REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 12 N° 34, 2021

Yevhen Leheza // Social and civil aspect of intellectual property regulation in Ukraine, 206-223

DOI: http://dx.doi.org/10.46925//rdluz.34.13

Social and civil aspects of intellectual property regulation in

Ukraine

Yevhen Leheza *

Anzhelika Pylypenko **

Larysa Svystun ***

Oksana Zuieva ****

Inna Yefimova *****

ABSTRACT

The purpose of the research. They are considered relevant issues of the administrative and legal

situation of subjects of special competence in relation to public administration in the field of

intellectual property. Main content. A circle of specific subjects in the public administration

system is determined. It identifies the role of subjects of special competence in the

performance of the tasks of public administration in the field of intellectual property. The

classification of subjects of special competence in the public administration is presented.

Methodology: Analysis of documentary sources; the basis is the dialectical method of

knowledge of the facts of social reality, on which the comparative formal and legal

approaches are largely based. Conclusions. Conclusions are drawn on the place of subjects of

special competence in relation to public administration in the field of intellectual property.

Proposals are made on the need to improve existing legislation in Ukraine on intellectual

property.

KEY WORDS: Civil law; copyright; intellectual property; private law.

*

Professor at the Department of Administrative and Customs Law, University of Customs and

Finance, Dnipro, Ukraine. ORCID ID: https://orcid.org/0000-0001-9134-8499. Email:

yevhenleheza@gmail.com

**Associate Professor, University of Customs and Finance, Dnipro, Ukraine.

https://orcid.org/0000-0003-2592-7331. Email: angel.pyl.phd@gmail.com

*

**Associate Professor, University of Customs and Finance, Dnipro, Ukraine.

https://orcid.org/0000-0003-2020-8354. Email: lara.svistun@gmail.com

*

***Candidate of Juridical Sciences, Associate Professor of the Department of Civil, Commercial

and Environmental Law University of Customs and Finance, Dnipro, Ukraine, ORCID ID:

https://orcid.org/0000-0001-8054-1509. Е-mail: oksana_zueva@i.ua

*

****Candidate of Legal Sciences, Associate Professor Associate Professor of the Department of

Criminal Law Disciplines and Law Enforcement of the University of Customs and Finance,

Dnipro, Ukraine. https://orcid.org/0000-0003-4591-9734. Е-mail: inka_vitaminka@i.ua

Recibido: 18/06/2021

Aceptado: 03/08/2021

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DOI: http://dx.doi.org/10.46925//rdluz.34.13

Aspectos social y civil de la regulación de propiedad intelectual en

Ucrania

RESUMEN

El propósito de la investigación. Se consideran cuestiones relevantes de la situación

administrativa y jurídica de los sujetos de especial competencia en relación con la

administración pública en el campo de la propiedad intelectual. Contenido principal. Se

determina un círculo de materias específicas en el sistema de la administración pública. Se

identifica el papel de los sujetos de especial competencia en el cumplimiento de las tareas de

la administración pública en el ámbito de la propiedad intelectual. Se presenta la clasificación

de materias de especial competencia en la administración pública. Metodología: Análisis de

fuentes documentales; la base es el método dialéctico de conocimiento de los hechos de la

realidad social, en el que se basan en gran medida los enfoques legales formales y legales

comparados. Conclusiones. Se extraen conclusiones sobre el lugar de los sujetos de especial

competencia en relación con la administración pública en el campo de la propiedad

intelectual. Se formulan propuestas sobre la necesidad de mejorar la legislación vigente en

Ucrania en materia de propiedad intelectual.

PALABRAS CLAVE: Derecho civil; derechos de autor; propiedad intelectual; Derecho

privado.

Introduction

Issues of determination of the administrative and legal status remain today relevant in

relation to a number of unresolved theoretical and practical issues in this sphere. And despite

the intensity and a wide range of research devoted to various aspects of these problems, many

issues in this field are still controversial. Meanwhile, the strength of the foundation for the

innovative development model, its modernization, increase of competitiveness in the world

socio-economic system depend on the resolution of the problem of creating an effective

system of subjects of public administration in the field of intellectual property in Ukraine,

with a clear definition of their administrative-legal status. And on this, in turn, - the

prospects of creating jobs in newindustries that are the face of the world economy of the XXI

century - a knowledge-based economy.

