limiting the patent-protected rights of intellectual property subjects

The relevance of the subject under study is conditioned upon the rapid and active development of the biotechnological area. This segment of the economy and science requires not only comprehensive preliminary work, but also further legal protection of the interests of inventors and society. The development of biotechnologies regulates not only the present, but also the prospects for the future. But it is important to harmonize the use of biological processes to avoid a biological catastrophe. The purpose of this study was to investigate the possible legal instruments for limiting the patent-protected powers of subjects of intellectual property law to guarantee biological safety. The following methods were used to collect, process, and present information in this paper: general scientific (formal-logical, analysis and synthesis, comparison, induction and deduction, systematization) and special-legal methods (formal-legal, comparative-legal). This study considered the possibility of limiting the rights granted to the subjects of patenting to guarantee biological safety. International and Ukrainian legislation was analysed in the aspect of patenting biotechnological achievements, compulsory patenting and restrictions on the rights of patenting subjects. The legal nature of biotechnologies as objects of intellectual property rights was identified. Legal measures to restrict the patent-protected powers of subjects of intellectual property rights were highlighted. Attention was drawn to the legal consolidation of the resolution of controversial issues in the field of patenting of biotechnological inventions according to the criteria of ethics and morality. The need to improve the national legislation governing issues of biotechnological research considering the principle of sustainable development, according to which social and ecological aspects should be recognized as a priority, was substantiated. The importance of this study is reinforced by the increased demand for biotechnologies, which leads to certain legal actions related to their protection. The present paper will be useful for scientists in the field of law, medicine, and bioengineering.

Organizational and functional structure of the innovative and intellectual environment: concept and conception of interaction

Keywords: innovative and intellectual environment, subjects of intellectual propertyrights, innovative infrastructure, commercialization of property rights, marketfunctions
 In the article, the author examines the meaning of the concept of «innovative and intellectualenvironment» and, from a methodological standpoint, the economic andlegal model of the organizational and functional structure of the innovative and intellectualenvironment. This allows to disclose the content of the components of themodel, which are combined into functional connections, creating a productive field ofdirections of the transformation process in the production sphere of objects of intellectualproperty rights into innovative products for the purpose of commercialization ofintellectual property rights on the market of intellectual property, innovative technologiesand innovative products to profit-making purposes. It is noted that in theeconomic and legal literature today, there is no single approach to understanding theessence of the concept and content of the «innovative and intellectual environment».The concept of «innovative environment» is presented in a much broader sense. Froman economic and legal viewpoint, the use of the term «innovative and intellectual environment» is justified, where priority is given to innovation as the basis for the transformationof intellectual property rights in the production sphere of activity into aninnovative product, and also as the basis for the use of innovative technologies. Thereare considered from a theoretical and organizational perspective the target contentcomponents of the model, that include: the formation of human intellectual capital,which includes subjects of intellectual property rights; creation and organization ofinnovative infrastructure as a production sphere of activity; organizational combinationof innovative infrastructure with intermediaries for the commercialization of intellectual property rights, which are catalysts for the transformation of objects of intellectualproperty rights into innovative products; commercialization of intellectualproperty rights, which refers to the innovative and intellectual sphere of activity; purposeand functions of the market of intellectual property, the market of innovativetechnologies and the market of innovative products.

The system of subjects of intellectual property law in the conditions of the cyberspace formation

