More About Intellectual Property

Efficient IP protection must be an integral part of the inno­vation-based growth strategy and prerequisite of economic develop­ment. The book raises a question whether national IP protection meets requirements of innovative economy and able to affect it positively. This issue is examined on example of the United States being the world IP protection leader. Based on comparative analysis of the Ukrainian and U.S. legislation the author concludes that Ukraine has made a progress in adoption of adequate copyright legislation, while national patent protection is full of gaps and collisions.

Comparative analysis brings us to conclusion that the Ukrainian patent system is pretty far from the U.S. standards. Patent registration procedure is not clear and deeply formalized, judicial practice is not developed, compensation for patent infringements is not adequate. Legislative gaps and inconsistencies cause unfavourable conditions for incentive to innovate. The book determines recommendations on how to fill up the existing gaps and illiminate legislative inconsisten­cies of the patent protection.

Software and database, trade names and franchise are not under effi­cient protection in Ukraine. Software and database protection should be subject to both copyright and patent protection. Legislation on fair competition, commercial secrets and civil law should be amended in order to ensure software and database protection. Franchise requires adequate legal framework determining substantial requirements for franchise contracts. Legislation on fair competition should be amended in order to avoid monopolization of the markets by patenting.

To summarize, Ukraine has made a progress in development of the national IP protection system. As part of its efforts to negotiate acces­sion to the WTO, Ukraine has adopted legislation to bring its legislative regime further into compliance with the WTO TRIPS Agreement. De­spite these efforts, however, legal protection and enforcement still re­quire improvement. The abovementioned problems of IP protection system must be resolved in order to ensure competitiveness of the na­tional economy. While eliminating the abovementioned IP protection defects, Ukraine has to provide the national IP system with the legisla­tive provisions ensuring incentive-access tradeoff described in the book.

CONCLUSIONS

1. Globalization has created an economically polarized world. Inequality has served as a necessary component of the global order. Unequal economic growth of the core and periphery is being the major discontent of globalization.

2. TRIPS Agreement is the major global IP agreement establishing uniform IP minimal standards around the world. TRIPS Agreement resulted from lobbying by the private sector actors who had persuaded U.S. government to promote their cause of expanding IP protection. TRIPS Agreement caused important implications for economic deve­lopment of the peripheral states by locking up knowledge vital to the development of poor countries. Thus, TRIPS Agreement negatively impacts innovation, research and development, economic develop­ment and the global division of labor.

3. Despite arguments of the U.S. private sector actors supporting TRIPS Agreement and the U.S. government's promises, not only there is compelling evidence that TRIPS will make the peripheral countries better off, there is also no evidence that countries of the center are making good on their commitments to open their markets more widely to periphery's agricultural and textile exports. In practice, TRIPS em­bedded asymmetrical power relationships and non-consensual values.

4. The book is opposing not the global IP protection itself, but rather the one-size-fits-all approach of the contemporary global IP protection model, implemented by TRIPS, that blocks sustainable de­velopment of the peripheral countries. Globalization of intellectual property by establishing uniform standards around the world raises the problem of tradeoff between the center and periphery and incentive-access disbalance. While uniform IP protection hinders access to knowledge and subsequently negatively affects poor countries, differ­ential global protection (regime that vary depending on economic in­dicators of each state) may become an effective solution for benefiting the peripheral economies.

5. Economic analysis enables IP law to be grasped as a whole and the many commonalities among the different fields and cases to be seen clearly, along with the significant differencies. It enabled the author to determine that expanding IP rights can reduce the amount of new intellectual property and weaken rather than strengthen the in­centives to create new intellectual property. This is explained by the­sis that the broader IP protection is, the costlier the subsequent crea­tion of works and inventions becomes because earlier ones are inputs into later ones.

6. The optimal scope of IP protection is supposed to ensure incen­tive-access tradeoff which means that IP rights-holders get high in­comes, and public access to intellectual property contributes to crea­tion of new intellectual property. Incentive-access tradeoff should be achieved by application of particular legislative provisions balancing the private (IP rights-holders') and public (society's) rights and inte­rests.

7. Incentive-access tradeoff is ensured by legislative provisions of patent law and copyright. These legislative tools must be a part of na­tional legislation. In case of patent protection, incentive-access trade­off is achieved by disclosure of information about invention for patent protection, patentibility requirements and the limited patent duration. Incentive-access tradeoff for copyright is ensured by provisions on copyright duration, fair use, public domain and nonprotection of ideas, theories etc.

8. In order to integrate into the global innovative economy Ukraine should adapt a strategy for economic growth through innovations. This strategy should include support of science and technology by the government (including financial aid, physical installations, and advi­sory services of the government).

9. Efficient IP protection system is required for Ukraine in order to join the global innovative environment. While copyright protection in Ukraine is not far from international standards, the national patent system requires substantial improvements. Patent registration proce­dure should be simplified, a special IP court should be created, lack of the qualified IP specialists must be filled up, etc. Numerous legislative gaps and inconsistencies (including protection of software and data­base, trademarks, fair competition, franchise etc.) require adequate law regulation. Finally, the piracy problem causing the U.S.-Ukraine conflict and undermining the Ukraine's economy must be resolved without delay.

10. The abovementioned problems of IP protection should be re­solved in order to ensure competitiveness of the national economy and to bring the Ukrainian IP protection system in compliance with re­quirements of globalization. This should be done with consideration of the legislative provisions ensuring the incentive-access tradeoff des­cribed in the book.

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