Summary
This comprehensive IP Talks episode with host Jan-Willem Prügel features an enlightening conversation with IP lawyer Ilona Boliubash, covering Ukraine’s transformative journey in intellectual property law amidst European integration and martial law. It explores the country’s adaptation to EU standards, the implications of recent political events, and legislative advancements such as the paused IP deadlines and AI-generated content regulation. The discussion also highlights Ilona’s academic insights on the nuances between common and civil law, the challenges faced by Ukrainian courts in patent litigation, and the innovative sui generis model protecting non-human-created works. Engaging and informative, this episode offers deep insights into Ukraine’s evolving IP landscape.
00:00 Introduction and Disclaimer
00:34 Meet Ilona: An IP Expert
01:42 Ilona’s Journey in IP Law
07:53 Ukraine’s EU Integration and IP Law
12:39 Impact of War on Ukraine’s IP System
16:31 Challenges in IP Litigation During Martial Law
25:45 The Future of IP Courts in Ukraine
29:44 Specialization of Judges in IP Cases
30:28 Discussing the Thesis Topic
31:01 Ukraine’s Progressive IP Legislation
31:53 AI-Generated Content Protection
33:33 Challenges and Future of AI in IP
34:54 Conclusion and Final Thoughts
45:30 Podcasting Journey and Inspirations
49:54 Closing Remarks and Farewell
Transcript
Disclaimer, the views, opinions, and statements expressed by the hosts and guests on this podcast are entirely their own and do not represent or reflect the views of their employers or any affiliated organizations. Additionally, the content shared on this podcast is for informational purposes only. and does not constitute legal advice.
For any legal matters, listeners should consult a qualified attorney or legal professional to receive advice tailored to their specific situation. IP Talks is a Jan Willem Prugel production, all rights reserved.
My guest today is Ilona. . Ilona is an experienced IP lawyer. She specializes in intellectual property litigation. With a focus on patents and trademarks. Our expertise also includes copyright AI regulations, UDR P. And GDPR compliance as well as data protection. She also takes an active part in developing the Ukrainian moot courts, society, and IP and public in the national law competitions. Last, but not least.
She also works as a legal specialist at strengthening Ukraine’s EU integration together with a Ukrainian NGO. Also she’s a cheapening scholar, a prestigious scholarship awarded to exceptional individuals to conduct postgraduate work in the UK. In her case, doing an LLM and IP and information law, Kings college, London. I met Ilona when she was coaching the Ukrainian team at this year’s IP moot court in Oxford, where her team delivered a strong performance and received an award. She herself is also previous Jessup moody judge. And coach. In this episode, we talk about the recent political events in the Ukraine and how they have shaped their IP landscape and especially the IP court system. Additionally, we discuss illness, fascinating research and IP protection of AI produced material. And Ukraine’s revolutionary legislative approach to it. I learned a lot from this discussion.
I hope you will as well. So please enjoy this episode with . W Bush.
Welcome to IP Talks, the world’s greatest private podcast on all things intellectual property, starring some of the world’s leading IP practitioners and your host, Jan Willem Prügel. You’re in for a treat. Enjoy.
Hello. How are you doing?
Hi, I’m very good. And you?
I’m fine as well. Thank you. Thank you so much for taking time on, on a Sunday. Thank you
so much for offering me to be on your podcast. It’s very great.
Yeah it’s a lot of fun.
But yeah I’m, I’ve been very much looking forward to our discussion. Then Ilona, thank you so much for coming.
And so I invited you because I know you’re from the Oxford IP moot court where you were also a coach for the Ukrainian team who did very well, if I remember correctly. Although I didn’t judge any of your rounds, I believe, but
but
it was great meeting you guys. And so just to get started, could you briefly introduce yourself and just talk a bit about how you got into IP in general and what you’ve been doing in that space so far?
Yeah, of course. First of all, thank you very much for your invitation to the podcast. That’s been great to hear that you’re doing this. I’m an IP lawyer for six years now. I have been working mostly in IP litigation in courts. So I’m an attorney in Ukraine. The most cases that I’ve dealt with were concerning patents namely the pharmaceutical ones, so like medicinal products ones.
Yeah, it’s been a very interesting journey in IP. And now I’m also at working at GIZ at their rule of law project, so trying to help Ukraine to approximate our legislation to the EU ones in the most fundamental rights fundamental issues, so to say. So yeah, and for the last year, I’ve been studying IP law at master’s program at King’s College London as a scholar from Ukraine.