A special place in the system of subjects of public administration in the sphere of

intellectual property is occupied by state authorities with special powers in this field.

Therefore, execution of mostly the same function of public administration is laid upon

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subjects of special (functional) competence, which includes authorities performing

executive, supervisory, regulatory, and registration-authorization functions. These

authorities provide for the implementation of state policy in a certain sphere, conduct

management on issues of common interest to all or many sectors of the economy. Subjects of

special competence in relation to public administration in the field of intellectual property

should include those who, along with the performance of their main functions, also take part

in public administration in the specified field. This group of subjects, depending on the

peculiarities of their administrative-legal status, is divided into law-enforcement, regulatory,

and judicial agencies.

1

. Literature review

The judicial branch is endowed with its own powers on public administration in the

field of intellectual property, and as a result of its reformation, there were principal changes

Petrenko etc, 2015). The fact is that over the last years, the idea of deepening the

(

specialization of courts in intellectual property disputes was actively discussed in Ukraine,

and in this regard two main points of view were formed: to create a separate specialized court

(

Koval, 2016). The State Judicial Administration, in agreement with the Supreme Council of

Justice, by its order determined the number of judges in a new court - twenty-one posts.

According to domestic experts, the very formation of a separate abovementioned court will

contribute to solving the problem of delimitation of the jurisdiction of courts in the

consideration of cases on issues of intellectual property and, accordingly, will ensure the

application of the same and correct judicial practice in resolving relevant disputes. Also, the

creation of this court will be aimed at building an effective intellectual property rights

protection system taking into account international standards and, in addition, will improve

the investment attractiveness of our state (Leheza etc, 2020).

Until recently, around ninety specialized courts were operating in the world. This

trend is related, first of all, to the development of public relations in the field of intellectual

property, as well as the entry of countries in which such courts exist, to the World Trade

Organization (WTO) (although accession to it and the accession to the Agreement on Trade-

Related Aspects of Intellectual Property Rights (TRIPS) do not oblige countries to set up

relevant specialized courts, and many states make such decisions on their own initiative).

The names of specialized courts on intellectual property are different in different countries

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of the world. For example, in Germany, this court is called the Federal Patent Court, while

in Japan - the Intellectual Property High Court. However, the title is not the only aspect that

distinguishes specialized courts in this area. First of all, it is about jurisdictional differences.

Thus, intellectual property courts in Austria, the United Kingdom, Ireland, and Switzerland

are based on the use of standards of the civil process, while there is a combination of

standards of administrative and civil processes in Germany, and only administrative in

Sweden (Kolesnikova etc, 2016).

The norms regarding the jurisdiction of the High Intellectual Property Court contain

the newly revised Commercial Procedure Code of Ukraine (hereinafter referred to as the CPC

of Ukraine). In accordance with paragraph 2 of Art. 20 of the CPC of Ukraine, the newly

formed court will consider the case at first instance: in disputes concerning the rights to an

invention, utility model, industrial design, trademark (mark for goods and services),

commercial name, and other intellectual property rights, including the right of prior use; in

disputes concerning registration, record of intellectual property rights, invalidation,

extension of validity, previous cessation of patents, certificates, other acts that certify or on

the basis of which such rights arise, or violate such rights or related legitimate interests;

recognition of a trademark as well-known; in disputes concerning the authors’ rights and

related rights, including disputes over collective management of proprietary rights of the

author and related rights; in disputes regarding the conclusion, modification, termination,

and execution of an agreement on the disposal of intellectual property rights, commercial

concessions; in disputes arising out of relations associated with the protection against unfair

competition in relation to: the misuse of marks or goods of another manufacturer; copying

the appearance of the product; collection, disclosure, and use of commercial secrets; appeal

against decisions of the Antimonopoly Committee of Ukraine on issues specified by this item

(

Zaitseva, 2015).

