В настоящей публикации в простой и доступной форме систематизировано приводятся сведения относительно авторского права в Украине. Особое внимание посвящается следующим вопросам:
- законодательство и правоприменение;
- предмет и сфера действия авторского права;
- процедурные формальности по осуществлению авторского права;
- право интеллектуальной собственности и его передача;
- сроки действия авторских прав;
- нарушение авторских прав и средства правовой защиты, в том числе, гражданская, административная и уголовная ответственность (не существует конкретного эффективного правового механизма для предотвращения нарушения авторских прав, – так ответили авторы на вопрос о том, как можно предотвратить нарушение авторских прав);
- международные конвенции по авторскому праву, членом которых является Украина, а также обязанности, которые налагаются членством страны в этих конвенциях.
Legislation and enforcement
Relevant legislation
What is the relevant legislation?
The relevant legislation covering copyright issues in Ukraine mainly consists of two laws: the Civil Code of Ukraine (2003) and the Law of Ukraine On Copyright and Related Rights (1993) (the Law).
The other important source of copyright regulations is the Ukraine-European Union Association Agreement (the Agreement), which was ratified by the Ukrainian parliament in 2014. The Agreement is considered to be a part of Ukrainian legislation, the provisions of which can be directly applied unless proscribed by provisions in the Agreement.
The Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine contains sanctions for copyright offences.
Among other specific acts is the law On Effective Management of the Exclusive Rights of Rightholders in the Field of Copyright and (or) Related Rights, adopted on 15 May 2018, which covers the collective management of copyright and related rights.
In 2017, the Law of Ukraine On State Support of Cinematography in Ukraine introduced a new procedure for out-of-court enforcement of copyright an amendment to the Law. The procedure is similar to the United States’ Digital Millennium Copyright Act. (See question 44.)
Copyright legislation also consists of range of subsidiary acts and international agreements, which are mentioned below.
Enforcement authorities
Who enforces it?
The main figures entitled to enforce copyright is the rights holders.
Additionally, copyright legislation may be enforced by collective management societies, which are entitled to protect exclusive rights to works and related rights by the Law, or authorised to do so by the rights holder.
The Ministry of Economic Development and Trade of Ukraine (the Ministry) has the authority to register copyright (registration is optional). The intellectual property inspectors of the Ministry are authorised to investigate the infringement of intellectual property rights and impose administrative fines upon infringers.
The most effective body enforcing copyright is the courts. Ukraine’s national courts have developed extensive practices related to a range of copyright issues that are not duly regulated. The intellectual property court announced as a component of Ukraine’s judiciary reform in 2016 is in the process of being established.
Online and digital regulation
Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?
The digital exploitation of works is only regulated by the Law; but there are almost no specific provisions dedicated to digital exploitation, therefore general rules must be applied. In practice, general rules of copyright are not always applicable to digital exploitation of copyright, partly because of obsolete provisions that do not correspond to current technical developments. Moreover, the Law defines a copy of a work as a physical copy.
A substantial overhaul of Ukraine’s copyright legislation is expected to be introduced soon, to harmonise it with EU legislation (as required under the Association Agreement).
However, article 52-1 of the Law provides an out-of-court procedure for filing a claim against the owner of a website or a webpage where copyright infringement has taken place. Such claims can be only filed in the interests of a rights holder by his or her representative, who must be a certified attorney. (See question 44.)
Extraterritorial application
Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?
Yes. With consideration of exterritorial protection granted by international and national legislation, Ukraine’s courts have developed a criterion of accessibility regarding copyright infringements carried out on the internet: as long as the infringing content can be accessed from the territory of Ukraine, the infringement is considered to have occurred in Ukraine, therefore, Ukrainian law will apply.
Agency
Is there a centralised copyright agency? What does this agency do?
The Ministry of Economic Development and Trade of Ukraine:
enforces state policy on copyright issues;
controls collective management systems;
enforces copyright by appointing intellectual property inspectors; and
provides a service to register copyright (registration is optional).
Subject matter and scope of copyright
Protectable works
What types of works may be protected by copyright?
Any work containing author’s creative effort is subject to copyright protection. According to the Law, the non-exclusive list of types of works protected by copyright includes:
verbal and written works (eg, books, brochures, articles, lectures, plays, collections and anthologies, and translations);
computer programs;
databases;
artistic works;
musical works;
choreographic works;
audiovisual works;
photographs; and
architecture.
Rights covered
What types of rights are covered by copyright?
The rights which belong to author of work consists of proprietary rights (eg, to use thereof, to allow use thereof, and to prohibit use thereof) and moral rights (ie, rights of authorship, the right of the author’s name, and to protect the integrity of the work). (See question 11.)
Excluded works
What may not be protected by copyright?
Ideas, methods, theories, principles, procedures, conceptions, discoveries, systems and manners are not protected by copyright, even if written down.