There is the Union Scholarship. That’s the UK scholarship, which is given for people from different countries. Yeah. And that’s been so great and so rewarding journey studying IPO law from the best professors you can ever imagine. To truly reveal my IP passion, in all the fields possible during this journey.
Yeah.
What were some of your highlights in your masters so far? Or what would you say you enjoyed most?
Yeah, I think that I enjoyed the most studying about like how the whole system works, because when you are a national professional, you work with only one jurisdiction. And so you see only one side of the picture, which is your own country.
But when you are studying the fundamental problems of AP law, you start to think about Why it works that way, not just how it works and how it’s written in legislation or in court practice by, but what are the reasons for it to work like that and studying in the UK, I think, is, has been very interesting in this regard, because we started to.
both civil law approach and the common law approach. So when it’s all combined and you see how the system works in general, like what is the practice of different countries and why it is like that, you get the sense of IP law itself, like the nature of it, the spirit of IP law. So I think that has been the the biggest highlight, like understanding the fundamentals, how it works and why it works that way. And that can be, that knowledge can be very much useful when you are trying to think about how you can perfect your own system. They have different approaches and the aim of them, and you can make over something from your own system, which can be like more appropriate if it makes sense.
Yeah.
Yeah, very interesting. Would you say that common law, the common law approach and the civil law approach to IP law is fundamentally different, or does it only seem that way? And it’s actually just a different, maybe a different dress, but person underneath. The dress, so to speak, is the same, or is it fundamentally a different approach to the problems?
Yeah, that’s a very good question. Because I was trying to figure out that myself, like for the last year, are they really that different? And from the first point, from the first site it seems that. Yes, they are different fundamentally in approaching it’s the most visible in copyright, I think because civil law countries, they tend to, wrap the author in all his glory and try to give all the rights that it deserves.
can possibly even get, especially like the French approach, the German approach, Ukrainian approach is also following like that way of thinking about author. And common law countries, they are more concentrated on profits. Yeah. And so like more utilitarian purpose of copyright and all of the IP law, how it works.
But I think that this fundamental like approach is only, It has only some contrast in copyright. With regard to other IP rights, they are pretty much the same. So yeah, only copyright is the most controversial one, I think, in this regard.
Interesting. Very interesting. And so did I understand you correctly when you plan to return to the Ukraine and then also work together on a political level possibly to influence the legislation or is that something you’re interested in or what’s your take on that?
Yeah, I’m very much interested in trying to help our country like approximating our practices and our legislation to the EU ones because we’re in a very active process of EU integration right now. We are already in the negotiation process. We will have like bilateral screenings on a lot of chapters of European Union.
And that’s the thing that I would very much. want to do, like helping our governmental authorities to, to get into this process and through this process as effectively and efficiently as possible. So yeah, that’s basically what I’ve already started doing in one of the chapters, the rule of law, and I hope that more yet to come.
Oh, very cool. Interesting. The main topic, that we’ll be talking about is how IP litigation functions. in Ukraine how it’s been functioning since the beginning of the war in 2022 as well. And maybe some of the problems that arise from that besides the obvious ones. So maybe to, to.
Could you, for people who are less versed on the history of the Ukraine, maybe give a brief overview of what possibly so the role of the Ukraine in terms of approaching being part of more part of the European Union versus being torn between the European Union and being closer to Russia in the last few years, or maybe decades what went on there?
Yeah it all started like our active EU integration process started in 2014, I think, with the Revolution of Dignity when our former president Yanukovych refused to sign the Association Agreement, which was to be signed very at that moment, it was a lot of preparations. to signing of that association agreement, but he refused to do that under Russian pressure.
And that ignited a lot of protests and the biggest revolution that Ukraine has had, the revolution of dignity. People just couldn’t stand with a choice that we are not going into European family. I think that was the point when the Ukrainian society had to make the decision as to their, as to our own identity.
And we decided that we are Europeans and we should actively move towards that through that way. And so after that the new government has signed the association agreement in 2017. And since then it has become it has a lot of norms, a lot of provisions on very different topics through all of the legislation.
It’s actually based on and different chapters, but it’s not that strict, was not that strict in compliance because like we had to do the approximation steps. We had to comply with the association agreement, but only now we are implementing the EU legislation in whole. So only now we have started like the whole European integration process.
