Copyright in Ukraine

By Inga Kryvosheina
Salkom

The development of the market economy in Ukraine and the rise in the volume of business has led to the need for absolute protection of intellectual property rights as well as one of its components, which is copyright.

Having become an independent country, Ukraine started to develop a state governed by law. Therefore, the issue of proper protection of copyright is as critical as never before.

In Ukraine relations in the field of copyright are governed by the Civil Code of Ukraine, On Copyright and Related Rights Act of Ukraine and a number of regulatory legal acts.

Objects of copyright under the law of Ukraine are works of science, literature, and art, specifically: fiction literary writings; computer programs; databases; musical compositions with or without lyrics; audio and video products; works of art; works of architecture; photographs; works of household art, and other creative works. Copyright objects are objects defined by the law which are legally protected. Creative works whether or not promulgated but expressed in any objective form are also objects of copyright. Please note that the circle of objects protected by copyright is rather wide and it is growing constantly due to the development of art and science. Therefore, the list of copyright objects set out in Ukrainian civil law is not an exhaustive one.

For copyright to emerge and be exercised, Ukrainian legislation does not require the completion of a separate special registration procedure or other formalities. At the same time, civil law allows special registration of copyrights with respective establishments as stipulated by law.

The subject of copyright is the author of a creative work and persons to whom copyright has been legally transferred on lawful grounds. Please note that pursuant to Ukrainian legislation, legal entities as well as individuals can be copyright holders. A legal entity may acquire certain copyrights under a contract with the author if, for example, the work was created during the fulfillment of an official assignment. Moreover, copyright can be transferred to a legal entity based on the will of the author. In such cases the legal entity becomes the holder of the derivative copyright which initially emerged by the author of the creative work and was then transferred to the legal entity on the above grounds. Copyright with regard to a creative work emerges due to the very fact of its production and does not depend on its special registration. Moreover, creative works are protected regardless of form and the method of their promulgation. The rights of copyright subjects may be divided into inalienable (personal non-property rights) and transferable (the property rights of authors). The first group includes the following: the right to claim indication of the author’s name wherever the work is publicly used; the right to forbid mentioning the author’s name in connection with the use of the work; the right to choose a pseudonym in connection with the use of the work; and the right to inviolability of the work. The author’s property rights include: the right to use a creative work; the right to prevent unlawful use of a creative work, including the right to prohibit such use; and other property rights as established by the law.

The order and manners of exercising the proprietary rights of intellectual property are determined by the Civil Code of Ukraine and other laws. National courts are considering more and more cases aimed at restoring the violated copyright of individuals. The infringer of a copyright is a person that performs actions violating personal non-property and property rights of copyright subjects. In other words, most frequently violators are persons who unlawfully use copyright objects which belong to an author or his/her successor.

The most prevalent transgressions are as follows: piracy in the sphere of copyright and related rights as to publication, reproduction, import to and export from the customs territory of Ukraine, and distribution of pirated copies of creative works (including computer programs and databases); plagiarism, that is promulgation (publication) of someone else’s creative work, wholly or partly, under the name of a person other than the actual author, etc. The author has the right to apply to a court for protection of his/her violated rights.

In such case the author must prove to the court that the defendant carried out actions which are referred by legislation to the field of copyright regulation; the creative work used by the defendant was borrowed from protected creative work; and unlawful actions were performed with respect to an entire work or to part of it.

Protection of violated copyright begins from choosing the method of protection. In order to protect their rights, subjects of copyright shall be entitled to refer any such matters to a court and to other bodies depending on their respective remit in accordance with the set procedure. In the event of copyright being infringed by any person, also when failing to fulfill the conditions for using creative works as provided for by the agreement, or when using such works in circumvention of technical means of protection or by faking information and documents relating to the management of such rights, or when creation of a threat of unauthorized use of copyright objects, and when otherwise transgressing personal non-property and property rights vested in subjects of copyright, such subjects of copyright have the right to: claim acknowledgement and restoration of their rights, including the right to prohibit actions violating copyright; appeal to a court to claim restoration of infringed rights and cessation of actions infringing copyright; claim moral (non-property) damages; claim material damages; and use other means of protection provided for by Ukrainian legislation. As a rule, a person whose rights are violated uses a specific method to protect the violated copyright. Sometimes the method of protection of the violated right may be directly envisaged in a provision of the law, or it follows from the nature of the infringement. Most often the law enables the copyright holder to choose from different methods of protection.

One of the most prevalent methods of protection is compensation for damages incurred, collection of illegal income and payment of compensation. In choosing such means of protection the copyright holder must prove the fact of damages and their sum. In the event of copyright violation the damages should be understood as lost profit, i.e. the sum of money which could be received by the copyright holder if his/her rights were not violated, but transferred on the appropriate legal grounds. Lost profit is income received by the violator of copyright by unlawful use of the copyright object. During consideration of this category of cases the copyright holder must, along with the amount of damages incurred, also prove the fact of copyright violation. So, justification of the amount of damages caused, including lost profit, is placed on the complainant. He or she must also prove the fact of violation of his/her rights and causal connection between this violation and the damages caused. As a rule, such damages are collected in the form of money but, at the same time, civil law provides for the right to provide the author on his/her request with pirated copies of the creative work at the expense of which the damages may be redressed fully or in part.

The issue regarding the possibility of including copyright in the assets of a legal entity is an interesting one. At the current stage in the development of our country, intellectual property objects constitute a considerable part of the assets of enterprises and organizations. In practice companies use copyright objects as non-material assets in the following ways: include the value of the copyright object in the authorized capital; transfer copyrights; use copyright objects in their own activities. Commercial use of copyright objects is performance of any actions aimed at using the object in the economic turnover of the company.

Thus, inclusion of copyright in the authorized capital results in the issue of its pecuniary valuation. Article 9 of the On Valuation of Property, Property Rights and Professional Valuation Activities in Ukraine Act of Ukraine stipulates that the methodological control of valuation of property shall be implemented in the relevant regulatory legal acts on property valuation: provisions (national standards of) on property valuation approved by the Cabinet of Ministers of Ukraine, methodologies and other regulations developed subject to provisions (national standards) and approved by the Cabinet of Ministers of Ukraine or the State Property Fund of Ukraine. The Cabinet of Ministers of Ukraine approved, with its Resolution dated 10 September 2003, National Standard No.1 “General Bases for Valuation of Property and Property Rights”. This subordinate regulatory legal act provides for basic principles as to the valuation of property rights as follows: utility, demand and supply, substitution, contribution, and the most effective use. At the same time, the issue of valuation of proprietary copyrights is one of the most difficult ones as it is much easier to estimate the value of property than the value of copyrights.

Please note that Ukraine is adopting new legislative acts, acceding to international treaties on copyright protection and bringing its regulatory legal acts into conformity with internationally recognized standards. All of these contribute to better legal protection of copyright and enable secured and well-protected development of copyright in Ukraine.