The Law states the following works do not receive copyright protection:
news (press information about current events);
folklore;
official documents (legislative, political, administrative) and their official translations;
state and local symbols and emblems;
banknotes;
schedules; and
phone directories and similar databases.
Fair use and fair dealing
Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?
The doctrine of ‘fair use’ does not exist in Ukraine. However, the Law provides an exhaustive list of exceptions from copyright to allow free use on the condition that the author’s name and the original source are mentioned:
short quotes, in an amount corresponding to the purpose of quotation;
illustrative use of works in educational materials;
reproduction for the communication to the public of already published works related to economical, political and religious issues, unless the author did not expressly prohibit such uses;
reproduction of works with the purpose of informing about current events;
representations of works to be presented in exhibitions in events’ catalogues;
reproductions of work for the purpose of administrative or court proceedings;
parodies, caricatures, or pastiches;
creating formats to facilitate access to published works for persons who are blind, visually impaired or otherwise print-disabled;
public performances during official or religious ceremonies;
reprographic reproduction of works by libraries in amounts limited to that which is required for the purpose of the reproduction;
reproduction of works for educational purposes, under the condition that such reproduction limited to that which is sufficient for the purpose; and
copying, modification and de-compilation of computer programs under certain circumstances.
Architectural works
Are architectural works protected by copyright? How?
Architectural works located in Ukraine are protected by the Law. The author has copyright in architectural work separately from the right to a material exemplar of the work.
The owner of a material exemplar of the work is prohibited from destroying it without giving the author the opportunity to buy the work, at a price no higher than the cost of materials used for the creation of work. If the preservation of the work is impossible, the owner of that material exemplar of the work must provide the author with the opportunity to produce a copy of work, or in case of an architectural work to take a photo of it.
The author of architectural work enjoys exclusive rights to participate in the building of the architectural project based on the author’s work.
Performance rights
Are performance rights covered by copyright? How?
Performance rights are covered by related rights, which are also regulated by the Law. Performers are granted with:
moral rights:
to demand to be recognised as a performer of work;
to be identified as the performer by their name; and
to due quality of the recording of performance;
proprietary rights:
to communicate to the public an unrecorded (ie, live) performance;
to fixate the performance in phonograms or videograms;
to reproduce the recorded performance; and
to distribute, lease or communicate the recorded performance to the public.
Neighbouring rights
Are other ‘neighbouring rights’ recognised? How?
Producers of phonograms and videograms have the following proprietary rights:
reproduction of their phonograms and videograms in any form and any manner;
distribution of their phonograms and videograms among the public;
commercial rental of phonograms and videograms, even after they have been distributed by a manufacturer of the phonogram or videogram, if the manufacturer gives their permission;
broadcast of phonograms and videograms by any means of communication in a way that any person can access them from any place and at any time at their own will;
to remake the phonograms or videograms; and
import to the territory of Ukraine phonograms and videograms for the purpose of having them distributed among the public.
Broadcast organisations enjoy the following proprietary-related rights to television programmes:
communication to the public of their programs by broadcasting and rebroadcasting;
fixation of their programmes in a medium and its reproduction; and
public demonstration of their programmes in places where admittance is paid for.
Integrated circuit layouts receive sui generis protection by the Civil Code of Ukraine and the Law of Ukraine On Protection of Rights to Integrated Circuit Layouts.
Moral rights
Are moral rights recognised?
The moral rights are recognised in national legislation. According to the Law, an author enjoys the following non-transferable moral rights:
the right of authorship (ie, the right to be recognised as the author of the work);
the right of the author’s name (ie, having the right to be credited by their full name, to be anonymous, or to have a pseudonym); and
the right to protect the integrity of their work.
Copyright formalities
Notice
Is there a requirement of copyright notice?
There is no legal requirement to label works with a copyright notice.
Rights holders can use the copyright notice in order to inform the public about the title. The copyright notice consists of Latin letter ‘C’ inside a circle (©), the name of rights holder and the year of first publication.
The copyright notice must be presented on the original exemplar of the work and in each copy of it.
What are the consequences for failure to use a copyright notice?
The Law establishes a presumption of authorship: a person claiming authorship should be deemed as author, unless it is proved untrue.
Deposit
Is there a requirement of copyright deposit?
There is no legal requirement to deposit works protected by copyright under the Law.
What are the consequences for failure to make a copyright deposit?
There are none.
Registration
Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?
A system of optional copyright registration is used in Ukraine. The registration is optional, since copyright protection is granted upon the creation of a work and not by its registration with the state. Any author or employer may apply for registration of copyright at any time by submitting a copyright registration application and an exemplar of work, and payment of an official fee. (See question 21.)
All rights holders who receive rights via the transfer of rights on the basis of an agreement can apply for copyright transfer agreement registration by submitting an application (with an exemplar of the transferred work and a copy of agreement itself) and payment of the official fee.
