№ 1 (123) 2022
Shtefan A. Improvement of Copyright Law of Ukraine in the Context of the Experience of EU Member States. In Ukraine, the sphere of copyright is regulated by a large number of legislative acts. It includes the Civil Code and the Law ‘On Copyright and Related Rights’ which can be considered as general for relations on the creation and use of works. There are also separate laws on publishing, theater, architecture, media, and other types of activity which are special in the context of legal regulation of certain aspects of copyright in certain areas. Although such a division of legal rules is of certain logic, at the same time, the domestic ramified system of legislative acts is characterized by duplication of similar provisions in different laws and the presence of collisions and therefore is not effective enough.
The copyright laws of many EU Member States are based on a structure similar to the Law of Ukraine ‘On Copyright and Related Rights’. At the same time, they differ from it by a higher degree of detail of many provisions. In many Member States, there is a tendency to systematize copyright laws so that they contain all or most of the rules related to the examined area and thus regulate it more fully and comprehensively. In Ukraine, a significant number of such provisions are either stipulated in the legal acts other than the Civil Code and the Law ‘On Copyright and Related Rights’, or are not stipulated at all. In general, copyright laws of many Member States are more systemic in nature.
Some of the approaches adopted in the EU Member States will be useful for reforming the sphere of copyright in Ukraine. This applies, in particular, to specifying the terms of publishing and other contracts in the field of copyright: the general requirements for such contracts are presented in the domestic legislation rather thoroughly but it contains almost no provisions relating to the specific terms of such contracts. In comparison, the Portuguese Code of Copyright and Related Rights includes 24 articles on the publishing contract, and the Italian Law on Copyright and Other Rights Related to its Exercise contains 18 articles regulating such a contract. In Ukraine, there is only one general provision stipulating that a publishing contract must be concluded in accordance with the law, and one separate provision concerning the need to specify in the license contract the circulation of the reproduction of a work. The rules on peculiarities of copyright inheritance also deserve attention. There are no such rules in Ukrainian legislation at all, and in practice, there can be quite complex problems that are very difficult to solve due to the gaps in the legal regulation.
Therefore, it is advisable to study more deeply the provisions of the domestic legislation of the EU Member States and their experience of legal regulation of copyright relations. This will help to use a more comprehensive and systematic approach to the development of a new edition of the Law ‘On Copyright and Related Rights’ and provide in it the rules necessary to fully and comprehensively regulate the relations on the creation and use of works and protection of relevant rights and interests.
Keywords: legislation, legal regulation, copyright, European Union, intellectual property
Maidanyk L. NFT: a private law view through the link with copyright. This article is devoted to the study of non-fungible tokens (NFT) as a new tool, which due to its technical features is unique and unrepeatable and has recently been widely used by art collectors. This article attempts to define the legal understanding of non-fungible tokens from the perspective of civil law, as well as copyrights. In order to achieve this goal, the article identifies the main legally important components of the NFT creation process, which not least determine the place in the system of objects of law. This article defines certain approaches to the understanding of virtual (digital) property in relation to the category of crypto-asset (virtual asset) under Ukrainian law, as a result of which the position about the possibility of attributing NFT for certain conditions is substantiated. The position about the possible obligatory nature of NFT is substantiated. The possibility of obtaining copyright on the work in connection with which NFT is created, as well as the emergence of resale right is analysed.
It is concluded that NFT is not a work, and is not the result of acquiring intellectual property rights, but can only certify property rights. NFT can be secured by a property right of claim, for example concerning the transfer of a property, including the original work of art, the image of which is used for such NFT. NFT is not a separate copyright object, as technically, it is only a metadata associated with a digital file — a digital copy of a copyright or related rights object. The use of the copyrighted work on NFT can be lawfully executed only with the permission of the copyright holder. The use of the NFT copyright may be deemed unlawful under certain conditions, which requires separate permission from the copyright holder.
Keywords: NFT, copyright, virtual assets, nonfungible tokens.
Fedorova N. The structure of the television format and the characteristics of its elements as an audiovisual work. The article reveals the issues regarding such a complex object of copyright as a television format. The television format is considered as a type of audiovisual work, its structure and characteristics of its elements are analyzed. The current legislation and judicial practice are reviewed, it is substantiated that the elements of the television format should be characterized by signs of originality, uniqueness, and singularity.
Keywords: television format, elements of television format, audiovisual production, copyright, television format structure
Trotska V. Оut-of-court settlement of disputes in accordance with European copyright and related rights in the Digital Single Market. The article is devoted to the study of the norms of Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, and Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market.
The purpose of this article is to conduct a legal analysis of the EU Directive and Guidance, and determine the features of protection of copyright and related rights through out-of-court settlement of disputes, in the new realities of digital market development, and the feasibility of considering the relevant norms in the legislation of Ukraine.