Also, the High Intellectual Property Court will include the Appeals Chamber on

Intellectual Property, which, according to paragraph 3 of Art. 25 of the CPC of Ukraine will

review the decisions made by this court on appeal. Consequently, consideration of cases on

intellectual property issues will be carried out in accordance with the rules of commercial

court proceedings. At the same time, this will happen with certain peculiarities, in particular:

the parties to the relevant disputes will be not only business entities (legal entities and

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individual entrepreneurs) but also ordinary individuals; state authorities and local self-

government bodies will also take part in disputes concerning the invalidation of acts of such

bodies that violate intellectual property rights; collective consideration of cases is being

introduced (Vatsyk, 2017).

2

. Materials and Method

Research of materials and methods based on the analysis of documentary sources and

regulatory legal acts of foreign countries. The dialectical method of cognizing the social

reality facts is the basis on which the formal legal and rather-legal approaches are largely

based. The formal-dogmatic method contributed to the development of the authors'

explanation of the current state, problems, problems and practical role of legal technologies

for the further development and improvement of intellectual property. The formal-legal

method made it possible to suggest directions and types of use of legal technologies as

perspectives of intellectual property.

3. Results and discussion

3.1. Administrative-legal status of regulatory authorities - subjects of public

administration in the field of intellectual property

The main difference between the subjects of public administration that are a part of

the group of regulatory actors from law enforcement bodies is that their defining function is

the control function, which, as noted above, already belongs to secondary law enforcement

functions. At the same time, the law-enforcement nature of the control function is connected

primarily with the fact that the regulatory bodies, acting as an integral part of the state

apparatus, act in the name of and on behalf of the state and exercise control over the

observance of legality in one or another field of state activity. An essential feature of the

activities of the controlling bodies and, in particular, those bodies operating in the field of

public administration in the sphere of intellectual property is the fact that the scope of

control activity and authority of the latter extends to objects regardless of their departmental

subordination. That is, regardless of who owns, uses, or disposes of intellectual property

rights, it can become subject to control by the controlling authority. Their number is quite

significant, and the following can be attributed to the list of controlling agencies that carry

out public administration in the field of intellectual property: the Antimonopoly Committee

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of Ukraine, the State Fiscal Service of Ukraine (hereinafter - SFSU), the State Service of

Ukraine for Food Safety and Consumer Protection (hereinafter - SSUFSCP), Ukrainian

Institute for Plant Variety Examination, State Service of Ukraine for Geodesy, Cartography

and Cadastre (hereinafter - SSUGCC), Ministry of Health of Ukraine, Ministry of Culture of

Ukraine, Ukrainian State Film Agency, Ministry of Ecology and Natural Resources of

Ukraine, as well as State Property Fund of Ukraine (hereinafter - SPFU).

In particular, the Antimonopoly Committee of Ukraine has a significant influence on

the activities of economic entities. Acting as a central executive body with a special status, it

protects the interests of business entities from unfair competition related to the unlawful use

of intellectual property objects in relation to the misuse of commercial designations, the

unlawful use of goods by another manufacturer, and copying the appearance of the product.

The Antimonopoly Committee of Ukraine exercises state control over the compliance with

legislation on protection against unfair competition. In accordance with the Law of Ukraine

«

On Protection Against Unfair Competition», unfair competition is a way of violating the

right of intellectual property, which is any action in a competition that is contrary to trade

and other honest practices in economic activity (Official site of the Verkhovna Rada of

Ukraine, 1996). The actions that are recognized as unfair competition and violate the right of

intellectual property are: unlawful use of the business reputation of the business entity (use

of the name, commercial (corporate) name, trademark (mark for goods and services),

promotional materials, the registration of packaging of goods and periodicals, other marks

without the permission (consent) of an entity that has previously started using them or

similar marks in economic activities that led or may result in confusion with the activity of

this entity), creation of obstacles to business entities in the process of competition

(

introduction into economic circulation under its mark of goods of another manufacturer by

changing or removing the marks of the manufacturer without the permission of the

authorized person, reproducing the appearance of the product of another entity and

introducing it into economic circulation without a single indication of the manufacturer of a

copy that may lead to confusion with the activity of another entity), and the achievement of

unlawful competitive advantages and improper collection, disclosure, and use of commercial

secrets.

