Anna Polin
Master TSIL.
MODERN TRENDS IN INTELLECTUAL
PROPERTY LAW IN THE REPUBLIC OF UZBEKISTAN.
Among the important factors of economic
development in countries with economies in transition are the creation and
implementation of new technologies based on the achievements of world science
and technology. Problems related to legal protection, use and evaluation of
intellectual property in its commercial applications are new to the Republic of
Uzbekistan has chosen a path of renewal and progress[1].
The transformations in Uzbekistan
initiated after independence, significantly influenced the development of the
country's science, engineering and technology. Today Uzbekistan is a major
research center with a good research base and its own scientific world-class
schools. Developed a fundamentally new approach to economic growth and
technological development, based on the expansion of international economic
relations and integration into the global economic system. The main conditions
for such integration is an effective system of legal protection for innovation
and commercialization, as well as the development of intellectual property
market.
In the anti-crisis program of
measures developed on the initiative of President Islam Karimov and
consistently implemented, special attention is paid to the modernization of
enterprises, further enhancing their technical and technological re-equipment,
the widespread introduction of modern and adaptable technology. These problems,
of course, associated with the development of innovation and its effective
implementation in practice.
Thus,
for this purpose was accepted by the President "On additional measures to
stimulate innovative projects and technologies in production"[2].
Western analysts are paying attention and
interest developed in Uzbekistan with the principles and approaches of the
development of innovative processes in a transition economy, which in the
future, can be successfully applied in practice in other countries. Aroused
such interest among the Western scientific world reports of Uzbek scientists as
Professor Mamajanova H.[3],
Professor A. Asimov[4],
Dr. A. Ibragimov[5],
in which they reveal the actual problems in the field of protection and
valuation of intellectual property.
Given the specificity of the national
economy and international experience developed an original mechanism of
regulation of innovation processes[6].
On this basis, the State Science and Technology Committee of the Republic of
Uzbekistan jointly with industry bodies formed a number of scientific and
industrial centers of innovation for the creation and development of advanced
high technologies involving experts from research institutes and universities.
Development of Intellectual Property
was due to the need to attract the country's economy the most advanced domestic
and foreign technologies, the formation of small and medium businesses. Small
and medium-sized businesses, producing products based on innovation, the
government has provided great benefits, including tax[7].
Since 1993, Uzbekistan is a member of the
World Intellectual Property Organization and acceded to key international
conventions and agreements in this area, as the Convention establishing WIPO[8],
Paris Convention[9],
Berne Convention[10],
Madrid Agreement[11],
the Patent Cooperation Treaty (PCT)[12],
Treaty Trademark Law (TLT)[13];
Budapest Treaty[14],
the Nice Agreement[15],
the Strasbourg Agreement[16].
In March 2006 the laws on Uzbekistan's
accession to the Patent Law Treaty[17]
and the Locarno Agreement[18],
which will contribute to the protection of domestic developments abroad and
externally - the economic activity of exporters, as well as attracting foreign
investment in the national industry.
The process of globalization of the
economy of the Republic of Uzbekistan today compels to work together, as the
commercialization of innovation across the global markets is impossible without
the development of common approaches to the protection and intellectual
property valuation, to work with patents and licensing trade. Also, due to the
fact that intellectual property has great potential as a powerful instrument of
economic development, especially for the current economy, based on knowledge[19].
That is why the protection of intellectual property today is an urgent problem
in the world and has become not just a legal or business matter, but the
question of an economic nature.
As
a result of a comprehensive intellectualization of the modern world economy,
this problem becomes the problem of macro-economic scale, and requires a
strategic approach to its solution. It is important to bear in mind that has
already formed a global regulatory framework for intellectual property
protection. The solution of the problem of creating an effective system of
intellectual property protection, durability depends on the foundation of an
innovative development model of Uzbekistan, its modernization and
competitiveness in the global economic system, as well as prospects for job
creation in new industries. In turn, this is a question of a civilized market
environment in which entrepreneurs, and consumers would be protected from
unfair competition related to the misuse of intellectual property, production
of counterfeit goods.
The main priority of the Government in
this area is a reliable protection of the interests of owners of intellectual
property rights.
[1] www.patent.uz.
[2] Resolution of the
President of the Republic of Uzbekistan "On additional measures to
stimulate innovative projects and technologies in production" on July 15,
2008, № 916.
[3] Mamajanova JM status
and prospects of development of legal frameworks and methodological approaches
to the evaluation of intellectual property. (Center for project analysis and
market research). www.cps.uz.
[4] Asimov's Strategy
of the State Intellectual Property Protection in the Republic of Uzbekistan
(State Patent Office). www.patent.uz.
