Particularities of scientific technical service contracts

The main topic of this paper is "The particularities of scientific technical service contracts", especially the insufficient use of industrial property rights, basing our research on service contracts in budgeted institutions of science in Cuba.

To comply with the problem addressed, the general objective of this study was set: To demonstrate the insufficiency or not of the scientific-technical contracts that are used in scientific institutions to establish their legal relationships.

civil law

Introduction

The right contemplates the human being from birth to death and the rights and duties that he must fulfill in his life of relationship, referring to collective or legal persons.

In its historical evolution, contracts, as a form of legal bonding, have multiplied and perfected in the measure of progress and complexity of economic and social development. They have been the faithful form of expression of the legal production relations of said relations and also of other conventional legal ties or relations of significant economic connotation.

In the formal aspect, in primitive times, symbolic forms characterized the recruitment.

In the early days of class society, the rudimentary nature of production and social development made it necessary to impress, proof of this is Roman Law itself, where for the existence of the contract certain solemnities or formulas were required, without which they could exist a pact but not a contract, since the essence of said formalities entailed nullity.

The development of economic relations outside the family made necessary the elimination of formal rigidity, giving more and more value to the volitional element, which reached its peak in its individualistic conception, when “civil society” became universal. Before these relationships became universal, the invention of writing and the use of currency, even in slave society, had a significant influence on both the form and the content of the contract.

As a consequence of the principles of the French Revolution, the individualist doctrine penetrated all spheres of bourgeois law, both in the public and in the private, and with regard to contracting, I proclaimed the sovereignty of the human will, considering it as a unlimited faculty of man. That is why contractual activity in bourgeois society creates subjective situations favorable to those who are richer, more prepared, more skilled, cunning, or favored.

However, in socialist society, the contract has a wide application in the relations between companies and organizations, by means of the conclusion of contracts the companies adjust and seek the best conditions for the fulfillment of the tasks that are established by the plan and establish the guarantees of the principle of economic autonomy.

Due to the foregoing, it was decided to address as the subject of this work "The particularities of scientific-technical service contracts", posing as a scientific problem: "insufficient use of industrial property rights in technical scientific contracts", being the object of study of the present investigation the contracts of services in particular the budgeted institutions of science.

Characterize legal relationships with special reference to contracts Offer a brief overview of the behavior of this phenomenon in scientific institutions Demonstrate efficiency or insufficiency on this matter in these institutions.

We propose the following as the Research Hypothesis: An adequate use of the contracting will allow the suitable legal mechanisms to be established to avoid the loss of know-how, and obtain a greater economic benefit.

To comply with the established objectives we use some qualitative research methods, among which we can mention:

Theoretical: The use of this method is necessary to achieve an adequate theoretical-conceptual foundation. It allows us to study contracts as legal relationships and in particular those of technical scientific services, it is necessary to analyze these in scientific institutions and taking as a reference the experience in some of them. Case study: to evaluate aspects related to contracts. In this sense, studies were defined as scientific-technical contracts. Document analysis: It should include classic and modern texts, serial publications by various national and international authors, publications available on the Internet, which allow an explanation of the currents that converge on this topic.

This work will yield the following results:

Demonstrate the efficiency or insufficiency of technical scientific contracts in scientific institutions The contribution of updated bibliographic material. It is a characteristic result of this type of research.

The work is structured in three sections, in Section I the …… will be addressed, for its part in Section II the elements of civil legal relations will be dealt with, with emphasis on the Cuban civil code, in Section III the scientific-technical contracts, thus establishing General Considerations on these, principles that regulate the effects of this contract. In Section VI, an analysis of technical scientific contracts in different scientific institutions is carried out, and an assessment of their correct use. Finally, the conclusions were made that were estimated to come from

Section II: "Elements of legal relationships"

1.1 Legal relations

Relations between people is the one to which the law attributes the character of legal, this legal relationship consists of three elements: the objects that intervene in it, the object and the cause that generates it.

1.2 Purpose.

The object is nothing more than people and within these legal relationships they can be natural and legal

1.2.1 Natural person:

They are provided with an essential quality from the legal point of view that is the personality for the ownership, duties and rights. From this same point of view, personality is recognized from live birth and is extinguished with death according to our civil code.

Legal capacity is the realization of the personality within the framework of a legal relationship and the full capacity to exercise rights and perform legal acts is acquired by reaching the age of majority and by marriage of the minor, however the law may establish other ages to perform certain acts.

Capacity is expressed in two ways. See figure No 1

The capacity of fact or to act is not recognized to perform acts equally to all subjects, except to exercise their normal daily life needs.

There are two fundamental causes that limit capacity:

Age: The age of majority at 18 years, which is when full capacity is acquired. Illness (physical or mental) which gives the limitation of capacity or the deprivation of it

1.2.2 Legal person:

They are the entities that have their own assets and intervene in civil legal relationships, have the capacity to be subjects of rights and obligations, this capacity may be limited by the law that constitutes it, its regulations or statutes.

They are legal persons:

The state The state companies and unions Cooperatives The mass and social organizations and their companies The societies and associations constituted in accordance with the requirements established in the laws The foundations, understood as the set of assets created as patrimony separated by act of liberality from the owner, to dedicate them to the fulfillment of a certain purpose allowed by law without profit motive and constituted in accordance with the requirements established in the laws. Non-state companies authorized to carry out their activities. entities to which the law confers legal personality.

The exercise of the capacity of legal persons is carried out through their bodies or representatives

1.3 Purpose of the legal relationship.

Within the legal relationships, the Object is an asset, a benefit or a heritage, which is of lawful approval or reception.

