The USA Journals Volume 03 Issue 11-2021
122
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
122-128
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-17
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‘
ABSTRACT
The article examines the features of criminal liability for violation of intellectual property rights. The
author examines in detail the classification of objects of intellectual property, as a result of which the
range of objects that are subject to criminal protection is determined. The author also analyzes the act
qualifying as plagiarism and coercion to co-authorship. As a result of the study, it is proposed to
criminalize a number of acts that cause significant damage not only to the copyright holder, but also
to the consumer and the state.
KEYWORDS
Intellectual Property Rights, Criminal Liability, Criminal Protection, Plagiarism, Coercion To Co-
Authorship, Copyright Holder, Individual Non-Property Rights, Property Rights, Industrial Property,
Inventive Law, Trade Marks, Criminalization, Consumes, International Organizations, Means Of
Individualization Of Participants In Civil Circulation, Civil Law, Intellectual Activity, Violence, Co-
Authorship, Corpus Delicti, The Right To An Author's Name, Public Danger.
INTRODUCTION
According to the article 1031 of the Civil Code of
the Republic of Uzbekistan, objects of
intellectual property are divided into two main
groups - the results of intellectual activity
(copyright and related right) and means of
individualization of participants in civil
Essentials Of The Criminal Protection Of Intellectual Property
In The Republic Of Uzbekistan: Legal Analysis Of Acts
Offending Objects Of Intellectual Property
Khakimova Kamola
Lecturer At The Department Of Court, Law Enforcement Agencies And Advocacy
Tashkent State University Of Law, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 11-2021
123
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
November 30, 2021 |
Pages:
122-128
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-17
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2021:
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circulation, goods, works and services
(industrial property). For criminal measures,
the definition of specific objects of intellectual
property is necessary, since this allows solving
the following tasks:
1)
Find out the powers of authors and
copyright holders in relation to each
object;
2)
In accordance with the classification
and taking into account other factors,
determine the types of crimes against
intellectual property.
The public danger of acts against intellectual
property is expressed in the fact that the rights
to the results of intellectual activity and the
industrial property are violated; copyright
holders do not receive their sufficient reward,
therefore, the incentive for further creative
activity decreases; the copyright holder
spending certain financial resources to create
an intellectual product, does not receive the
expected profit from its commercial applying;
state rights are violated, since it does not
receive tax revenues from the legal use of the
results of intellectual activity and equivalent to
them industrial property [1, p.48]. In the
Republic of Uzbekistan legal responsibility is
provided in order to prevent this public danger,
especially criminal liability under article 149 of
the Criminal Code.
MAINPART
At the first reviewing the Article 149 of the
Criminal Code of the Republic of Uzbekistan,
one gets the impression of its simplicity of
application, but in practice there are problems.
Disposition of Article 149 of the Criminal Code
of the Republic of Uzbekistan is blanket, as the
result, in order to understand the essence of
copyright and inventive rights, it is necessary to
refer to civil law. Making comparative analysis
of this article and the provisions of the Civil
Code, we can say that in terms of content the
crime "Violation of copyright and inventive
rights", it is a illegal act that violates the
individual non-property rights of the author,
copyright holder or inventor. As it is known
from the theory of criminal law, the corpus
delicti consists of four essential elements: the
object, the objective side, the subject and the
subjective side, in accordance with this, a legal
analysis of this article is carried out.
Relations that have arisen in the sphere of
realization of individual non-property rights are
considered to be the direct object of the crime.
The reason for making such assumption
became the meaning of the article. According
to article 1033 of the Civil Code of the Republic
of Uzbekistan, the authors of the results of
intellectual activity own individual non-
property (capyrights, the right to an author's
name, the right to promulgation and others)
and property rights (exclusive rights to use a
work, invention in any form and any
means).Consequently, considering that article
149 of the Criminal Code cover the criminal
liability for «attribution of authorship, coercion
to co-authorship, and disclosure without the
consent of the author of information about
objects before their official publication …», it is
concluded that the direct object of this crime is
individual non-property rights - copyright and
disclosure.
The property (exclusive) rights of the author,
inventor (use, distribute, apply) are not subject
to criminal protection, violation of such rights
consider
administrative
responsibility,
especially under the Articles 1771 and 1772 of
The USA Journals Volume 03 Issue 11-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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November 30, 2021 |
Pages:
122-128
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-17
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the Code of Administrative Responsibility of
the Republic of Uzbekistan.
