The USA Journals Volume 03 Issue 06-2021
132
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
It is known that the protection of intellectual property rights and rights to it is an important factor in
the development of this sector, increasing its investment attractiveness. After all, the formation of a
class of intellectual property owners and the development of the necessary legal framework pose
new challenges to the legal science as a topical issue today.
KEYWORDS
Measures, civil rights, moral damage, material damage, intellectual property, value, intangible assets,
scientific and technical.
INTRODUCTION
At a meeting chaired by the President of the
Republic of Uzbekistan Sh. Mirziyoyev on
October 12, 2020 on measures to improve the
protection of intellectual property, special
attention was paid to connecting patent
holders and researchers with various business
entities, their cooperation [1].
Violation of intellectual property rights also
has a direct negative impact on their
commercialization. The commercialization of
intellectual property has led countries such as
the United States, Japan, China, Germany,
Switzerland, and Singapore to become world
leaders in terms of industrial development. An
example of this is the widespread use of
innovative technologies in 60-70% of the
industry in these countries today.
Calculation Of Material And Moral Damage Caused To The
Author Of The Composition
Ulugbek Kholmurodovich Isanov
PhD Student, High School Of Judges, Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
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 06-2021
133
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
THE MAIN FINDINGS AND RESEARCH
One of the important normative legal acts is
the Resolution of the President of the
Republic of Uzbekistan dated July 14, 2018 No
PD (presidential decree) -3855 “On additional
measures to increase the effectiveness of
commercialization of the results of scientific
and scientific-technical activities.” In this
resolution, a large-scale work is being carried
out in the country to ensure the effective use
of available financial and material resources to
create
favorable
conditions
for
the
implementation of scientific and technological
activities, scientific and technological and
innovative development. It is recognized that
the analysis of the practical application of the
results of scientific and technical activities
indicates the existence of systemic problems
in the process of their creation, legal
protection and implementation [2].
Article 1031 of the Civil Code of the Republic of
Uzbekistan defines the general list of legally
protected objects of intellectual property, and
this article aims to cover the calculation of
material and moral damage to the author of
the work.
The methods of protection of civil rights
(Article 11 of the Civil Code) provide for such
methods as compensation for general
damage, recovery of penalties, as well as the
protection of exclusive rights to intellectual
property:
By confiscating the material objects on
which the exclusive rights were violated,
as well as the material objects created as a
result of such violation;
By compulsorily publishing information
about the violation and entering into it the
information on to whom the violated right
belongs;
In other ways provided by law.
Part 3 of Article 1041 of the Civil Code
stipulates that absolute rights are protected in
other ways provided by law. In particular, the
Law on Copyright and Related Rights
Pursuant
to Article 65, compensation
(compensation) may be applied instead of
indemnification under the absolute rights
protection instrument. Depending on the
nature of the offense and the degree of guilt
of the offender, the compensation shall be
applied regardless of the fact of damage,
taking into account the habits of business
conduct.
The complexity of the valuation of intellectual
property depends primarily on the difficulties
in quantifying the results of their commercial
use at different stages of development,
industrial application or use, and the impact of
many factors in different directions.
According to paragraph 12 of the Rules for
Compensation of Employees for Damages
Caused by Injuries, Occupational Diseases or
Other Injuries to Health in connection with the
performance of their duties, copyright is
included in the victim's lost wages [3]. This
requires resolving the issue of the author's
inability to receive the fee due to damages.
The issue of damages has been studied in
various areas of jurisprudence. The main focus
is on the direct civil approach.
According to Akramkhodjaeva, instead of
compensating for the damage, the infringer
may claim the benefit received by the infringer
as a result of copyright infringement. In this
The USA Journals Volume 03 Issue 06-2021
134
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
case, penalty is used instead of recovering
damages or recovering profits in their favor.
The imposition of such a penalty also applies
in case of violation of the rights to computer
programs. These opportunities relieve the
legal entity from the obligation to prove the
amount of damages [4, p 13]. In contrast to
this view, O. Okyulov, in most cases, the
recognition of an absolute right is a necessary
condition for the application of another
method of protection. In particular, in order to
recover damages related to the misuse of a
work, the plaintiff must prove the existence of
copyright in respect of that work [5, p. 108].
According to K. Mekhmanov, compensation
should be a liability of a shareholder (optional)
nature; it is advisable to use two alternative
forms of compensation for the victim - the
recovery of damages or the recovery of a
fixed amount of compensation in the absence
of the possibility of claiming the benefit
received by the offender [6, p. 144].