By their purpose, legal relationships can be:

On material goods. Obligation. Succession.

The legal relationships on material goods fall directly on things and confers on the owner, in front of any other person, the power to exercise their right within the limits established by law. Material assets can be real or movable, the land is real, the other assets incorporated into it and those that are permanently attached to the aforementioned for their exploitation or use. All the others are personal property.

The legal relationships of obligation empower a person to demand a benefit from another. The benefit can consist of giving, doing or not doing something.

The legal relations of successions imply the transmission of the patrimony of a person, by the fact of his death, to another.

1.4 Causes of the legal relationship.

All those elements that give rise to its emergence within them are:

Natural events Legal acts Illegal acts Undue enrichment Activities that generate risk.

Natural events are events that occur independently of man's will and have legal effects that the law attributes to them.

Legal acts are a lawful, voluntary, express or tacit statement that produces the effects provided by law, consisting of the constitution, modification or termination of a legal relationship.

Unlawful acts are acts that cause damage or harm to another.

Undue enrichment is considered when values are transmitted from one heritage to another, without legitimate cause.

The activities that generate risk are lawful acts that by their very nature implies a possibility of causing damage or harm.

Section III: “General elements of the contracts. Special reference to technical scientific contracts "

2.1 The contracts:

Economic contracting has played a growing role in the ordering of commercial traffic and ensuring the responsibility of entities for the fulfillment of their obligations. The lack of discipline in inter-business relations and the obsolescence of the legislative base, together with the new conditions in which the Cuban economy is developing, have led to the intended results in this matter not being achieved.

According to the Cuban civil code, by means of the contract an economic relationship is established or the existing one is modified or extinguished, it can be modified as long as the parties reciprocally and in a consistent manner express their will to do so. In the contracts, the parties may establish the agreements, clauses and conditions that they deem appropriate, unless otherwise provided by law.

2.1.1 Concept of contract:

According to Dr. Daniel A. Peral From in "Obligations and civil contracts", from the structural point of view the concept of contract has or can be taken in the following meanings:

As a document in which a set of clauses or conditions that are in turn contractual. This conception is actually inaccurate, since it leads to think that the contract is a document in itself, when the truth is that it can be stipulated verbally and there may not be, therefore, a document and even when the contract has to be consigned by In writing, it does not identify it with the document, which in any case is the realization of the true contract. As a legal act, that is, as a human act with legal effects, carried out consciously, this is as a legal business. Contract as the agreement of two or more wills, aimed at producing legal effect.

For his part, Sánchez Ramón defines as a contract “The legal convention manifested in a legal form, by virtue of which one person is bound in favor of another, or several among themselves, to fulfill an obligation to give, do or not do and is This is the concept that is included in the civil code in force in our country.

For all the above, we could define the contract as the agreement of wills, previously divergent, by virtue of which a legal relationship is created, modified or extinguished.

2.1.2 The contract as a legal institution.

The essence of the contract as a legal institution is found in the exchange of merchandise, product or services.

The economic development of society and its conditioning character on the entire system of social relations (both material and ideological), caused the contractual legal form to be generalized and used to form relations that were not directly commercial in nature, although, always, a connotation of an economic nature, as happened with marriage, elevated to the category of contractual relations by bourgeois society.

2.1.3 Types of industrial property contracts:

2.1.3.1 The License Agreement. General characteristics:

If it is not clear from the object of the contribution, for example the license, the stipulation of the title of use must appear expressly in the deed of incorporation of the company, otherwise the contribution in property and the limitation of the transmission will not be opposable to society, nor will it therefore take effect against social creators.

In general, the preservation of an industrial property right and the maintenance of society in the peaceful enjoyment of it will imply the obligation of the partner to pay the corresponding administrative fees, to exercise legal actions in relation to the alleged infringers of the property right to defend the validity of the right against possible oppositions arising in an administrative or judicial procedure, etc.

Let's see below the different ways to contribute the use of an industrial property right, the particular case of the industrial property rights license.

Professor Miguel Asencio defines the license as: '' a category that includes all those businesses through which the owner of an intangible asset grants a third party the possibility of exercising all or any of the powers derived from it, binding the acquirer to satisfy a certain price, usually in money. ''

Another important concept is that offered by Professor Casado Cerviño who considers the license as: “A contract by virtue of which the owner of an Industrial Property right (licensor), retaining his property, authorizes a third party to use it; allowing an expansion of the licensor's field of action ”.

We consider that the license is an agreement of wills by virtue of which a person, called the licensor, who is the owner of the industrial property right, confers powers on another person, called the licensee, to be able to use and exploit the object of the right for a time determined, in exchange for a consideration.

One of the characteristics most frequently attributed to these license agreements is their legal atypicality, based on the absence of a regulatory discipline that regulates them in their entirety. Despite this, it has been pointed out that legal atypicality does not exclude that such contracts do not have social typicity.. This is a contradictory and worrying criterion because if these contracts are constantly carried out in practice, how is it possible to legally regulate it?

Following the criterion that the different types of license are frequently used, we find that there is great diversity in their content and that the will of the parties prevails, so that its lack of uniform regulation brings dissimilar difficulties at the time of making the interpretation of its clauses. The idea of licensing regulation must be taken into account, since the licensing activity has been increased in recent years due to the increased circulation of intangible assets, given the heritage relevance they have acquired and its consequent conversion into a substantial source of income for its holders.