[5] A. Ibragimov
commercialization of high technologies in Uzbekistan: practice and problems,
(Agency Technology Transfer). www.ieguzexpo.com
[6] The process of
creation, development and diffusion of innovation is innovation or the
innovation process.
[7] www.cagateway.org
[8] Convention
Establishing the World Intellectual Property Organization, ot14 July 1967
(amended October 2, 1979), Stockholm.
[9] The Paris
Convention for the Protection of Industrial Property of March 20, 1883
(revised: in Brussels, December 14, 1900, in Washington, June 2, 1911, in The
Hague, November 6, 1925, in London June 2, 1934, in Lisbon, 31 October 1958 and
in Stockholm on July 14, 1967, and amended October 2, 1979 October 2, 1979 g)
[10] Berne Convention for the Protection of
Literary and Artistic Works of September 9, 1886 (completed at Paris on 4 May
1896, revised at Berlin on November 13, 1908, completed at Berne, March 20,
1914 and revised in Rome on June 2, 1928, in Brussels, June 26, 1948, in
Stockholm, July 14, 1967 in Paris, July 24, 1971, as amended September 28,
1979).
[11] Madrid Agreement Concerning the
International Registration of Marks of April 14, 1891. (Revised in Brussels on
December 14, 1900, in Washington on June 2, 1911. In The Hague, November 6,
1925, in London on June 2, 1934, in Nice on June 15, 1957 city, and at
Stockholm on July 14, 1967).
[12] The Patent
Cooperation Treaty (PCT) on June 19, 1970 (revised October 2, 1979 and 3
February 1984), Washington, DC.
[13] The Patent
Cooperation Treaty (PCT) on June 19, 1970 (revised October 2, 1979 and 3
February 1984), Washington, DC.
[14] Budapest Treaty on
the International Recognition of the Deposit of Microorganisms for the Purposes
of Patent Procedure, April 28, 1977, Budapest.
[15] Nice Agreement
Concerning the International Classification of Goods and Services for the
Registration of Marks of June 15, 1957, Nice (as revised at Stockholm on July
14, 1967 and is being in Geneva May 13, 1977).
[16] Strasbourg
Agreement Concerning the International Patent Classification of March 24, 1971,
Strasbourg.
[17] Law of the Republic
of Uzbekistan on the accession of the Republic of Uzbekistan to the Patent Law
Treaty, adopted by the Diplomatic Conference on June 1, 2000. in Geneva from
March 15, 2006, N-LRU 25.
[18] Law of the Republic of Uzbekistan on the
accession of the Republic of Uzbekistan to the Locarno Agreement Establishing
an International Classification for Industrial Designs, signed at Locarno on 8
October 1967., On March 11, 2006
[19] www.unescap.org
Anna Polin
Master TSIL.
The
most relevant aspects of intellectual property market in the Republic of
Uzbekistan
Uzbekistan currently has a policy, part of
which is the creation of intellectual property market.
The most relevant aspects of
intellectual property market are reduced to the following issues:
Uzbekistan is negotiating to join the WTO. In
this regard, especially the most important is to be ensure in the protection of
intellectual property rights.
Since independence, in the Republic of
Uzbekistan has been greatly developed legal framework in the field of public
relations. Adopted a number of fundamental laws, a system of regulations, which
implements them in practice, and this reflects the issues of copyright,
neighboring rights, industrial property, trademarks and other intellectual
property rights[1].
In addition, based on the legal framework in the field of intellectual property
protection on the following principles[2]:
- The priority of international law and
international treaties of the Republic of Uzbekistan;
- Equality between
foreign and domestic applicants;
- Free choice of the
States in which protection is sought;
- The action of a
certain territory, and for a specified period;
- Consolidation of priority
(12 months);
- The free disposal of
exclusive rights.
Moreover, the Law of the
Republic of Uzbekistan "On foreign investments and guarantees for foreign
investors" defines legal, organizational and economic framework for the
use, along with financial and material resources of foreign investors, the
results of their intellectual and creative activity, modern foreign
technologies and managerial expertise to promote economic development Republic
of Uzbekistan, its integration into the global economy[3].
Nowadays are developed a number of
changes to existing legislation that will strengthen the protection of the
interests of owners of intellectual property rights. This will also facilitate
the process of accession of Uzbekistan to the World Trade Organization[4].
Uzbek law also provides
exceptional protection (property or economic) rights of the holder of
intellectual property, which are expressed in the law to use this object of
intellectual property at its discretion, in any form. The use by others of
intellectual property rights in respect of which the holder has the exclusive
right is permitted only with the consent of the copyright holder.
