EMERGING

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<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues instantaneousness of part 6, article 50 of Agreement TRIPS and are effective as they allow the persons to keep the proofs and to halt subsequent offences in the field of author law. Subject composition of persons who are to execute the preventive measures adopted by the economic court is to be determined by the contents of the economic court ruling about the use of preventive measures . As for the order and method of implementation of preventive measures, they are to be determined in accordance with the selected preventive measure (article 432 ECP of Ukraine) , and obtaining of proofs on demand after the rules of article 38 ECP of Ukraine is carried out by the economic court. As to the inspection of rooms in which actions related to violation of rights, and impositions of arrest on property, which belongs to the person to whom the preventive measures are accepted and who himself or other persons possess this property, it is carried out by a state executor in accordance with part 1 article 43 6 ECP of Ukraine in an order, statutory by Law of Ukraine „On executive realization” [18], on the basis of the proper economic court ruling which is an executive document. As it has been mentioned above, the procedures which provide the observances of intellectual ownership rights are to be equal and just (part 2 article 41 of Agreement TRIPS), that is why preventive measures must be adequate. In our opinion, adequacy of measure prior to a claim, which is used by the economic court should be determined by its conformity to the requirements, to provide which it is used. The estimation of such conformity must be carried out by the court, in particular, taking into account correlation of rights ( interest) protection of which a claimant sues, with the cost of property on which the arrest is imposed or property consequences of prohibition of a defendant to accomplish certain actions. Therefore, an important guarantee of observance of legal titles and interests of person, against whom preventive measures are used and, simultaneously, a certain guarantee to prevent a claimant from abuse of procedural law is possibility to compensate the damage inflicted by the use of preventive measures . For example, in accordance with article 4310 ECP of Ukraine in case of stopping of preventive measures or in case of waiver of a claimant of lawsuit, or in case when the Page 112 Volume 1, April 2009
<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues decisions on refusal from accepting a claim come into force ,a person to whom the preventive measures are applied , has a right on the compensation of damage inflicted by the use of these measures. Should the claimant bring deposit to compensate the damage inflicted by the use of preventive measures , the compensation is carried out due to this deposit. It seems that the compensation of damage must not be used automatically, as the author only suspects a certain person of committing civil offence. Moreover, for example, there are exceptions to a copyright (free use of works without the consent of the author and without payment to him a reward by libraries, educational establishments,etc.), that is why legitimacy of such exceptions will be established only during the legal proceeding of the case. Availability of damage is to be well-proven exactly by the person, against whom were taken preventive measures . The damage is to be real , not probable and confirmed by proofs in accordance with section V „Proofs” of ECP of Ukraine, or by chapter 5 CCP of Ukraine.Compensation civil legal principles of responsibility are to cover these legal relationships in full measure. In accordance with part 3 article 433 ECP of Ukraine after presentation of claim by a claimant preventive measures operate as measures of security for a claim. Thus, it is possible to sum up that norm-creating activity of WTO directly influences on formation of legislation of Ukraine in the field of intellectual ownership rights protection. Temporary preventive measures used by courts in accordance with the orders of CCP of Ukraine and ECP of Ukraine, fully correspond to a norm and spirit of the European and world legislation. In accordance with Directive of European Parliament and Council of Europe 2004/48/ of 29.04.2004 on provision of observance of intellectual ownership rights the circle of persons has been extended for whom a right must be determined on application of the proper measures, procedures and facilities. Apart from the subject of intellectual property rights, other persons who have the right to use intellectual ownership, organizations of collective Page 113 Volume 1, April 2009
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