Among the fundamental peculiarities of these contracts are: their consensual, onerous or free, bilateral and synalagmatic nature; in addition to being a relationship of successive tract and its status as intuito personae, given the relevance that the person of the licensee acquires when making the decision to grant them those rights. These features are fully explained in the next chapter.

Brief reference to the rights and obligations of the parties to the contract :

The parties to the contract are: the licensor and the licensee, the majority being legal persons. The licensor is nothing more than the owner of that Industrial Property right or of the technical knowledge that is the object of the contract. For its part, the licensee is a third person who may exploit that right involved in the license, with the powers granted by the licensor.

In a very general way, we will refer to some rights and obligations of the parties in this contract. As for the licensor, the main rights he possesses are: the power to authorize the use and exploitation of those intangible assets that he holds and with respect to which he has decided to grant the respective license, as well as to exercise all the actions that correspond by law to prevent the violation of your rights involved in the agreement, either by the licensee or by any third party. And among its main obligations are to guarantee the licensee the peaceful enjoyment of the right, maintain its validity, as well as respond for the lack of ownership over it.

With respect to the licensee, his main right is to use the licensed object, but he is obliged to do so according to the indications given by the licensor through the license. Being your fundamental obligation to pay the agreed price as consideration for the use of the licensed object and in the event that it is undisclosed information you have to undertake to keep it secret.

E) - Based on the content of the license, it may fall on:

Invention patent Undisclosed technical or commercial information Any other Industrial Property object.

Finally, we must add that the classification by territorial scope does not apply to the field of know-how given the absence of a national exclusive right to protect it.

2.1.3.2 Trademark license agreement:

By brand we understand that distinctive sign or symbol that is used to distinguish the business origin of numerous products or services, while indicating the quality with which they are known in the market and that in order to achieve adequate protection of this, it is necessary to registration in a government office specially created for it and under the almost generalized condition of effective use by its owner, who holds an exclusive right of use and exploitation and the ius prohibendi before any person or different company that intends to use it. Protection that is not limited in time, although it may be subject to periodic renewal periods.

It could be thought that the function of the trademark to indicate the business origin is detrimental to the idea of its use by a third party outside the true owner, because while the latter effectively controls the quality of the goods that are distinguished by it, it is not it violates the principle of consumer protection, aimed at not creating confusion about the distinctive capacity of a brand in the market, as well as the prestige achieved by it.

To achieve a correct understanding of the trademark license agreement, it is necessary to analyze the criteria of Dr. Alberto Casado Cerviño, who considers it as “that contract by virtue of which the owner of a trademark (licensor), retaining his property, authorizes a third party (licensee) to use it. '

It should then be specified that a trademark license agreement is understood to be that voluntary agreement by virtue of which the owner of a trademark (licensor) grants another person (licensee) a permit or authorization for the use and exploitation of such sign in commerce, generally mediating a consideration, without losing control over it.

Considering the level of control that the licensor has to carry out on the quality of the products distributed or services provided under the license, it can be said that this is a contract based on a relationship of trust between the contracting parties from which it is derived the meticulous and adequate selection that the licensor must make according to the structure of his company. Being demonstrated that it can be qualified as a contract intuito personae by the role that the business organization of the licensee plays in granting the license.

There are statements that are necessary in the completion of a trademark license agreement, such as the preparation of a Glossary of Terms where the meaning of abbreviations, confusing names or words of special significance used in the contract is defined and specified.

In order to facilitate the interpretation of the contractual will, the obligation of the licensor to inform consumers that the trademark is being used with the license of its owner must be established in order to clarify the true business origin of the same, together with the mention R that expresses the condition of the registration granted to said brand.

In this way we can clarify that the main obligations assumed by the licensor in the contract are:

Authorize the licensee to use the licensed trademark in the distribution and advertising of the corresponding products or services Maintain the regime of the licensed trademark with full efficiency and pay the corresponding fees Take the corresponding actions against third parties that violate the law. Licensed brand Ensure the preservation of the competitive value of the brand Maintain the licensee in the peaceful enjoyment of it.

While the main obligations of the licensee are usually agreed:

Pay the lump sum and / or royalty as consideration for the use of the trademark. Use the trademark in accordance with the instructions given by the licensor. Expressly include the mention R next to the licensed trademark and reproduce it according to the size and color determined in the contract. Indicate on the product or its packaging and in the advertising made of the same that the brand is used under the license granted.

In this way, the trademark license is considered as one of the fundamental ways by which the trademark owner can extend the manufacture and sale of the products or the distribution of services covered under said trademark to new geographic markets without the need to increase the size of your company; avoiding the expenses that would have to be incurred for it.

2.13.3 Patent license agreement:

It should be noted that the patent constitutes a document or title that endorses the exclusive ownership of a person over a technical solution that meets certain requirements, always for a certain period of time the state guarantees said exclusivity in exchange for the publicity of the invention.

The exclusive right granted by the patent to its owner places him in a situation of competitive advantage in the market, by excluding third parties from exploiting the product or using the patented procedure. This patent right will be obtained as long as the invention meets the established requirements.

For an approach to the concept of a patent license agreement, we will refer to the criterion of Professor Pilar Martín Aresti, who considers it as: “An express permission or authorization granted by the owner of the exclusive right (or other right derived from the patent that attributes the power to license) in favor of a third party, or by virtue of which this third party is entitled to exploit the invention protected by the patent in the market " .