The subject of the crime, provided for in Article
149 of the Criminal Code of the Republic of
Uzbekistan, deserves close attention. In the
opinion of N. I. Korzhansky, “criminal influence
on an object in terms of its social significance
has varieties, which scientists combine into
several groups: a) a change in the social status
or economic purpose of the subject; b) change
in its physical features; c) change in
appearance; d) making an object, thing” [2,
p.58]. The case of a crime against copyright and
inventive rights does not apply to the above
classification, since the criminal most often
does not change the type or content of this
work, the original of the work does not suffer,
only the legal author changes.
In accordance with the commentary to the
Criminal Code of the Republic of Uzbekistan,
M.Kh. Rustambaev considers objects of
intellectual property to be the subject of this
crime [3, p.179]. Based on the title of the article,
one should disagree with the professor's
opinion, since the concept of “objects of
intellectual property” is broader than
copyright and inventive law.
Depending on the creative contribution to the
obtained result of intellectual activity, objects
can be divided into two groups of objects:
Results of intellectual activity: Copyright –
artistic and scientific works; related rights –
cover literary, performance and broadcasts;
objects of inventive and patent law - breeding
achievements; topology of integrated circuits;
production secrets (know-how);
Industrial property - means of individualization:
trademarks, service marks; appellations of
origin of goods; commercial designations [4, p.
337-338].
Consequently, works of authorship, being
objects of intellectual property, are not means
of individualization, and a trademark, being
objects of intellectual property, do not belong
to the results of intellectual activity - objects of
copyright and inventive rights. Trademarks are
independent objects of intellectual property -
objects of industrial property, not copyright
(related) rights [5].
Thus, the indication in Article 149 of the
Criminal Code of the Republic of Uzbekistan of
the generalized concept of "objects of
intellectual property", when the title of the
article has a specific relation only to some
objects of intellectual property - copyright and
inventive law, contributes to the appearance
the following questions:
Is it possible to extend the action of this article
to another category of intellectual property
objects, as a means of individualization?
Can the creator of other intellectual property
objects use criminal legal protection?
After analyzing the norms of civil legislation
related to copyright and inventive rights, only
the objects of these rights should be
considered as the subject of a crime (Article 149
of the Criminal Code of the Republic of
Uzbekistan), namely, according to Article 1041
of the Civil Code of the Republic of Uzbekistan,
copyright applies to works of science,
literature, arts that are the result of creative
activity, regardless of the purpose and dignity
of the work, as well as the way of its
expression. Objects of copyright include only
those that are provided for by Article 1042 of
the Civil Code of the Republic of Uzbekistan:
The USA Journals Volume 03 Issue 11-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
November 30, 2021 |
Pages:
122-128
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-17
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literary works (literary - artistic, scientific,
educational, etc.)[6].
Regarding inventive rights, according to Article
1082 of the Civil Code of the Republic of
Uzbekistan, objects can be considered an
invention, utility model and industrial design
for which a patent has been issued. Unlike
copyright, inventive law deals not with works
of science, art, literature, but with the technical
side of creative activity - various devices,
methods,
technological
inventions,
etc.
Industrial designs include the artistic design of
a product, which determines its appearance
[7].
Based on the foregoing, the range of subjects
of the crime includes: objects of copyright in
accordance with Article 1042 of the Civil Code -
someone else's scientific, literary, musical or
artistic work, and objects of inventive law in
accordance with Article 1082 of the Civil Code -
invention, utility model and industrial design.
The objective side of the crime provided for in
Article 149 of the Criminal Code of the Republic
of Uzbekistan is expressed in a number of
illegal actions. The corpus delicti is formal,
since an act qualified as traspassing the object
protected by this norm will be recognized as
criminal from the moment it was committed,
that is, for the onset of criminal liability, the
consequences are not important, it is enough
to commit the actions specified in the norm.
Criminal liability under this article occurs for
attribution of authorship (plagiarism), coercion
to co-authorship, and disclosure of information
about objects without the permit of the
author.
The Act of the Republic of Uzbekistan "On
Copyright and Related Rights" does not use
the term plagiarism, it is also absent in other
supreme and regulatory legal acts. Professor
Ya.A. Kantorovich determines plagiarism as
“borrowing from someone else's work of
thoughts, ideas without the application of own
creative initiative”[8, p.65]. It is necessary to
take into account that the types of acts
associated
with
the
appropriation
of
authorship include: declaring oneself as the
author of someone else's work, releasing
someone else's work (in full or in part) under
one's own name, publishing under one's own
name a work created in co-authorship with
other persons, without specifying their names,
consequently plagiarism is a violation of the
right of authorship, not the right to a name.