A.M. Erdelevsky, studying the problems of
moral damage, believes that it is necessary to
determine the amount of compensation for
moral damage based on the degree of danger
of the offense, that is, depending on the
sanction provided for in the criminal law for
this or that offense. It also suggests a
category of “base level” of non-pecuniary
damage. This figure suggests that it depends
on the level of suffering that the victim has
suffered as a result of the severe damage
inflicted [7, p. 87].
B.Khamrokulov said that the decision of the
Plenum of the Civil Code and the Supreme
Court of the Republic of Uzbekistan dated
April 28, 2000 № 7 “On some issues of
application of the law on compensation for
non-pecuniary damage” did not provide a
definition of guilt, despite the fact that draws
attention [8, p. 17].
At this point, although the authors focus on
the general aspects of moral damage, the
definition of its amount or concept in the Civil
Code and legislation, the definition of material
and moral damage to the author of the work
does not specify which aspects to focus on.
Intellectual property is manifested as a
separate asset with a specific value.
Intellectual property valuation can be
conducted for a variety of purposes, each of
which is reflected in four basic concepts of
valuation:
Market value: the basis of market value -
arises from the assumption that in case the
comparable property has a certain price, it is
possible to dispose of the property at similar
prices;
Replacement cost: the value of intellectual
property for the owner is often determined on
the basis of the owner's position on the
replacement value, based on the price in the
negotiated transactions;
Fair value concept: a value that, by its very
nature, expresses a desire to be fair to both
parties. This concept, in turn, implies that an
agreement (not in the open market) entered
into in this regard has binding legal force for
both the seller and the buyer. This is
important for the potential buyer or seller - in
determining the optimal price of the
transaction, for the lender - in deciding to
provide a loan, for the insurance company - in
covering the loss;
The USA Journals Volume 03 Issue 06-2021
135
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
Investment value: the liquidation value of an
existing enterprise and the value of
intellectual property in it are determined
based on factors that directly affect the value
of the enterprise's assets [9].
National standards have a comparative
approach, a cost approach, an income
approach. A comparative approach is a set of
methods of estimating the value of an asset
based on a comparison of the asset being
valued with such an asset when there is
information about the transaction or bid price
with similar assets. The comparative approach
is based on the principle of substitution.
The income approach, on the other hand,
involves estimating the value of an item of
property, plant and equipment by bringing the
expected future income from the item to the
present value. When the income approach is
used, the value of an asset is determined by
the value of the income or cash flows or
savings incurred as a result of its use.
The cost approach is a set of methods of
estimating the value of an appraised object
based on determining the cost required to
restore or replace it, taking into account the
obsolescence of the appraised object. To
replace this property, it is possible to create a
copy of the original property or other
property that can provide the same utility.
This approach makes it possible to obtain a
measure of value by calculating the cost of
replacing or reproducing an asset and
applying discounts to physical and other
appropriate depreciation types.
Based on the results obtained under each
approach, the final amount of the value of the
object of evaluation is determined, which is
the generalization of the values obtained
using different approaches and methods of
evaluation [10].
Valuation of intellectual property is often
done for the following purposes:
Determination of the value of the share in
the authorized capital;
Inventory and economic circulation of
intangible assets;
Optimization of taxation;
Lending in exchange for the pledge of
exclusive rights;
Attracting investors;
Settlement of disputes, including disputes
over the damage caused by the violation
of rights to intangible assets;
Granting or licensing rights to intangible
assets;
Obtaining tax benefits in the use of
industrial property;
Determining the value of the license;
Determine the share of profit.
The advantage of commercialization of
intellectual property is that it provides the
following opportunities to the entrepreneur
who owns intellectual property:
Accounting for value added in the cost
of goods produced by the enterprise;
Additional income from the sale of
licenses (licensing);
To benefit from the sale of exclusive
rights to intellectual property;
Compensation for damage caused as a
result of illegal use of the exclusive
right to intellectual property [11].
The Resolution of the President of the
Republic of Uzbekistan dated May 7, 2018 PD-
The USA Journals Volume 03 Issue 06-2021
136
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
3698 “On additional measures to improve the
mechanisms of introduction of innovations in
industries and sectors of the economy”
provides for the establishment of units of
commercialization of scientific and innovative
developments in higher education.
Before starting to develop and organize the
production
of
scientific
and
technical
products, it is necessary to conduct an initial
assessment
of
their
competitiveness.
Marketing and patent research make a
significant contribution to this task.
Necessary
conditions
for
the
commercialization of the results of scientific
and technical activities:
Documentary confirmation of the fact of
creation of the result;
Existence of rights to the results of
scientific and technical activity;
Assessment of the competitiveness of
high-tech products obtained using the
results of scientific and technical activities;
Such as assessing the value of rights to
results in scientific and technical activities.