Article 17 of this EU Directive and the provisions of the reference are analysed in details.
Rights and obligations of all participants in legal relations arising in the digital environment are considered: rightholders, users, online content-sharing service providers (hereinafter — providers).
The definition of the new term «online content-sharing service providers», proposed in the EU Directive, has been explored. It is stated that providers have the right to provide access to legal content, uploaded by users. At the same time, they are obliged to act based on the permission received from the rightholders, do not affect on users who are using the online content-sharing services in order to legal upload and access to information, to prevent the availability of unauthorized content, uploaded by users.
In the article explores the norms about out-of-court mechanisms of compensation for damage and the settlement of disputes. Its advantages are defined. The disadvantages that may arise in the practical application of the norms are indicated.
In particular, in the Article 17 of the EU Directive and the Guidance do not provide a clear answer to certain questions, such as the status of the person who will have the authority to resolve the relevant disputes; what will be the decisions made by such a person; the procedure, amount and terms of compensation for damages; cross-border application of decisions.
A comparison is made between the norms of the legislation of Ukraine on copyright and related rights and the relevant norms of European legislation. It is noted that in the Law of Ukraine «On Copyright and Related Rights» there is a procedure for termination of infringements of copyright and related rights on the Internet by providers. Out-of-court settlement of disputes is not provided for, but it is not prohibited. The provider restores access to the object if the right holder has not provided him with confirmation of the opening of legal proceedings to protect his rights to the object of copyright and (or) related rights, in respect of which the application for termination of the violation was filed.
Unlike the provisions of the Law, according to Art. 17 (9) of the EU Directive and the Guidance, the user can appeal the decision of the provider to block, delete content. Access to content can be restored based on out-of-court settlement of the dispute, i.e., without going to court.
It is concluded that these European standards are noteworthy and need further study in the context of the application of out-of-court mechanisms of the settlement of disputes that arise between rightsholders, users and providers in the digital environment.
Keywords: copyright, providers, rightsholders, users, content, downloads, interactive access, out-of-court settlement of disputes
Doroshenko O., Petrenko V., Dorozhko H. Directions of improvement of efficiency of judicial expertise in cases concerning objects of intellectual property. The article is devoted to the question of determining directions of increase in effectiveness of judicial examination of violated rights on objects of intellectual property. The essence of the concept “effectiveness of judicial expertise” is revealed, which can be used for the processes of judicial expertise considering the peculiarities of intellectual property objects, and it is emphasized that in legal practice the concept “effectiveness” has no purpose of defining the value of processes and technologies. It is noted that the effectiveness of judicial expertise is determined by the following components: ensuring rational and effective organization of judicial expertise; ensuring the validity, permissibility, reliability, completeness and objectivity of the provided expert opinion; improvement of the regulatory framework; organization of basic training of experts in the field of intellectual property. It is shown that the effectiveness of judicial experts in the field of intellectual property directly depends on the quality of special legislation. Thus, special industrial property laws have not solved a number of problems that can be identified only in the process of law enforcement, in particular, during the conduct of judicial and expert research.
A well-grounded proposition that the effectiveness of the expert examinations in cases of intellectual property objects can be enhanced by more active involvement of experts in the field of science, technology, art, crafts, etc., who are not qualified judicial experts. At that, the most effective form of such attraction may be the order of conducting examination of the commission in the composition of the specialist in the relevant industry and the certified expert of the respective specialty.
It is also proved that such factors as judges’ workload, their experience, presence of additional training (education), presence or absence of specialization in this kind of judicial activity influence the completeness and comprehensiveness assessment of the litigation proceeding. The hope was expressed that the creation and commencement of the work of the High specialized Court on Intellectual Property issues will have a positive impact on the effectiveness of judicial expertise in this branch.
Keywords: effectiveness of judicial expertise, expert conclusion, improvement of the legislative framework of judicial expertise, training and retraining of the staff of judicial experts, assessment of the expert’s conclusion by the court
Zaikіvskyi O., Onіstrat O. State of formation and implementation of state policy on ensuring the protection of intellectual property during weapons and military equipment development. Legislative acts that form the state policy in the field of national security and defense of Ukraine regarding the protection of intellectual property are considered. The state of realization of the defined questions at development of armament and military equipment is investigated. It is determined that the effective implementation of the state national security policy is impossible without a comprehensive analysis of the impact of intellectual property issues on the sphere of national security and defense of Ukraine. The importance of improving the system of intellectual property protection in the development of armaments and military equipment is noted.
Ensuring Ukraine’s defense capability largely depends on equipping the Armed Forces of Ukraine with modern types and models of armaments and military equipment that is developed based on intellectual property rights.
The required level of defense capability of the state is achieved through the formation and implementation of defense and industrial policy, the purpose of which is the development and production of weapons and military equipment and equipping the Armed Forces of Ukraine.