Yeah it’s been going since 2017 very actively and The association agreement has the direct application in our legislation. So all of the provisions there, we have to comply with that. And of course, apply it as just as the provisions of the legislation.
Yeah, I see. Okay. And so this has been a clear move towards the European union.
And I’ve briefly tried to, to look at the history of private law in the Ukraine. What I found is that it’s somewhat similar to Germany and to France, I believe, right? That it looked a bit for to them for inspiration. Yeah,
yeah. We are completely civil law country. So we do have a lot of, the structure of the legislation is very much resembling the European one.
So that’s basically, it’s not that hard for us to implement the European provisions into our legislation because it’s already very close. And it has. the same fundamentals. And already we have the European Court of Human Rights, all the decisions, we comply with them. So it’s already part of our legislation.
The only thing from the big European picture, I think, that is missing is the compliance with the CGEU decisions for now. They are not obligatory for us. Yet, however, we are moving in that direction. And so to join the European Union and to be obliged by all of the decisions of the CGU as well.
I see.
And how exactly? And then of course the invasion happened in, in early 2022. And apart from the disruption of general public life through military actions, what has been the impact on the legal system as such, and in particular in the IP space?
On the first day of the invasion the president established the martial law in Ukraine. Martial law is is the legal instrument which allows to restrict a lot of constitutional rights. And also to give some additional powers to military administrations all over Ukraine. So that’s just that we can handle the war more effectively, so to say.
Yeah. The martial law has imposed a lot of restrictions on rights of the persons and of course the circumstances of the war. They have led to Inability of a lot of people to just execute their rights and also in IP sphere as well, like with regard to their IP rights objects.
And so seeing the situation, the Ukrainian government has responded to that. They drafted the law and the parliament has adopted it in the middle of April. And so that law is is called the law of Ukraine and protection of interest of persons in the sphere of intellectual property during martial law imposed in connection with the armed aggression of the Russian Federation against Ukraine.
And so this law basically says that all of the Terms and deadlines, which are established for prosecution. So for for protection of your IP rights are suspended for the term of the martial law. That means that for instance, if you’re a person who who is on the occupied territories and you basically like, do not have access to any of online registers, or you cannot just file files, the motion for prolonging the term of your IP, right?
Like for renewing the term for trademark or for patent, like to pay the fee for the next year of protection, all of your rights. are all of the terms are paused until the end of the martial law. And you, of course, no
one knows when that will be.
Yeah, of course. Yeah. Unfortunately.
Yeah for now, it has been prolonged until November, 2024. It is renewed every three months. It’s written in our legislation that martial law can only be established for 90 days. So every time we have to prolong it for another three months. So now it’s for November 24, but of course is likely to be prolonged even more.
And so all of the IP rights are basically now protected still two years now. So that if you cannot renew your IP rights, it is stated in the law that you do not need lose it you still have the right and you have the the right to file the oppositions to appeal anything to the appeal chamber and all of the other acts which are envisaged in that law.
It’s very short by the way, it’s like only two or three provisions. And so it’s just aimed at protecting those two. people who have suffered from the invasion and who do not have the possibility to do the actions for protection of their AP rights. And so that has been a very good and timely response to what was happening because there were a lot of concerns that the people would just miss the deadlines for protection of their AP rights for renewal of the And so that they will lose their rights.
And that was just wrong to to allow that to to become the reality. So fortunately we have that legislation and everything is prolonged until the martial law.
And has that led to any complications in the proceedings that were going on, or has it been adopted rather well and led to easier practical enforcement of patent rights or IP rights in general?
Yeah, I think that for the IP objects, which do not require anything like complicated actions just to renew them, that law has been doing well, I think, and it’s just for effective protection of those objects. However, there is one controversial Provision in that legislation which was interpreted by our courts, very formalistically, and I’m talking about the objects which are due to expire at all, so for instance, patents, they have the term of protection, which is established in the legislation.
That’s 20 years. And if there is some supplementary protection, if it’s if it’s concerning the medicinal product, then it can be 20 plus years up to 25 years. And so that term, it cannot be renewed at all. So they expire on the dates. which is established by law. It’s only the very limited term of protection.
They cannot be renewed because that’s the patent monopoly and it has some, sense in it. And so the law says it’s like very vaguely I will read it to you. The valid IP rights, the validity of which expires on the day of imposition of the martial law in Ukraine or during the martial law, shall remain valid until expiry or cancellation of the martial law.
