An important event took place in the field of intellectual property – on December 1, 2022, the Supreme Rada of Ukraine adopted the Law “On Copyright and Related Rights” (draft law No. 5552-1, hereinafter referred to as the “New Law”).
The New law is aimed at harmonizing Ukrainian copyright legislation with European legislation. The examination showed that it generally complies with the norms of the directives of the European Union.
The New law sets out the new version of the Law of Ukraine “On Copyright and Related Rights” and makes changes to a number of current legislative acts: the Civil Code of Ukraine, the Economic Code of Ukraine, the Economic Procedural Code of Ukraine, the laws of Ukraine “On Publishing”; “On Cinematography” , “On the protection of economic competition”, “On touring events in Ukraine”, “On theaters and theatrical activities”, “On electronic commerce”, “On television and radio broadcasting”, “On effective management of the property rights of rights holders in the field of copyright and ( or) related rights”.
The New law defines:
– list of copyright objects;
– a list of works that are not objects of copyright;
– term of validity of the copyright;
– a list of objects of adjacent rights;
– term of validity of related rights.
The New law regulates:
– mechanisms for the protection of copyright objects;
– issues related to the creation and exercise of copyright;
– features of copyright for official works;
– features of copyright for works created to order;
– features of copyright for audiovisual works, musical non-dramatic works, composite works, derivative works, computer programs, databases;
– cases and features of free use of works;
– transfer of copyright to inheritance;
– recognition of works and objects of related rights as orphans;
– transfer of works and objects of related rights into the public domain;
– cases and features of free use of objects of adjacent rights;
– features of the authors’ exercise of the right to a share of the sale amount of the original work of art (right of follow-up);
– peculiarities of the exercise of copyright and related rights, the right to remuneration;
– peculiarities of the exercise of property rights to objects of copyright and related rights;
– transfer (alienation) of property rights to objects of copyright and related rights;
– mechanisms for the protection of copyright and related rights;
– procedure for termination of violations of copyright and (or) related rights using the Internet;
– peculiarities of concluding contracts regarding the disposal of property rights to objects of copyright or related rights and contracts in the field of collective management of property rights to objects of copyright and (or) related legal procedures for the collection, distribution and payment by organizations of collective management of remuneration in favor of right holders.
Highlights of the New Copyright Law
1) such a feature of the work as its originality previously had only an indirect reference as a basis for the protection of the object of copyright in clause e) of Article 10 of the version of the Law of Ukraine “On Copyright and Related Rights” (hereinafter referred to as the “Old Law”). The New law proposes: “a sign (criterion) that characterizes a work as the result of the author’s own intellectual creative activity and reflects the creative decisions made by the author during its creation.” That is, the New Law clearly defines the content of this criterion of protectionability of works.
2) The term “videogram” has been expanded to include, among other things, video recording of still images, which actually increases the list of potential objects that can receive legal protection.
3) The definition of “music clip” is provided and it is classified as an audiovisual work – this is how the list of protected objects is detailed.
4) Article 1 of the New Law provides for the formulation of the primary term in the field of copyright as “work”. The requirement for all works is that they must be “expressed in an objective form.” That is, in order to receive legal protection, a work must have one of the following forms: audio (including oral), tactile (for example, a work written in Braille), visual (including written), material, electronic, binary (for example, audiovisual) etc.
5) Inclusion in the list of copyrighted texts of translations for dubbing (including dubbing), subtitling of audiovisual works in other languages. The previously mentioned list included only those translation texts that were intended for foreign audiovisual works. Thus, the legislator expanded the list of objects that are subject to legal protection under the New Law.
6) The New law defines that the part of the work that can be used independently, and therefore protected, includes, among other things, the original character of the work and the original name of the character of the work. In previous court practice, interested parties quite often had to prove that the character of the work and/or his name is an independent part of the work and should receive legal protection.
7) The New law defines the moment from which a work is considered created, namely: “A work is considered created from the moment of its initial presentation in any objective form (written, material, electronic (digital), etc.).” Previously, the moment of creation of the work was directly defined by legislation, which excludes the possibility of abuse by the author. And the fourth part of Article 14 of the New Law provides for the employer’s right to complete an unfinished official work, unless otherwise stipulated by the employment contract (contract) or another agreement regarding property rights to the official work concluded between the employer and the employee.
8) The right to a fair reward, which belongs to these persons, cannot be transferred (alienated) to other persons (except for the transfer to heirs). By this, the legislator actually protects the creators from the unscrupulous actions of other persons, as well as the provisions of contracts that could deprive them of this right.
9) Part 7 of Article 50 of the New Law stipulates that the author or performer has the right to demand from the other party to the contract (employer, customer, licensee, etc.) the payment of additional proportional remuneration for the use of the work or performance, if the amount of remuneration for its use is stipulated in the concluded by these parties to the contracts, has become disproportionately low compared to the income of these persons related to the use of the work or performance, and such persons are obliged to pay the author or performer the appropriate additional proportional remuneration. Thus, if the deed (contract) is unpaid, the remuneration of the author or executor will automatically be disproportionate to the income of the other party, which will determine his right to demand payment from such other party to the deed (contract).
10) Provisions of the legislation regarding copyrights for individual objects, for example, computer programs, as well as cases of free use of works without the permission of the author or other person who has the copyright, received detailed regulation.