To legally qualify the status of this contract, especially from the licensee's point of view, the license right has been assimilated to a usufruct right. But more successful are the opinions that have highlighted the possible application to the patent license agreement of the rules of the lease. In French law, a significant sector has traditionally considered that the rules of the lease should be applicable to the license contract, given the personal nature of the rights that constitute both contracts and the existing analogies between bothWe believe that the variety of solutions that have been given as a solution to the problem should also be a reason for reflection, since it is still surprising that from the same legal relationship its similarity can be predicated with contracts that, among themselves, have very few Points in common.

From all of the above, we consider that the patent license agreement should be classified as a sui generis contract, with its own particularities that should not be mixed with other typical figures of Civil Law that have material goods as their object. Affiliating with this criterion runs a risk of not being able to determine what will be the rules applicable to this type of contract. As it is not similar to any other type of contract, it will be necessary to attend to the specific configuration granted by the parties.

Among the main obligations of the licensor, the following can be noted:

Guarantee the licensee the peaceful enjoyment of the rights that he has granted. Respond to the licensee for any type of anomaly in the object of the contract; Among those that can be cited the unenforceability of the invention due to the existence of defects, the lack of ownership and the necessary powers to grant licenses. Maintain the validity of the right under its ownership.

On the other hand, the essential obligations of the licensee are:

Make the remuneration to the licensor, according to the way they have agreed.Exploit the patent object of the license.Support the controls that the licensor can make, according to the corresponding agreement.Inform the licensor of the experiences acquired and grant him rights on improvements made to the technology subject of the license; this aspect must be agreed upon in the agreement.

Patent licenses are frequently used allowing the owner to maintain their exclusive right and the licensees to use the patented invention, to achieve new advances without repeating unnecessary research.

2.1.3.4 Know-how license agreement:

This is a legal business whose immediate purpose is to grant or grant a license to use the know-how that could reverse an exclusive, non-exclusive nature, depending on the interests of the licensor.

The rights conferred by concept of know-how can be transferred, in the form of a license, by three different methods:

Pure Know-how licenses: It is suitable in cases where the technology can be transmitted by means of simple documents, lists, machinery specifications and grouping required in production. Consequently, licensing takes place mainly between already established entities, related to the same manufacturing field or where the consulting engineer applies or copies the know-how to be used in the new project. To make use of this technology transfer method, the owner needs prior knowledge of the technology involved.Combined know-how transfer: It is used when the know-how is transferred for an industrial project together with other transactions, such as: sale of goods or service supplies.Also one of the most common links is with technical assistance.

Sometimes, it is even difficult to separate know-how from technical assistance since both are packages of technical information necessary to carry out a specific project. However, there are several reasons for drawing clear distinctions between the two, derived from the views of the acquirer of the information and the body that regulates technology transfer.

The licensee may need to distinguish the services of various contracts related to a single project, such as the know-how license, the engineering services contract, and the technical assistance agreement. It can, other times assume the responsibility of coordination, if several companies provide the different services.

For a better understanding of the differences between them, we must mention that, although know-how is considered, in part, secret information, some of its constituent elements may be information known to specialists. It is also possible that some of the know-how can be obtained from other industrial sources. The value of obtaining information from a know-how provider (licensor) is that it represents a superior combination of selected technical data which, if used in the prescribed manner, will place its user in a favorable competitive position.

On the contrary, the value of technical assistance (information and practical knowledge) is that whoever provides it has experience in the use of comprehensive technical information, which may be generally known or fully available in the public domain, to which provides quick and convenient access. It is a form of professional service closely tied to manufacturing experience.

Know-how included in a big package: The project of a complete industrial plant, the design of machinery and equipment and other engineering works often include a quantity of know-how that is transferred to the client as part of a large negotiation, such as complete plant and your choice in a specific area or a "turnkey" delivery. The supply of a complete plant does not mean a real delivery of this incorporated Know-how and therefore a license agreement is not included in the supply contract. The project owner or the client has no possibility of reproducing the know-how incorporated in the big package, since the supplier only provides instructions and operation manuals for maintenance. For this reason,developing countries frequently project against large packet transfers.

2.1.4 Principles that regulate the effects of the contract:

The obligation for the parties. Relativity: It is only mandatory for the parties and only affects them. Opposition: The contract can always be opposed to third parties. Intangibility: A party cannot unilaterally modify it, nor by third parties. Its interpretation: Simple reading is the work of interpretation.

2.2 Service contracts:

2.2.1 Common provisions:

When we speak of common provisions, we are referring to the set of provisions that must be taken into account in all service contracts, whatever their purpose. Thus the common provisions are:

Informing the user about the characteristics, rate, execution time and other particularities of the contract are within the obligations of the one who has to provide the same, before its conclusion. The services are only provided by state entities, but some may be provided by other duly authorized persons.If the service is not provided in the agreed term and conditions, the user can accept a new term or conditions, or terminate the contract and, in the latter case, pay the part executed that may be useful. In any case, the user has the right to compensation for the damages caused.