The article is devoted to identifying the system of subjects of intellectual property law in the conditions of the formation of cyberspace. The topic of the article covers the subject composition of intellectual property legal relations. The purpose of the article is to define the system of subjects of intellectual property law, taking into account the virtual and digital aspect.
 The research methodology consisted of a system of general scientific and special methods of scientific knowledge. The application of the dialectical method has made it possible to establish that digital law is developing as a complex institution that gravitates towards private law. Thanks to the use of the formal legal method, it has been stated that the author and co-authors have the right to create their own virtual identity in the digital environment, which can be the object of intellectual property legal relations, in particular copyright. Based on the application of methods of analysis and synthesis, it has been determined that modern subjects of intellectual property law are divided into primary, derivative and auxiliary.
 It has been proven that the development of cyberspace has a direct impact on the formation of new subjects of intellectual property law. The author in cyberspace has the right to: create their own virtual identity, which will be the object of intellectual property legal relations; to place their own results of creative, scientific, intellectual work. Derivative subjects of intellectual property rights are persons who acquire property rights to the already created, existing result of creative, intellectual, scientific work in a material and/or virtual environment. Auxiliary subjects of intellectual property law perform an auxiliary function regarding the implementation of state intellectual property policy, creation of an object of intellectual property law, registration of property rights to these objects, stimulation of creative activity, and more.
 The results of the article can be used in scientific works in the field of intellectual property law, as well as by lawyers when identifying the subject structure of intellectual property legal relations.
 It has been concluded that there is an actual problem of identification of the virtual author, the relationship of virtual identity with a real person, the place of digital law research in the legal system, in particular, it is proposed to determine it by the institute of intellectual property law.

ЗАХИСТ ПРАВ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ: ПРОБЛЕМИ ТЕОРІЇ ТА ПРАКТИКИ

The article examines the peculiarities of the protection of intellectual property rights in the context of the reform of national legislation in the field of intellectual property. It is proposed to consider the protection of intellectual property rights as a mechanism provided for by law, which consists of a system of forms, methods and means initiated by subjects whose rights have been violated and by specially authorized state bodies, whose activities are aimed at recognizing and renewing violated rights, stopping the violation of rights and legitimate interests of subjects of intellectual property rights in the event of their violation, challenge or non-recognition and on the application of state coercion measures to offenders. Currently, in Ukraine, activities related to the protection of intellectual property rights are mostly focused on the actions of the state to establish standards, and almost no attention is paid to the need of the business itself for self-improvement. Following the example of the United States of America, it is advisable for Ukraine to create associations, as a union for many types of businesses related to intellectual property rights, to develop a strategy to combat intellectual property rights violations and control the number of such violations. Despite the positive changes in the laws in the field of intellectual property rights protection carried out in recent years, it should be emphasized the presence of certain shortcomings and contradictions in the legal regulation of the procedure for the protection of rights to inventions, utility models and industrial designs, which, first of all, are caused by the lack of necessary changes regarding the implementation legislative norms to the sub-legal level. It is noted that measures to ensure the effective protection of intellectual property rights should be directed not only by the state and its bodies, the activities of the right holders themselves in monitoring the observance of their rights and preventing violations should play a major role in this process.

The concept of real losses as a component of the concept of losses in the sphere of intellectual property: category of law and economics

Keywords: real losses, intellectual property rights, object of intellectual propertyrights, subject of intellectual property rights, right to own, use and dispose of intellectualproperty rights, contractual obligations, non-contractual legal relations
 This article provides an analysis and formulation of the category of «real losses» in thefield of intellectual property. The categories of «real losses» in relation to the propertysphere and the sphere of intellectual property are analysed and justified.First, the author will consider the concept of «real losses» in the property sphere,which was previously studied by many well-known legal scholars and lawyers. Further,we are talking about the structure and Element-by-Element composition of reallosses. Then, the concept of incurred and future expenses is considered.The author notes that everything that concerns the property sphere will also applyto the sphere of intellectual property to a certain extent, but a significant differencewill be that real losses in these areas apply to different subjects, objects and rights. After that, the author will try to provide and analyse the definition of the concept of«real losses» for regarding the sphere of intellectual property.Further, the author focuses on the concept of intellectual property law, the subjectof intellectual property rights, intellectual property rights, objects of intellectualproperty rights under the Civil Code of Ukraine. Also, the article deals with such conceptsas the rights of the owner of rights: the right to own, the right to use and theright to dispose. Further, we are talking about real expenses in the field of intellectualproperty.Summing up the theoretical material presented above and taking into account thechanges of the author that he proposed, the definition of the concept of "real losses" inthe field of intellectual property is given.According to the author, such a legal norm could be included in the fourth book«Intellectual Property Law», Chapter 35 «general provisions on intellectual propertylaw» of the Civil Code of Ukraine, in the article on losses.

