Property rights of intellectual property that are transferred are part of the inheritance
According to Art. 418 of the Civil Code of Ukraine, intellectual property right is the right of a person to the result of intellectual, creative activity or to another object of intellectual property right, defined by the Central Committee of Ukraine and another law.
Rights in the field of intellectual property belong to objects of non-property inheritance. Only intellectual property rights valid at the time of the opening of the inheritance can be part of the inheritance.
Intellectual property rights include:
1) the right to use the object of intellectual property rights;
2) the exclusive right to allow the use of the object of intellectual property rights;
3) the exclusive right to prevent the improper use of the object of intellectual property rights, including prohibiting such use;
4) other intellectual property rights established by law (Article 424 of the Civil Code of Ukraine).
According to Art. 420 of the Civil Code of Ukraine objects of intellectual property rights include:
– literary and artistic works;
– computer programs;
– data compilation (database);
– execution;
– phonograms, videograms, broadcasts (programs) of broadcasting organizations;
– scientific discoveries;
– inventions, useful models, industrial samples;
– layout (topography) of integrated microcircuits;
– rationalizing proposals;
– varieties of plants, breeds of animals;
– commercial (brand) names, trademarks (marks for goods and services), geographical indications;
– commercial secrets.
It is worth distinguishing objects of intellectual property rights and intellectual property as an object of inheritance. After all, it is not the object itself that passes to the heirs, but the set of rights to it.
According to Article 6 of the Law of Ukraine “On Protection of Rights to Inventions and Utility Models”, the object of the invention, which is protected by this law, can be:
- a) product (device, substance, microorganism strain, etc.);
- b) process (method).
The testator’s ownership is certified by registration in the relevant institutions:
– the invention and utility model are certified by a patent (declaration patent);
– for an industrial model – by patent;
– for signs for goods and services – by certificate;
– for the copyright of works – by a certificate, simple, in accordance with Part 1, Part 2 of Art. 9 of the Law of Ukraine “On Copyright and Related Rights”, copyright to a work arises as a result of the fact of its creation. The creation and exercise of copyright does not require the registration of a work or any other special design of it, as well as the fulfillment of any other formalities. Therefore, the submission of documents certifying the testator’s ownership of the copyright object is not required.
The concept of inheritance
Inheritance is the transfer of rights and obligations (inheritance) from a natural person who died (the testator – the subject of copyright and related rights) to other persons (heirs). Inheritance is carried out by will (topic for separate discussion) or by law.
Heirs and other successors who have acquired rights are recognized as subjects of copyright and related rights within the term of validity of property rights to objects of copyright and related rights (in accordance with Articles 31 and 45 of the Law of Ukraine “On Copyright and Related Rights rights”).
According to the general requirements of civil legislation, inheritance is the transfer of copyright and related rights from the testator to the heirs, who should take the following actions to secure this right:
– exercise inheritance rights and fulfill the conditions of the will (if such conditions exist);
– issue the right to inheritance.
As a general rule, the procedure for inheriting intellectual property rights in Ukraine is no different from the inheritance of any other property that belonged to the testator. According to current legislation, in the event of a person’s death, all rights and obligations that belonged to the testator, with the exception of those that are inextricably linked to him, pass to his heirs.
The process of inheritance can take place in the general order – according to the law, or through inheritance according to a will. In order to enter the inheritance, the heirs must accept the inheritance, as well as formalize the right to inheritance by obtaining a certificate of inheritance rights from a notary public.
In this article, we consider the procedure for inheriting rights to registered objects of intellectual property rights by law:
Obtaining a death certificate
In order to transfer the inheritance property to the heirs, including registered intellectual property rights, corporate rights, and other inheritance property, the heirs must contact a notary public registered in the notary district of the city where the last place of residence of the deceased was registered.
Before the heirs apply to the notary, it is necessary to obtain a death certificate of the testator.
Given the realities of our country, which is at war with the Russian Federation, obtaining a death certificate is somewhat complicated due to the presence of temporarily occupied territories, because registration authorities do not accept documents issued by institutions in non-controlled territories. If a person died in the occupied territory and a refusal was received from the Department of Registration of State Acts (RACS), the decision to establish the fact of death is issued by a court.
To obtain a death certificate of a person who died in the territory of Ukraine temporarily occupied by the Russian Federation, as determined by the Verkhovna Rada of Ukraine, it is necessary to submit to any court (outside such territory, regardless of the applicant’s place of residence) an application to establish the fact of the death of a person in the temporarily occupied Russian territory the Federation of the territory of Ukraine, and together with it – appropriate evidence (the court fee for submitting such applications to the court is not paid).