Measures on public administration in the field of intellectual property in the process

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of foreign economic activity and prevention of movement across the customs border of

Ukraine of counterfeit is used by the State Fiscal Service of Ukraine (SFSU) - an authority

that implements state tax policy, state policy in the field of state customs affairs, state policy

on administering a unified contribution for compulsory state social insurance, state policy in

the field of combating offenses in the application of tax, customs legislation, as well as

legislation on issues of payment of unified contribution. In the machinery of the SFSU, the

aforementioned function is assigned to the Office for Organisation of Customs Control and

Registration of the Customs Department, which includes the Division for the Protection of

Intellectual Property Rights and Export Control. The SFSU, in accordance with its functions,

ensures the keeping of the customs register of intellectual property, which, based on

statements of owners of property rights to intellectual property, includes already more than

1

.5 thousand objects. According to the European Union, 25 million products are falsified

annually. With the development of technologies, counterfeits are being improved, therefore,

the issue arises about setting up continuous training of customs officers, improving control

facilities, and creating special units at the customs border to counteract counterfeit goods.

Countering offenses in the field of intellectual property is also a part of the functions

of the State Fiscal Service of Ukraine (SFSU). In accordance with the Resolution of the

Cabinet of Ministers of Ukraine on May 21, 2014, N° 432, the main tasks of the SFSU include

the adoption of measures to protect intellectual property rights in the process of foreign

economic activity, preventing the movement of counterfeit goods through the customs

border of Ukraine (Official site of the Cabinet of Ministers of Ukraine, 2014). In particular,

for import into the customs territory of Ukraine or export outside this territory of goods

intended for industrial or other business activities, with violation of the intellectual property

rights protected by law (Part 1 of Article 476 of the Customs Code of Ukraine), as well as in

case of import into the customs territory of Ukraine or the export of counterfeit goods from

this territory.

The list of grounds for suspending the customs clearance of goods, in respect of which

the right-holder has not been filed an application to promote the protection of his/her

property rights to the intellectual property, on the initiative of the body of incomes and fees,

the Cabinet of Ministers of Ukraine, included: submission to the customs authority or to the

State Customs Service of a statement of a person who, according to the law, owns property

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rights to an object of intellectual property rights not included in the customs register of

objects of intellectual property rights or a person acting on his/her behalf within the limits

of the given powers; received information on violation of intellectual property rights from

law enforcement and controlling agencies, customs authorities of Ukraine and other

countries, international organizations, whose competence includes protection of intellectual

property rights; declaring a product with a trademark that is different from the trademark

available in the customs register only by some elements and is similar to it in such a way that

they can be confused (Official site of the Cabinet of Ministers of Ukraine, 2012). Thus, the

activities of the SFSU in the area of countering the violation of intellectual property rights

are aimed primarily at preventing the said offenses in the foreign economic activity of our

country and stopping the movement of goods that were manufactured in violation of

intellectual property rights through the customs border. In case of detection of violations of

intellectual property rights in other spheres, the SFSU submits relevant materials to the law

enforcement agencies as appropriate.

The next subject of public administration in the field of intellectual property of a

special competence is the State Service of Ukraine for Food Safety and Consumer Protection

(

hereinafter - SSUFSCP), which is the central executive body whose activities are directed

and coordinated by the Cabinet of Ministers of Ukraine through the Minister of Agrarian

Policy and Food and which implements state policy, including in the field of protection of

plant variety rights through the implementation of state supervision (control) in this area.