2.2.2 Special provisions:

For service contracts that require the delivery of an object there are special regulations within which are:

The user is obliged to deliver the object on which the work is to be carried out on the agreed date and in adequate conditions. If the user breaches this obligation, the other party may refuse to receive it, without prejudice to the right that assists him to claim the compensation stipulated in the contract for this eventuality.The user must be previously warned of the deficiencies that may be left to the object after the work has been carried out, in order to desist from the service if it deems it convenient The one who receives a deficient service has the right to file claims before the appropriate entity or person If a state entity is in charge of providing a service, it may entrust to another the total or partial execution of the work, but in case it responds to the user as if it had executed it.The user is obliged to facilitate the normal execution of the work. The user has the duty to inform the service provider about known deficiencies of the object. The service provider is obliged to take care of the delivered object and is responsible for its loss or deterioration and the damages it suffers while it is in its possession.At the end of the work the one who provided the service must return the defective parts that have been replaced or paid by the user.As a guarantee of payment of the service, the has submitted has a lien on the object.The one who provides the service is obliged to take care of the delivered object and is responsible for its loss or deterioration and for the damages it suffers while it is in his possession.At the end of the work, the one who provided the service must return the defective parts that have been replaced or paid by the user As a guarantee of payment for the service, the one who has presented it has the right to retain the object.The one who provides the service is obliged to take care of the delivered object and is responsible for its loss or deterioration and for the damages it suffers while it is in his possession.At the end of the work, the one who provided the service must return the defective parts that have been replaced or paid by the user As a guarantee of payment for the service, the one who has presented it has the right to retain the object.

Section III: Case study of technical scientific contracts

3.1 Contract at CENDA

CHARACTERISTICS OF THE CURRENT RESOLUTION FOR THE PROTECTION OF LITERARY WORKS.

Resolution, No. 34, of March 11, 2002, of the Minister of Culture put into effect the Regulations for the conclusion of contracts and for the remuneration of authors for the publication of literary and scientific works that are expressed in the book or brochure, prepared outside of the performance of a job.

We consider that one of the most important characteristics of this Resolution, No. 34, of March 11, 2002, of the Minister of Culture, which approves the Regulation for the hiring and remuneration of authors for the publication of literary and scientific works in In the form of a book or brochure, it is not established the calculation of the payment to the author per page, but per work, in correspondence with the volume of the print run and the importance of the creative act. The contract that is signed between the author and the publisher responds more clearly to the relationships that are agreed upon at the time of negotiation, which may vary from one author to another.

In its Article No. 1 it is stated that the norms contained in this Regulation apply to literary and science and technical works.

In its Article No. 3 it is clearly established that publishing contracts must be formalized in writing, with a very Cuban characteristic, which refers to the right moment, when the work is approved in the publication plan.

The article referred to in the preceding paragraph also establishes the fundamental aspects that the publishing contract must contain, stating:

whether the granting of copyright is exclusive or not; the editions that are intended to be made, as well as the number of copies for each of them; the number of copies that are reserved for the author and those intended for promotion; the type of edition, the deadline for delivery of the work by the author; the remuneration that corresponds to the author and his form of payment; the linguistic scope; the period of validity of the contract, which should not exceed five years; the assigned territory; and if the publisher promotes the work.

An important aspect that must be taken into account is that it is well specified that when the author delivers the work, the publisher must sign a document of proof.

In Article No. 5 it refers to the termination of the publishing contract referring to those established in the Civil Code, and also by:

failure to comply with the deadline for delivery of the work by the author; if the original delivered by the author is changed, modified or altered without his authorization; when, for reasons attributable to the publisher, the deadline stipulated for its edition is not met; when, for reasons not attributable to the publisher, do not publish within the year after the agreed term and, at the will of the parties.

Article 6 establishes the period of time to claim.

It is important to note that these provisions apply to authors in the technical scientific field whose works are carried out outside of an employment relationship, since the rules for those who carry out their works within an employment relationship are regulated by the provisions of the article 9 of Law 14 of 977.

The contractual relationship between the author and the publisher in technical scientific works.

In the relationship between author-editor, the latter is obliged to render accounts to the first of the part that corresponds to him, to respect his right to anonymity or to use a pseudonym and to deposit the copies that are eventually required in the property registry intellectual.

The publisher also has exclusive rights in relation to the use of the works of the authors who, by contract, have assigned certain rights in the exploitation of their works, these are: the price of sale to the public, oppose modifications in successive editions, that copies published by third parties are withdrawn from circulation without their consent and authorize third parties to exploit the works in other territories.

For the great Spanish poet Marquina, as referred to by Vanissa Santiago, “publishers are those who, by their determination and good arts, make authors famous, guaranteeing them the safety of their lives and their permanence in the world after their death. ”.

Remembering all the aforementioned as a principle for this type of author-editor relationship, we will insert ourselves in other aspects in the national legislative order that, in our opinion, are beneficial for the protection of our creators.

3.2 Contract of the Institute for Horticultural Research "Liliana Dimitrova"

SCIENTIFIC-TECHNICAL SERVICES CONTRACT.

Not…………………….

ON ONE PART: The Liliana Dimitrova Horticultural Research Institute, with legal address at Km. 33.5 of the Bejucal - Quivicán highway, with bank account 40218110077015, represented in this act by Eng. Hortencia Cardoza Pereira, in her capacity as General Director, and that from now on it will be called THE BIDDER.

FROM ELSEWHERE: _________________________________________________

with legal address at_________________________________________________

and represented in this act by: _____________________________ In his character as_____________________________________, and that hereinafter will be called THE RECEIVER.

BOTH PARTIES: recognizing the legal personality and representation with which they appear, AGREE:

OBJECT, DIVERSITY AND DELIVERY PERIODS.

The purpose of this contract is the commercialization of scientific-technical services to MINAZ, which are listed in Annex 1 of this contract.THE THAT OFFER: It undertakes to execute the requested services with the required quality, and develop the actions that in This contract is established and THE ONE WHO RECEIVES to acquire and assimilate the benefits that emanate from these actions, and pay for the services described in Annex 1. The range of services to be offered by THE ONE THAT OFFER will be determined by mutual convenience of the parties, being able to add services prioritized by the client once analyzed between the parties. The date of partial provision of each service will be agreed by THE RECEIVER or by the representative of this in the place where the service will be provided.What is stated in the corresponding document certifying the receipt and that indicates the date on which THE BIDDER will make the RECEIVER available as agreed at the point of execution indicated.