It is the military-technical sphere where the objects of intellectual property rights belonging to the sphere of national security and defense are created, and the state is obliged to ensure their protection.
Ukraine began to form a state policy on national security and defense from the first days of the independence.
The legislation of Ukraine on national security and defense determines the need to use scientific and technical achievements and the introduction of new technologies to increase the state’s defense capabilities. However, the provisions on intellectual property issues in all regulations are purely declarative by nature without defining specific tasks to eliminate possible threats and address issues.
This is especially true of the use of intellectual property in the field of national security and defense.
An important component of the mechanism for formulating state policy in the field of national security and defense should be the organization and comprehensive protection of intellectual property, especially in the development of armaments and military equipment.
Keywords: state policy, national security, intellectual property
Androshchuk G. Rabotiahova L. Face recognition technologies: regulation problems in Ukraine. The technological trends of biometric technologies, the evolution of facial recognition technology (FRT), the algorithm of FRT, and the FRT scope, development and regulation are studied. The Kyiv School of Image Recognition developments and the legal basis for the application of FRT in Ukraine are analyzed, and the author’s definition of FRT used in real-time to identify, authenticate, and verify a person as a biometric system controlled by artificial intelligence (AI) is presented. The state of compliance with the legislation requirements on personal data protection in Ukraine, their legal protection during video surveillance, social effect (almost 30% of crimes are solved applying FRT, in areas where automatic video recording systems are installed, the number of deaths has decreased by three times), reforms of the national personal data protection system is studied. Risks and challenges arising from the lack of proper regulation of FRT in Ukraine are identified, and their solutions are suggested. It is concluded that the FRT is becoming an instrument of geopolitical influence. The field of AI inevitably becomes a sphere of both scientific and technological competition as well as military and political confrontation.
The application of biometric technologies is now trending. It provides access to workplaces and network resources, protection of information, access to specific resources and security at airports. For example, e-business and e-state affairs operations are only possible after following specific personal identification procedures. Biometric technologies are currently used in banking security, investment and other financial transactions, as well as in retail, law enforcement, health care and social services.
It should be noted that there are two vectors of FRT development in the world. The totalitarian path of mass surveillance, accompanied by equally active manipulation and abuse, and the democratic one, offering an application of FRT as an instrument to prevent the violation of fundamental human rights. At the same time, no one demands to abandon FRT completely. It is a question of assessing the risk of its impact on people’s lives. The remote biometric identification, in which the AI can contribute to unprecedented change, bears an extremely high risk of profound and undemocratic interference in people’s privacy. Specific ways of using technology can benefit society and individuals, while others may have negative consequences. For FRT to be used to benefit and serve people, there are social and legal, primarily in the personal data protection system, and ethical norms.
Keywords: biometric identification, personal data, video monitoring, facial recognition technology, artificial intelligence
Opanasenko A. Retrospective and perspective analysis of the development of understanding and ensuring the rights of indigenous peoples of Ukraine. The article analyzes in detail the process of formation and development of the rights of indigenous peoples in independent Ukraine. Particular attention is paid to the provisions of the Constitution of Ukraine in this context and their interpretation. The legislative process and legislative initiatives that preceded the adoption of the Law of Ukraine “On the Legal Status of Indigenous Peoples of Ukraine” on July 21, 2021 are described. The peculiarities of the legal acts of Ukraine, which regulate the rights of indigenous peoples, their connection and further impact on the overall development of the studied issues, are clarified. A retrospective analysis of the legislation of the last 30 years, highlighting the main stages and elements, provides an opportunity to formulate a perspective on the further development of the indigenous peoples’ rights’ issue in Ukraine in the field of normative consolidation of their legal status and implementation of rights guaranteed by the Constitution and laws of Ukraine. The rights of indigenous peoples are depicted through the prism of modern legal and political processes, in particular, the Crimean Platform, as the most effective mechanism for de-occupation of the Autonomous Republic of Crimea and the city of Sevastopol, ensuring the rights of Ukrainian citizens violated by the temporary Russian occupation of the peninsula. Particular attention is paid to the place of the indigenous peoples of Crimea and the issue of restoring their rights under this mechanism. The restoration of such rights seems particularly important, given the particular persecution of indigenous peoples and their individual representatives by the occupying power today, as well as the perpetration of genocide against these peoples in the past.
Keywords: Indigenous peoples, indigenous peoples of Ukraine, Crimean Tatars, Karaites, Krymchaks, Gagauz people, Crimean Platform, Crimean Khanate, Crimean People’s Republic, Autonomous Republic of Crimea, city of Sevastopol, Crimea, Sevastopol, Mejlis of the Crimean Tatar People, Qurultay of the Crimean Tatar people, self-determination, occupation, de-occupation, genocide, deportation, deportation of the Crimean Tatars, Surgun