Creating a unique work – be it an article, a painting, a musical composition or a program code – the author expects recognition and protection of their rights. However, in the digital age, when information is distributed instantly, cases of copyright infringement are becoming more and more frequent. How to prove your authorship? What works are subject to legal protection? How to protect your property and non-property rights, and in case of infringement – to achieve justice? The answers to these questions are below.
Regulatory and legal regulation
The Law of Ukraine "On Copyright and Related Rights" in Article 2 determines that relations in the industry are regulated by the norms of the Constitution, the Civil Code, the relevant law, other laws and regulatory legal acts developed on their basis.
All current international treaties of Ukraine in this area, which the Verkhovna Rada has approved and determined to be binding, are part of Ukrainian national legislation. For example, Ukraine is currently among the countries that have adopted the Berne Convention, which regulates the protection of literary and artistic works and is in force in most countries of the world.
Conditions for the emergence of copyright
The author of a work is the primary entity that owns the rights to it. In the absence of other evidence, the person who is indicated in the usual manner as the author on the original or copy of the work is presumed to be the author. The moment of creation of the work is the beginning of the origin of copyright.
The rights to a work created in collaboration are shared jointly by the co-authors, regardless of whether such a work constitutes one indivisible whole or consists of parts, each of which may also have an independent meaning. A part of a work created in collaboration is recognized as having an independent meaning if it can be used independently of the other parts. In this case, each of the co-authors retains their copyright to the part of the work created by them that has an independent meaning. Their relations may be determined by an agreement. In the absence of such an agreement, the copyright to the work is exercised jointly by all co-authors.
Copyright objects
The objects of copyright may be the results of creative activity, namely:
- literary and artistic works (poems, articles, lectures, speeches, musical and dramatic works, pantomimes, works of painting, architecture, sculpture, etc.);
- computer programs – they are protected as literary works;
- compilation of data, if they are the result of intellectual activity, etc., by the selection or arrangement of their constituent parts.
Works are objects of copyright regardless of their completeness, purpose, value, etc., as well as the manner or form of their expression. Copyright does not extend to ideas, processes, methods of activity, or mathematical concepts as such.
The following are not subject to copyright:
- acts of state authorities and local self-government bodies (laws, decrees, resolutions, decisions, etc.), as well as their official translations;
- state symbols of Ukraine, banknotes, emblems;
- reports on the news of the day or other facts that are presented as ordinary press information, etc.
Author's rights to the products of their creativity
The list of rights of the author to their work is divided into non-property and property. According to civil law, non-property rights are:
- the right to recognition of a person as the creator (author, performer, inventor, etc.) of an object of intellectual property rights;
- the right to prevent any infringement of intellectual property rights that could harm the honor or reputation of the creator of the intellectual property right, etc.
Property rights to a work allow the author to:
- use the work;
- allow others to use their work;
- prevent the unlawful use of their work, including prohibiting such use, etc.
Intellectual property rights to a work created in connection with the performance of an employment contract shall be transferred to the legal entity or individual where or for whom the author works from the moment of the creation of the work in full, unless otherwise provided by the contract or law. If the work is created to order, then intellectual property rights shall be transferred to the customer from the moment of the creation of the work in full.
Rules for the exercise of property rights
Copyright holders may exercise their property rights personally, through a representative or other authorized person, or through a collective management organization in accordance with the law.
As a result of the publication of a work, that is, when it becomes publicly available, a person's right to privacy of their personal and family life must not be violated, nor must public order, physical and moral health of the population be harmed.
The author or other authorized person may grant permission for the use of a work by any person under certain conditions – a public license. In turn, the person who has been granted the opportunity to use the work is obliged to comply with the conditions specified by the copyright holder under which the permission was granted.
The author has the inalienable right to fair remuneration for the use of their work in the cases, amounts and conditions provided for by law. After the death of the author, this right passes to heirs.
The term of intellectual property rights to a work expires after 70 years, counted from January 1 of the year following the year of death of the author or the last co-author who survived the other co-authors, except as otherwise provided by law. After the term of intellectual property rights to a work expires, it may be freely and free of charge used by any person, with the exceptions established by law.
Author's actions in case of copyright infringement
In the event of copyright infringement, the author has the right to demand recognition and restoration of their rights, to prohibit actions that violate copyright or create a threat of their violation.
This can be done by filing a lawsuit with the court to restore the violated rights and stop actions that infringe copyright or create a threat of infringement.
Another way is to file a claim for compensation for damages (material damage), including lost profits. Or to recover income received by the infringer as a result of copyright infringement. It is also possible to file claims for compensation for moral damage and demand the termination of preparatory actions for copyright infringement, including the suspension of customs procedures, if there is a suspicion that counterfeit copies of works, phonograms, videograms may be passed into or out of the customs territory of Ukraine.
The author may require the publication in the media of information about the facts of copyright infringement and court decisions regarding these infringements, as well as request that infringers provide information about third parties involved in the production and distribution of counterfeit copies of works, in particular means of circumventing technical protection measures, and about their distribution channels.