PLACE AND CONDITIONS FOR THE PROVISION OF SERVICES.

The services will be provided in the places agreed by THE RECEIVER throughout the national territory, being able to use the facilities OF THE BIDDER.When by initiatives of the duly founded parties, it is agreed that the services referred to in this contract are provided in place other than the one indicated in the previous section, they will be offered in that other place under the agreed terms and conditions, which will prove by means of an annex that will form an integral part of this contract.

QUALITY.

The quality of the services to be provided by THE BIDDER will be in accordance with the technical specifications that each service requires, which will be duly listed in each case required in Annex 2 of that contract.

TOTAL VALUE. PRICE AND FORMS OF PAYMENT.

The parties, for the best fulfillment of this contract, are obliged to make estimates of the amount of the services and prices thereof, which will fluctuate by about ____________ pesos per year, as well as the actual terms and dates on which they will be provided. For these purposes, the persons will be designated who, on behalf of and on behalf of each one of them, will have the powers to perform these functions. THE RECEIVER will pay the MN component at 100% of the values obtained from the sum of the prices agreed for each service provided by THE ONE THAT OFFER. THE ONE THAT RECEIVES undertakes to guarantee the minimum material conditions necessary for the successful development of each service as well as logistical support. THE ONE THAT OFFERS and THE ONE THAT RECEIVES, will reconcile every three months and execute the payment of services received in MN.Payments will be made by nominative check within thirty calendar days, counted from the date established in the invoice issued, other forms of payment may be agreed upon, which will be duly established in the annex to this contract.

MEANS AND TRANSPORTATION COSTS.

The transportation costs as well as the means of transportation will be shared and agreed between the parties. When THE BIDDER guarantees the transportation, THE RECEIVER will support the costs of fuel and lubricants.

OTHER CONDITIONS.

A fortuitous event or force majeure will be considered to be those that arise after signing this contract and prevent its fulfillment and are of an extraordinary, unforeseeable and unavoidable nature for the parties, which must be verified in accordance with current legislation. contract will be considered as an integral part of the same for all legal purposes BOTH PARTIES agree to review this contract and the agreements that are reached, will be annexed and will have the legal effects according to the corresponding law. Any of the parties may request the modification I rescind the contract, directing in writing to the other party its reasons, if within the term of ten business days following the presentation of this document no response is received stating the opposite,the proposition shall be understood as accepted.

LEGAL ARBITRARY.

This contract is governed by the Basic Rules for economic contracts, by the regulations of the general conditions of the contract for the sale of agricultural products and services, and by the other current legal provisions that may be applicable. attributable to any of the parties, any of the obligations arising from this contract is breached or is improperly fulfilled, will incur liability, which must be required by the previously affected party through the corresponding commercial claim, which will be made in the terms and conditions provided by the regulations by which the following contract is governed. If the conflict is not resolved in this way,then there will be an expedited way to go to the economic room of the court in the corresponding instance.

VALIDITY OF THE CONTRACT.

Both parties by mutual agreement sign this contract valid for two years, and automatically extendable if neither party expresses the contrary thirty days before the expiration of the annual terms and it will enter into force from the date of its signature.

And for the record, it is issued and signed in two copies, all to the same tenor.

Given on _______________________ on the _____ of the month of ___________, 2005.

____________________ _______________________

FOR WHOM YOU OFFER FOR WHOM YOU RECEIVE

ANNEX NUMBER 1.

TECHNICAL ASSISTANCE.

Certification of the area by the National Technical Commission for Protected Cultivation for the assembly of the project

Date: January 2005.

Responsible: National Technical Commission IIHLD.

Cost: $ _____________

Tour of advice, technical assistance and control of the protected cultivation system in MINAZ.

Date: March, June and October 2005.

Responsible: Huberney Martín.

Cost: $ _____________

Validation and generalization of 5 new hybrids of tomato and pepper for the protected cultivation system of MINAZ.

Date: All year round.

Responsible: Olimpia Gómez, Tomás Depestre.

Cost: $ _____________

TRAINING.

National Course of Protected Cultivation.

Date: November 2005.

Responsible: Yhanara Ploder.

Cost: $ __________________ (20 students per ______________)

Provincial on-site practical courses for MINAZ.

Date: At the proposal of MINAZ.

Responsible: Huberney Martín.

Cost: $ ________________

Provincial courses of practical training for workers.

Date: Request from each province

Responsible: Huberney Martín.

Cost: $ ________________

Annual Total Receivable: $ ______________

Receivable by quarters: $ _______________

3.2 ICIDCA contract

SCIENTIFIC TECHNICAL SERVICE CONTRACT Nº_ / 2005_

ON ONE PART: The Cuban Institute for Research on Sugar Cane Derivatives (ICIDCA), with legal address at Vía Blanca No. 804 and Carretera Central, Municipality of San Miguel del Padrón, City of Havana, Code 108.0.06710, agency bank 2881, bank account in National Currency 4028810109004, with operating license to operate in currency No. GO137570004, Account in MLC No.530, represented in this act by Lic. Guillermo Bernal Rodríguez, in his capacity as Director of Production and Marketing, according to Resolution No. 57/04 dated 05/27/2004, who hereinafter will be called the EXECUTOR.

