CRITERIA FOR DETERMINING INTELLECTUAL PROPERTY OBJECTS IN THE IT SECTOR: AN ADMINISTRATIVE-LEGAL APPROACH

Abstract

The article examines the criteria for identifying intellectual property objects in the field of information technology from an administrative law perspective. It is substantiated that the digital form of existence cannot independently perform a distinguishing function, since virtually any traditional intellectual property object may be digitised. Accordingly, a conceptual distinction is drawn between the digital form and the digital origin (digital-born nature) of an object. It is demonstrated that the decisive characteristic is the functional inseparability of an intangible result from the software and technological environment required for its creation, existence and use. It is established that creativity is likewise not a universal criterion for classifying an object within the category under examination. Contemporary legislation provides protection not only for the results of intellectual and creative activity but also for legally equivalent intangible objects whose protection is based on other legal grounds. These include non-original databases, non-original objects generated by computer programs, and semiconductor product layouts. The expediency of including objects protected under special sui generis legal regimes within the relevant category is substantiated. The administrative law significance of the economic value of a digital object is clarified. This characteristic is regarded not as a prerequisite for the emergence of a subjective intellectual property right, but as a factor in establishing a fiscal, investment-related or security-related public interest and in prioritising the protective activities of the state. The author proposes defining intellectual property objects in the field of information technology as the results of intellectual and creative activity, as well as legally equivalent intangible objects, which exist predominantly in machine-readable form, are functionally connected with software and technological means, are protected by intellectual property law or sui generis regimes, and possess independent economic value within the digital economy. It is proposed that the field of information technology should be understood in a functional rather than sectoral sense.