The issue of piracy in Ukraine has been painful for many years. Ukraine consistently enters the TOP-10 countries in terms of pirate site visits. During the lockdown caused by the COVID-19 pandemic, traffic to pirated sites only increased.

The acting law on Copyright and Related Rights of 1993 is obsolete and has needed updating for a long time, especially under adapting to European legislation. In recent years, the European Union has accepted several directives, which regulate problematic issues in the field of copyright and related rights that are not implemented in Ukrainian legislation, in particular, the EU Directive 2019/790 on copyright in the single digital market.

Repeated attempts to adopt a new version of the law of Ukraine “On Copyright and Related Rights” have failed so far. At the same time, the latest draft law, published on 10 March 2020 by the Ministry of Economic Development, Trade and Agriculture of Ukraine, contained provisions to improve the procedure for combating Internet piracy.

Authorship is not detected

In Ukraine, the issue of authorship determination is rather poorly regulated by law and does not fully protect the rights of photographers and graphic designers on their work. Recent case law only confirms the imperfection of Ukrainian legislation in this aspect. Thus, the highest court of Ukraine made a decision – ruling in the case №761/ 12823/16-ts, on a lawsuit against PJSC “International Media Center “STB” (STB, defendant) on copyright protection on of 4 December 4, 2019.

The case issue was the following: the plaintiff posted a recipe with a photo of ice cream in the author’s recipes column, but later this photo was placed in an article on the STB website without any reference to the plaintiff’s authorship and a prior agreement with her.

Based on the analysed case, we highlight the key points that will help to protect authors’ rights and prevent their infringement:

  1. Copyright pre-supposes authorship. That is, a picture’s author, for example, is a person indicated as the author on the original or its copy. In other words, whoever first published the photo is its author. That is why, in case of discovery of copyright infringement fact and court proceedings opening, the defendant must prove his authorship, that is, a person whom a real author believes to have violated his rights.
  2. According to the Ukrainian Law “On Copyright and Related Rights,” (Part 1 of the Art. 8) photos are classified as the objects of copyright and are subject to legal protection as a result of their creation fact. No registration or any other formalities are required for the origin and exercise of copyright in the photo. However, to confirm a photo’s authorship, it is necessary to register it in the relevant state bodies. The registration costs UAH 255 (for the preparation of the state registration of copyright for individuals) and UAH 8.50. (for a registration certificate per piece of work for individuals).
  3. To inform about the author’s rights massively one should use the copyright sign, which looks like the Latin letter “c”, circled; an author’s name; year of a work first publication. The protection mark is affixed to the original and each copy of a work. If a person does not want to indicate a name and uses a nick, it is worth pointing out a link to a website or other channel of an author’s communication and identification.
  4. In the case of an author’s rights protection in court photographers can prove authorship of a photo made with a digital camera via presenting the camera with the option of automatic name recording, saved RAW-negatives in the camera archive.
  5. The author’s name or his pseudonym must be duly indicated on a piece of work and its copies. This is important for any public usage, to preserve the integrity of a work and to counteract any distortion, change, or other alteration of the photographic work, and so on. Property rights are also important, namely the exclusive right to use a photo, to permit or to ban a piece of work usage by others.

Oksana Dukhovna, Ph.D., a lawyer, a partner of INPRAXI LAW

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