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Foreclosure intellectual property rights in the enforcement proceedings

16/ 02/ 2018

The world is gradually moving to the sixth technological structure, expression is seen today – unmanned vehicles represent 10% of all cars on the roads of the United States conducted the first liver transplant printed on 3D-printer, 30% of corporate audits conducted by artificial intelligence, and with technology blokcheyn kept 10% of world GDP and taxes collected.

We are witnessing an understanding of ownership built on Roman law, rooted in the past.

The world is changing and therefore engenders new social relations associated with technological progress. Therefore, it is essential to construct a modern legal framework by which the state can effectively and efficiently perform their service functions.

Harmonization of law

Gradual expansion of market relations and cooperation Ukrainian businesses require harmonization with international law. In turn, the need for better involvement of intellectual activity in the commercial circuit requires a review of existing doctrines regulation.

Consider the details. The Law of Ukraine “On Enforcement Proceedings” in Article 10 provides for the seizure of the property rights, including corporate rights, intellectual property rights, intellectual creativity, as well as other property and property rights of the debtor.

However, in practice the issue of reclaiming property rights, and particularly on intellectual property rights (hereinafter – IPR) is one of the most controversial.

Ukrainian legislation does not have a separate agenda regulation of foreclosure IPR. In practice, we see the lack of understanding of the real value IPR, contradictory legal regulation IPR turnover and the presence of gaps in legal doctrine regarding sales opportunities IPR.

With the rapid development of technology availability IPR be the foundation of business of the debtor and the exclusive right to publish works – generate substantial revenue.

The causes of foreclosure IPR

To analyze all the problems given topic will focus on the causes of foreclosure IPR – seizure of all assets of the debtor disputes not directly related to intellectual property and foreclosure IPR in disputes relating with (for example, if the collateral IPR to ensure the requirement under the contract).

To date, virtually no legal provisions that regulate the procedure of foreclosure on the property rights of the debtor. Here we are faced with the problems of general legal doctrine, and the question of recognition of property rights as property is one of the most controversial.

Ukrainian legislation provides for appeal enforcement decisions primarily on cash, securities, and on other property. In the absence of the debtor’s other assets except property rights of intellectual property, the bailiff faces a number of issues that require legislative regulation.

The Civil Code of Ukraine in Article 190 provides that property as a special object, is a separate thing, a set of things and property rights and obligations. However IPR is a special category and kind of legal fiction used if necessary contractual relationship.

The very existence IPR not mean complete their possible use, disposal and possession, let alone address them recover.

Position of the European Court of Human Rights interprets the term “property” in the broadest sense, referring not only to the possession of material goods, money and securities, but also possession of intangible assets. The ambiguity of jurisprudence in the protection MPIV also promotes confidence in these rights as assets.

Problems foreclosure under enforcement proceedings

Consider the basic problem of foreclosure under enforcement. The first problem that faced during the execution, direct detection is due to the debtor IPR because not all IP objects entered in the register.

For example, still no register of copyrights. Moreover, even in the case of that IPR belonging to the debtor, the question remains of sales of these rights.

The second and biggest problem is the voluntary registration of contracts.

Thus, the author cannot make work to sell exclusive rights to it for as long as they (law) will not take the material manifestation and impossible to control who and how many of concluded contracts.

The exclusive right to copies of the popular novel is at times more expensive than a single publication rights. However, no further details on the sale at auction could mislead potential buyers.

Also unresolved question of applicable law seizure of counterfeit goods (if there are no agreements for property rights for publication or duplication of the work, it is a counterfeit and is not subject to arrest and description).

The third problem is the limited IPR expiry dates of their health, which in turn can lead to a reduction in the cost of sales by auction and the inability to complete the implementation in the event of the expiration of the protection IPR.

Current legislation does not specify how you want to sell exclusive rights, trade secrets, know-how and other proprietary rights of intellectual property.

In addition to the above, an open question remains non-exclusive sales rights (for example, a single edition of the book) if possible alienation of exclusive rights.

There is no denying the liquidity of such rights as the exclusive right to work, the exclusive related rights, the exclusive patent right, exclusive right to the selection achievement, the exclusive right to the trademark and the exclusive right to commercial designation. These exclusive rights are particularly values the market in terms of IT-services and general business informatization.

In fact, the rule providing for the right to seize the IPR during enforcement proceedings if the dispute is not associated with intellectual property, remains declarative.

Change and development of intellectual property market leads to a gradual introduction into circulation IPR and, consequently, to use them as collateral. In this case, there are questions concerning the procedure of foreclosure on collateral out of court. IPR are urgent in nature, as the validity of the mortgage contract should be limited to a period of such rights.

Artist not actually endowed with a sufficient degree of freedom for the repossession of collateral.

It should also be noted IPR as exclusive property rights nature, is that the transfer of these rights by the owner to another person is possible only on the basis of the agreement in writing in accordance with Art. 1107 Civil Code of Ukraine (in the powers of performers is not included forcing the debtor to the contract on the transfer IPR).

Conclusion

Together with progressive vector of social relations, globalization, introduction of new IT-technology world is changing and therefore legal relationship transformed. The spread of computer technology reduces social and competitive value of logic and, therefore, increases the role of creative and imaginative thinking. And the more we see similarities between the intellectual and private property, the more important is the understanding that a key tool for regulating relations in the field of intellectual property is not only and not so much the exclusive rights as defining their boundaries.

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