Ukraine

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? No
Anonymous works are protected 70 years from the moment of making available to public. Copyright to works created in co-authorship protected for 70 years after the death of the last co-author.
a.28CA
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
In general, exercise of copyright is subject to competition law, however, activities of collective management organizations are exempted from it.
a.48(2)CA
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? No
There is no direct instrument for compliance of copyright rights with Constitution and IN, but there is some information access to which is guaranteed by the above laws.
a.34,50CU a.10 IN
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Databases are protected if they are original, even if they are compiled from non-original materials.
a.8CA
Are rights holders prohibited from excluding user rights under copyright law? In part
Most of exceptions and limitations prevail over contracting power of copyright holders; however modification of computer program for compatibility purposes is conditional on contract provisions.
a.24(1(1))CA
Is computer software excluded from the scope of patentable subject matter? No
However, computer programs are not directly patentable in practice either; usually they are found to be eligible for patent protection if combined with other technical means or as a part of other mechanism.

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? No
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
It is permitted to reproduce works previously legally made available to the public for personal purposes; however it is not clear if time, space and format shifting are covered by this right.
a.25CA
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? Yes
Such materials have to be previously legally made available to the public.
a.25CA
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? Yes
Family and close friends circle are excluded from the definition of communication to public, and therefore, such communications are falling beyond the protection granted by CA.
a.1CA
For EducationMay students copy works for private research or study? Yes
It is permitted to reproduce copyrighted materials for the purposes of study in limited amounts.
a.23CA
Does any such research and study provision cover distance and online education? In part
There is no special provision in CA in relation to distance and online education. So traditional distance education could be partly covered by a.23CA, however, it is highly likely that online education is not covered by this article.
a.23CA
May translations of works be made for educational purposes? No
May educators copy works for use in the classroom? No
To be covered by limitation the reproduction of copyrighted worked have to be non-systematic.
a.23(2(b))CA
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? No
Temporary, transient copies are covered by definition of reproduction in CA, and therefore they are subject to copyright protection. There is no specific limitation in CA in this respect.
a.1CA
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
Users are solely liable for all information they are transmitting though communication channels
p.21 RRCTS
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
Users are solely liable for all information they are transmitting though communication channels.
p.21 RRCTS
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
Copyright holder has an exclusive right to make or authorize derivative works.
a.15(3(6))CA
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? Yes
a.24(3)CA
Is the incidental inclusion of a work in other material permitted? In part
Not expressly.
Is there are copyright exception for parody or satire? No
By the pressIs there a copyright exception for the news of the day? Yes
News of the day is not protected by the copyright, if they are in the form of usual press information. However, news articles could be protected if they are some original form.
a.10(a)CA
May copyright material be reproduced for the purposes of review and criticism? In part
For the purposes of criticism and review only small extracts of the protected work could be used (e.g. citations).
a.21(1)CA
May quotations be used for any purpose? No
The use of citation is limited to by the information, polemic, scientific and criticism purposes.
a.21(1)CA
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
Reprographic reproduction of a work for preservation purposes is allowed, when such work could not be obtained in other way.
a.22CA
May librarians copy works for users for the purpose of research or study? Yes
Such activity have to be without aim to receive profit, directly or indirectly, be non-systematic and for purposes of study and research, and it is limited to reprographic reproduction of a one copy of small works.
a.22(1)CA
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
It is permitted to make preservation or archive copies, when a work could not be allocated in other way and such activity is non-systematic.
a.22(2)CA
Can lending libraries operate without incurring public lending rights fees to copyright owners? Yes
The right for remuneration for public lending as well as the system of public lending fees is not established in Ukraine. However, there is no such right or exception for public libraries either.
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
It is permissible to publish in Braille works previously made available to public.
a.21(6)CA
In public affairsAre laws excluded from copyright? Yes
a.10(c)CA
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? Yes
Officially published documents of political, legislative, and administrative nature (laws, decrees, resolutions, court awards, State standards, etc.) issued by government authorities within their powers, and official translations are excluded from copyright.
a.10(c)CA
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? No
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? No
Right to authorize import of a work is one of the exclusive rights of a copyright holder.
a.15(3(11)) CA
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
There are some incentives and certain level of understanding within government agencies; however they are not reduced to law/policy.
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? The maximum compensation for copyright infringement according to CA is approximately USD4 667 503 (valid on 12/21/2009). The highest criminal remedy is imprisonment up to 6 years. a.52(g)CA
What is the maximum penalty for copyright infringement for a corporation? There is no difference with the above; however corporation is not a subject of criminal jurisdiction. a.176(3)CC
Is innocent infringement of IP treated differently by the law? Yes
Qualification of criminal copyright infringement acts is dependent on the guilt of the infringer. In civil cases damages could be compensated also upon proving guilt of the infringer.
a.176CC
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
The creation and distribution of devices that can circumvent technological protection measures is violation of copyright rights, there is no stipulated exceptions in CA.
a.50(e)CA a.52(e)CA
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
Same as the above.
a.50(e)CA a.52(e)CA
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? Yes
It is generally complicated to receive an injunctive relief (especially preliminary injunction) in IP infringement cases in Ukraine, and, in several patent infringement cases the courts specifically denied requests for injunctive reliefs on the basis of public health policy grounds.
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? Yes
On the moment, there is no such a sanction as suspension of copyright infringer`s Internet access for the IP infringement in Ukraine.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? Yes
Minimal scale for an act to be qualified as a criminal infringement is USD757 in loss sustained to copyright holder(valid on 12/21/2009) according to 176CC (general copyright infringement) and to 203-1CC (distribution of counterfeit CDs/DVDs)
a.176CC a. 203-1CC
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? In part
In civil action there are two courses of action based on actual loss sustained to copyright holder and on compensation, which is statutory damages award. Because in many cases it is impossible to prove loss sustained, and therefore compensation is much more popular course of action against copyright infringers.
a.52CA
Is there provision to penalise the wrongful allegation of copyright infringement? No
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? No