The concept of lost profit as a component of the concept of losses in the field of intellectual property: a category of law and economics

Keywords: forgone benefit, property rights of IP, object of IPR, subject of IPR, theright to own, use and dispose of IPR, contractual obligations, non-contractual legal relationships
 Thearticle is devoted to the study and analysis of the legal and economic category of «lucrumcessans» (forgone benefit) in the property sphere and in the field of intellectualproperty (IP), as well as the author's attempt to define the concept of «forgone benefit»in the sphere of IP. It should be noted that the concept of «forgone benefit» is the maincomponent of the general concept of «damage» in the property sphere, where its definitionis contained in subparagraph 2) of paragraph 2 of Article 22 of the Civil Code ofUkraine. The article compares the concept of «forgone benefit» both in the propertysphere and in the sphere of IP in accordance with the economic and legal planes.First, «forgone benefit» are considered as unearned income in the property sphere.Further, we are talking about the criterion for the implementation of measures andpreparations as a fact to generate income in the production and sale of goods (services).The next important issue, which is covered in this article, is the problem of distinguishingbetween measures and preparations for obtaining income (profit) and reasonablemeasures to reduce losses. The next criterion includes the provision that the«forgone benefit» of the victim cannot be less than the income of the offender, which isone of the manifestations of the principle of Roman law.All of the above in relation to the economic category applies both to the propertysphere and to the sphere of IP. However, in relation to the legal category «forgone benefit» in the property sphere and in the sphere of IP has a complete difference, since itrefers to different subjects (in the property sphere, this is the owner of the thing, property,and in the sphere of IP — the subject of intellectual property rights (IPR) or a personto whom such rights have been transferred), objects (objects in the property sphere arevarious types of things, property, any material objects, and in the field of IP these are objectsof IPR) and rights (in the property sphere there are rights to things, rights to property, and in the field of IP — these are property rights to objects of IPR).Further, the author of the article gives terms from the field of IP, the availabilityof rights in the field of IP, dwells on cases of violation of non-contractual (tort)legal relations and violation of contractual legal relations (mainly violation of a licenseagreement).Based on the results of the material presented, the author of the article formulatesa definition of the concept of «forgone benefit» in the field of IP and proposes to includesuch a legal norm in the fourth book «Intellectual Property Law», Chapter 35«General Provisions on Intellectual Property Rights» of the Civil Code of Ukraine.The material of the article can be useful to employees of the Ministry of InternalAffairs, forensic experts, lawyers and patent attorneys and other persons working inthe field of law.

Procedural issues of applying to the court for the protection of intellectual property rights

Keywords: protection of intellectual property, court, EPC of Ukraine, CPC of Ukraine, European Court of Human Rights
 This scientific article explores the proceduralissues of going to court in case there is a violation of intellectual property rights. Inthe process of scientific research, the issues of jurisdiction in court cases on violationof intellectual property rights have been analyzed, the legal features of jurisdiction inlawsuits for violation of intellectual property rights have been determined, requirementsfor the content of a legal claim. Based on analysis of the economic procedurallegislation, it is concluded that a person who applies to the court for infringement ofintellectual property rights may refer to the cases of the European Court of HumanRights in order to substantiate his legal position. It is indicated that in the course ofthe 2016 judicial reforms in Ukraine, the rules of judicial jurisdiction and the competenceof the court in court cases on violation of intellectual property rights werechanged. At the level of procedural law, a special court was created — the High Courtof Intellectual Property, which is empowered to judicially review cases of IP violation.The High Court of Intellectual Property has not started its work for now. The authorpoints out that this situation has a negative impact on Ukrainian judicial practiceand the practice of protecting intellectual property rights.
 Based on the results of the study, the author proposed his own theoretical groundsand developed proposals for improving procedural legislation regarding the possibilityof introducing alternative jurisdiction in some categories of cases of violation of intellectualproperty rights. Such legal cases include copyright infringement of an individualwho is the author or the author's representative. The legal rule on alternativejurisdiction in cases of infringement of intellectual property rights is effective if thereis a violation of IP rights in the Ukrainian temporarily occupied territories. The authorpoints out that such a legislative proposal will improve the quality of legal protectionof subjects of intellectual property rights in the temporarily occupied Ukrainianterritories.

