What is the right of a special kind (sui generis)
Sui generis (lit. peculiar, one of a kind) – comes from Latin and means the uniqueness of a legal construction (act, status, law, etc.), which, despite the presence of similarities with other similar constructions, generally has no precedents. The uniqueness of any of the “sui generis” cases is often the subject of protracted disputes.
Sui generis is an expression that literally means “your kind.” In this sense, as sui generis we denote that which is unique or exclusive.
Thus, we say that something is sui generis when we define it as unclassifiable, extraordinary, out of the ordinary (For example, “this porcelain vase with three handles seems very sui generis to me”).
But a sui generis person will be in the case when he seems very original or extravagant to us: “Peter is always so sui generis with his style of dressing.”
This term is used in a wide variety of disciplines to denote everything unique in its kind, which is not included in the usual parameters of things of this kind.
As such, it is a Latinism, so it should be written in italics and with a tilde, although it also admits that it is castilled, and can be written in the round and with a tilde: sui generis.
Sui generis in philosophy is a concept that denotes that idea, essence or reality that cannot be included in a broader concept due to its uniqueness and specificity.
Sui generis in law is a legal concept that applies to any case that, because of its uniqueness, requires a special and unique interpretation by the authority.
Sui generis in art – we mean all those artistic manifestations that go beyond their genre and are generally accepted due to their quality and relevance: “Charlie Garcia’s first album was very sui generis.”
A view through the legislation of Ukraine on copyright
Article 3 of the new Law of Ukraine “On Copyright and Related Rights” (hereinafter referred to as the “Law“) emphasizes that the provisions of this Law are aimed at the protection and protection of personal non-property rights and property rights, including those of sui generis to a non-original object generated by a computer program specified in Article 33 of this Law.
But Article 33 of the Law defines what is the right of a special kind (sui generis) to non-original objects generated by a computer program.
«A non-original object generated by a computer program is an object that differs from existing similar objects and was formed as a result of the operation of a computer program without the direct participation of a natural person in the creation of this object.
Works created by natural persons using computer technologies are not considered non-original objects generated by a computer program».
That is, in other words, if the program created itself (through its own functioning) WITHOUT DIRECT participation of a physical person, then it is a NON-ORIGINAL OBJECT. And if a natural person participated (executed commands, corrected the work of technologies, set the direction, etc.), then such works are considered ORIGINAL, generated by a computer program.
And who are the subjects of such a sui generis right under the Law?
«Subjects of the right of a special kind (sui generis) to non-original objects generated by a computer program are persons who, taking into account the requirements of this article, own the property rights or who have licensing authority for the computer program – the authors of such computer program, their heirs, persons to whom the authors or their heirs have transferred (alienated) property rights to the computer program or legitimate users of the computer program. The contract may determine other conditions of ownership of the right of a special kind (sui generis) to non-original objects generated by relevant computer programs».
Importantly:
1) Personal non-property rights do not arise as a result of the creation of a non-original object generated by a computer program. Therefore, we will not indicate the author,
2) The scope of property rights of the subject of a special kind of right (sui generis) to a non-original object generated by a computer program is determined in accordance with the norms in Article 12 of the Law,
3) The right of a special kind (sui generis) to a non-original object generated by a computer program arises as a CONSEQUENCE of the GENERATION of this object and begins to operate from the moment of such generation,
4) The term of validity of the right of a special kind (sui generis) to a non-original object generated by a computer program expires after 25 years (from the moment of generation), calculated from January 1 of the year following the year in which the non-original object was generated object
5) If during the creation of a non-original object generated by a computer program, there was use of copyright objects and/or objects of related rights, the relevant subject enjoys the right of a special kind (sui generis) to such non-original object, but on the condition that he observes the copyright and related rights of other subjects, because it was their works that were used in the process of generating such a non-original object,
6) If the non-original object generated by the computer program is the result of the use of another protected non-original object generated by the computer program, then the rights of the other subject to the non-original object generated by the computer program must be respected,
7) The subject of a sui generis right to a non-original object generated by a computer program, during the period of validity of the sui generis right, has the exclusive right to grant permission to other persons to use this object in any ways based on the contract,
8) The sui generis right to an object generated by a computer program can be alienated in favor of another person – by contract, for example, in accordance with the applicable norms of this Law,
9) Free use of a non-original object generated by a computer program is when, without payment of remuneration and permissions, is allowed in the manner provided for in Articles 22-29 of this Law,
10) Violation of the right of a special kind (sui generis) to a non-original object generated by a computer program, which gives grounds for the protection of such rights, including in court. Persons with sui generis rights apply to the court for protection.