Patent dispute insurance is a relatively new
phenomenon, and the insurance scheme is an
offer of services provided by large insurance
companies in the private sector. The cost of
such insurance services is high and cannot be
used by small and medium-sized businesses,
especially micro-firms and the majority of
small businesses. In this regard, there are
various models on the market, ranging from
reimbursement of the amount set for legal
advice in the European markets in particular,
to other court costs, as well as damages and
liabilities arising from breach of contract by
contract agents.
Ensuring the protection of intellectual
property and its formation according to the
types of protected rights is recognized as an
effective model for managing the process of
commercialization of intellectual property.
These include, for example, patents, utility
models,
industrial
designs,
trademarks,
engineering, rationalization proposals, trade
secrets, business reputation, goodwill, and so
on. Such protection may take the form of
controlling the use of intellectual property and
identifying
infringements,
examining,
assessing damages, restoring intellectual
property rights, controlling potential financial
proceeds on claims, and so on.
In the experience of foreign countries in the
field of intellectual property protection, it is
not necessary to have information about the
existence of guilt in damages. In this case, it is
enough to know the existence of the offense,
and this situation can lead to additional
damages. Article 13 (1) of European Union
Directive 2004/48 also provides for additional
damages, taking into account “income
received unfairly by the offender” [12].
Compensation is also not directly related to
the imposition of a penalty. In this case, the
courts may decide to recover additional
damages if the actual damage caused to the
plaintiff is not sufficient for compensation
[13].
If we look at the experience of the CIS
countries,
the
generalization
of
the
jurisprudence on the protection of intellectual
property disputes is reflected in the practice
of giving guidance in this regard. In particular,
the decision of the Plenum of the Supreme
Court of the Russian Federation dated April
23, 2019 № 10 “On the application of the
The USA Journals Volume 03 Issue 06-2021
137
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
fourth part of the Civil Code of the Russian
Federation.” It also covers general issues of
intellectual property protection. For example,
the site owner independently determines the
order of use of the site, so if the results of
intellectual activity on the site or means of
individualization are posted by third parties
and not by the site owner, the site owner is
responsible for proving it [14].
The normative decision of the Supreme Court
of the Republic of Kazakhstan dated
December 25, 2007 № 11 “On the application
by courts of certain provisions of the Law on
Protection of Copyright and Related Rights”
was adopted. The decision of the Plenum
addresses issues related to the correct
application of certain provisions of the
legislation on the protection of copyright and
related rights in judicial practice [15].
The decision of the Supreme Court of the
Republic of Belarus № 9 of September 28,
2005 “On some issues of application of the
legislation in civil cases related to the
protection of the right to a trademark and
service mark” was adopted. This Plenum
resolution explains to the Judicial Board of the
Supreme Court of the Republic of Belarus on
Intellectual Property that in dealing with
intellectual
property
rights should
be
considered in full compliance with the
Constitution and legislation, and how to apply
the laws governing this area [16].
It should be noted that in the Republic of
Uzbekistan, due to the relatively small number
of disputes in this area, no generalizations and
no explanations were given to individual
courts at the level of the Plenum.
Below we focus on the analysis of existing
judicial practice in our country. On April 2,
2019, the author signed a copyright
agreement № 63-2019. Clause 1.2 of the
contract stipulates that the author must pay
for the creative work, and clause 4.3 stipulates
that a separate contract must be concluded
with the author after the publication of the
book for the copyright fee. However, no
separate agreement has been reached.
Also, the contract violated the requirements
of the Resolution of the President of the
Republic of Uzbekistan dated 14.08.2017 PD-
3201 “On measures to further develop the
activities of cultural and art organizations,
creative associations and the media, to create
additional conditions to encourage workers.”
As a result, the citizen was not paid 50,212,166
soums.
In this case, Article 356 of the Civil Code
stipulates that the performance of the
contract is paid at a price agreed by the
parties. In cases provided by law, there is a
violation of the Civil Code on the application
of prices (tariffs, tariffs, rates, etc.) set or
regulated by the relevant authorities.
Clause 4.2 of the agreement stipulates that
after the publication of the submitted work,
the author's pen fee will be set at 1,200,000
soums, of which 30% will be paid, and the
remaining 70% will be paid after the purchase
of the last copy of the published book.
The court found that the work consists of 258
pages, 48 lines on each page, 48 lines
multiplied by 258 pages, 12384 lines, the
number of lines (column a-paragraph 6 of the
work “Poetry” for works up to 5000 copies)
with a coefficient of 0.02 and 202730 soums
The USA Journals Volume 03 Issue 06-2021
138
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
(2018 50,212,166.40 soums when multiplied by
the minimum wage for the year).