And so this provision, if to interpret it in the in the spirit of this law, just to protect the interests of people who are not able to renew their rights or to pay fees for the next year. It’s obvious that in the spirit of this law, this sentence only concerns those IP rights, which can be prolonged.
It should not concern the IP rights, which cannot be prolonged at all. So if you have a patent, which expires in April, 2022, you should not have the right to prolong it, and it should not be considered as such. Do not prolong until the end of the martial law because it has expired. It has exhausted itself.
This is right. However, our courts have been interpreting it in a very formalistic way. And so the first and the bill instances, which considered the cases which were concerning the validity of the patents, they said that the law says what it says. And so the patents are are prolonged until the cancellation of the martial law.
So for now, some of the patents have already like 27 years of protection. But yeah, they’re going into their 28th year of protection and Ukrainian professional community in IP sphere, they condemn this approach very much because it just shouldn’t work that way in a country which has rule of law principles and some legal determination and all of that.
So That’s a pity that it works that way. For now, the Supreme Court has not yet decided on the interpretation of this provision yet because none of the cases have reached the Supreme Court on this issue on this particular issue. Some of the cases are moving forward to the Supreme Court in from the bill instance right now, but we will see how all of that unfolds.
There have been some legislative initiatives. Aimed at trying to fix that situation. So some draft laws were filed to the parliament because it is now obvious to everyone that we have a flaw in this law. be somehow dealt with. But for now, the parliament has not adopted any of those laws.
It is still a pending question to be resolved, but for now, yeah it’s a bad situation for generic companies. Because when you have a plan to launch your generic pharmaceutical in Ukraine, and you try to file the application for medicinal product registration, and then you get sued by the originator.
Which claims that well, actually my patent is now is still in
effect. Yeah,
yes, it’s still effective. So you cannot go into Ukrainian market with your generic product, unfortunately. Yeah, that has been causing some problems.
Do you know when there’s usually? considered to be an infringement for generics?
Is it when they apply for reimbursement or is it when they get their MA marketing authorization?
Yeah, that’s another question about the Bolar exemption, which has not been fully implemented into Ukrainian legislation as it is in the EU countries. Our governmental authorities are aware of the problem and they are saying that they are moving into like the EU approach.
But for now we do not have the clear polar because the mere fact of filing the MA application is considered to be an infringement. So
it is or it is. Yeah. Oh, wow. Okay.
Considered infringement. So if you are filing the application, you are infringing because the courts say that if you’re filing, you are preparing for infringement.
And so under Ukrainian legislation, the infringement is the, the actions themselves or preparations to those sections and filing the email. Application is considered to be preparations to infringe in actions. And so those the course usually issue the pi on those on in those cases.
And they forbid the consideration of the MA applications in this cases and forbid to the governmental authorities which registered the medicinal products from issuing any decisions under that application. So until the consideration of that case. Yeah, that’s how it works. Interesting.
That’s the first jurisdiction that I’ve heard of that does it that way.
Yeah. That’s, it’s very interesting. Yeah. Unfortunately, we,
we still do that but hopefully we will get into a more, civilized way of doing .
Oh, and it’s not necessarily just because everyone’s doing it, it’s better or worse, but of course there are some good arguments for not having, not considering it an infringement if you apply for marketing authorization, certainly.
But yeah, that’s interesting. And so when, if all the patents are that prolonged, does it mean that we see more aggressive patentees? That file possibly more infringement actions because they think their patents are they’re safe from patent invalidation or expiry, or is it not necessarily changed maybe also because of the political situation that people don’t use the court system as much right now?
Yeah, we had more court cases filed by the patentees who consider their patents still valid. I would say that not all patentees follow that approach of the courts because there are some patents. Which have expired during martial law and under the court’s interpretation, they are still valid.
However, the patentees allow generic companies to come into the market, even though their patents still can be considered by first appeal instance course to be valid. It’s only, I think one or two companies who are pretty much aggressive with their patents and who have their patents for 27, 28 years.
And they still file the infringement actions against generic companies who try to come into Ukrainian market. So that all depends, I think, on moral principles and on the attitude of the patentee himself. Yeah. Towards what the protection of his rights should look like now in Ukraine.
