COMPENSATION FOR ILLEGAL USE OF INTELLECTUAL PROPERTY RIGHTS OBJECT: EVOLUTION OF LEGISLATIVE APPROACHES AND PROSPECTS FOR THEIR RENEWAL

Abstract

The article analyzes the development of legislative regulation of compensation for infringement of intellectual property rights in Ukraine. Attention is drawn to the existence of two main models of compensation for infringement of intellectual property rights – the “American” model, which provides for the collection by the court of compensation within the minimum and maximum amounts determined by law, taking into account the circumstances of the infringement of rights, and the “European” model, which is based on the amount of remuneration that the rightholder should receive if he grants license to use the object (hypothetical royalty). From this perspective, the evolution of compensation as a civil law remedy of intellectual property rights from the time Ukraine gained independence to the present day is shown. It is emphasized that as of today, the legislation of Ukraine contains different approaches to the collection of compensation for infringement of property rights to objects of copyright and related rights, to objects of industrial property and to plant varieties. In this regard, it is noted that such a differentiated approach to regulating compensation for infringement of intellectual property rights is unfounded and that there is a need to reform the legislation in this area. It is concluded that it is appropriate to unify legislative approaches to regulating compensation as civil law remedy of intellectual property rights, taking as a basis the approach provided for by the legislation on copyright and related rights, which provides the subject of such rights with the opportunity to choose one of two alternative models of compensation: “American” within the minimum and maximum amounts established by law or “European” on the principle of hypothetical royalty. Such an approach should also be provided for other objects of intellectual property law.