What you need to know about the transfer of rights of subjects of sui generis law
Transfer (alienation) of property rights to objects of copyright or objects of related rights under the contract (Article 49 of the Law):
1) The subject of copyright or related rights may transfer (alienate) his property rights to the object of copyright or the object of related rights to any other person in full on the territory of all countries of the world or partially for separate ways of use on the territory of individual states of the world, or for all methods of use on the territory of individual states of the world. In the event of the transfer (alienation) of property rights to the object of copyright or the object of related rights, in part, the property rights in the amount not provided for in the contract are those that have not been transferred (not alienated),
2) The subject of an agreement on the transfer (alienation) of property rights to objects of copyright and objects of related rights cannot be objects and property rights that did not exist at the time of the conclusion of the agreement,
3) A person who acquires property rights to an object of copyright or an object of related rights becomes a subject of property rights. If a person wants to transfer the acquired rights to another person, then the term of the contract cannot be different from what is provided by law in terms of the acquired property rights, otherwise such a provision is null and void,
4) A person who transfers (alienates) property rights to an object of copyright or an object of related rights is obliged to provide the person who acquires such rights with information about the existence of license, sublicense agreements and other rights and obligations regarding rights that are transferred
5) The conclusion of an agreement on the transfer (alienation) of property rights to an object of copyright and objects of related rights does not affect the validity of license and sublicense agreements that were concluded earlier, unless otherwise provided for in the corresponding license agreement.
Features of the right to databases (data compilation)
Non-original databases are protected by a sui generis right under this Law.
It is Article 21 of the Law that defines the right to databases (data compilation):
1) Databases (compilations of data) are protected by copyright if they are the result of creative activity based on the selection and/or arrangement of their constituent parts,
2) The protection of databases does not extend to and does not harm any rights to their component parts included in the database,
3) The protection of databases does not apply to computer programs used during the creation or necessary for the functioning of databases,
4) The manufacturer of the database, except for the database created for the systematization of data that is public information in accordance with the Law of Ukraine “On Access to Public Information”, who made a qualitatively and/or quantitatively significant contribution to obtaining, checking or submitting the contents of the database, for prevention of removal and/or reuse – any provision to an indefinite number of persons of the complete content of the database or a significant part of it in qualitative or quantitative terms, such a database is granted a sui generis right,
5) The right of a special kind (sui generis) is exercised regardless of whether the corresponding database is subject to protection by copyright or other rights. In addition, the right of a special kind (sui generis) is exercised regardless of whether the content of the relevant database is subject to copyright or other rights,
6) The right of a special kind (sui generis) can be transferred (alienated) in accordance with the legislation,
7) The protection of databases in accordance with the right of a special kind (sui generis) does not prevent the exercise of the rights that exist in relation to the contents of such a database,
8) The right of a special kind (sui generis) begins to operate from the date of completion of the creation of the database and expires after 15 years on the last day of the calendar year in which the database was created,
9) If the database is made public before the expiration of the period specified above, the term of validity of this right expires after 15 years, on the last day of the calendar year in which the database was first made public,
10) Any significant change in the content of the database in quantitative or qualitative terms, in particular any significant change resulting from the accumulation of additions, deletions or successive changes, which allows us to conclude that it is a significant, qualitatively and quantitatively determined contribution, grants the database, which is the result of such changes, a separate term of legal protection in accordance with the norms specified above.
copyright / intellectual property / non-original object / software program / sui generis