However, I would say that the situation may be getting better because if to look closely at the court cases, which were already filed by those originator pharmaceutical companies, they seem to be As of this moment on their way to settlements. So perhaps we will soon have the situation when we do not have yet the final decision of the Supreme Court on the issue of validity of such patents during the martial law, but the market will regulate it like by itself.
So hopefully that will be the situation that we will get that it will just be settled on its own.
And I would say even about the IP cases, which are now considered in the course I say, I think that the majority of the cases which are considered now in IP sphere are concerning patents and pharmaceutical products. So that’s popular sphere of of litigation, which is now ongoing in Ukraine.
Copyright and trademarks are now decreasing in the numbers of litigations. But overall, yeah, that, that’s the proportion of the cases.
Interesting. And I also read something in your summary that there used to, there was supposed to be specialized IP courts and they haven’t yet come through or is that correct?
Yes. We have the special high specialized IP court envisaged in our legislation in several legislative acts in, including in commercial procedural code of Ukraine. And that was introduced in 2017, if I’m not mistaken. And so this court has the jurisdiction over all IP matters. It has been even established as a legal entity for now.
So it does have even one, one employee yeah, working there. And Ukraine. Actively had been feeling the judges positions in the first and appeal instances because there are going to be two instances within this one court. We had to already finished, almost finished the first instance.
course selection, judges selection and started the bill instance judges selection. However then there was the moment when our high qualification commission of judges was not functioning and other authorities. Which are the governmental authorities for courts and appointment of judges have not been properly functioning for some time.
So this process was paused then. After that the aggression of Russia started against Ukraine. And so that issue was resolved. Postponed until the better days for now, the process has not been resumed, unfortunately, because our high qualification commission of judges, which is now fully functioning properly as it should they say that their main priority for now is to feel the the open vacancies off.
judges on local levels, for considering civil criminal cases, because there is a lack of judges. Unfortunately, now in Ukraine there are some courts district courts where there are only like one or two judges and a lot of open vacancies. And so their priority now is to fill those vacancies and to try and, reach our judicial system with judges.
So that it’s so that it provides the effective protection to Ukrainian citizens on the most basic levels. Yeah. And there are a lot of issues now with the criminal cases with war related crimes. And so that’s what they’re concentrating now on. So the IP court is now paused, unfortunately, however, the IP community The legal professional community in Ukraine, they are very much lobbying the resuming of those selections and examinations because the IP court is something that is very much attractive Or investments.
If the foreign investors see that the country has the court which can actually effectively defend their interests with and the judges will be like highly qualified in IP. They will more likely invest in the country because they see that there are effective mechanisms of protection of their rights.
So strategically, I, the establishment and the launching of the IP court is, would be very much beneficial for Ukraine, but unfortunately on practical level, it is not in, in the highest priority right now. Yeah. So unfortunately now we do not have that court, but the IP cases are considered in civil in civil courts and in commercial courts, just as they were considered previously.
So nothing changed in that way.
Is it more like the American model where judges who do other types of law also do patent law, or is it more like the German approach where you own probably also French approach where you have judges who do nothing else?
Yeah, we do have the specialization of judges in our courts so that the judge can be specialized, for instance, in competition cases in some commercial law and IP law.
I think that we have very little number of judges who do solely IP cases. Usually it is combined with some other specialization but yeah, so they are connected specialization, I would say. So it’s not like I like hear criminal cases and then I hear the copyright case. That’s very, I think, rare occasion in some civil jurisdiction.
In commercial jurisdiction, it’s more, mainstreamed into like more or less connected specializations of the judge. Yeah.
Very interesting. Very cool. And then we also might shift gears a bit because I heard that, or we talked about earlier briefly that you also writing a thesis and what is the topic of your thesis that you’re writing about?
Without, of course I know everyone will want to know and then maybe steal your ideas. So you can sketch it broadly if you would like.
No, I’m not afraid.
I really want people to steal my ideas and I really want all the other countries to steal Ukrainian approach.
Yeah, very good.
Because I think that’s a very progressive one. So that’s, I think the highlight of our IP law is that even during wartime, We do have some new legislation in IP. So that’s not in the last place at all. We understand the importance of protection, protecting IP rights, and we move in the right direction.