Exercise of economic intellectual property rights to wellknown trademarks.

The exercise of intellectual property rights is the realization bythe subject of intellectual property rights of moral and / or economic intellectual propertyrights, the content of which in relation to certain objects of intellectual propertyrights is determined by the Civil Code of Ukraine and other laws. The exercise of intellectualproperty rights is also the realization of economic intellectual propertyrights by other persons on the basis of the permission of the person who has the rightto allow the use of such object of intellectual property rights.The Law «On Amendments to Certain Legislative Acts of Ukraine ConcerningStrengthening the Protection and Protection of Rights to Trademarks and IndustrialDesigns and Counteraction to Patent Trolling» (which entered into force on August16, 2020) has аmended the Law of Ukraine «On Protection of Rights to Marks forGoods and Services» (hereinafter — the Law). The amendments have removed theprovision that a well-known trademark receives the same legal protection as thetrademark for which the certificate is issued. Such changes have created a gap in thelegislation in part of defining what does the exercising of intellectual property rightsto well-known trademarks include.In this connection the following questions arise: (1) can the right to use a wellknownmark (as well as the mark for which the certificate is issued) be the subject ofa license agreement, a commercial concession agreement; (2) whether it is possible tocontribute economic intellectual property rights to a well-known trademark to the authorizedcapital of a legal entity; (3) whether it is possible to transfer such rights onthe basis of an agreement on the transfer of economic intellectual property rights or to provide as collateral. We believe that these issues should be addressed through theadoption of appropriate amendments to Art. 25 of the Law.In our opinion, the right to use a well-known trademark may be the subject of licenseagreements and commercial concession agreements. According to the currentlegislation of Ukraine, it is impossible to transfer economic intellectual propertyrights to a well-known mark to another person.It is expedient to make changes to Art. 25 of the Law, which would provide necessityof creation and functioning of the State register of Ukraine of well-knowntrade marks.The introduction of the proposed amendments to the legislation of Ukraine in thefield of economic intellectual property will help to improve the relevant legal relationsrelated to the exercise of property rights to well-known trademarks.Key words: trademark, well-known trademark, economic intellectual propertyrights, exercise of economic intellectual property rights, assignment (transfer) of economicrights of intellectual property

Intellectual property law as a system of creative activity results protection

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.

CONSTITUTIONAL RIGHT TO OWN, USE AND DISPOSE THE RESULTS OF INTELLECTUAL AND CREATIVE ACTIVITY: «JUSTIFIED EXPECTATION» FOR OBTAINING PROPERTY SUBJECT TO LEGAL PROTECTION