ON THE OTHER PART: ___________________________________ belonging to ___________________, with legal address at _______________________, Havana City, Code __________, Bank Agency _______, bank account in national currency No. ___________________, Bank account in currency No. __________________ represented in this act by __________________________, in his capacity as ________________, according to the _______________ of date __________, who will hereinafter be called the CLIENT.

OBJECT OF THE CONTRACT

Differential thermal analysis of 6 samples by ICIDCA specialists.

2 OBLIGATIONS OF THE PARTIES

On the one hand, the Executor is obliged to:

2.1 Guarantee the staff with the profile and knowledge necessary to carry out the service agreed in this contract

Delivery of the results of the analysis.

On the other hand, the Client is obliged to:

2.4 Pay the payment of the service in the terms agreed in this contract

3 TOTAL VALUE and FORM OF PAYMENT

3.1 The total value of the services agreed in the contract amounts to ______________MN and _________________ CUC

3.2 Payment will be made in several installments, for completed work, it will be made by nominative check in favor of ICIDCA in account No. 40288110109004.

4 QUALITY

4.1 The EXECUTOR undertakes to correct the errors detected by the client in the shortest possible time, as proof of the quality of the services provided.

4.2 The CLIENT will have 30 business days after receiving the agreed results for any claim or observation in this regard, as a guarantee of the services performed.

5 CLAIMS

5.1 The parties have the right to claim for any breach of what is stipulated in this contract, as well as for the conditions that derive from it in writing to which the documents supporting said claim will be attached.

5.2 The other party against whom a claim is filed must examine it and respond within fifteen business days following the date it was received.

6 ARBITRATION

6.1 The parties will resolve in good faith the differences that arise due to the execution, modification or termination of this contract, or the interpretation and non-observance of any legal provision applicable to the decision of the arbitration body or the court as appropriate.

7 FORCE MAJEURE

7.1 Excusing causes of liability are considered to be those that arise after the contract is perfected and prevent its total or partial fulfillment as a result of the occurrence of events of an extraordinary nature, beyond the control of the parties, unforeseeable and unavoidable.

7.2 The party that invokes the aforementioned circumstances must notify the other in writing and without delay of the beginning and end of the same and certify their occurrence with a certification from the competent authority. The parties may agree to extend the term of the contract while the cause of force majeure lasts or to terminate the same whose agreement will be adopted in writing without the right to demand any compensation.

8 OTHER CONDITIONS

8.1 Both parties agree to comply with their respective obligations contained in this contract in the manner that is most efficient for the economy, as well as undertake to mutually collaborate in compliance.

8.2 This contract will be governed by Decree Law No. 15 (Basic Rules for Economic Contracts and other legal and regulatory provisions resulting from its application).

8.3 This contract will come into force as of its signature by the parties, constituting the supplements that are subsequently subscribed, an integral part thereof, for all legal purposes, and cannot be unilaterally terminated, without prior notice and written acceptance of the corresponding counterpart.

Section IV. Analysis of the deficiencies in each of the contracts

4.1 Principles that serve us to interpret contracts in copyright and legal regulations.

Restrictive interpretation of contracts for the exploitation of works. The authorization is limited to what is expressly provided. Commitments not to create works in the future are considered null and void. The spatial and temporal validity of the authorized rights must be established, as well as their destination. Even if several works are included in a single contract, it should be understood that There are as many contracts as there are works. The user must guarantee the necessary means to ensure the effectiveness of the exploitation granted. The acquisition of the material object does not imply transfer of rights. Personal nature of the contract The author must answer to the user for the authorship and originality of the work and must guarantee the peaceful exercise of rights Remuneration must be proportional to the income received from the exploitation of the work

Through the publishing contract, the author of a work or the holders of rights over it, assign to the publisher the rights of reproduction and distribution of the work and the latter undertakes to publish it at their own risk, paying the author the agreed remuneration.

The publishing contract must be granted in writing and express:

whether the assignment is exclusive or not; the number of editions to be agreed and the number of copies for each; the territorial scope; the duration; the language in which the work is to be published; the quantities that are reserved for the author and those that will be used to promote the work; the deadline for putting the published copies into circulation; the deadline for the delivery of the work by the author; the remuneration that corresponds to the author and his form of payment.

The publishing contract that is not granted in writing is void, as well as the one that omits the stipulations provided in subparagraphs b) and i) of the preceding article.

The author retains the right to make the corrections that he deems pertinent, before the work is in the printing process. When the corrections, amendments, additions or improvements introduced by the author make the edition more expensive, he is obliged to compensate the expenses incurred for it, unless otherwise agreed.

The right to separately edit several works by the same author does not confer on the publisher the right to edit them together. The right to edit the set of works by the same author does not confer on the publisher the right to edit them separately.

The editor's obligations are:

reproduce the work as agreed, refraining from making any modifications that have not been authorized by the author and include the name or pseudonym of the author on each copy; unless otherwise agreed, submit the proofs of the print run to the author; distribute the work within the agreed term and stipulated conditions; ensure the dissemination and exploitation of the work in accordance with the usual uses of the edition, by virtue of what has been agreed; pay the author, as agreed, within the corresponding deadlines and demonstrate with documents, reliably, the results of its financial management; return to the author the original of the work after the printing process, unless expressly agreed otherwise.

The author's obligations are:

deliver the work to the publisher, in the proper form and within the agreed term; respond to the publisher regarding the ownership, originality and availability of the work object of the edition, to ensure the peaceful exercise of the rights transmitted; review and correct, if applicable, the proofs of the circulation.