The SSUFSCP, in accordance with the tasks entrusted to it, generalizes the practice of

applying legislation on matters within its competence, develops proposals for the

improvement of legislative instruments, acts of the President of Ukraine, the Cabinet of

Ministers of Ukraine, laws and regulations of ministries and, in the prescribed manner,

submits them to the Minister, who ensures the formation of state policy in the relevant field.

In particular, in the field of plant variety rights protection, the SSUFSCP organizes and

conducts state supervision (control) of: compliance with the requirements of the legislation

on the protection of rights to plant varieties in the field of production, use, storage, sale, and

reproduction of planting material of plant varieties; preservation of plant varieties,

registration of licensing agreements for their use and payment of royalties; conducting

primary seed growing by owners of proprietary rights of intellectual property and supporters

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of plant varieties; acquisition of rights to plant varieties and their registration; import of

planting material (seeds) of unregistered plant varieties in Ukraine; the observance of the

personal non-property right of authorship to the variety, the property right of the holder of

the variety, the right of prior use and the right to renew the rights to a variety, the right to

spread the variety in Ukraine, the rights of the author of the variety in the event of the owner’s

refusal from the property right to the variety, the order of removal from Ukraine of the

planting material (seeds) of plant varieties containing an object of intellectual property,

requirements of an agreement between the employer and the author of the variety for the

payment of fair remuneration (Official site of the Cabinet of Ministers of Ukraine, 2015).

Effective public administration in the field of the protection of plant variety rights is

impossible without the availability of appropriate examination facilities (due to the fact that

crop production (along with animal husbandry) is traditionally considered as a leading

branch of agriculture since the products of this industry form the basis for ensuring food

security of the state), a leading role among which is played by the Ukrainian Institute for

Plant Variety Examination, established in June 2002 through the reorganization of the State

Centre for Certification, Identification, and Quality of Plant Varieties of the State

Commission for Testing and Protection of Plant Varieties of the Ministry of Agrarian Policy

and Food of Ukraine. The Institute is the basic research institution of the state system of

protection of rights to plant varieties, which priority research areas are the implementation

of projects in the field of protection of rights to plant varieties and conduct of state scientific

and technical expertise of plant varieties as objects of intellectual property.

Separate powers regarding the public administration in the field of intellectual

property are entrusted to the State Service of Ukraine for Geodesy, Cartography and

Cadastre (SSUGCC), which, in accordance with the tasks entrusted to it: coordinates the

activities related to the establishment, standardization, accounting, registration, use, and

preservation of geographical names; organizes an appropriate examination of geographical

names; provides for the creation and maintenance of the State Register of Geographical

Names, controls the use and preservation of geographical names; defines stable geographic

features on the territory of Ukraine; carries out in the established manner the definition of

the boundaries of geographical areas, which are associated with special properties, certain

qualities, and other characteristics of goods, and provides relevant conclusions (Official site

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of the Cabinet of Ministers of Ukraine, 2017).

Among the wide range of tasks entrusted to the Ministry of Health of Ukraine, it

carries out the formation of state policy in the field of protection of intellectual property and

access to medicines (Official site of the Cabinet of Ministers of Ukraine, 2015). This ministry

is also a specially authorized body for the definition and control of special properties, certain

qualities, and other characteristics of goods in relation to food, food raw materials, and

mineral waters.

As the subject of public administration in the field of intellectual property of special

competence, the Ministry of Culture of Ukraine (MCU) is responsible for the formation of

state policy in the field of cinematography, culture, and arts, cultural heritage protection,

export, import, and return of cultural property, state language policy, restoration and

preservation of national memory, and also a specially authorized body for the determination

and control of special properties, certain qualities, and other characteristics of products of

folk artistic crafts. Although until recently, economic growth has been associated with

technological and innovative development in technical fields (industrial society), with

Ukraine’s choice of the transition to the information society (post-industrial society), the

sphere of culture goes to a qualitatively new level of development and communications. The

provision of cultural services is increasingly turning into a «cultural industry» in which

various goods and services are created and distributed. Culture encourages creativity and

innovation. In this context, the important task of the Ministry of Culture should be the

activation and strengthening of unique local traditions and customs, encouraging the process

of revival and development of traditional Ukrainian folk crafts.