In the science regarding Constitutional Law, the issue for restriction of intellectual property rights provokes lively discussions. When registration of trademarks, there increasingly raises a number of theoretical and practical questions: can the state "destroy" the legitimate expectations of the subjects of intellectual property rights by adopting certain legislative acts in order to fulfill its international obligations? Is the decision to apply the provisions of a bilateral agreement to the application for trademark registration, which came into force after the subject was filed into trademark application process, considered as interference into the peaceful use of property? Does the constitutional and legal mechanism for regulating public relations in the field of intellectual property on "expectativa jurídica" issue the need to be improved?
 The purpose of this article is to identify the conditions under which the applicant who has applied for registration of a trademark has the right to claim in respect of which he has a "justified expectation" of its implementation, as well as to identify conditions that allow national law or there is insufficient evidence in the settled case-law practice of National Courts to state that an applicant who has applied for registration of a trademark has a “justified expectation” protected by the provisions of the Article 1 of Protocol No. 1 to the Convention. Research methods is the general methods of scientific cognitivism as well as concerning those used in legal science: methods of analysis and synthesis, formal logic, comparative law etc.
 In order to benefit from the protection of Article 1 of Protocol No. 1 to the Convention, an applicant who has applied for registration of a trademark must be entitled to claim in respect of which he may affirm that he had at least a “justified expectation” for its implementation. The grounds for concluding that such a “justified expectation” is as follows: the availability of grounds for such a requirement within national law and the consistent practice of National Courts, which shows that the applicant does have sufficient grounds to obtain this very justified expectation. 2. The mentioned reasons allow to affirm about the lack of reasonable grounds within national law or in the settled case-law practice of National Courts that are to state that an applicant who has applied for registration of a trademark has “justified expectation” protected by provisions of the Article 1 of Protocol No. 1 to the Convention: 1) the applicant company had a right that is subject to a certain condition, which was terminated retroactively due to non-compliance with this condition, namely that it did not violate rights of the third parties; 2) there is a dispute/disputes about the registration of a trademark, which being taken into the Court processing in different countries; 3) the applicable rule of national law is sufficiently accessible, accurate and predictable; 4) the criteria for trademark registration are unclear, there are doubts about their proper interpretation, as well as the difficulties associated with the need to analyze various international instruments.
 Violation of the Article 1 of Protocol 1 is a retrospective interference by the legislator. The current legislation of Ukraine in the field of intellectual property on “expectativa jurídica” issues when filing an application for trademark registration, as well as on state interference regarding the “justified expectation” of the applicant companies needs to be improved in the light of the case-law practice of the European Court of Human Rights.

Subjects of Intellectual Property Rights in the Field of Virtual and Augmented Reality Technologies

The paper discusses the issues of determining the legal status and circle of subjects that can be recognized as owners of intellectual property rights to virtual and augmented reality technologies and the objects generated by them. Analyzing the circle of subjects in this area, the author notes the need for correlation of subjects and objects of intellectual property rights. Particular attention is given to determination of the rights of users of virtual or augmented reality platforms to virtual objects created by them. It is concluded that the creation of additional content for virtual or augmented reality platforms, as a general rule, gives rise to the creators’ copyright. Considering the circle of subjects on complex objects in the field of virtual and augmented reality technologies, the author concludes that the subject composition of legal relations arising in connection with the creation and use of a multimedia product should be determined based on the variety of this object due to their diversity.

LEGAL ASPECTS OF THE BALANCE OF INTERESTS OF THE PUBLIC AND THE INTERESTS OF SUBJECTS OF INTELLECTUAL PROPERTY RIGHTS IN THE FIELD OF HEATCH CARE

The article explores the issues of maintaining the balance of interests of subjects of intellectual property rights and society in the field of medicine and pharmacy. Historically, Ukraine has come a long way in recognizing the area of intellectual property as one that needs legal protection. Nowadays the issue of finding the boundaries and balance between the intellectual property sphere that seeks to fully securethe rights of patent holders and the health care sector, which is aimed at adhering to the principle of availability of medicines and treatments, is very relevant.So, what is the main conflict between the inventor`s interest and the public interest in the healthcare sector? For the most part, the inventor's interests are limited to two goals: to obtain the protection of his scientific achievement within the time limits established by law and to extend these terms when necessary. These interests are the result of the existing marketing authorization procedure. According to this procedure, a medicinal product must undergo a clinical trial, and in order to protect inventor’s patent rights, its owner must undergo a patenting procedure. This shortens the period of real profit. As a consequence, the drug manufacturer is trying to find ways to continue its monopoly on the market. And society is suffering from his actions. As the main public interest in health is the availability of medicines, treatments and diagnostic methods. The protection of this interest is now even identified as one of the priority areas of Ukraine's public policy. As a result, in order to ensure a balance between the interests of society and inventors, Ukraine has made a number of decisions about cooperation with internationalorganizations such as the UN and WIPO, and made the drafting of the National Intellectual Property Strategy.In our view, there is now a need in the Ukrainian legislation to amend patent protection in order to promote health care. Therefore, in this article, we have proposed the following mechanisms to ensure the balance of interests of inventors and society in the health sector:•to establish the possibility of obtaining certificates of additional protection with warnings that the term of such protection will be calculated depending on the time elapsed between the submission of the application for the invention and obtaining the marketing authorization of the medicinal product; •to introduce the possibility of filing a reasoned objection to the application for the invention, a request for the information search on the basis of the claims and the possibility of filing the same reasoned objection to the issue of certificates of additional protection;•to implement the «Bolar position», which will accelerate the release of generic medicines;•to abolish the possibility of patenting as inventions methods of treating the human or animal body by surgical or therapeutic and diagnostic methods;•to enhance the granting of compulsory, open and voluntary licenses to ensure the availability of medicines.