Disadvantages of the New Copyright Law and how to work in further work to protect your rights
1) The New law uses the term “subject of property copyright” (which includes persons who have acquired such rights under a contract or on other grounds provided by law (heirs, employer, etc.)) next to the term “subject of copyright”. Thus, it does not directly follow from the current wording of the second part of Article 5 of the Draft Law that the term “subject of copyright” also includes “subjects of property copyright”, while the Old Law classifies such persons as subjects copyright.
2) The New law defines the terms “website owner” and “web page owner” in exactly the same way, while noting that the owner of a web page is not the owner of a website. Of course, the identity of these terms is a typographical error that needs to be corrected, because with this wording it is simply impossible to determine who owns a website where different pages are managed by different people.
3) The New Law does not provide for the term “exclusive right”, although it is often used in the text. At the same time, the current version of the Old Law provides such a definition.
4) The legislator increased the list of personal non-property rights of the author, supplementing it with the right to publicize the work, which is any action that makes the work available to an unlimited number of people for the first time. Many scientists, such as Doctor of Philosophy in Law (Ph.D) Professor F. Dessemontet (Francois Dessemontet), are supporters of attributing the right to publicize a work to property copyright. This is due to the fact that personal non-property rights cannot be transferred (alienated) to other persons and cannot be inherited, which is stipulated, in particular, in the second paragraph of the first part of Article 11 of the New Law. At the same time, it is impossible to use in any way a work that has not yet been made public. Since this right cannot be transferred (alienated) under the New Law, and it is not even possible for the author to give consent for such actions to be performed by another person (as provided for in the Old Law), significant risks are faced by the customers of works and employers. They certainly have an interest in receiving and using a commissioned or contracted work, but the author could potentially be abusing their right by not making the work public, effectively preventing them from using it. As noted above, this right cannot be inherited, while the New Law proposes to set out the third part of Article 442 of the Civil Code in the following wording: “In the event of the death of the author, his heirs have the right to publish the work, if this does not contradict the will of the author.” That is, the New Law at the same time prohibits the transfer of the right to publicize the work into inheritance and provides for the acquisition of this right by the legal successors (including the heirs) of the author in the event of his death, which is undoubtedly a contradiction between individual provisions of the New Law.
5) Incomplete detailing of the term “interactive provision of access”. According to Article 1 of the New Law, interactive provision of access is: “distribution of an object of copyright and/or related rights to the public with or without the use of a cable, including on the Internet or other interactive networks, in particular, placement on one site content of another site (framing), so that members of the public can access this object from a place and time chosen by them individually. Placing on one site a hyperlink to another site on which an object of copyright or related rights is placed is not considered interactive provision of access. According to the text of the New Law, interactive provision of access is one of the ways of using the work. It is the copyright holders who have the exclusive right to allow the use of the work, in particular, in this way. If this term does not include the provision of a hyperlink, it will mean that any person can perform such actions without the need to obtain the permission of the copyright holder.
6) Also, the New Law, unfortunately, does not eliminate the deficiency that also exists in the wording of the Old Law. Thus, in the definitions of such ways of using works as: private copying, public performance, public demonstration and public notification, the phrase “close familiar families” appears. In the context of the New Law, this will mean that the specified types of use of works within the circle of “close family acquaintances” will not be a violation of copyright. After all, an almost unlimited number of persons can fall under the definition of “close family acquaintances”, which can potentially lead to abuses and offenses.
7) The New law provides for an exhaustive list of ways of using the work. But the revision of the Old Law expressly determined that this list is not exhaustive, which is fully justified, because in practice it is impossible to predict all the ways in which a work can be used.
8) Not defining the term “producer of an audiovisual work”, as well as introducing the terms “production of a videogram” and “production of a phonogram”. The term “producer of an audiovisual work” will henceforth not include persons who financed its creation, and the terms “production of a videogram” and “production of a phonogram” effectively exclude persons who initiated and/or financed a sound or video recording, but did not participate in its production. implementation directly, from the list of persons who are considered the producer of the videogram or the producer of the phonogram, respectively. Thus, the investor does not automatically acquire property rights to an audiovisual work or to a video or phonogram at the time of their creation, if he does not conclude an agreement on the disposal of property rights to the corresponding object of intellectual property rights with a person who actually acquires such rights under by law as a result of the creation of this object.
9) The New law returned the old legal conflict that took place between the provisions of the Old Law and the Central Committee of Ukraine regarding the distribution of property rights to works created by order or in connection with the performance of an employment contract. According to the New Law, the property rights to the official work, as well as the property rights to the work created by order, belong to the employer or the customer, respectively, unless otherwise stipulated by the contract. However, Articles 429 and 430 of the Civil Code of Ukraine, which are not amended by the new law, provide for a slightly different distribution of property rights, namely: property rights belong to the employee and the employer jointly (in the case of creating an object of intellectual property rights in connection with execution of an employment contract), and – to the creator and the customer jointly (in case of creation of such an object by order).
10) Article 54 of the New Law provides for the types of use of works and objects of related rights, for which authors, subjects of related rights, and other persons who have property rights in relation to these objects do not exercise the right to fair remuneration, but through accredited organizations of collective management.
We are monitoring new changes in connection with the implementation of these norms in practice and are preparing for difficult discussions in the field of copyright and related rights. Without professional lawyers, you definitely cannot figure it out, so make an appointment for consultations and order services in advance. Contacts are in the description on the website.