Therefore, paragraph 4.2 of the “Copyright
Agreement” was declared invalid and a
decision was made to charge the author a
royalty of 50,212,166 soums [17].
Ensuring justice in the calculation of material
and moral damage inflicted on the author of
the work, the existence of effective legal
mechanisms depends not only on the
perfection of the law. The problem of their
implementation or the improvement of law
enforcement practice has become a topical
issue today. It should be noted that this
problem is relevant not only for us, but also
for many developed and developing countries.
The development of legislation on intellectual
property rights, its system of protection
methods should be carried out in conjunction
with the improvement of the legal framework
and judicial practice in this area, the expansion
of critical analysis. To this end, the further
development of scientific research in the field,
the study of issues such as the rich legislative
experience of developed countries in this
area, the comparative analysis of judicial
practice.
It is important to use law enforcement
methods when calculating damage to
intellectual property. At the same time, it is
necessary to specify the restorative and
preventive methods of law enforcement.
Recognition of copyright, compensation,
compensation, etc. are used as a method of
restoring the right. Methods to prevent
violations
include
the
destruction
of
counterfeit copies, the liquidation of a legal
entity, and the announcement of a court
decision on the offense.
When calculating the material and moral
damage caused to the author of the work, it
should be borne in mind that it can harm not
only the author, but also the right holder, the
state and society. At the same time, the
damage to the state and society is reflected in
the non-receipt of taxes and other levies in
the state budget and other funds, damage to
the country's reputation, loss of investment
attractiveness.
Also,
the
rules
on
compensation for material and moral damage
to the health of consumers should be
reflected in the legislation.
In calculating the damage, it is necessary to
determine the market value of goods, works
and services, to take into account the loss of
property, damage or impairment of its value
due to the offense, as well as losses (lost
profits) that may be received in civil
proceedings.
CONCLUSION
It is necessary to change the approach to the
assessment of intellectual property objects
that are not used to obtain commercial
benefits,
mainly
used
in
solving
environmental, social, scientific or educational
problems, as the only approach to assessing
their market value is the cost approach. It is
the market value of the intellectual property
object that should be the main criterion in
recovering damages. It is expedient to provide
this norm in Chapter 6 of the Intangible Assets
Valuation (MBS № 9), which is annex 3 to the
Unified National Valuation Standard of the
Republic of Uzbekistan, in the “Features of
valuation of individual objects.”
The USA Journals Volume 03 Issue 06-2021
139
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
REFERENCES
1.
https://president.uz/uz/lists/view/3887.
[https://president.uz/uz/lists/view/3887].
2.
https://lex.uz/docs/3823583.
[https://lex.uz/docs/3823583].
3.
Appendix 1 to the Resolution of the
Cabinet of Ministers of the Republic of
Uzbekistan № 60 of February 11, 2005 //
Collection of Legislation of the Republic of
Uzbekistan, 2005, No. 5-6, Article 35.
Retrved from: https://lex.uz/docs/492899.
[Ўзбекистон
Республикаси Вазирлар
Ма
ҳ
камасининг 2005 йил 11 февралдаги
60-сон
қ
арорига 1-илова. // Ўзбекистон
Республикаси
қ
онун
ҳ
ужжатлари
тўплами, 2005 й., 5-6-сон, 35-модда.
https://lex.uz/docs/492899].
4.
Akromxo'jaeva Z. (2007) Means and
methods of protection of intellectual
property rights. Tashkent: Institute of
Philosophy
and
Law,
p.
13.
[Акромхўжаева З. Интеллектуал мулк
ҳ
у
қ
у
қ
ини
ҳ
имоя
қ
илиш воситалари ва
усуллари. Тошкент: Фалсафа ва
ҳ
у
қ
у
қ
институти. 2007. 13 б.].
5.
Akyulov O et al. (2016) Intellectual
Property and Innovation (Material and
Procedural Means for Enhancing the
Impact of Intellectual Property Law
Institutions
on
Ensuring
Innovation
Development: National Practice and
Foreign Experience) [Text] / O. Oqyulov. –
Tashkent: Turon Zamin Ziyo, p. 108. (- p.
390) [О
қ
юлов О ва бош
қ
. Интеллектуал
мулк ва инновация (Интеллектуал мулк
ҳ
у
қ
у
қ
и
институтларининг
инновация
ривожланишини
таъминлашдаги
таъсирини оширишнинг моддий ва
процессуал воситалари: миллий амалиёт
ва хорижий тажриба) [Матн] / О.