According to Article 18 of the above Act, the
author of a work belongs to the right of
authorship,
therefore,
attribution
of
authorship is the illegal recognition by the
author of someone else's work. An elementary
example can be considered a copied text from
someone else's work, and present it in the
work under own name.
The next act for which criminal liability is
provided under Article 149 of the Criminal Code
of the Republic of Uzbekistan is coercion to co-
authorship. There is co-authorship in both
copyright and inventive law. Co-authorship is
possible if the work is created by joint work, as
well as with co-authorship, copyrights are
jointly owned by several citizens (co-authors).
However,
co-authorship
should
be
distinguished
from
other
types
of
collaboration of two or more persons. In
particular, co-authorship differs from technical
cooperation between the author and the
persons who typeset the text, typeset the
book, cooperation between the author and
the translator of a work into another language
[9]. Moreover, the relationship between the
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Pages:
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co-authors of the inventive right objects is
determined by an agreement between them,
given that non-creative assistance in the
creation of an invention does not entail co-
authorship.
Coercion to co-authorship means exerting
influence in any way (including through
violence, threats of the onset of consequences
unfavorable for the victim) in order to obtain
his consent to the inclusion of other persons
(who did not make a personal creative
contribution to the creation of the intellectual
property objects specified in this article) in co-
authors of finished creative works or
developed inventions, that is, conclude an
agreement that allows these persons to obtain
copyright.
The
structure
of
coercion
necessarily includes such elements as a
targeted impact on the free will of a person and
the presentation of a criminal requirement to
the behavior of the victim [10, p.72]. The
methods of influence can be very different,
however, in cases where coercion to co-
authorship is accompanied by the use of
violence directed against the life, health or
freedom of the victim, the act should be
classified in aggregate - according to article 149
of the Criminal Code of the Republic of
Uzbekistan,
and
according
to
the
corresponding articles of the Criminal Code of
the Republic of Uzbekistan, depending on the
circumstances
and
the
resulting
consequences. Thus, coercion comes out in
such an impact on the victim that significantly
limits the freedom of his expression of will,
which is associated with the complete
submission of the will of the victim, leaving him
in a hopeless situation when there is no choice
of behavior other than that demanded by the
offender. According to V.D. Larichev and B.L.
Tereshchenko, a frequent example of coercion
to co-authorship can be - a proposal to the
author to include in the list of co-authors of
other persons, primarily managers or heads of
office under the threat of demotion, not
providing legal types of rewards for the work
done, promises to provide encouragement [11,
p.32].
Disclosure of information about objects
without the permit of the author copyright and
inventive law prior to their official registration
or publication should be understood as the
transfer and dissemination of information
about these objects (content of formulas,
structure, functional features) to third parties
by publishing speeches at conferences in the
media or by other means. This action is
widespread today, since the social life of
people is associated with information
technologies, which creates a threat to the
confidentiality of any information.
CONCLUSION
In conclusion, it should be noted that this
article does not cover the entire spectrum of
violations of intellectual property rights, which
today inflict massive material and moral
damage to the copyright holder, society,
consumers and the image of the state. Having
analyzed the above, taking into account the
socio-economic
conditionality
of
the
criminalization of certain acts in the field of
intellectual property, the priorities of the
economic policy of the Republic of Uzbekistan,
it is proposed to create a norms providing
criminal liability for illegal use of objects of
copyright and inventive law, taking into
account the damage caused (on a large and
especially large scale), where the direct object
of the crime will be public relations for the
implementation of the property rights of the
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Pages:
122-128
Doi:
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rightholder. This proposed norm should be
placed in part 2 of Article 149 of the Criminal
Code of the Republic of Uzbekistan. Moreover,
taking into account the requirements of
international norms, the conditions for
Uzbekistan's joining the ranks of participants in
international
economic
and
trade
organizations (WTO), as well as the increased
incidence of infringement of trademarks and
their high public danger, it is proposed to
criminalize the illegal use of means of
individualization (industrial property), entailing
damage in large and especially large size,
placing the norm in the head of the Criminal
Code related to crimes in the field of economic
activity.
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(ISSN
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Pages:
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Doi:
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