The legislation
contained sanctions and for infringement of intellectual property rights.
Violation of copyright and patent rights in accordance with Article 149 of the
Criminal Code of the Republic of Uzbekistan is referred to crimes against the
constitutional rights and freedoms of citizens. Attribution of authorship,
forced into co-authorship of intellectual property, the disclosure of
information without the consent of the author of these facilities prior to
their official registration or publication shall be punished by a fine,
deprivation of certain rights, corrective labor or arrest.
Other criminal sanctions
plan could be applied in cases of willful violations of intellectual property.
These are the cases of repeated and continuous violation of the rights of
intellectual property, where economic sanctions have been exhausted. In such
cases, the victim has the right to prosecute the offender under the law[5].
There are criminal
sanctions against the collection of confidential scientific and technical,
production and economic information, and any such information without the
consent of the owner of this information[6]. Do not discredit a competitor through the
dissemination of false, inaccurate or distorted information about him to harm
his reputation[7].
These provisions of the
Civil and Criminal Codes of the Republic of Uzbekistan have important economic
and legal significance in assessing the adequacy regime for the protection of
intellectual property rights in terms of the TRIPS (Agreement on Trade-Related
Aspects of Intellectual Property Rights), as the protection of property rights
holders and the recognition of their uniqueness is the main aspect of this
agreement[8]
.
Agreement on
intellectual property rights related to trade (TRIPS) requires compliance with
rules and regulations of the Paris Convention for the Protection of Industrial
Property, Berne Convention for the Protection of Literary and Artistic Works,
the Rome Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations[9]
and the Agreement on Intellectual Property for integrated circuits[10].
In
this regard, the basic requirement of the WTO in this area is the fulfillment
of basic requirements of the above conventions and agreements, the cornerstone
of which is the obligation of countries to provide national treatment to
foreign holders of intellectual property. TRIPS protects a wide range of rights
holders.
In this respect the legislation of
Uzbekistan to expand and specify the rights of holders of intellectual property
rights to be protected as their exclusive rights. The disadvantage of the
system of protection of intellectual property rights in the country under the
TRIPS standards are the lack of clearly defined procedures necessary for the
protection of intellectual property rights and against their violation. This
applies, above all, administrative and criminal legislation and associated
procedural rules, the system of border control.
Based on the foregoing,
it should also be noted that in the protection of intellectual property rights
is necessary to clearly provide for border measures nature carried out by the
customs authorities, as well as measures available to right holders whose
rights are infringed upon the importation of counterfeit goods.
Under TRIPS, Member
States shall provide for criminal penalties in cases of trademark counterfeiting
and copyright piracy. For other types of intellectual property of a country can
impose criminal penalties in cases where the wrongful acts committed
intentionally and carried out "on a commercial scale." Article 149 of
the Criminal Code of the Republic of Uzbekistan aimed at protecting the moral
rights of authors and inventors (forced co-authorship, attribution of
authorship).
In addition, under the
WTO will need to implement an increase in penalties for violations of such
rights in order to ensure an adequate retribution for the damage, the
introduction of rules on administrative responsibility for violation of
intellectual property rights.
The above problems have
to be addressed not only Uzbekistan itself, but all the countries involved in
the modernization and rapid economic development are responsible of resolution
of these problems has not led to slow the momentum of economic development, it
is advisable to consider the introduction of the so-called "transition
period" for use the legislation on intellectual property in the process of
joining republic of Uzbekistan into the WTO.
[1] The Constitution of the Republic of
Uzbekistan (Article 42) / / Law of the Republic of Uzbekistan "On Property
in the Republic of Uzbekistan" dated 31.10.1990, the, № 152-XII / / The
Law of the Republic of Uzbekistan "On inventions, utility models and industrial
designs" on May 6, 1994 , N 1062-XII / / The Law of the Republic of
Uzbekistan "On legal Protection of Topographies of Integrated
Circuits" on May 12, 2001 N 218-II / / Law of the Republic of Uzbekistan
"on legal protection of software for electronic computers and
databases" on May 6 1994 N 1060-XII / / The Law of the Republic of
Uzbekistan "on Trademarks and service name of origin" on August 30,
2001 N 267-II / / Law of the Republic of Uzbekistan "on Copyright and
related Rights" on August 30, 1996 , № 272-I / / Law of the Republic of
Uzbekistan "On selection Achievements" on August 30, 1996 N 270-I.
[3] www.unescap.org
[4] Law of the Republic of Uzbekistan
"On foreign investments and guarantees for foreign investors" from
05.05.94 g, N 1052-XII
[8] TRIPS - the Agreement on Trade
Related Aspects of Intellectual Property Rights (The Tacis Programme -
Intellectual Property Presented by the Delegation of the European Commission in
Russia, December 2001).