The Ministry of Culture exercises separate powers regarding public administration in

the sphere of intellectual property through the Ukrainian State Film Agency subordinate to

it. This body issues national certificates for the right to distribute and display films and, in

carrying out this activity, takes measures to protect intellectual property rights, implement

copyright and related rights.

The State Property Fund of Ukraine (SPFU), the central executive body with a special

status, implements state policy in the field of privatization, lease, use, and alienation of state

property, and the management of state-owned property (Official site of the Cabinet of

Ministers of Ukraine, 2011). In the field of appraisal of property rights to objects of

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intellectual property right, the SPFU organizes training of appraisers, in particular, approves

requirements to heads of entities of appraisal activity and appraisers, approves the

composition and procedure of the examination committee for the training of appraisers in

the direction «Estimation of integral property complexes of shares, securities, property rights

and non-property assets, including assessment of rights to intellectual property objects),

organizes their work, approves training programs and examinations.

Ministry of Ecology and Natural Resources of Ukraine, acting as the subject of public

administration in the field of intellectual property of a special competence, is the main body

in the system of central executive authorities in the formation and implementation of state

policy in the field of environmental protection, environmental and, within its competence,

biological, genetic, and radiation safety, waste management, including radioactive,

pesticides, and agrochemicals (Leheza etc, 2021).

The Concept of the High Intellectual Property Court, however, contains a number of

problematic issues. The first is the territorial remoteness of the High Intellectual Property

Court since it will be located exclusively in the city of Kyiv, which naturally will cause the

problem of access to this court by the majority of ordinary citizens of Ukraine. Secondly,

there is a lack of ex parte proceedings in the CPC of Ukraine. In particular, the issue of the

procedural mechanism of recognition of a trademark as well-known, which in any

circumstances cannot be actionable, is not solved. The third problem is the problem of the

professionalism of future judges - the Specialized Intellectual Property Court should unite

people with both experience in this area and the corresponding special education (special

knowledge). However, the legislator has for some reason decided that persons who may not

have either the first one or the other can work in the High Specialized Court. This applies,

first of all, to judges who have only a requirement for three years’ service as a judge. In this

case, such experience in the field of intellectual property or consideration of other disputes

does not matter. And finally, fourthly, the negative aspect seems to be the lack of a specialist

(

advisor) in the court process, who has special knowledge of the practice of applying

intellectual property law, as the new version of the CPC of Ukraine makes participation of a

specialist in the process limited only by court assistance in the use of technical means. In this

regard, according to a part of the scientists, it is expedient to introduce such a specialist, who

could be involved in court in order to assist in establishing the actual circumstances of the

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case, providing oral advice or explanations (Zakharenko, 2014).

3.2. Administrative-legal status of law enforcement authorities - subjects of public

administration in the field of intellectual property

Law enforcement authorities, which should include only those specifically created by

the state to carry out any main law enforcement function under a clearly established law

procedure, are endowed with important powers regarding public administration in the field

of intellectual property. It is precisely this line of activity for the law enforcement authority

to be the principal (main or priority) activity. Thus, based on the above, the system of law

enforcement authorities of Ukraine may have the following form: Security Service of Ukraine,

prosecution authorities, internal affairs bodies of Ukraine, State Fiscal Service of Ukraine,

Department of State Guard of Ukraine, State Penitentiary Service of Ukraine, National Guard

of Ukraine, and state border guard authorities. The analysis of the statutory enactments,

which secure the legal status of these state law enforcement institutions, namely their tasks,

functions, and powers, testifies that some of them (the Security Service of Ukraine, the

bodies of the Prosecutor’s Office of Ukraine, the bodies of internal affairs of Ukraine) are

subjects of public administration in the sphere of intellectual property. The most important

difference between their activities in relation to public administration in the field of

intellectual property from the activities of other actors operating in this area is that it is

associated not only with the organization of the protection of rights to intellectual property

objects but with its active form – security (Leheza etc, 2018).