Is copyright registration mandatory?
Copyright registration is optional in Ukraine.
What are the fees to apply for a copyright registration?
The official fee for copyright registration in Ukraine is around €3 for individuals and around €7 for legal entities.
What are the consequences for failure to register a copyrighted work?
There are no legal consequences for failing to register a copyrighted work. A rights holder has same scope of protection and available remedies, regardless of whether they have registered their work or not.
Ownership and transfer
Eligible owners
Who is the owner of a copyrighted work?
Initially, the individual whose efforts created the work is considered as the author the work and therefore enjoys all rights to the completed work. However, companies, employers, other individuals and the state, etc, may obtain copyright through agreements or based on the Law (succession).
Employee and contractor work
May an employer own a copyrighted work made by an employee?
According to the Civil Code of Ukraine (article 429) employees hold all moral rights to work created in relation to their employment. The proprietary rights to works created by an employee are jointly owned the employee and their employer, unless prescribed otherwise in an agreement between them. Such an agreement must be in writing.
The Law contains contradictory provisions assigning all proprietary rights to the employee. However, the Supreme Court of Ukraine in 2009 resolved this conflict by giving priority to the rules introduced by the Civil Code of Ukraine.
May a hiring party own a copyrighted work made by an independent contractor?
Moral rights to a commissioned work belongs to independent contractor as the author. According to the Civil Code of Ukraine (article 430), the commissioner and the contractor jointly own the proprietary rights to a commissioned work, unless otherwise prescribed in a written agreement between them.
Joint and collective ownership
May a copyrighted work be co-owned?
The Law allows co-authorship of a work. Co-authors may manage their rights by entering into an agreement on respective issues of joint co-authorship.
Co-authorship can be separable, when each author makes independent contributions to the work which are clearly identifiable and can be used by the author independently (ie, publish or modify his or her part without requiring the consent of the other co-authors).
Inseparable co-authorship means that contribution of one co-author cannot be clearly distanced from the contributions of the other co-authors.
The exclusive rights to a work may be co-owned by number of persons. Such rights can be obtained by a number of persons simultaneously through a transfer agreement.
Transfer of rights
May rights be transferred?
Moral rights to a work are not transferable.
Proprietary rights can be assigned using a written agreement.
Licensing
May rights be licensed?
Proprietary rights to work can be licensed under a licence agreement.
Under an exclusive licence the licensor cannot enjoy the rights constituting the scope of licence or grant licensed rights to third person(s).
Under a non-exclusive licence, the licensor enjoys all rights licensed and can grant the identical scope of rights to third persons.
A single licence allows the licensor to enjoy the rights which are licensed, but the licensor cannot license the identical scope of rights to any other persons.
A licence agreement must be made in writing. The type of licence, term of the licence, the territory, the particular uses the licence permits must be specified in an agreement. Only existing rights can be licensed.
Are there compulsory licences? What are they?
There are no compulsory licences related to copyright.
Are licences administered by performing rights societies? How?
There are no performing rights societies in Ukraine. Collecting rights societies might enforce rights under an agreement with a rights holder or another collecting rights society.
Termination
Is there any provision for the termination of transfers of rights?
There are no specific provisions regarding the termination of transfer of rights to a work, apart from general provisions of the Civil Code of Ukraine regarding the termination of obligations.
Additionally, a transfer agreement is deemed null and void if it is not made in a written form.
Recordal
Can documents evidencing transfers and other transactions be recorded with a government agency?
Yes, an assignee might request the registration of a copyright transfer agreement with the Ministry. For this purpose, the copyright holder must submit an application for registration, and provide a copy of the agreement and an exemplar of work.
Additionally, a person requesting registration must pay an official fee.
Duration of copyright
Protection start date
When does copyright protection begin?
An author enjoys copyright to a work from the moment of the work’s creation in any form suitable for reproduction purposes.
Registration of the work nor any other special formalisation is needed for a work to be protected by copyright.
Duration
How long does copyright protection last?
Copyright remains in effect throughout an author’s lifetime and for 70 years after his or her death. However, there are some specific variations to this in the Law:
For works published anonymously or under a pseudonym, the period of copyright terminates 70 years after the publication of the work.
Copyright to works created by co-authorship remain in effect throughout the co-authors’ lifetimes and for 70 years after the death of the last surviving co-author.
If work is published in separate parts, not in its entirety, the period of copyright separately applies to each published part of the work, when it is published.
The term of protection of copyright with respect to works of posthumously rehabilitated authors shall remain in effect for 70 years after their rehabilitation (ie, acquittal from repression or prosecutions that occurred during the period Ukraine was part of the former Soviet Union, due to lack of due cause, evidence or proof of guilt).
Copyright to a work that was first published within 30 years from the authors death shall remain in effect for 70 years after the date of the publication.