[9] Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organizations of 26
October 1967, Rome.
[10] Agreement on Intellectual Property
for the integrated circuits on May 26, 1989, Washington, DC.
Anna Polin
Master TSIL.
Prospects
for the introduction of the institute summary proceedings to the legislation of
the Republic of Uzbekistan.
The objectives of the criminal
proceedings under Article 2 of the CPC of the Republic of Uzbekistan are:
- Rapid and full disclosure of
crimes;
- Expose the perpetrators;
- Ensuring the correct application
of the law so that everyone who commits a crime, was subjected to a just
punishment and no innocent person has been prosecuted and convicted.
In addition, the established
criminal-procedural legislation of the procedure in criminal cases should help
to strengthen the rule of law, prevent crime, protect the interests of the
individual, the state and society.
The above problems are solved
sometimes by the use of coercive measures against the persons suspected,
accused, defendants and other parties to the proceedings, it does not always
apply the measures have a positive result for the warring parties. For example,
at the end of the trial, the defendant does not agree with the verdict of the
court, or vice versa the victim does not agree with the sentence, etc. On the
other side of the criminal process struggling with such anti-social phenomenon
as a crime, uses rigorous methods and techniques at a resolution of criminal
cases is justified. However, in practice, it became possible to resolve the
dispute through "agreement" the parties. As we know, in practice,
such "agreement" of the opposing sides seen with the Institute of
reconciliation. In many countries, as noted above, the agreement of the
opposing sides can be seen with the consent of the accused to the indictment
(Spain, France, Italy, Germany, USA, Russian Federation (since 2001))[1],
and other countries, although the order of application of this form of justice
is different, its essence lies in the fact that, with the consent of the
prosecutor, the victim, the accused (with the assistance of counsel),
acknowledging his guilt, the request for summary judgment proceeding in which,
absent a judicial investigation and the judge passes sentence of punishment. Is
it possible to impart this institution in our legislation?
Traditionally, the Republic of
Uzbekistan resolution of criminal proceedings in a court of first instance in a
general way sequentially through several stages (preparatory part of the
hearing, the judicial investigation, pleadings, the defendant's last word, and
so on). Each stage requires strict compliance with procedural requirements
prescribed in the relevant rules of criminal procedure.
Here is an example. So during the
trial questioned the accused and the victim, witnesses and experts who examined
the evidence. If necessary, other legal actions are made. Moreover, these
actions the court shall, regardless of whether the defendant contests his guilt
or he fully agrees with the charges against him. This cumbersome and
complicated procedure for judicial resolution of criminal cases, not only
requires significant material cost of the state, but also severely limits the
ability to "timely" in criminal cases by the courts, leading to a
systematic violation of due process of consideration by the judges and the
resolution of criminal cases, the diversion of a large number of people
(witnesses professionals, victims, experts, etc.) from the basic work for a period
of consideration by the court of criminal proceedings. But the simplification
of the proceedings may not in all cases, as, for example, complex criminal
cases or particularly grave crimes thorough observance of this procedure is
justified because it promotes respect for the principles of lawfulness,
fairness, objectivity and validity of decisions taken by the court, the rights
and lawful interests of individuals and organizations, victims of crime,
protecting the individual from unlawful and unreasonable charges, etc.
What has been said in any case does
not mean that the simplification of the proceedings on certain categories of
cases, compliance with these principles does not occur. Court with the consent
of the parties may, without causing damage to the rule of law and justice,
reasonableness and fairness, the final decision, and without complying with
certain procedural requirements, often wearing formal. Institute for simplified
proceedings originated long ago, was in many countries, legislative strengthening.
Since the legislation of many countries (Russia, USA and other European
countries[2])
regulates the grounds and conditions under which a court may decide on the case
of a sentence without trial in a general manner, the simplified procedure of legal
proceedings. According to article 314 of chapter 40 of the Criminal Procedure
Code of the Russian Federation (hereinafter - the Code), if the defendant
committed the crime, the punishment for which is in accordance with the
Criminal Code of the Russian Federation does not exceed 10 years in prison, and
not contesting the charges against him, filed a motion on the application for a
special order of the trial, the judge with the consent of the public (private),
the prosecutor and the victim and there are reasons and conditions set forth in
the rules of chapter 40 of the Code shall be entitled to decide on such a case
the verdict without trial in a general way.