Yeah. In 2023 The new copyright law entered into force, and there are a lot of like new, I will go like broadly, from the beginning. And so there are a lot of amendments into the legislation now, which is now much more resembling the European legislation in copyright. And so the list of.
free use of cases, the public license which can be issued for using the copyright works and so on. But the most interesting thing is what I’m writing my thesis about is the way that Ukraine protects AI generated. So we have the sui generis model of protection, which like a lot of academics only talk about, but we have it now in our legislation, It basically is that Ukraine gives the, it is in the copyright law provisions. And it’s in the chapter with like copyrights. However, it is not copyright per se because sui generis, right? It gives you someone the protection over non original AI generated object. So it’s not even called a work because work is something that is.
It’s created by a human. So it should be like personal connection to someone a live person with personal touch and all of that. Here we say it’s non original, so it does not originate from a human and it’s a war. It’s an object. It’s not a work. Yeah. It’s a very interesting form of protection.
And so it’s,
It’s not a copyright. It’s something else that you came up with basically a new IP, right?
Yeah, it’s a new IP, right? It’s not copyrighted per se, however, it has a lot of requisites of copyright in it.
And it’s called non original because it’s not from a human or is it non original because it’s been created from previous material that you’ve fed into the machine?
I think that it’s more first option because it’s not originating from a human because it doesn’t have the originator, like a natural person originating it itself. Yeah.
I see. Yeah. Very interesting. And so how why did Ukraine come up with this? Is it because you just happened to get a new legislation and then you thought, Oh, we take the latest what we have or were there some people involved who just happened to be very modern very farsighted or how do you know how they came about?
Yeah, I think
that’s both actually that you mentioned you get to the point first is that the draft of the copyright law was has been was being prepared for one or two years. So it’s even before the invasion started, it was already drafted. Yeah. And there were some people which were very active in, pushing that, that provision.
That’s mainly the academic people. So the people who are aware of the approaches which exist now in all the countries and of the approaches which are being offered in Other jurisdictions. And so that was the moment when we were adopting a brand new copyright law. And that was the perfect moment for those people to push that provision into the draft law so that it is adopted along with all other provisions.
But yeah, but I think that’s the very good thing that we had like this, the star moment of this provision to come up in our legislation.
Very cool.
But yeah so that’s perfect actually. So we’ve beautifully Touched on all the topics that I wanted to touch on. Is there anything else you would like to highlight or to talk about?
Not really. If perhaps we should a little bit expand more about the sui generis stuff.
Oh, of course. Of course. Yes.
Yeah. For another two, I didn’t know. I
didn’t know how deep you wanted to go. Yeah.
Yeah. That’s not, I really don’t mind like talking more about that because because it’s a very, I think, balanced approach with regulation or that, or this issue.
Yeah. Definitely.
I will just expand.
Please. Yeah. Yeah. Yeah, and the essence of this sui generis approach is that it gives the owner of that object only property rights. All of the rights which are envisaged by the copyright law so the right to use, to permit use, or forbid use to the third persons.
So it’s all that you get. You get it for 25 years and it’s not calculated from the moment of death of the author as it is in copyright law, but it is calculated from the January 1st of the year, which is the next one after the year of the generation of that object. And so the owner of that of that IP object, it can be someone who is actually listed in the contract.
The contract is the terms of use of a certain AI model, so to say. So it can be the owner of the program or the person who has licensing authority over that program, or it can be the user and In the process of like writing my thesis I was researching for some examples on the terms of use of different AI models.
And it appears from one of the report that I found that almost all of the AI models give all the rights to the output to the users. So actually under this Ukrainian model, if you as a user generate something With the use of the AI, it is yours to use for 25 years and you can limit other persons from using this, your object.
Yeah, it’s a very interesting one. Yeah, and no moral rights arise at all. So it’s only proper choice. And it makes total sense because moral rights are intrinsically connected with the author and with the person who created that work. So it’s pretty illogical that there shouldn’t be any moral rights at all.
So there are no, so moral rights like in, for example who is supposed to be, who has the right to be called the author or who has the right to avoid others from distorting it to some some way. Okay. So that means there are no moral rights at all or it’s just the person who creates the software or really nothing at all?
No moral rights at all. So it’s not even the right to name which is one of the moral rights. Yeah. So it’s just using it’s, I think it’s pretty, utilitarian approach because it is the content that you can use. You can allow license that to third parties to use, and you can sue someone for using it without your permission.
And that is all that’s all that you get. Yeah.
