CC BY
82Comparative legal studies
THE DEVELOPMENT OF SCIENCE AND TECHNOLOGY AS A FACTOR CONTRIBUTING TO CHANGES IN MODERN LEGAL SYSTEMS1
Olga Seregina
L. L.D. , Associate Professor, Chair of Civil and Arbitration Process Volgograd State University
Abstract: This article emphasises that scientific discoveries, developments and the creation of new computer programs have become driving forces in the shaping of modern procedural and substantive law. Current trends in the development of nanotechnology and its influence on the nature of exclusive rights are considered. The application and improvement of information technology is presented as a tool to change the rules of procedural law, the work of state bodies and the judicial system in particular.
Keywords: nanotechnology, intellectual property, government policy, protection, new idea, legal activities, technology, comparative legal.
Scientific discoveries, developments in different spheres of society and the state and the creation of new computer programs are the driving factors that have influenced the development of existing procedural and substantive legislation and that have spurred the introduction of new concepts, procedures and directions of legal activity. Nanotechnology and the nano industry, for example, is currently one of the most promising fields in science, technology and industry New technologies and innovative and current trends in the development of this sphere have affected the nature of exclusive rights
Taking into account the governmental policies of the Russian Federation in the sphere of nano industry, including issues regarding the financing of specific developments in this area and the generation and distribution of potential income generated as a result of the introduction
1 The study was supported by the Ministry of Education and Science of the Russian Federation, Agreement 14.A18.21.2003, “Modernization of Technologies of Legal Activity in the Legal Systems of the Modern World”.
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Law and Modern States № 3 — 2013
of crafted objects or other discoveries, the registration of intellectual property rights to protect them is currently of increasing interest .
In the international community at present, the intellectual property rights protection mechanism has been sufficiently debugged .2 In many developed countries, these mechanisms have long been purposefully created by authorities and stimulated by business competition . Direct state regulation of innovative processes in different countries plays a critical role in ensuring innovative development.
Innovative activity currently is perceived as a necessary attribute in market relations .3 Innovation, in the literature, is considered to be the creation of something new and previously unknown and is identified with the creative activity connected to the development of new goals and the corresponding means or with the achievement of known objectives using new tools . 4
Innovative activity means the transformation of the results of intellectual activity into inventions, useful models, industrial samples, selection achievements, topology of integrated microcircuits, databases, know-how and computer programs. In addition, the products must be introduced into circulation in the community All this shows the objective existence of a direct link between the concept of copyrighting created objects, methods, means or other discoveries and the attribution of tangible and intangible rights to them as well as the registration of these rights and the methods to protect them When a society is experiencing this type of progress, the role of the state in regulating the processes in the civil law for the legal protection and production of objects as intellectual property, as well as providing for the protection of the rights and lawful interests of authors, creators, organisations, investors and the state in general, is important
During the process of economic reform in our country, the position of intellectual property has changed dramatically At the present time, the protection of intellectual property is playing a special role
2 Trimble M. Global Patents: Limits of Transnational Enforcement. New York: Oxford Univ. Press, 2012.
3 Volynkina M. V. Grazhdansko-pravovaja forma innovatsionnoj deyatelnosti [Civil-Legal Form of Innovative Activity],Synopsis, Doctor in Law Thesis, M., 2007. P. 3.
4 Eropkin A. A. Pravovaja reglamentatsija ponyatija “innovatsii” v rossijskom
zakonodatelstve [The Legal Regulation of the Notion of “Innovation” in the Russian
Legislation] // Pravovye problemy nauchnogo progressa [Legal Problems of Scientific
Progress]: Materialy zasedanij Mezhdunarodnoj shkoly molodykh uchenykh-juristov
[Materials of Sessions of the International School of Young Scientists-Lawyers]. M. ,
2010. P.154.
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in state policy and may contribute to the early growth of social and economic development in Russia .
The emergence of new ideas in the sphere of nanotechnology requires the development of an identification system for intellectual property rights . The system needs to more closely define and register an invention of a completely new quality, identify the geographic place where a discovery occurred, provide for the registration of a copyright for that discovery, provide property rights for research having a global character, take into account multinational teams of participants in research groups and choose a patent system
In this connection, and in view of the rapid development of science and technology, the identification and protection of intellectual property rights and the execution of patents for innovation and inventions is becoming important because they provide unconditional economic benefits and advantages. Because rights to scientific discoveries are given special value in a new era of innovation, issues of intellectual property rights, and in particular, those related to nanotechnology- based products, are vitally important to enhance competition, the promotion of innovation and the introduction of new technologies
Prior to the identification of specific problems in nanotechnology that need to be resolved, it is necessary to define certain concepts
Nanotechnology is the interdisciplinary field of fundamental and applied science and techniques It contributes to the simultaneous development of theoretical justifications, practical methods of research, as well as methods of production and the use of products with a specified atomic structure by the controlled manipulation of individual atoms and molecules The deployment of advanced scientific achievement in nanotechnology allows us to refer to it as high technology
Nanoscience is a science developed and studied within the framework of physics, chemistry, molecular biology, genetics, microelectronics, computer technology, medicine and pharmacology Thus, nanotechnology is a very broad term that includes research in various branches of knowledge, possible discoveries, production methods and much more that, at the current stage of development of science and technology, cannot be assumed, otherwise these discoveries would already be made Nano discovery is a completely new sphere and probably, therefore, a prospective one It is difficult to predict exactly which intellectual property rights can be used to protect this or that nano discovery However, undoubtedly, the acquisition of new knowledge in the field of nanotechnology and its deployment in innovative activities may affect the role and place of this country in the international community, promote a higher standard
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Law and Modern States № 3 — 2013
of living and quality of life for the population and contribute toward ensuring national security
The concept of development of products in the Russian Federation in the field of nanotechnology for the period up to the year 2010 has defined nanotechnology as a set of methods and techniques that, in a controlled way, make it possible to create and modify products that include components that include at least one dimension that is less than 100 nm in size. As a result of this, they have a completely new quality allowing their integration into fully functioning systems of a larger scale .