It should be noted, a special
procedure for trial, represents a new Criminal Procedure Institute, aimed at
simplifying the procedures for judicial review and resolution of criminal cases
in particular categories of cases. Use of this institution of criminal
procedure allows us to solve some problems[3]:
- To save power and money of
criminal justice officials to investigate crimes and criminal proceedings for
certain categories of cases;
- To persuade the accused
(defendant) to cooperate with the criminal prosecution and use it to expose the
crimes of other participants, quickly and with minimal cost to solve a crime,
to establish all the circumstances of its commission, etc. - to reduce the gap
in time from the date of the offense to making a final decision;
- To streamline the criminal
proceedings, to make the process less time-consuming and more efficient.
The above list shows the tasks that
the basis of a special institution of the order of the trial based on the idea,
as pointed out by Rybalov KA "A reasonable compromise in criminal
proceedings." What is expressed in such a compromise? In the simplified
production legislator guarantees the accused (defendant) significant
concessions in exchange for a commission of certain positive actions. Thus, in
accordance with Art. of Art. 314-316 of the Code, if the defendant committed
the crime of slight, moderate or heavy, during the preliminary investigation
has pleaded guilty to the crime and does not challenge the charges against him,
the court on the basis of his application and with the consent of the parties
shall consider the case of a simplified procedure for the trial and assigns the
punishment the defendant, not exceeding two thirds the size of the maximum term
or the most severe penalty under the relevant rule of the Criminal Code.
Externally Institute special order
making the judgment is similar to the "plea bargain" that exists in
the Anglo-Saxon law, but they are fundamentally different from each other.
Comparative analysis of the legislation of foreign states, which contain the
rules laid down the "plea bargain", held in their articles, Stephen
Teyman. He explored similar procedures available in Spain, France, Italy,
Germany, the USA and came to the conclusion that the basic idea embodied in the
"plea bargain" is a shortening and simplifying the investigation of
the case study forms of evidence[4].
The problem of summary judgment
scientists - show interest, and among them there are both opponents and
supporters. In my opinion, the use of the Institute of Criminal Procedure as a
simplified legal proceedings with the consent of the accused with the accusation
against him is aimed at improving the efficiency of criminal prosecution, and
the efficiency is determined by how well and timely manner possible to protect
the rights and lawful interests of citizens to ensure equity, social stability
and legitimacy of the state. In addition, the Institute promotes the expansion
of early dispositive in criminal proceedings, giving the accused the right to
exercise discretion and to express their will. Given the above, we can conclude
that there need to conduct prospective studies aimed at creating a new
institution of summary judgment proceedings in order to improve our criminal
procedure law.
To date, it is no secret that the
courts are very busy due to the large number of cases, the use of simplified
forms of the same procedure will reduce the load of ships, but this goal is not
paramount. Of course the main purpose is to protect human rights and freedoms,
regardless of what party he is a criminal trial. By choosing the path of
building a democratic state and strong civil society, we thus recognize that
the highest value is human, his rights and freedoms. By providing the right to
request a summary judgment, discretionary increases the criminal process, which
is expressed in the accused the right to exercise discretion and to express
their will.
There is a scientific opinion that
the establishment of human rights protection system, including in criminal
cases, requires a certain sequence of actions, it is important that the
criminal process, there was no advantage to either side. The reconciliation of
the parties, the protection of human rights and personal interests of the
victim, civil plaintiff, suspect, accused or civil defendant should be the
same, on an equal footing, since "all men are born free and equal in dignity
and rights" (Article 1 of the Universal Declaration of Human Rights)[5].
[1] Teyman S. plea bargain or reduced
forms of justice: Russia`s scenario? / / Zh. Rossiyskaya justice. -1998. - №
10, p.35-37.
[2] So, for example, adopted in 1988
introduced the Italian Code of Criminal Procedure so-called declaration of the
parties on the designation of punishment (Art. 444 - 448), which contributes to
failure to judicial inquiry in cases where the threatened punishment of
imprisonment for a term not exceeding three years. Just as in the Spanish
konformidade, accused in the Italian deal (pattedzhamento) pleaded not guilty
and the judge can justify it in case of lack of evidence. See: S. Teyman plea
bargain or reduced forms of justice: which path Russia? / / G. Russian justice.
-1998. - № 10. - P. 35-37; № 11. S. 35-37.
[3] Rybalov K. A reasonable compromise
in the criminal process. / / J. Home lawyer. - 2005. - № 2. - C.2-3.
[4] Teyman S. plea bargain or reduced
forms of justice: which path Russia? / / Russian justice. - 1998. - № 10. - S.
35-37; № 11. - S. 35-37.
[5] Azarov, A., Reuter V., K. Hüfner
protection of human rights. Russian and international mechanisms. - M.
Mezhd.shkola Human Rights, 2000. - S. 392.