Causes for the termination of the publishing contract are considered, in addition to the causes for termination of the obligations established in the Civil Code:

the termination of the contract due to the breach by the publisher of the obligations set forth in sections a), c), d) and e) of article 60; the termination of the contract due to the breach by the author of the obligations set forth in sections a) and b) of article 61; if the editor assigns his rights to a third party in an improper manner; if, if more than one edition has been foreseen and the last one having been exhausted, the next one is not carried out within a period of one year from when it was requested the author; if the publisher transmits the ownership of the rights to another publishing company without having reproduced the work as agreed.

4.2 Contract Horticultural Research Institute "Liliana Dimitrova"

The interpretation of this contract is limited to what it expresses, it includes the common provisions for all types of service contracts.

In it, the stipulations on intellectual property are omitted, for this reason, the provisions of article 312 of the general provisions and article 321 of the common provisions of the service provision contracts of the Cuban civil code are not complied with.

4.3 Contract of the Cuban Institute for Research on Sugar Cane Derivatives (ICIDCA).

The present contract, like the previous one, omits the stipulations on intellectual property in breach of the provisions of article 312 of the general provisions and article 321 of the common provisions of service provision contracts of the Cuban civil code.

Conclusions:

In research organizations, contracts for scientific technical services do not include clauses on ownership. There is a lack of knowledge about the conditions that must be provided in this type of contracts. There is no homogeneity in the preparation of contracts for scientific technical services. We conclude that in order to protect the author as much as possible, mechanisms have been created, in our opinion, for the establishment of contractual relationships through the Agencies, to guarantee the author his rights in places where he is not able to reach and in the cases that can do so, to be able to claim their rights when appropriate

BIBLIOGRAPHY:

Peral, Daniel: "Obligations and civil contracts", in Book for directed course, Cuba, Págs. 18 - 75.Tirso Clemente: “Civil Law Part General”, Vanissa Santiago, Executive Director of the Brazilian Union of Composers of Brazil. Lecture "The Author's Edition Contract", Guatemala 1989.Dolores Agüero Boza, Head of the Legal Department of CENDA. Lecture “The Payment of Journalistic Collaborations and Translations.” 1989. Law No. 14 of December 28, 1977, Copyright Law. Liset Borges Suárez. The protection of Copyright and its role in the promotion of literary, musical and artistic creativity.Martín Aresti, Pilar: The contractual patent license, Editorial Aranzadi, Spain, 1997.Moireaux and Weissman, Brevets d 'invention, SE Paris, 1926, p. 18. Miguel Asencio, Pedro A.: Op. Cit. Page 70. Married Cerviño, Alberto,"Relief of the control of trademark licenses", in Acts of Industrial Law, Volume IX, Spain, 1983, Page 125.

CONSULTED LEGISLATION.

Decree-Law 68 "On Inventions and Scientific Discoveries, Industrial Models, Trademarks and Denominations of Origin" of May 14, 1983 Law No. 77 "On Foreign Investment" of September 5, 1995 Resolution 14/2001 of the MINVEC. Establishes the procedure for developing the presentation and evaluation of foreign investment proposals. Resolution No. 21/2001 of the MINVEC. Establishes the Methodology for the preparation of the Economic Feasibility Study that must be presented in a Foreign Investment Application.

Commercial Code. Law 2 of March 23, 1995. Limited Liability Law. Law 19/1989, of July 25. Partial reform and adaptation of commercial legislation to the EEC Directives on company matters. Royal Legislative Decree 1564/1989, of December 22. Consolidated text of the Public Limited Companies Law.

Foreign Investment Law, 1979.

Miguel Asencio, Pedro A.: Op. Cit. P. 70.

Casado Cerviño, Alberto, "Relief of the control of trademark licenses", in Acts of Industrial Law, Volume IX, Spain, 1983, Page 125.

According to Professor Fernández Novoa: Typicality is related to the frequency that the use of the license agreement is evidenced in practice. See: Fernández Novoa, Carlos: Fundamentals of Trademark Law, Editorial Montecorvo, Madrid, 1984, Page 97.

The clauses of a license agreement can be divided into two large groups:

General clauses, among which we find: the name of the agreement, parties to it, general considerations, definitions, notifications, appendices and annexes, date of entry into force and declaration of agreements.

Substantive clauses, among which are indicated: the rights conferred, the nature of the license (exclusive or non-exclusive), right to grant sub-licenses, sphere of use, maintenance of rights in force, refusal of non-challenge, technical assistance, consideration, aspects of marketing and advertising and promotion.

Casado Cerviño, Alberto: «Relief of the control in the brand license», taken in Acts of Industrial Law, Editorial Montecorvo, Spain, 1983, Volume IX, Págs. 125-159.

Among the generalized requirements are: the world novelty, that the invention has a certain level of inventive activity and industrial applicability. We also consider that it must be taken into account that the technology sector is protectable and that a sufficient description of the invention is offered. See the first paragraph, article 27 of the TRIPS Agreement, 1994, Op. Cit, p. 14.

Martín Aresti, Pilar: Ob. Cit. P. 39

According to Professor Ascarelli, T in his book Theory of Concurrency and Intangible Assets, p. 589, This analogy is based on the fact that the right of license as in the usufruct can be granted a right of use of broad content. Cited in Martín Aresti, Pilar, Op.cit. P. 56.

Moireaux and Weissman, Brevets d 'invention, SE Paris, 1926, p. 181.

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