Authors: Ilarion Tomarov, Counsel, Daria Romashchenko, Associate
Published: Terralex, July 2021
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1.1. What are the main sources of copyright law?
Ukrainian legislation on copyright mainly consists of two acts: the Civil Code of Ukraine (2003) and the Law of Ukraine On Copyright and Related Rights (1993) (the Law). The other important source of regulatory provisions is the European Union Association Agreement (the Agreement). The collective management of copyright and related rights is regulated by the separate law On Effective Management of the Exclusive Rights of Rightholders in the Field of Copyright and/or Related Rights as of 15 May. The legal framework on copyright includes also a wide range of subsidiary acts.
Ukraine is a party to several international treaties:
- Berne Convention of 9 September 1886 for the protection of literary and artistic works;
- the Universal Copyright Convention of 6 September 1952;
- the Rome Convention of 26 October 1961 on the protection of performers, producers of phonograms and broadcasting organisations;
- the Geneva Convention of 29 October 1971 for the protection of producers of phonograms against unauthorised duplication of their phonograms;
- the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of 15 April 1994;
- WIPO Copyright Treaty of 20 December 1996;
- WIPO Performances and Phonograms Treaty of 20 December 1996.
2. Subsistence of copyright
2.1. What type of subject matter can be protected by copyright?
Any work containing embodiment of the 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:
- written works (e.g., books, brochures, articles, plays, collections and anthologies, and translations);
- verbal works (lectures, speeches, sermons, etc.)
- computer programs;
- artistic works;
- musical works with or without lyrics;
- dramatic works, pantomimes, choreographic works and other works purposed to be presented on stage;
- audiovisual works;
- architecture, urban development, landscape gardening;
- decorative weaving, ceramic, carving, casting, art glass, jewellery etc.
- maps, plans, sketches, plastic works related to geography, geology etc.;
- derivative works.
An original work of authorship expressed in any tangible medium is protected by copyright regardless of its completeness, purpose, etc. according to the Law.
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 (orphan work – a work whose author is impossible to identify or contact)
- official documents (legislative, political, administrative) and their official translations;
- state and local symbols and emblems;
- vehicle schedules, television schedules, telephone directories and other similar databases that do not meet the criteria of originality and are covered by the sui-generis right;
- phone directories and similar databases.
The Law sets out both the moral rights and economic rights. The list of economic rights is non-exhaustive. Copyright holder enjoys three fundamental economic rights
- the exclusive right to use work;
- the exclusive right to authorize the use of the work by others;
- the exclusive right to prohibit the use of the work by others.
- reproduction of works;
- public performance and public broadcasting of works;
- public demonstration and public display;
- any re-publication of the works, if it is carried out by another organization than the one that made the first publication;
- translations of works;
- alterations, adaptations, arrangements and other similar changes of works;
- inclusion of works as components in collections, anthologies, encyclopedias, etc.;
- distribution of works by first sale, alienation by other means or by leasing or rental of property and by other transfer to the first sale of copies of the work;
- presenting their works to the public in such a way that their representatives can access the works from any place and at any time of their choice;
- rental and/or commercial rental after the first sale, alienation by other means of the original or copies of audiovisual works, computer programs, databases, musical works in musical form, as well as works recorded in a phonogram or videogram or in computer-readable form;
- import of copies of works.
According to the Law, an author enjoys the following non-transferable moral rights: the right of authorship (i.e. the right to be recognised as the author of the work); the right of the author’s name (i.e. 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 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 copyright protection lasts 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 a work is published in separate parts, the period of copyright protection 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 (i.e. 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.
The moral rights are perpetual and inalienable. As a result, the author cannot transfer or waive his/her moral rights, which continue to exist and must be respected even after the work has fallen into the public domain.
3.1. Who is the first owner of a copyright work?
Initially, the individual whose creative efforts resulted in the work is considered as the author and therefore enjoys all rights to a work. However, companies, employers, other individuals, and the state may obtain copyright through agreements or based on the law (succession).
The copyright for a work created in a co-authorship constitutes the property of all co-authors, regardless of whether it forms one indivisible whole or consists of parts, which can be exploited independently. Such rights can be obtained by a number of persons simultaneously through a transfer agreement as well.
According to the Law 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 (i.e. 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.