Yeah. I was gonna, I was going to ask, maybe you’re going to touch on this, but I was going to say what if I, for example, say, write a story like a lot of the rings, but in the style of, I don’t know some modern writer. So maybe like John Grisham, a lot of the rings in the style of John Grisham. So obviously, even if that’s something, novel or non original there, there’s the question of don’t I infringe their rights in some way?
Yeah that’s exactly the point that I wanted to move our conversation to, is that if you, during the generation of your object, infringe upon someone else’s right, you do not get the right at all.
So the requirement of the law for, the existence of this right, is that you generate something without infringement of. anyone else’s copyright or related right. So only then this right appears. And so I think that we had not had the practice on that yet in Ukraine because this provision is pretty new and very little, amount of people know how to use that.
Yeah. Yeah. And so it hasn’t been tested on practice yet. But I think that there is going to be something like in a traditional copyright, like the presumption of authorship, so that you have this right from the moment of his, of the creation of the content. However, the if, In the process of some litigation, if you’re infringing someone for infringement of your rights, if you’re suing someone for infringement of your rights, it appears that you have created this object with infringing of someone else’s rights of some previous copyright.
Then it appears that you actually do not have the right and you are suing someone without the legitimate interest to sue. And so you’re. your suitcase will fail, actually.
That’s very interesting. So that, because I imagine this, so then people would have to say you prove that there’s an infringement of previous rights.
So to keep, to stay with the example of Tolkien’s Lord of the Rings. So you would have to, for example, then maybe either look at what the story is like, and then try to compare as you do maybe in traditional copyright. But one thing you could also do is maybe look at the prompt that you gave to the AI when you say, for example, write me something that is like that book in that style, that would be because I assume that would be saved by whoever owns the software, the AI.
So then that could be used as a way to infringe. And on the other hand, if then, for example, just say, write a story. about some guys against an evil person and make it sound like a legal thriller. And then it comes out to be sort of Lord of the Rings a la John Grisham, then it’s much more difficult because then the question is also, I don’t know if that is the case in traditional copyright or not, if you need a mens rea, if you need like the knowledge and the will to infringe, or if you’re already infringing, even if you didn’t know you but that would be, become a problem.
Yeah, I think that’s going to be one of the problems for courts to resolve. Yeah. And also one of the problems that I see that can appear in the courts is actually what is AI generated content at all? Because there is a distinction between AI assisted when there is human interaction. And AI generated content, which should be without direct involvement of the human.
And our provision actually says that the works which are produced by AI with involvement of the human are just. Copyright, copyrighted work, so they are not non original objects which are protected under this provision. And so we will have to resolve which extent of the involvement of human is required for it to be AI assisted or AI generated work.
And yeah, there are a lot of questions to be resolved, but at least we are heading somewhere, with this regulation. They, that it is possible to regulate this issue in this way. So you can possibly even try and look at us as a living laboratory here, trying to tackle that issue. Yeah. And then, to choose whether you want to adopt that approach or not, but it’s certainly interesting one to to consider.
Very interesting. And so you look in your thesis, you look at how that came about, or if it’s a good idea or how it will be implemented. Is that your approach?
Yeah, I think that I’m more looking about on the like superiority of this approach over the other approaches which exist in the world.
Like for instance there is approach of the UK which is invest in their copyrights, patents and design act of 1988. And they actually have the provision on protection of computer generated works back in 1988. So it’s been like, Almost 40 years that they have this provision and some common law countries, or the countries which resemble the UK’s legislation like Ireland or South Africa, they actually have those provisions in their legislations as well.
And however, this approach. It raises a lot of questions with regard to originality because it is still, in the copyright sector of their acts. And so that presumes that the objects generated should be original and they are actually called like the works. They are not objects. They are the works.
And that raises a lot of questions with regard to the legal nature of those. Of those IP rights that they have in their legislations. Yeah. Or like in, in the U S they explicitly say that there is no protection to AI generated works at all. It is all in public domain. It’s all unprotected and you can use it as you wish.
So we do not have, do not give any rights to do that and do not even presume that it can be somehow related to copyright or something resembling it.
Interesting. So interesting times ahead. We’ll see which approach wins out or how they develop. Very cool. Yeah,
that is true.
Very cool. All right. Wonderful.
Any other topics or points you wanted to mention?
No, I think that we’ve covered All the main points and I thank you very much for your interest in all of this stuff and in Ukraine. No, thank you.