О
қ
юлов. - Тошкент: Турон Замин Зиё,
2016. 108-б. (- 390 б.)].
6.
Mexmonov
Q.M.
Legal
regime
of
computer programs, databases and
integrated circuit topologies. Monograph.
–Tashkent: Tashkent State University of
Law, 2017. 144-p. (480 b). [Мехмонов
Қ
.М.
Компьютер дастурлари, маълумотлар
базаси ва интеграл микросхемалар
топологияларининг
ҳ
у
қ
у
қ
ий режими.
Монография. –Тошкент: ТДЮУ, 2017. 144-
б. (480 б)].
7.
Erdelevskiy A.M. The concept of moral
harm in Russia and abroad. M., 1999. 87-p.
[Эрделевский
А.М.
Концепция
морального вреда в России и за
рубежом. М., 1999. 87-б.].
8.
Xamroqulov B.M. (2020) Author's abstract
of the dissertation of the doctor of legal
sciences (DSc) on a theme: “Improvement
of bases of compensation of the moral
damage”. – Tashkent: Tashkent State
University of Law, 17-p. [Хамро
қ
улов Б.М.
“Маънавий зиённи
қ
оплаш асосларини
такомиллаштириш”
мавзусидаги
юридик фанлар бўйича фан доктори
(DSc) диссертацияси автореферати. Т.:
ТДЮУ, 2020. 17-б.].
9.
Gordon V. Smith, Russell L. Parr, (2005)
Intellectual
Property:
Valuation,
Exploitation, and Infringement Damages,
Wiley, Ch. 6 “Tax Issues”. [Gordon V.
Smith, Russell L. Parr, Intellectual
Property: Valuation, Exploitation, and
Infringement Damages, Wiley, 2005, Ch. 6
“Tax Issues”.].
10.
Unified National Assessment Standard of
the Republic of Uzbekistan, registered by
the Ministry of Justice of the Republic of
Uzbekistan on June 4, 2020, registration
The USA Journals Volume 03 Issue 06-2021
140
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 30, 2021 |
Pages:
132-140
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-20
I
MPACT
F
ACTOR
2021:
5.
952
number
3239.
Retrieved
from:
https://www.lex.uz/docs/4842496.
[Ўзбекистон Республикасининг ягона
миллий ба
ҳ
олаш стандарти, Ўзбекистон
Республикаси
Адлия
вазирлиги
томонидан 2020 йил 4 июнда рўйхатдан
ўтказилган,
рўйхат
ра
қ
ами
3239
//https://www.lex.uz/docs/4842496].
11.
Intellectual Property Commercialization:
Policy Options and Practical Instruments.
United Nations, Geneva (Switzerland),
2011.
Retrieved
from:
https://unece.org/fileadmin/DAM/ceci/publ
ications/ip.pdf.
[Intellectual
Property
Commercialization: Policy Options and
Practical Instruments. United Nations,
Geneva
(Switzerland),
2011.
https://unece.org/fileadmin/DAM/ceci/publ
ications/ip.pdf].
12.
Directive
№
2004/48
/
European
Parliament and the Council of the ES on
obespechenii
rights
on
intellectual
property. (Official Journal of the European
Union L 157 of 30 April 2004) Retrieved
from:
http://data.europa.eu/eli/dir/2004/48/oj.
[Директива № 2004/48/ЕС Европейского
парламента и Совета ЕС об обеспечении
прав
на
интеллектуальную
собственность. ( Official Journal of the
European Union L 157 of 30 April 2004 )
http://data.europa.eu/eli/dir/2004/48/oj].
13.
Henderson V. All Around the World
Recordings Ltd [2014] EWHC 3087 (IPEC).
[Henderson v All Around the World
Recordings Ltd [2014] EWHC 3087 (IPEC).
].
14.
https://rg.ru/2019/05/06/postanovlenie-
dok.html.
[https://rg.ru/2019/05/06/postanovlenie-
dok.html]
15.
https://tengrinews.kz.[https://tengrinews.
kz].
16.
http://www.court.gov.by.[http://www.cou
rt.gov.by].
17.
Decision of the Shayhantahur Interdistrict
Civil Court of Tashkent on April 7, 2021.
Civil Case No. 2-1003-2107 / 2013. [Тошкент
ша
ҳ
ар
фу
қ
аролик
ишлари
бўйича
Шайхонто
ҳ
ур туманлараро судининг
2021 йил 7 апрелдаги
ҳ
ал
қ
илув
қ
арори. 2-
1003-2107/2013-сонли фу
қ
аролик иши.].
