Ukraine Adopts New Copyright Law

A new Law on Copyright and Related Rights entered into force in Ukraine on January 1, 2023. This is the first major copyright legislation change in Ukraine since 1993, introducing numerous important changes. Most of the novelties are intended to harmonize local legislation with that of the EU. The new law meets modern requirements and international standards and is, in some provisions, even ahead of the current practice in Ukraine, which is why interpreting it from a practical point of view might require time and effort. Below is the summary of the most important changes:

Originality

The new law introduces originality as a protectability requirement. The previous law did not include a definition of originality, while the new law defines it as a feature that characterizes a work created as a result of the author’s creative intellectual activity reflecting the innovative solutions offered by the author during the creation process. In other words, a work is deemed protectable if it is created as a result of the author’s own creative intellectual activity.

New Moral Rights

The list of moral rights was expanded to include the author’s right to give the work a title or leave it without one and the author’s right to dedicate the work to someone or even something. These novelties could strengthen the protection of moral rights in Ukraine.

AI/Software as Creator; Protection of Non-Original Works

The new law introduces the sui generis right to protect non-original works created by software – works which differ from other works of a similar type and are created without the participation of humans. Rights to such works arise at the moment of their creation. There can be no intangible rights to such works, while tangible sui generis rights include the right to use and the right to authorize or prohibit third party use of the work. The tangible rights belong to the natural person who is the owner of the rights to the software that created the non-original work.

A novelty regarding the protection of databases created by humans is that non-original databases (e.g. traffic schedules, television and radio broadcast schedules, telephone directories and other similar databases that do not meet the originality requirement) are now also subject to sui generis rights.

The law provides the following validity periods for the above sui generis rights:

• For AI/software-generated works – 25 years counting from the first day of the year following the year of creation (generation) of the work;
• For non-original databases – 15 years counting from their creation.

Public Licenses

The new law provides for public licenses through which copyright holders can grant copyright permissions to the general public. The non-exclusive public license terms and conditions need to be published (e.g. on the Internet) and any third party should be able to accept them. Once the conditions are accepted, the licensee is bound by them and the license is deemed granted.

Resale Royalty Right

The new law establishes royalty rates related to the resale right – the right of the author of an original work of art to receive remuneration for successive sales of their work. Royalties are calculated as a percentage of the sale price, which is divided into six portions, and the royalty rate has now been set as ranging from 6% to 0.25%, depending on the portion. The total royalty amount for each successive sale of one work may not exceed EUR 12,500. The author’s resale right is not only applicable when works are being resold by professional traders (e.g. auctions, galleries, art shops, etc.) but also when they are resold by private persons online.

Hyperlinking and Framing as Copyright Infringement

The new law introduces hyperlinking to and framing (on a web page, displaying content loaded from another web page) of protected content as actions which constitute copyright infringement, if they allow access, use or distribution of copyrighted work without the right owner’s authorization.

Alternative Type of Monetary Liability for Infringers

Under the new law, the right owners may choose a fixed-amount compensation instead of a compensation for the monetary and/or moral damages or the equivalent of the profits the infringer made as a result of the infringement. The fixed-amount compensation ranges between 2 and 200 subsistence minimums, which currently equals EUR 134 – EUR 13,400. This is an important alternative in cases when right owners do not have sufficient evidence regarding the damages resulting from the infringement or the profits the infringer received as a result of the infringement.

Threat of Infringement

The law now clearly defines the actions that are considered to be threats of copyright infringement and that represent legitimate grounds for seeking protection of rights. These actions are the distribution, importation, setting up, or providing, for remuneration, instructions for setting up technical means (including software, an application, technology or device) that grant access to a protected work, without the right owner’s consent.

By: Oleh Karpenko

For more information, please contact Oleh Karpenko at our Ukraine office.