Thank you. It’s very amazing. Are you going to be a coach again next year or are you giving it to the next generation?
We were thinking about with the girls about giving it to them, to coach the next generation of lawyers. Yeah, and they’re still considering it. Hopefully it will work very soon. If they do not then Talia and I will step in.
Or just sue them to do it. Yeah.
Yeah. Do you want to judge again?
Yes, I think yes, definitely.
If I if they will have me and if I can make the time I’ll definitely be back. So it was a lot of fun. And especially because I’d never dealt with design rights before and then I was supposed to judge people on it who probably wrote dissertations on it. So that was a bit funny but it was great.
It was a lot of fun. It was a lot of fun.
I also had a question what is why did you decide to do podcasts? Is it just your hobby? Yeah,
It’s just a hobby. And I also want to make clear that it’s had nothing to do with my employer although it of course is inspired by me doing patent law for work, but it has, but it’s completely private.
And my employer doesn’t. Theoretically doesn’t know I’m doing it, but of course I’ll be posting it everywhere. So they probably become aware of it but I think, no, I’ve wanted to do a podcast on law or like interviewing any sorts of jurists or lawyers, I think since 2014 or something, and I never did it because there was always something going on.
And so I forgot about it. Then I, when I started doing my I started doing a defi, like a PhD at Oxford at some point. And I was a guest on a few podcasts for some reason because I, some people asked me and I I them, and then, so that was a lot of fun. I thought, wow, that’s really cool.
And then I actually took over a podcast from another guy. at Oxford who stopped, who graduated. And he, and I knew him from a documentary, like literally I saw the documentary on university challenge. I don’t know if you’ve heard of that. It’s like a, it’s like a game show for university students in the UK.
And I just wrote to him because he had a website and he was just so amazing. And on his website. It said I’m retiring. And I don’t know, he’s like in his mid twenties or something. I’m retiring from my podcast. And if anyone wants to take it over and is that is a student at Oxford, write to me.
And I wrote to him and then I took it over and I did two episodes because I was doing it part time. So it wasn’t in the UK and it was also during a COVID. And it was just, I just couldn’t find enough people to be guests because I basically cold called everyone. Or I asked a few people who own everyone who’s on there is a friend or a friend of a friend.
And yeah. At some point I’ve ran out of people who, wanted to do it and wanted to do a podcast and also wanted to do it online. And I just and I had too much other stuff going on. And then I but I do have all the equipment and so I thought yeah. And so at some point, like I had, I got to know more and more people in the IP space through certain events.
And then at some point I could think of 10 people on the top of my head who’d be great guests, you of course being one of them. And then I just cold called a few of them. And so now I have about half a dozen people or seven people on who said yes already and then a few more who said maybe. And so I hope I can keep it going for a while.
And and yeah, it’s just something to talk to interesting people. To have a reason to talk to interesting people about something I find interesting as well. And because I did like the old podcast I did, on number theory and math and I didn’t know, I didn’t understand anything, even though I was the host and you can listen to it.
It’s still online. It’s called what’s it called? In our spare times there’s a famous BBC podcast called In Our Times, which is really cool about all sorts of academic topics. And then they invite professors who talk about it. And we call it In Our Spare Times,
and I didn’t know what I was talking about all the time. So here, it’s some, it’s usually the same, but at least I know the basics around it. And so that’s fun.
Yeah. Awesome. Also, if you want anything, if you have any sources or something that you would like other people to read or if you, so I would, what I would do is the thing that you sent me, maybe I would put that in the show notes so people can download that if they want to.
Okay. If you like, because you of course have the copyright on it.
Yeah. I love it. I’ll give you my license.
Awesome.
Okay, great. Awesome. Thank you.
Awesome. Thank you very much.
No, thank you. Thank you so much for having prepared so well.
Yeah. It’s so great that you’re doing that. It’s so nice. And your history with podcasts and yeah, it’s,
and that’s very great that you’re educating people. Yeah.
Yeah. Yeah. Including myself.
Yeah, that is true, but that’s very interesting to learn about new jurisdictions, new approaches.
That’s all. Yeah. Cool.
Very
cool. Yeah. I will send it to them. I will send you that. Thanks. Bye.
Cool.
Yep.
All right. Take care, Luna. And then we’ll be in touch.
Yeah. Thank you very much. Bye. Have a nice day.
Bye bye. You too.
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