In accordance with the Law of Ukraine «On the Security Service of Ukraine) (Official

site of the Verkhovna Rada of Ukraine. 1992), the security service participates in the

development and implementation of measures to ensure the protection of state secrets (in

particular, regarding secret inventions and utility models as objects of intellectual property,

since in accordance with the Law of Ukraine «On Protection of Rights to Inventions and

Utility Models) a secret invention or a secret utility model are objects containing information

classified as state secrets), assistance in preserving commercial secrets (in the manner

prescribed by the law of the SSU, assists enterprises, institutions, organizations, and

entrepreneurs in preserving their commercial secrets, the disclosure of which may harm the

vital interests of Ukraine, is responsible for the state policy on holographic protection of

goods and documents, and carries out state control and coordination of activities in this

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area). In addition, while analysing the powers of the SSU, we also note that, although the

counteraction to the intellectual property offenses does not fall within its direct competence,

the SSU must provide assistance through available forces and means, including technical, to

the National Police bodies, other law enforcement agencies in the fight against offenses,

including violations in the field of intellectual property.

Important functions of the subject of public administration in the field of intellectual

property are carried out by the of Public Prosecutor General’s Office of Ukraine. According

to Art. 1 of the Lawof Ukraine «On Prosecutor’s Office), the prosecutor’s office, in the manner

prescribed by this law, exercises the functions established by the Constitution of Ukraine in

order to protect the rights and freedoms of man, the general interests of society and the state.

In addition, Art. 2 of the Law of Ukraine «On Prosecutor’s Office) establishes its main

functions: maintenance of a state prosecution in court; representation of the interests of a

citizen or state in court in cases specified by law; supervision over the observance of laws by

the bodies conducting operative search activity, inquiry, pre-trial investigation; supervising

the observance of laws during the execution of judicial decisions in criminal cases, as well as

in the application of other coercive measures related to the restriction of personal freedom of

citizens. Due to the fact that the illegal reproduction, replication, and distribution, including

through the implementation of import-export operations, intellectual property objects

violate, as a rule, the rights and legitimate interests of citizens, in accordance with Art. 23 of

the above-mentioned law, the representation by the prosecutor of the interests of a citizen

or a state in court is to carry out procedural and other actions aimed at protecting the

interests of a citizen or a state. A significant role in stopping the illicit circulation of goods

containing objects of intellectual property is played by the interaction between the

departments of the customs service and the prosecutor’s office of Ukraine.

DEPNPU was formed according to the order of the National Police of Ukraine. Among

the functions of the DEPNPU, the use of anti-crime measures in state authorities, property

rights, intellectual property, related to counterfeiting, and also the provision of compensation

for losses caused by these crimes, are separately identified. Similar tasks and functions are

assigned to all the administrations (departments) of the DEPNPU at the local level. Thus,

counteraction to crimes in the field of intellectual property is one of the main functions of the

DEPNPU but this does not affect the structure and specialization of its employees since the

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current structure of the DEPNPU does not provide for separate departments for combating

crimes in the field of intellectual property, which usually significantly reduces the

effectiveness of activities in this area. In practice, operational cases concerning crimes in the

field of intellectual property are transferred for the development to one of the employees of

departments of economic protection at the local level, however, as specialists note, there are

few such cases for today.

Another division of the National Police of Ukraine, which directly deals with

counteracting crimes against intellectual property, is the DCNPU. It was created in

accordance with the order of the National Police of Ukraine. The DCNPU includes the Office

for the Prevention of Crimes in the Sphere of Intellectual Property and Economic Activities