Does copyright duration depend on when a particular work was created or published?
Yes, according to the general provision of the Law, copyright begins from the moment of the work’s creation. The work shall be protected regardless of whether it is published or not.
The publication of a work affects copyright duration in cases where a work is published in parts, anonymously, or under a pseudonym etc. (See question 33.)
Renewal
Do terms of copyright have to be renewed? How?
A term of copyright protection cannot be renewed, according to the Law.
Government extension of protection term
Has your jurisdiction extended the term of copyright protection?
Generally, the term of copyright cannot be extended. However, there are specific conditions relating to certain works (eg, works created in co-authorship or published post-mortem; see question 33).
Copyright infringement and remedies
Infringing acts
What constitutes copyright infringement?
The following acts are considered as infringements of copyright:
infringement of moral rights;
any unauthorised use of a copyrighted work outside of the limitations provided by the articles 21-25 of the Law, namely:
piracy (ie, illegal publishing, reproduction or dissemination of a copyrighted work);
plagiarism (ie, misappropriation of work by claiming the authorship of a work created by another author);
intentional bypassing of technical protection features intended to protect copyright; and
falsifying or making material alterations to information about the management of copyright or related rights.
Vicarious and contributory liability
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
Generally, there are no provisions relating to secondary liability. However, under article 52-1 of the Law, the owner of a website or webpage is liable for copyright infringement if they fail to delete infringing content after being informed about its presence. (See question 44.)
Available remedies
What remedies are available against a copyright infringer?
The infringed party may request the following from the courts:
restoration of the title by prohibiting infringing activities;
demand moral damages (a monetary payment for mental suffering cause by the actions of the infringer);
demand monetary damages;
demand statutory damages in the amount of double the price a rights holder would charge for a licence to the copied work; or triple if infringement is intentional;
request the infringer provide information about third parties involved in the infringing activities; and
prohibit the publication of infringing works or demand confiscation of such works.
Limitation period
Is there a time limit for seeking remedies?
The standard three-year period of limitation of action applies to copyright infringement. An author has an unlimited period for bringing action regarding the protection of their moral rights.
Monetary damages
Are monetary damages available for copyright infringement?
Yes. Statutory damages are an alternative for occasions where a rights holder cannot calculate the exact amount of damages. These damages are calculated to be double the price a rights holder would charge for a licence to the copied work; triple if infringement is intentional.
Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
Yes, according to the procedural legislation of Ukraine.
Criminal enforcement
Are there criminal copyright provisions? What are they?
The Criminal Code of Ukraine (article 176) prohibits illegal reproduction and distribution of scientific and literary works, works of art, computer programs and databases, phonograms, videograms, and broadcasting programmes in any type of media, and via camcording (recording video and audio using a camcorder or similar device) and cardsharing (the simultaneous use of one legitimate conditional access subscription card), or other intentional breaches of copyright.
The sanctions under article 176 varies from a fine of €115 to imprisonment for up to six years.
Online infringement
Are there any specific liabilities, remedies or defences for online copyright infringement?
There is a specific out-of-court procedure to protect copyright if an infringement takes place online. The measure is applicable to limited range of protected works:
audiovisual works;
musical works;
computer programs;
videograms;
phonograms; and
broadcasting programs.
Under this procedure the rights holder or his or her representative (who must be a certified attorney) sends a request to the owner of a website or webpage, demanding that the owner deletes the infringing content and provides details of the person responsible for the infringement.
The owner of the website or webpage must undertake certain measures in order to disable the infringing content within 72 hours, or be considered liable for copyright infringement.
Prevention measures
How may copyright infringement be prevented?
There is no specific effective legal mechanism to prevent copyright infringement.
Relationship to foreign rights
International conventions
Which international copyright conventions does your country belong to?
Ukraine is a party to the following treaties:
Berne Convention for the Protection of Literary and Artistic Works (1886);
Universal Copyright Convention (1952);
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961);
Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971);
World Intellectual Property Organization Copyright Treaty (1996);
World Intellectual Property Organization Performances and Phonograms Treaty (1996);
the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS); and
the Ukraine-European Union Association Agreement (2014).
What obligations are imposed by your country’s membership of international copyright conventions?
Under the above-mentioned agreements, Ukraine is obliged to provide a certain level of protection to copyright and related rights.
By signing the Ukraine-European Union Association Agreement, Ukraine undertook an obligation to harmonise its legislation with EU copyright regulations. Currently, this process and the implementation of the Association Agreement’s provisions are ongoing.
Авторы: Дарья Ромащенко, Иларион Томаров (Daria Romashchenko, Ilarion Tomarov)
Источник: https://www.lexology.com/library/detail.aspx?g=6b75c750-5fcd-4b73-989c-4b17bb26a250&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-02-07&utm_term=