Recent or upcoming changes

 

The bill introducing changes to the Law of Ukraine on Copyright and Related Rights (No 6523 dated 15.06.2010) has passed first of three hearings at the Ukrainian Parliament. This bill aims to introduce two strike system, where upon simple notice from the right holder within two weeks the ISP has to inform the infringer of alleged infringement, and if the infringement would be not suspended within next two weeks to suspend access of such infringer to the Internet. The bill would also allow copyright owners to suspend access to any of the alleged infringing websites and materials on the Internet upon similar two notice system.

Summary of position

Ukrainian Law on Copyright and Related Rights was substantially amended in 2001 with last amendments in 2003. Since then, accessibility of digital technology and high growing rates of Internet penetration has changed significantly the way Ukrainians produce and consume information, including information protected by copyright. Therefore most of new technology and legal developments raised in past several years are not reflected in this act. Such developments are related to format and time shift during consumption of copyrighted information, exploitation of works under open and free licences, providing legal opportunity to make digital copies for libraries for preservation purposes etc.

Current Ukrainian law has all traditional restrictive mechanisms in favour of copyright holders; however law also has relevantly wide system of exceptions and limitations from copyright, which is of obviously out of date. Harsh remedies for copyright infringement are balanced by lack of enforcement mechanisms and significant resistance of court system in awarding prescribed maximum compensation for copyright infringement. Criminal Code of Ukraine is also changing in the way of decreasing amount of losses caused for the purposes of criminal copyright infringement, and therefore increasing number of activities potentially falling under this category, however, similarly defects is calculating losses of copyright holders are somehow balancing the existing system.

It is evident that in order to sustain and be effective current Law on Copyright and Related Rights has to be amended by providing flexible and fair copyright exceptions and limitations for users and limiting pressure for general public in this way and in other way by providing efficient enforcement mechanisms for copyright holders, and therefore creating a balanced system, which will produce additional wealth to the society.

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