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The UJBL, April 2019

Comment by: Ganna Prokhorova, senior associate


The new Draft Law On Copyright and Related Rights No. 10143 of 12 March 2019 is now available. What is new in the proposed Draft, and what else needs to be perfected to improve regulation of the sphere?

It is no secret that today the sphere of copyright and related rights needs to be improved by taking into account the provisions of European legislation. Clear obligations on the implementation of certain provisions of EU law were also undertaken by Ukraine when it signed the EU-UA Association Agreement. Draft Law No. 10143 On Copyright and Related Rights, in particular, assumes the mission of bringing provisions on the protection of copyright and related rights into line with legislation of the European Union and removing the relevant insufficiencies that arise in practice and require legislative settlement. In comparison with the current law the new law would, among other things, more precisely regulate the issues related to creation of copyright; determine the peculiarities of copyright in works made for hire and works created to order, which have caused many difficulties in practice due to imperfect regulation, specify cases and peculiarities of the free use of objects of copyright and related rights, the transfer (alienation) of property rights to such objects. It also contains proposals to solve a number of issues on increasing responsibility for violation of copyright and related rights, etc. The law will introduce a new concept of orphan works and the peculiarities of their use, determine the possibilities for the free use of works for print-disabled persons. This draft also propose to restore compensation for a violation in the amount from 10 to 50,000 subsistence minimums that can be recovered instead of damages. Other interesting new provisions include introducing a register of subjects of the art market.

At the same time, there is no doubt that the economic terms and models offered by the draft bill need to be clarified. For example, it is obvious that copyright and ownership of the material object in which the product is embodied do not depend on each other. Alienation of a material object in which the product is embodied does not mean the alienation of property rights to a work and vice versa. In this respect, it should have been envisaged that in the event that the exclusive right to a work of art (original works of painting, sculptures, etc.), did not pass to the acquirer of the original work, the acquirer has the right to exhibit the original of the work, whose ownership has been acquired, and reproduce it in catalogs of exhibitions and in publications dedicated to his/her collection, as well as to deliver the original of the work for display at exhibitions organized by other persons. Since interest in the art market has grown significantly in Ukraine over recent years, this would make the life of current market participants much easier.