STATE INTELLECTUAL PROPERTY MANAGEMENT IN THE SPHERE OF NATIONAL SECURITY AND DEFENCE

The state policy on the management of objects of intellectual property right in the sphere of national security and defense is considered.Under the current conditions, national security is unconceivable without solving the problematic issues of intellectual property management and creating the necessary preconditions for the development of intellectual potential and its use for national security.At present, the concept of national security is being expanded to include more and more spheres of public life. New security settings related to the scientific and technological revolution have started to play an important role.Nowadays, issues of the formation of an effective state policy for ensuring national security in all its spheres and manifestations are of great importance. An important component of the mechanism for the formation and implementation of state policy in the field of national security should be the provision of intellectual property management.However, national security legislation does not provide for the development of a strategy or other programmatic document on scientific and technical security, which would envisage measures to ensure the protection of the scientific and intellectual potential of the state, competitive technologies available in the country.The question at issue is the fact that the state has not yet developed a national strategy for the protection of intellectual property, which would provide the protection of interests and rights of all subjects of intellectual property rights, and especially the state. Although the attempts to develop such a strategy were carried out repeatedly. The state system of intellectual property protection and the effectiveness of providingnational interests with its structural elements, in particular in the field of national security and defense, are investigated. Current problems in this area are explored and suggestions are made to resolve them.There exists a necessity for creation of the central executive authority, the main task of which should be the formation and implementation of the state policy on the protection and management of intellectual property, as well as the state body, which, on behalf of the state and in its interests, will execute the ownership rights of the objects of intellectual property rights that are in state property.

Баланс інтересів суб’єктів права інтелектуальної власності крізь призму принципів пропорційності та справедливості

Справедливий баланс, зокрема у праві інтелектуальної власності, фактично є основною метою правового регулювання. А оскільки право (й законодавство) є відкритою, динамічною, такою, що розвивається, системою, то в ньому спонтанно або свідомо виникають моменти неузгодженості, або дисбалансу, які виявляються й тією чи іншою мірою усуваються. Водночас в умовах гіпердинамічно-го розвитку інформаційного простору та технологій регулювання має бути максимально гнучким. Зокрема, баланс інтересів суб'єктів права інтелектуальної власності може забезпечуватись наділенням їх рівними можливостями для реалізації цих інтересів. Водночас статична рівновага інтересів однозначно не може бути оптимальною формою збалансування інтересів суб'єктів права інтелектуальної власності, оскільки за певних обставин об'єктивно необхідно встановлювати пріоритет одного інтересу над іншим. Також забезпечення балансу інтересів є однією із ключових завдань правосуддя. Тому одним зі способів установлення оптимального співвідношення інтересів у сфері інтелектуальної власності може слугувати звернення до судової практики, зокрема практики Європейського суду із прав людини, оскільки однією з метаідей, котрі лежать в основі більшості правових позицій ЄСПЛ є ідея балансу інтересів. Оскільки право не може охопити своїм регулюванням усі відносини (через кількісні, якісні та економічні причини), на допомогу приходять принципи, зокрема принцип справедливості та принцип пропорційності, зважаючи на які й повинні вирішуватись конфлікти інтересів. ЄСПЛ у кожній ситуації досліджує, наскільки було дотримано державною владою справедливий баланс між інтересами суспільства й вимогами захисту приватних інтересів окремої особи. Доречність та необхідність правових обмежень означає, що розмір (обсяг) самого публічно-правового обмеження має бути диференційований, залежно від конкретних обставин. Щодо підходу до захисту прав інтелектуальної власності загалом, показово, що підхід ЄСПЛ не відрізняється від його звичайного підходу: він розглядає й погоджує різні права та інтереси та оцінює необхідність і пропорційність утручання у здійснення певного права, захищеного Конвенцією.

