Russia’s Military Aggression Against Ukraine Boosted Production of Content

Russia’s unprovoked war on Ukraine has, among other things, caused production of content by Ukrainian creative industries with a patriotic focus to skyrocket. The field of visual arts, such as painting, graphics, sculpture, photography, etc., are amongst the most productive in this regard. Artists and illustrators distribute their works on social networks, creating the prerequisites for their further commercialization on the one hand and, on the other, for violations of copyright and an author’s moral rights by unscrupulous entrepreneurs who produce mass market goods (clothing, dishes, souvenirs, etc.) using works that are protected.

Copyright in Ukraine arises by virtue of the creation of a work, which also applies to unfinished works if they can be used independently. That is, from the moment such a work of visual art receives an objective form, regardless of whether or not it is completed or published (disclosed), its intention, genre, purpose and scope – it is protected by copyright. Moreover, such work will be protected automatically in most countries of the world due to the provisions of international agreements (e.g., the Berne Convention).

At the same time, it is known that copyright only protects the form of expression of the work, and cannot be used to protect abstract ideas. Therefore, everyone should be free to create their own works based on the idea of ​​adventure, say, a dog of the Jack Russell terrier breed that resembles the Jack Russell dog Patron, who has acquired fame in Ukraine and beyond by his extremely effective results in demining Bucha, Irpin and other Ukrainian towns in Kyiv Region after russian troops had left in April (https://en.wikipedia.org/wiki/Patron_(dog)).

The principle of presumption of authorship applies to illustrations, as well as to other works of copyright. Accordingly, the person indicated on the copy or original of a work is considered to be the author of such work. The presumption of originality is also important from the point of view of enforcement: unless proven otherwise, a product of intellectual activity is considered to be the result of creative work, i.e. original. That is, in the event of a dispute, it is the defendant who must prove that the work claimed infringed upon is not original and is not protected by copyright.

The author is vested with personal non-property inalienable rights (moral rights) and proprietary rights (copyright). The latter include the right to use the work, the exclusive right to permit or prohibit third parties to use the work.

By posting a work in social networks, the author grants permission (license) to use the work within a specific social network at a specified address (link). In most cases, the reproduction of a work by third parties on goods is not covered by such license, nor by the exceptions and limitations established by the legislation of Ukraine (Articles 21-25 of the Copyright Law). Such actions require separate written permission (licence) from the right holder’s, the absence of which will most likely constitute a violation of copyright, giving grounds for enforcement.

At the same time, there are a number of problems in the enforcement of copyright in such works, namely:

  1. The Ukrainian procedure for counteracting violations of copyright and (or) related rights on the Internet does not apply to works of fine art at this point in time. This shortcoming should be eliminated in the long-awaited new amendment of the Law On Copyright and Related Rights No.5552-1, which is currently under consideration by the Ukrainian Parliament. Meanwhile, Illustrators and artists can use the provisions of the US DMCA Act, but its scope is quite limited (social networks, search aggregators and online marketplaces subject to US law).
  2. Although the creation and exercise of copyright does not require registration of the work, or the taking of other equivalent action, or the completion of any other formalities, infringers in the pre-trial procedure often demand the provision of a copy of the certificate of registration of the copyright to the work and only after that do they cease their illegal use of the disputed work. Indeed, in cases where the author’s rights are certified by a registration certificate issued in accordance with the established procedure by an official authority, the owner of intellectual property rights in the work specified in the certificate is relieved from the obligation to prove that he/she has the corresponding rights. At the same time, the copyright registration procedure in Ukraine can last up to two months, during which dishonest entrepreneurs will continue to enjoy a stream of revenue.
  3. Judicial barriers. Existing legislation of Ukraine, unlike, say, the legislation of the United States, does not include compensation for copyright infringement in the form of statutory damages. Instead, compensation is determined by a court in lieu of statutory damages or lost profits as a lump sum based on elements such as double, or, in the case of a willful infringement, triple the amount of remuneration or commissions that would have been paid had the infringer applied for permission to use the disputed copyright or related rights. In cases when the work is newly-created and had not been commercialized before, which is often the case with highly-reactive patriotic content, the author must first estimate (or otherwise prove) the amount of such hypothetical royalties. For these purposes the author will be required to engage a professional appraiser, which results in time lost and additional enforcement costs.

This shortcoming should be eliminated in the new version of the Law On Copyright and Related Rights No.5552-1, which is currently under consideration by Parliament. However, discussions regarding the maximum amount of such compensation are still ongoing.

  • Alexander Molotai

    Partner, Molotai & Partners

  • Kostiantyn Zerov

    Counsel, Molotai & Partners

Molotai & Partners

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