Inheritance of copyright in Ukraine

Many people do not know that in addition to inheriting the deceased’s ordinary property (for example, a house, apartment or car), the deceased’s property copyright also inherits.

This axiom is very important in the field of intellectual property law, because if you read our blog, you know that simply submitting a song or arrangement is not enough for the customer to have the right to use it. It is necessary to transfer the property rights of intellectual property to such an object (exclusive or non-exclusive rights, depending on the choice of the author or the right holder).

We will analyze the peculiarities and subtleties of the inheritance of copyright according to the legislation of Ukraine.

 

WHAT IS THE NORMATIVE LEGAL BASIS OF THE ISSUE OF INHERITANCE OF INTELLECTUAL PROPERTY RIGHTS?

The Constitution of Ukraine in Art. 41 establishes the right of everyone to own, use and dispose of the results of intellectual and creative activity.

Intellectual property rights can be disposed of in two main ways: non-negotiable and contractual. As for the contractual ones, it is the usual transfer of rights under the contract, which is known to everyone. But the non-negotiable method of disposing of property rights of intellectual property is manifested in the transfer of rights to inheritance.

Unfortunately, too little attention is paid to the legal regulation of the inheritance of intellectual property rights. The Civil Code of Ukraine does not specify anything about the specifics of the inheritance of these rights. Only some special normative legal acts (Law of Ukraine) contain some norms regarding the direct inheritance of rights.

 

INHERITANCE OF COPYRIGHT

Copyright consists of exclusive rights that form its content and include: personal non-property rights of the author, and property rights (economic rights regarding the work). The Law of Ukraine “On Copyright and Related Rights” contains an article on inheritance of copyright and related rights. Art. 29 of this Law “Transfer of copyright to inheritance” indicates that the property rights of authors and other persons who have exclusive copyright are transferred to inheritance. Personal non-property rights of the author (the right to be the author, indications on copies of the work, etc.) are not inherited.

The right to receive the rights and obligations of the heirs arises after the opening of the inheritance. A period of six months is established for accepting the inheritance, which starts from the time of opening the inheritance (Article 1270 of the Civil Code of Ukraine). Acceptance of inheritance is a deed, that is, an act carried out in a certain form.

There are two ways of accepting inheritance:

1) by cohabitation of the heir with the testator;

2) by submitting an application for acceptance of inheritance.

In order to draw up a certificate of the right to inheritance, the notary checks the legal facts that are the basis of the inheritance from the persons who submitted an application for its receipt – the facts of the death of the testator, the presence of family ties of a certain degree, being married to the testator or dependent on him for the period established by law the term in case of inheritance by law, the fact of making a will in case of inheritance by will, the time and place of the opening of the inheritance, the composition of the inherited property, for which a certificate of the right to inheritance is issued.

To confirm these circumstances, the notary requires the relevant documents from the heirs. If there is a copyright in the inheritance, in addition to the documents established by law, the notary, as a rule, requires the heir to provide a certificate confirming the fact that the testator was the author. Such a certificate can be obtained, for example, from any publishing house that published the author’s works (if it is a literary work); or a certificate of copyright registration (also a valid argument for works of literature, science or art).

The document confirming the acceptance of the inheritance is the certificate of the right to inheritance, which is issued by a notary at any time after the expiration of a 6-month period from the day of the opening of the inheritance. Subsequently, this document will be the basis for the heirs who wish to use the works of the testator to know exactly who is the legal successor of the author and, accordingly, with whom it is necessary to conclude contracts

The copyright passes to the heirs of the author for the time remaining until the expiration of the intellectual property rights to the work, which expires after seventy years, counted from January 1 of the year following the year of the death of the author or the last of the co-authors who survived the other co-authors, except for cases provided by law (Article 446 of the Civil Code of Ukraine).

For works published anonymously or under a pseudonym, the period of validity of intellectual property rights to the work expires seventy years after the work was published (Article 28 of the Law of Ukraine “On Copyright and Related Rights”). In this case, there is a question of determining the date of publication of the work. If it is a periodical publication, a book, then the publication date of the work can be determined based on the publication date of the publication. However, if it is, for example, a reproduction of a work on the Internet, then it is quite difficult to determine the date. This issue is more easily resolved if the testator issues and receives a certificate of state registration of the copyright to the work.

State registration involves the right (but not the obligation) of the author of the work to apply to a special state body (Ukrpatent in Ukraine) and issue a certificate of state registration of copyright to the work.

 

Particular attention should be paid to the right of authorship and the right to a name. Note that such rights belong only to the author and cannot belong to other persons (because these are personal non-property rights of the author). However, the question still arises regarding the transfer of the personal non-property right to the inviolability of the work.

The law prohibits the transfer of personal non-property rights to inheritance and does not specify exceptions to this general rule. However, in part 2 of Art. 29 of the Law of Ukraine “On Copyright and Related Rights” states that the heirs have the right to protect the authorship of the work and the right to oppose any change to the work, as well as other encroachment on the work that may cause damage to the honor and reputation of the author. A similar norm is enshrined in the Civil Code of Ukraine, which states that after the death of the author, the inviolability of the work must be protected by a person authorized to do so by the author.

If there is no such authorized person, the inviolability of the work will be protected by the heirs of the author, as well as other interested persons. It follows from the above that the right to inviolability of the work appears at the time of creation of the work and does not end even after the death of the author.

 

Summing up, we note once again that the peculiarity of the inheritance of the results of intellectual and creative activity is that only PROPRIETARY intellectual property rights can be included in the inheritance. In general, not the object itself is transferred, but only the COMPLEX OF PROPERTY RIGHTS.

It is possible to inherit a copyright to an object of intellectual property either by will or by obtaining a special certificate of the right to inheritance, which is issued by a notary upon request.

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