Currently, the goal of science in various fields is to produce devices necessary to create and manipulate nanoparticles There is no need at all to create an object smaller than 100 nm The primary goal is to study these properties, to learn to control them and perhaps to utilise them in macro-objects .
Thus, the concept of “nanotechnology” is used to define the knowledge and management of processes under 100nm in scale when that size leads to the possibility of new applications In addition, the properties of objects and materials at the nanometre scale are used to create improved materials, devices and systems implementing these properties . The basic discoveries that have been predicted in the field of nanotechnology have not yet been made However, the research that has been conducted is already yielding practical results
It appears that the formulation of proposals for the establishment of legal protection for nanotechnology, which is not yet recognised as a new source of intellectual property, needs to start with a determination of whether existing and prospective nano discoveries should be categorised as any type of intellectual property previously established by legislation
Products of the nano industry can potentially be used in the results of certain types of intellectual activity which, pursuant to legislation, may be registered and to which legal protection is granted; these include useful models, industrial samples, selection achievements, topology of integrated microcircuits, programs for electronic devices and databases .5
The types of intellectual property listed above require various types of registration, protection or patenting
5 Seregina O. L. Intellektualnye prava na rezultaty innovatsionnoj dejatelnosti [Intellectual Rights to Results of Innovative Activity]: metodicheskoe obespechenie prepodavanija distsipliny [Methodological Support for Teaching Discipline] // Izvestija Volgogradskogo gosudarstvennogo technicheskogo universiteta [News of Volgograd State Technical University], 2013. № 2. P. 41.
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Therefore, the most complete intellectual property protection in the field of nanotechnology may be achieved through the application of comprehensive measures using both patent and copyright provisions . In addition to these forms of protection, it is possible to treat the information as trade secrets (know-how) which are not subject to patenting, but to the contrary, assume secrecy
Since 1992, Russia has established a system for the legal protection of intellectual property pursuant to which the results of scientific and technological activities are deemed to be private property and protected, for example, by patents The legislation that defines the intellectual property rights gives authors a monopoly with respect to certain uses of the results of their intellectual activity and permits it to be used by other individuals only with their permission
In a market economy, the registration of rights to protect the results of scientific and technological activity provides its owners with the opportunity to use these products themselves and to receive the resulting material benefits
Thus, it is necessary to be able to manage intellectual capital subject to ownership rights successfully. It is noted that the results of scientific and technical activity in Russia are not primarily commercial products ready for production and effective distribution Russian companies find it possible to transfer the latest knowledge abroad, not reinforcing it with know-how, secrets or services This strategy is very different from a modern global one, in which the increase of competition in the world market has become typical in technical, scientific and technological exchange, leading to significant complexity in gaining access to advanced technologies which are subject to limitations on their commercial use.6
Given the growth of innovation as part of the Russian economy, the focus should be on achieving the maximum degree of effectiveness in enforcement to protect the creation and use of the results of intellectual activity. 7
The application of information technology is an effective tool in the work of state bodies and in the judicial system, in particular The use
6 Bendikov М. А.,Khrustalev Е.Yu. Intellektualnaja sobstvennost v Rossii : problemy ispolzovanija i pravovoj zaschity [Intellectual Property in Russia: Problems of Use and Legal Protection] // Menedzhment v Rossii i za rubezhom [Management in Russia and Abroad] 2001 № 3
7 Nikolskij V. A. Vozniknovenie prav na resul’taty intellektualnoj dejatel’nosti [The Emergence of Rights to Results of Intellectual Activity] // Pravovye problemy nauchnogo progressa [Legal Problems of Scientific Progress: Materials of Sessions of the International School of Young Scientists-Lawyers]. M., 2010. P. 106.
