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14.02.2019

SPECIAL 301 REPORT 2019 and Ukrainian reforms in Intellectual Property sphere

YULIA SHAPOVALOVA, HEAD OF THE INTELLECTUAL PROPERTY DEPARTMENT

We look forward to the results of the Special Report 301 for 2019, that will be released by the United States Trade Representative (USTR) somewhere around April. According to the results of such a report, the USTR may label countries with the status of Priority Country (PFC) if, according to the results of the verification, such country does not provide adequate protection of intellectual property and does not actively participate in international negotiations to improve it.

In order compose final report, the USTR 301 Special Subcommittee will rely on information from various sources, including public comments on intellectual property from foreign countries and information received in public hearings.

Following the country‘s comments, and public hearing in Washington DC on April 26, 2019, the USTR will publish a Special Report 301 for 2019.

In 2018 Ukraine is on the list of Priority countries. And Since 1998 Ukraine is mentioned annually in the report as a country, where level of protection of intellectual property rights is considered unsatisfactory. In 2013, Ukraine was the only country in this category. Among main  issues that usually mentioned were the low level of copyright protection on the Internet, including piracy in the field of cinematography.  Аt the 2018 report was also emphasized the creation of a National Office of Intellectual Property that was announced in 2018.

As for now, it is possible to make some conclusions about the implemented reforms.

First, President signed decree "On the Establishment of the High Court on Intellectual Property Issues" was, necessity of such institution has been repeatedly mentioned in the Special Reports 301 for different years. The first steps were taken - several stages of the court competition were conducted. However, today the court still does not function. Unfortunately, the date of formation of the court is not defined, and he will begin his work from the day following the day when the head of the Supreme Intellectual Property Court in the newspaper "Voice of Ukraine" published a notice on the commencement of the court. 

Another important step is the adoption of the Law on the Effective Management of the Rights of Owners in the Sphere of Copyright and (or) Related Rights. The advantages of this law are a better regulation of the activities of collective management organizations and the mechanisms for rendering services by copyright holders in relation to royalty collection.

The Law on State Support of Cinematography in Ukraine was also adopted. Adoption of Law on Copyright and Related Rights, introduced procedures such as «notice and take down" procedure in the United States. The "notice and take down" procedure is aimed at preventing infringements of copyright on the Internet by filing a complaint. In particular, such a procedure is enshrined in the American Digital Millennium Copyright Act. In short, it provides the opportunity for right holders to file a complaint if they believe that the content violates its rights. The service provider blocks such content and sends a notification to the person who posted it. In return, the person placing the content has the right to file a counter-notification, which must contain a statement that it is familiar with the responsibility for knowingly provided false information with the submission of the address and consent to a judicial summons.

In Ukrainian analogue of «notice and take down" it is necessary to perform "a few simple steps". It is hard to name the procedure of termination of copyright infringement be Internet easy. Firstly, filing an application can be done exclusively by a lawyer, Other formal requirements, include the submission of copies of documents, etc., requirement the response by the service provider within 48 hours with possibility of prolongation. In addition, only a short comprehensive list of objects can be protected by this method, such as: audiovisual works, musical works, computer programs, videogames, phonograms, broadcasting (programs) of broadcasting organizations.

The last step worth to be mentioned  is  the establishment of the National Office of Intellectual in particularly the State Organization "National Office of Intellectual Property" - the NPI established by order of the Ministry of Economic Development and Development of Ukraine No. 718 dated May 24, 2018, the creation of a state organization "National Office of Intellectual Property" and the approval of its statute. However, its creation has caused public indignation, after publication of statute, according to it, the authority of the NPI is to raise funds for paid activities in the sphere of IP. At the same time, in accordance with the Resolution of the Cabinet of Ministers of Ukraine dated August 23, 2016, No. 632-p "On Approval of the Plan of Measures to Implement the Concept of the Reform of the State System of Legal Protection of Intellectual Property in Ukraine", provision was made for the creation of a National Intellectual Property Authority. For today, it is still unknown how the National Office of Intellectual Property the founder by is the Ministry of Economic Development and Trade will operate.

To sum up, as you can see, some steps ware made, but the effectiveness of these actions is often questioned. It seems that Ukraine is rather declaring reforms on paper than implement, significant changes to the entire mechanism of protection of intellectual property. Such examples of  “effective implementation” could be mentioned: increase in the registration of marks for goods and services for almost two years, the absence of certification of patent attorneys for two years, the lack of the ability to fully use the mechanism of copyright protection on the Internet, the absence of practitioners or patent attorneys  in the declared list of candidates the position of the judges of the Higher Court on Intellectual Property. Finally, the lack of implementation of the rules of the Association Agreement with the European Union to Ukraine legislation.

So, we are waiting for the Special 301 Report 2019 to know how our reforms in the United States have been valued.