FEATURES OF CRIMINAL AND LEGAL PROTECTION OF ECONOMIC AND OTHER INTERESTS OF SUBJECTS OF THE INTELLECTUAL PROPERTY RIGHTS ON UKRAINIAN LANDS UNDER THE CRIMINAL PROVISIONS OF 1903

The article analyzes the criminal law provisions of the Criminal Code of 1903, which provided the responsibility for encroachments on objects of intellectual property rights, and defined the peculiarities of criminal legal protection of economic and other interests of subjects of intellectual property rights in Ukrainian lands according to these criminal legal norms. The Criminal Code of 1903 was marked by a significant difference from the Criminal Code of 1845, expressed as a significant reduction in the number of criminal acts, the general humanization of criminal punishment, and in a more progressive approach to the design of criminal law. For example, in Art. 1, the principle of "nullum crimen sine lege" was directly affirmed for the first time, while in criminal laws of earlier times it was laid down but only proceeded from the general content of the articles. Analysis of the criminal law of the Criminal Code of 1903 provisions allowed to conclude that the criminal legal protection of objects of intellectual property rights was carried out at the expense of: 1) criminal law, which provided for liability for attacks on objects of copyright and patent law. In this case, the legal protection of copyright objects was closely linked to the censorship and, in fact, was inseparable from it; 2) the provisions establishing criminal liability for actions related to the disclosure of secrets; 3) provisions relating to the introduction of goods into the market and their circulation there, as well as the importation of goods into the territory of the Russian Empire, which provided for liability for the following acts: a) acts related to the illegal manufacture of works and their introduction into circulation, in including the illegal circulation of equipment that may be used for the illicit manufacture of works; b) acts related to the illicit sale or other distribution of works; c) other acts related to the illegal circulation of objects of intellectual property rights.

Rethinking intellectual property rights in the cognitive and digital age of capitalism: An autonomist Marxist reading

The transition from industrial capitalism to cognitive capitalism and the rise of the digital revolution have brought the subject of intellectual property rights to the forefront as a controversial issue. This paper holds that the theoretical apparatus and concepts belonging to the industrial phase of capitalism largely fall short with respect to the repercussions that intellectual property rights regime yields. Embracing the methodological precept that social theory must be moulded in order to address the contours of contemporary social reality, this paper engages in an autonomist Marxist update on the concept of intellectual property rights. It ultimately challenges the “intellectual property rights are a socio-economic need” thesis and speculatively argues that the current system of intellectual property rights, directed politically towards the enclosure of commons, constitutes a structural contradiction by i) forming a basis for a social crisis in terms of the established relations of production, and ii) curtailing a part of the socio-economic opportunities for innovation, profit-making, and growth.

SOCIO-ECONOMIC AND OTHER FEATURES OF CRIMINALIZATION OF ENCROACHMENTS ON OBJECTS OF INTELLECTUAL PROPERTY RIGHTS

The article analyzes and proves the existence of public need for criminal law protection of objects of intellectual property rights. According to the special importance of intellectual property, which is based directly on its social value (significance) and is associated with the satisfaction of the mental, cultural, economic and other needs of society, it is proved that full and effective legal protection of the rights, freedoms and interests of the subjects of intellectual property rights is possibly solely through measures of criminal law influence. The fact that the economic and social value of intellectual property forms the intellectual capital of the country and society is extremely important. It needs state support, and in the absence of it - undergoes qualitative changes that cause the fall of all spheres of the economy, an increase in unemployment, backwardness of technologies etc. Thus, it has been established that the factors that predetermined the social necessity to criminalize encroachments on objects of intellectual property rights include the following: a) the economic and social value of intellectual property that forms the intellectual capital of the country and society; b) informational nature and ethical essence of intellectual property, allowing to consider it as one of the fundamental values ​​of society; c) the public danger of these encroachments; d) the criminal law provisions concerning violation of the right of intellectual property are a guarantee of protection of constitutional rights and interests of the person; e) international legal obligations of Ukraine affect the introduction of standards for the legal protection of intellectual property rights, including criminal law protection. Thus, the author concludes that the criminalization of encroachments on objects of intellectual property right is justified and meets the interests of society and the state.