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Law and Modern States № 3 — 2013
of information and communication technology in the justice system is the result of a policy aimed at assisting courts to receive and process online legal information as well as to ensure free access to laws and judicial decisions
The main direction in this field is currently “e-Justice” technology, which allows the electronic exchange of documents between the courts, allows courts to obtain information about traffic cases in real time and allows access to other features permitting the electronic flow of documents It assumes that business will be conducted as usual using both hard copies and electronic versions (all documents in a case are scanned and entered into a database) . It saves the time required to request cases from other courts and also alleviates the need to spend money copying materials In addition, the storage of case materials in an electronic format facilitates more reliable safekeeping. However, some are of the opinion that the risk of leakage of information through unauthorised access is an unresolved issue
However, regarding this problem, the Supreme Commercial Court of the Russian Federation has firmly declared that all processing and storage of data are to be carried out on the server, allowing the provision of centralised management, the required level of performance, reliable information storage, efficiency in data processing and protection against unauthorised access
During the implementation of the technology of “e-Justice”, the confidentiality of some information that is in the files must be taken into account If there is open access to the materials for all comers, in certain cases, individual human rights may be affected, trade secrets of business entities may be disclosed and business reputations may be discredited
The U. S. legal system undoubtedly has previously implemented a type of “e-Justice”, including access to the courts, the retrieval of information about court cases, the ability to search for documents, the transmission of documents from one court to another and their circulation within the same court, the ability to obtain information about the parties in a case and the date of filing, the maintenance of files containing the documents and other information associated with legal proceedings These features are expanded by technology allowing “Open Access to Judicial Electronic Data”, which permits users to gain access to electronic files relating to cases
Most of the states using the Anglo-Saxon and the Romano-Germanic legal systems either currently use information and communication technology in the justice system or are actively developing it Thus, in Ireland, the decisions of the Supreme Court are filed not only as hard copies, but also have been fully converted 14
into an electronic format and are available on the official website of the court In addition, in the district courts in Ireland, an interactive system of filing claims is in operation and a unified database of court decisions is under development
The Royal judicial service operating in Great Britain provides free access to the legal databases of all judicial institutions in the country by means of an electronic legal library
Since 2005, a project has been in the process of being implemented in Belgium allowing the courts and other participants in the legal process to exchange documents electronically or to interact using Internet technology
“E-Justice” technology is widely used in the practice of the European Court of Human Rights In order to ensure the unification of the information processes of the common European space, on February 28, 2001, the Council of Europe adopted the Recommendations of the Committee of Ministers to the member States of the Council of Europe . The recommendations have been implemented and address issues regarding the cost-effectiveness of the structure and reorganisation of judicial systems, legal information systems and the provision of judicial and other legal services to citizens using new technology. The recommendations have been implemented through the introduction of judicial management systems, statistical systems and modelling solutions systems to legal proceedings
Our country, in learning from the experience of other states, should study the solutions they will find to problems that have arisen, but have not yet been resolved For example, the filing of applications and complaints in courts via the Internet, while significantly reducing delivery times to the courts and decreasing costs, has created difficulties relating to the authentication of applicants .8
Currently, a video conferencing system is actively used in the courts of the Russian Federation . Judges and employees of more than 53 commercial courts already have been provided with the opportunity for video conferencing both between courts and with external callers This modern technology not only allows significant reductions in the time required to troubleshoot problems that occur in the everyday working of the courts, but it also makes it possible to conduct trials
8 Seregina O. L., Filimonova N.Yu. Sintaksicheskaja i jazykovaja struktura iskovogo zajavlenija kak juridicheskogo dokumenta [Syntax and Language Structure of the Statement of Claim as a Legal Document] // Vestnik Volgogradskogo gosudarstvennogo technicheskogo universiteta [Bulletin of Volgograd State Technical University]. Series 5. Jurisprudentsija [Jurisprudence]. 2011. V. 1.№ 5—14. P. 138—142.
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Law and Modern States № 3 — 2013
using this type of communication . For more than two years, trials have been recorded on digital video cameras and microphones installed in the courtroom. A video camera and the installation of special automatic equipment almost completely prevents the opportunity to falsify results
The creation of electronic justice continues. For this purpose, under the guidance of the Supreme Commercial Court of the Russian Federation (SCCRF), a series of measures is being carried out:
— periodically, there is a version of a “Mobile File Cabinet” available for users of mobile devices having the Android operating system that enables them to view detailed information on any arbitration case at any time;
— the information resource “Presidium Online” is constantly updated, allowing everyone to see how cases are decided in the Presidium of SCCRF;
— a new special information resource, the “Mobile File Cabinet,” was opened that made access to the information system “Commercial Cases Card File” possible with the help of multimedia smartphones such as the iPhone;
— twitter, a new service for information dissemination, is used;
— the automated information system, “Bank of Decisions of Commercial Courts” service (BDCC), has been implemented, allowing the arbitration system to take its place in prestigious foreign publishing systems of judicial acts
Finally, it is already possible to discuss the use of the most sophisticated technology in the framework of “e-Justice” — a trial, conducted only using a web information system, without calling the parties to the court . It appears that this requires lengthy preparation of the normative as well as the high-tech material base Similarly, in Great Britain, there is an existing special system for the acceleration of the consideration of disputes, which consists of an online hearing during which participants are virtually present in the arbitration The need for such a procedure is caused by the active use of new information and communication services and the wide spread of the Internet
Modern information technology and its introduction to legal services is an inevitable trend in law, subject only to the need for certain changes in existing regulations or the creation of new ones