(

OPCSIPEA), which is managed by the Deputy Head of the DCNPU - the head of the

OPCSIPEA. The OPCSIPEA’s structure includes three departments: counteraction to crimes

in the sphere of electronic commerce, counteraction to crimes in the sphere of circulation of

illegal content and telecommunications, and counteraction to crimes in the sphere of

payment systems. Accordingly, the counteraction to crimes against intellectual property

related to the use of computer technologies is a priority task of the DCNPU. Information

reports, presented on the official site of the DCNPU, confirm the effectiveness of the

measures applied in the field of counteraction to crimes against intellectual property. Thus,

according to the report of the DCNPU as of April 30, 2016, the detection of the clandestine

manufacture of counterfeit copies of household chemicals, trademarks as Ariel, Tide, Head

&

Shoulders, Fairy, and Vanish was revealed in Lutsk. And the investigative police unit in

the Rivne region opened a criminal proceeding under Art. 229 of the Criminal Code of

Ukraine, within the framework of which there were established persons involved in the

organization of the said criminal offense, the workers who were engaged in the packaging of

counterfeit, as well as customers, who subsequently realized this counterfeit to citizens

(

Cyber police exposed in Lutsk underground production of household chemicals brands

"

Ariel", "Tide", "Head & Shoulders", "Fairy" and "Vanish": report of the Cyberpolice

Department of the National Police of Ukraine, 2016). Of course, the creation of a special

department in the structure of the National Police of Ukraine to counteract crimes against

intellectual property on the Internet should be considered positive and very relevant,

however, it should also be noted that the activities of these units are more related to the

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stoppage of crimes in the specified area since the specifics of the latter is such that they are

most often manifested by the consequences. Public coverage of the positive experience of

countering cybercrimes related to the violation of intellectual property rights certainly has a

certain preventive effect on persons who are prone to commit crimes in the field of

intellectual property, but at the same time, in our opinion, the staff of the DCNPU should

conduct purposeful development and carry out measures for the prevention of cybercrime

against intellectual property, committed with the help of computer technologies.

The Ministry regularly conducts such operational and preventive measures as the

operation «Intelligence», operation «Pirates», etc., on the development of intellectual

property market subjects, during which one of the priority areas of work is defined as

counteraction to the sales and the manufacture of counterfeit products using signs for goods

and services of well-known Ukrainian and foreign manufacturers, as well as the fight against

Internet piracy (Vyazmikin, 2016).

Conclusions

The system of subjects of public administration in the field of intellectual property is

based on the generally acknowledged theory of state administration of their division into

bodies of general, sectoral, and special competence. The basis of this classification is the

scope and nature of competences in relation to objects of intellectual property, subjects of

intellectual property rights, and functions of their public administration. Subjects whose

competence includes the exercise of all functions related to public administration in the field

of intellectual property in one or another volume, regardless of the type of the object of

intellectual property and the subjects of their use, are bodies of general competence. They,

along with sectoral and special actors, solve other issues of socio-economic development of

the state.

The bodies of special competence ensure implementation of the state policy in one or

several spheres by providing administrative services, state supervision (control), a

generalization of the practice of application of legislation, development of proposals for the

improvement of legislative acts. Executive authorities and their officials, as well as in a

number of cases other entities, which are endowed with state powers that allow the latter to

exercise regulatory influence on social relations, as well as the participants in these relations

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with the aim of organizing the lawful possession, use, and disposal of intellectual property

rights, should be considered as subjects of special competence regarding public

administration in the field of intellectual property. And the determination of their

administrative and legal status will allow creating a reliable system of legal protection of the

results of the intellectual creative activity.

Consequently, today the formation and start of work of the High Intellectual Property

Court contain many unresolved issues of both procedural and organizational nature, which

deepens the already complex task of the functioning of such a judicial branch in the judicial

system of Ukraine.

Thus, public administration activities in the field of intellectual property are one of

the functions of the SSU, the Prosecutor’s Office, and the bodies of internal affairs within

their competence as defined by law. That is, law enforcement agencies of Ukraine act as one

of the subjects of public administration in the field of intellectual property. The necessity of

attracting the latter to the mechanism of public administration of the mentioned sphere is

explained by the widespread occurrence of cases of illegal, even criminal, violation of

intellectual property rights, which requires the presence of a power mechanism for the

prevention and stoppage of such violations.

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