Theme 5. Special legal guard objecs intellectual property rights

1. The concept of legal protection of intellectual property rights.

2. Ukrainian legislation on intellectual property rights legal safeguard.

3. The powers of state bodies in the legal protection of intellectual property rights.

4. Methods of intellectual property rights legal safeguard.

5. Problems of legal safeguard of intellectual property rights in Ukraine and problems of legislation improvement.

For years of independence the State system of legal safeguard of intellectual property is being reconstructed in Ukraine. The Ministry of education and science youth and sport of Ukraine is responsible for realization of policy in the field of intellectual property.

Concrete functions in this sphere are executed by the State service of intellectual property, which is inferior to Ministry of education and science youth and sport of Ukraine. He is authorized to represent, register and support on the territory the Ukraine of right on the inventions, useful models, industrial prototypes, signs for goods and services, pointing of origin of commodities, topographies of integral microcoschemes, and also to carry out registration of objects of copyright: works of literature and art, computer programs, databases and so on. The state service of intellectual property holds a single state policy in the field of guard of rights on the objects of intellectual property. He carries out work in the improvement of legislative and normative base, international cooperation in the field of intellectual property, provides terms for introduction of intellectual property to the economic turn, preparation and training of specialists in the field of intellectual property, co-operation with public organizations and such like things.

The sphere of management of the State service of intellectual property includes: Ukrainian institute of industrial ownership, Ukrainian agency on author and contiguous rights, Institute of intellectual property and rights, State enterprise «Intelguard». There are subsections of state inspectors on the questions of intellectual property in the structure of the State service of intellectual property.

The main function of the Ukrainian institute of industrial ownership realization of the expertise of requests on the objects of industrial own is. It experts examine the materials for the purpose of accordance given by applicants concerning legal safeguard and give an expert conclusion. The State service of intellectual property gives out a patent or certificate. Ukrainian patent has a branch, that provides informative services, carries out the patent search.

The collective management by the authors rights is the main function of the Ukrainian agency on author and contiguous rights. If the author wishes, it carries out preparation to state registration of objects of copyright and contiguous rights and delivery to the author the certificate. The grant of help to the authors in relation to defence of their rights in the case of violation is the important function.

The state enterprise «Intelguard» takes care by the questions of fight against violations of rights on the objects of intellectual property, thus in a greater degree by contiguous rights.

The main task of state inspectors is warning of offences in the field of intellectual property. Inspectors are the representatives of the State service of intellectual property in the regions of Ukraine.

Public organizations, that are directly engaged with the questions of intellectual property and with which the State department of intellectual property co-operates closely:

All ukrainian association of intellectual property has interdepartmental character. It is instrumental in leading to consideration of legislative and executive branches of power the basic problems which exist in the field of intellectual property.

Has a special function all ukrainian association of patent attorneys of Ukraine. On the current legislation exactly through patent attorneys, patenting of domestic inventions is carried out abroad and vice versa. Patent attorneys provide also qualities services to the legal and physical persons on the questions of legal safeguard, use and defence of rights on the objects of intellectual property.

Society of inventors and rationalizers of Ukraine is engaged in popularization of invention activity, gives to the inventors and rationalizers help in their activity.

Ukrainian association of proprietors of commodity sainz takes care of interests of signs owners.

Now a question is partly regulated by Laws of Ukraine «About the guard of rights on the inventions and useful models» and «About the guard of rights on industrial prototypes». The adopted laws regulate public relations, which are folded in the process of creation, exposure, registration, use of guard of the noted results of scientific and technical creation.

_ The results of invention, useful models and industrial prototypes are the basic objects of legal safeguard.

According to the Law of Ukraine «About the guard of rights a legal safeguard can not get legal guard on»: openings, scientific theories and mathematical methods; methods of organization and management by the economy; conditional denotations, operations; programs for calculable machines; results of the artistic constructing; technologies of integral microschemes; sorts of plants and breeds of animals (item 3 article 5).

Besides the invention, that conflicts with public interests, principles of humanity and moral, does not get a legal safeguard and does not respond to the conditions of patentability.

Right on the invention, useful model and industrial prototype is guarded by the state.

Another group of results of intellectual activity, which is subject to the legal safeguard, includes scientific openings, commercial secret, arrangement of integral microschemes, sorts of plants and breeds of animals, rationalization suggestions.

Introduction of the special legal safeguard of commercial secret is conditioned by a necessity to guard legal interests of participants of commodity turn, which waste time, efforts and facilities for development and introduction of front-rank technologies and methods of conduct of business, that they not always can be protected by the traditional methods of legal safeguard.

Disputes which arise up by application of these Laws are examined by a court. In particular, courts examine disputes about authorship on the invention, useful model or industrial prototype; establishment of patentee; violation of property rights of patentee; conclusion and implementation of the licensed agreements; right of the previous use; reward to the inventors and authors of industrial prototypes, and also patentees; indemnifications.

Practice of consideration of this category of businesses in the courts of general jurisdiction exposed the certain difficulties connected with the absence of the proper level of qualification of courts and experience in deciding of such questions.

The jurisdictional form of protection of copyright can be carried out with the use of civil-legal form of protection. In my opinion, actuality of the problem lies in the fact that lately, the citizens of Ukraine more frequently apply to the court to defend or to renew their broken copyright, especially those related to creation of new modern technologies. It is not difficult to create the counterfeiting copy of creation, phonograms, videograms now. Stealing of the computer programs, piracy and plagiarism became widespread. It is possible to forge information or documents concerning ownership. That’s why the problem of civil-legal protection of copyright in Ukraine is actual today.

Civil-legal method is the most widespread method of resolving disputes concerning authorship rights. Its main purpose is not the punishment of the violator, but the renewal of author’s copyrights and claiming damages. In this connection the legislation of Ukraine set the wide spectrum of methods of protection of copyrights and contiguous rights. They are: 1) confession of sole right; 2) confession of invaliding of a transaction about ownership; 3) prevention of actions which violate the right or create the threat of its violation; 4) renewal of situation existed before; 5) financial damages, damages for mental distress; 6) confession of the state body’s decision as illegal. But there are the special methods of protection, foreseen by the author legislation. They are: the payment of profit got by a violator because of the violation of authorship or contiguous rights and payment of compensation. As for the methods of protection of copyright they depend on whether these rights are property or nonproperty.

The violator of copyrights can be prosecuted to the civil-legal liability irrespective of the form of the guilt (intention or carelessness), and irrespective of availability or absence of financial or moral damage. Also the violator can be brought to the civil-legal liability regardless his prosecution to administrative or criminal liability. Legal defence is the most widespread and effective method of fight against violation of copyright and contiguous rights. Foundation for prosecution of the violator to the civil liability is bringing in a lawsuit by the author or the legal owner in the civil or economic legal proceeding. It is based on the articles 431, 432 of the Civil code of Ukraine. Copyright registration can substantially facilitate procedure of proving facts in a court, as the registration document contains such important information as the object, the date of invention and the name of the creator.

State registration of copyright must be carefully worded since it may be possible to copy any part of the process or invention not mentioned in the document. If all points of law have been observed the creator of the work or the owner of authorship will be able to protect his ownership applying great variety of civil-legal methods.