Copyright arises automatically upon creation of the work.
A copyright notice may be useful to evidence ownership of copyright. It creates a presumption that the named person is the copyright holder and puts third parties on notice of the rights. The copyright notice includes Latin letter ‘C’ inside a circle (©), the name of the 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.
In Ukraine system copyright registration is optional. 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. All rights holders who receive rights by virtue of the transfer agreement can apply for the contract registration by submitting an application (with an exemplar of the work) and payment of the official fee. After the work is registered, the rightsholder receives a certificate. Copyright certificate may be used as evidence of copyright ownership and date in dispute.
An assignment of copyright must be in a written form otherwise it will be regarded as void.
Furthermore, each of the assigned rights (ways and manners of use) shall be separately mentioned in the contract along with territory and duration. It should be highlighted that according to the Law the rights (manners of use) not expressly mentioned in the contract shall be deemed remaining within the author’s exclusive rights. No future rights (which do not exist as for the date of contract) can be transferred.
Additionally, the fee for assignment or transfer shall be also explicitly mentioned in the agreement.
No, moral rights are inalienable. Also, moral rights cannot be waived.
4.1. What acts constitute direct infringement of copyright?
The following acts are considered as infringements of copyright:
- infringement of moral rights;
- any unauthorized use of a copyrighted work outside the scope of limitations provided by the articles 21–25 of the Law, namely:
- piracy (i.e. illegal publishing, reproduction, or dissemination of a copyrighted work);
- plagiarism (i.e. 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 copyright or related rights management information.
Generally, there are no provisions relating to secondary liability. However, according to the Law, the owner of a website or webpage shall be liable for copyright infringement if they fail to remove infringing content after being informed about its presence.
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 (amount corresponding to the purpose of quotation);
- illustrative use for educational purposes;
- reproduction in press, communication to the public of already published articles relating to economic, political, religious, and social issues unless the author did not expressly prohibit such uses;
- reproduction with the purpose of informing about current events;
- reproduction in catalogues of exhibitions, fairs without commercial purpose;
- reproduction 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;
- reproduction for private purposes except architectural works, computer programs and books, music scores, and works of art unless it falls within the conditions of limitations indicated above.
Ukrainian copyright law does not provide specific provisions on use of a hyperlink to, or a frame of a work protected by copyright. However, there are some cases where commercial and criminal courts addressed this issue.
According to the relevant case law of Higher Commercial Court of Ukraine, placement of a hyperlink to the site that contains copyrighted work is valid only if the appropriate permission is given by the right holder. Otherwise it should be regarded as a distribution of a counterfeit copy of the work, which resulted into the violation of the property rights of the owner.
The licensee's rights and obligations depend on the scope of rights and obligations that the licensee is granted by the licensor. Therefore, if it is agreed between the parties in writing, the licensee can bring an infringement action. Generally, a licensee is allowed to bring an infringement action on a basis of exclusive license.
5.1. What remedies are available against a copyright infringer?
The infringed party may request the following from the courts:
- recovery for the infringed rights and/or terminate infringing actions;
- moral damages (a monetary payment for moral suffering caused by the actions of the infringer);
- monetary damages (real losses and/or lost profit);
- infringer’s income resulting from copyright infringement;
- statutory damages in the amount of double the price a rights holder would charge for a license to the copied work; or triple if infringement is intentional;
- request the infringer to provide information about third parties involved in the infringing activities;
- prohibit the publication of the works or demand confiscation of such works.
A specific out-of-court procedure of protection of copyright for online infringement has been introduced to Ukrainian copyright legislation recently. The measure is applicable to a 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 (certified Ukrainian 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.
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 vary from a fine of approximately €130 to imprisonment for up to six years.
The standard three-year period of limitation of action applies to copyright infringement. The countdown starts from the moment when the plaintiff became aware or could become aware of the infringement of their rights. An author has an unlimited period for bringing action regarding the protection of moral rights.
Legal costs can be recovered. The general rule is that the unsuccessful party should pay the costs of the successful party. In the case of partial satisfaction of the claim it is paid by both sides in proportion to the size of the satisfied claims. It is compensated measurable to the cost of the claim. The particular amount of legal costs recovered to be declared by the court.