The application is submitted by relatives of the deceased or their representatives, and it must state:
– what fact the applicant requests to establish and for what purpose;
– a statement of evidence confirming the fact of death (evidence in the case can be explanations of applicants, witnesses, written evidence, physical evidence, in particular audio and video recordings, expert opinions).
Such a case is considered by the court immediately from the moment of receipt of the relevant application. Based on the results of the examination of the application, the court issues a decision to establish the fact of the person’s death or (in case of improper application form or lack of documents specified in the application) to return the application, or (in case of insufficient evidence) to reject the application.
The court must clarify the procedure for appealing the decision and immediately issue a copy of the decision to the applicant (if the applicant is not present at the time of the announcement of the decision, the court sends a copy of the decision establishing the fact of death to the department of state registration of civil status acts at the place of the decision for state registration of death).
To obtain a death certificate, a person submits a copy of the court decision establishing the relevant fact and a passport of a citizen of Ukraine to the nearest department of state registration of civil status acts.
To obtain a certificate in general, you can contact:
– to the RATS (authorities for registration of acts of civil status);
– to the executive committees of village, settlement, city (except cities of regional significance) councils;
– to the center for providing administrative assistance.
And the applicant can submit an application for receiving the service in person or through a legal representative in writing or orally.
Only a natural person can apply for a death certificate.
What documents are required for submitting an application:
– application for state registration of death:
– a death certificate of the prescribed form, issued by a health care institution or a forensic medical institution;
– a court decision to establish the fact of death of a person at a certain time or to declare him dead (if the decision to establish the fact of death is issued by a court);
– passport of a citizen of Ukraine (passport document of a foreigner, stateless person) of the subject of the application (if available);
– preferential documents (if available).
The result of state registration of death upon application is a Death Certificate. The applicant can receive the results of the service in person or through a legal representative.
The service of state registration of death is free of charge, and the deadline for issuing a death certificate is 1 (one) calendar day.
Obtaining the Certificate of the right to inheritance
With the Death Certificate, the heirs must apply to a notary public, who initiates an inheritance case at the request of the heirs.
The heirs of the first order of family ties are the wife/husband of the deceased, children and parents, who all have the right to receive inherited property in equal shares according to the law (Article 1261 of the Civil Code of Ukraine), unless there is a will. But the issue of inheritance by will is quite voluminous and has its own peculiarities, so we will consider it separately in another topic.
The document that confirms the right to property ownership, the right to intellectual property, the right to corporate rights is the Certificate of the right to inheritance, which is issued by a notary public after the deadline established by law for acceptance of inheritance, within the framework of an established inheritance case.
The legislation establishes a six-month period from the date of a person’s death for the heirs to accept the inheritance or refuse to accept it.
During the martial law, an additional period of 4 (four) months has been determined in addition to the six-month period specified by the Central Committee of Ukraine, during which the heirs who were not registered together with the testator have the right to receive the inheritance. For the heirs who lived and were registered at the same address as the testator, there are no deadlines for accepting the inheritance, and it is considered that they actually accepted the inheritance, if they did not renounce it within the deadline set by the law.
To obtain a certificate of the right to inherit intellectual property rights, the notary conducting the inheritance case makes inquiries to the National Intellectual Property Authority – the state organization “Ukrainian National Office of Intellectual Property and Innovation” (UNOIPI), and checks the ownership of the copyright by the testator and receives information:
– from the State Register of Patents of Ukraine for inventions, utility models;
– from the State Register of the certificate of copyright registration for the work;
– from the State Register of contracts relating to the author’s right to the work, etc. (to establish the presence or absence of the transfer of property rights to the registered work to other persons).
The certificate of the right to inheritance, received by the heirs, 6 months after the opening of the inheritance, is the basis for sending a petition to the National Intellectual Property Authority – UNOIPI regarding the change of owner and entering information into the relevant state register.
In fact, the topic of inheritance registration is quite broad, has many peculiarities, and each inheritance case is considered very individually and has many nuances, the disclosure of which will not be limited even to a series of articles on this topic.
Therefore, for specific consultations on each individual case, it is worth contacting a lawyer in the field of intellectual property in parallel with a notary, who will definitely help by providing consultations and carrying out appropriate procedures, in accordance with the current legislation of Ukraine.
The article was prepared with the participation of an expert – Svitlana Dedeliuk, a notary of the Kyiv City Notary District.