Influence of intellectual property rights influence on the defense capacity of the state

The violation of intellectual property rights in the defense sphere and its influence on the state defense capacity is consid­ered. The legislation of Ukraine regulating activities related to the development of ar­maments and military equipment, as well as the performance of international mili­tary and technical cooperation, regarding the intellectual property protection, is ana­lyzed. The necessity of the legislation improvement on the regulation of intellectual property protection issues in the defense sphere is noted.The development of military capabilities in the context of Ukraine’s defense capac­ity, to a large extent, depends on the equipment of the Armed Forces of Ukraine with modern weapons and military equipment, which is created on the basis of intellectual property rights objects (hereinafter — IPR objects). The more complex a weapons and military equipment, the more IPR objects are used, which may belong to different subjects of intellectual property rights. Unlawful use of these IPR objects or other vio­lations of intellectual property rights may lead not only to significant financial losses, but also to the loss of IPR objects themselves or to the prohibition of the use of weapons, which will negatively affect the defense capacity of the state.However, the experience has shown that the issues of intellectual property protec­tion, especially in the defense sector, are not fully regulated, so many violations of intel­lectual property rights occur at each stage of the development of weapons and military equipment. These violations cause not only the mental and material losses of the au­thors of IPR objects and patent holders, but also affect the defense capacity of the state.

Bibliometric Analysis of Dissertation Research on Intellectual Property Rights in Ukraine

Modern society is characterized by the widespread distribution of objects of intellectual property rights. The article analyzes the state of dissertation research on intellectual property issues which has been conducted in Ukraine since the time of proclamation of its independence and to the present days. The topicality of the study is due to the fact that the results of intellectual activity determine the strategy and tactics of socio-economic development of any country. The components of intellectual activity are the intellectual capital, embodied in the form of experience, knowledge, skills, qualification of a person. The growth of the role and importance of intellectual activity in the social relations of the society necessitates the solution of the main problem issues: the normative and legal support of intellectual activity; rational use of the results of intellectual activity; effective protection of objects of intellectual property rights, protecting the rights of subjects of intellectual property rights. Reliable guarantees of acquiring and protecting intellectual property rights are an integral part of the statehood of each civilized country. One of the sources of highlighting the study of any case is the provision of conclusions and recommendations for solving problem issues, dissertation researches. The article analyzes the quantitative distribution of dissertation research on intellectual property issues according to scientific specialties, scientific institutions, in which they were defended. It was found out that the proportion of dissertation research on intellectual property problems in legal sciences is 77 %, in economic sciences, respectively, 19 %, in other sciences - 4 %. Among legal sciences, 60 % of scientific theses have been defended on specialty 12.00.03; respectively, 19 % - on specialty 12.00.07; 6.8 % - on specialty 12.00.04; 5 % - on specialty 12.00.08; 3.6 % - on specialty 12.00.09; 2.2 % - on specialty 12.00.01; 1.8 % - on specialty 12.00.11; 0.4 % - on specialty 12.00.02; 0.4 % - on specialty 12.00.05; 0.4 % - on specialty 12.00.12. Among the dissertation research in the economic field of intellectual property rights, the work on specialty 08.00.04 was the most defended - 32.7 %; respectively, on specialty 08.00.01 - 21.8 %; on specialty 08.00.03 - 12.8 %; on specialty 08.00.02 - 7.3 %; on specialty 08.00.09 - 7.3 %; on specialty 08.01.01 - 5.5 %; on specialty 08.00.07 - 3.6 %; on specialty 08.00.08 - 3,6 %; on specialty 08.05.01 - 3.6 %; on specialty 21.04.01 - 1.8 %.