6.1. What courts can you bring a copyright infringement action in, and what monetary thresholds, if any, apply?
Nowadays, copyright infringement actions can be brought to Civil and Commercial courts. No monetary thresholds apply. Civil procedural regulation prescribes minor type of cases (where monetary demands are up to approximately €7 960 or declared so by the court. Generally, such cases cannot be challenged in the cassation instance. The intellectual property court announced as a component of Ukraine’s judiciary reform in 2016 is in the process of being established.
The State Custom Service of Ukraine is responsible for control of intellectual property rights enforcement at the border during the import of goods. If during the course of customs control the goods suspected of violation of intellectual property rights are detected, the custom clearance of such goods is suspended for 10 days during which the rightsholder may start a proceeding. If a rightsholder fails to do so, the custom clearance must be continued upon the end of that term.
According to the Customs Code of Ukraine, a rightsholder should submit for injunctive relief ordering further discontinuance of customs clearance. The custom authority continues suspension of customs clearance of goods for a period declared by the court.
Criminal proceedings, although rare, can be brought on the grounds described in 5.3 above, and pursued through the criminal courts.
The Ministry for Development of Economy, Trade and Agriculture of Ukraine (the Ministry) has the authority to register copyright (registration is optional). The intellectual property inspectors of the Ministry are authorized to investigate the infringement of intellectual property rights and impose administrative fines upon infringers.
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 authorized to do so by the rightholders. According to the Law of Ukraine On Effective Management of the Exclusive Rights of Rightholders in the Field of Copyright and/o) Related Rights there are different types of collective rights management agencies such as: voluntary collective rights management, mandatory collective rights management, and extended collective rights management.
Now all registered collective rights management societies are in the process of accreditation and only three of them are already confirmed authorities via the ad hoc process created by the Accreditation Commission in the Ministry. However, the proceedings are currently open to declare the decision of the Accreditation Commission for Collective Management Organizations unlawful in the part of accreditation of two collective management organizations.
It is allowed to reproduce at home and for personal purposes works and performances recorded in phonograms, videograms, and other similar works without the consent of the copyright holder, but with remuneration to them.
According to the Law of Ukraine On Effective Management of the Exclusive Rights of Rightholders in the Field of Copyright and (or) Related Rights remuneration for the private copying is made from manufacturers and/or importers of digital, analog, and other equipment and material media, with the use of which reproduction may be possible.
Copyright levies are paid in the form of deductions of a fraction (as a percentage) of the cost of equipment and tangible media, with the use of which such reproduction can be made, except:
- professional equipment and/or tangible medium of expression not intended for home use;
- equipment and tangible medium of expression exported to the customs territory of Ukraine;
- equipment and tangible medium of expression imported by an individual into the customs territory of Ukraine exclusively for personal purposes without commercial aim.
25% of the private copying levies accommodated by an accredited private copy organization should be transferred to the state organization responsible for development of Ukrainian culture.
The remaining funds shall be distributed by an accredited organization for private copying equally to the following categories of right holders:
- copyright holders of musical works;
- copyright holders of audiovisual works;
- the authors and performers of the audiovisual work or their heirs;
- persons owning property related rights to phonograms (videograms);
- performers of works recorded in phonograms (videograms) or their heirs.
7. Copyright reform
7.1. What do you consider to be the top recent copyright development?
The major development of Ukraine is the adoption on May 15, 2018 of the Law of Ukraine On Effective Management of the Exclusive Rights of Rightholders in the Field of Copyright and (or) Related Rights, which reforms the system of collective management of rights of copyright subjects and related rights, preventing the illegal activity of collective management organizations, preserving and developing the intellectual activity of authors, performers, and other creators. The law implements into national law the provisions of Directive 2014/26 / EC of the European Parliament and of the Council of 26.02.2014 on the collective management of copyright and related rights and multi-territorial licensing of music rights for online use in the internal market.
Ukraine is looking forward to the launch of the intellectual property court, where all disputes involving copyright matters will be considered.
On June 16, 2020, the Parliament of Ukraine adopted the law governing some systematic changes in the IP system: it establishes National Intellectual Property Office which should concentrate all powers related to registration and maintenance of intellectual property objects, including registration of copyright. The final content of the law awaits to be signed by the President and published afterwards.