PROBLEMATIC ASPECTS OF COPYRIGHT LEGAL PROTECTION IN THE INTERNET AND THE WAYS OF SOLUTION

The development of information technologies and continuous growth of the number of global Internet users generate a lot of violations in the field of copyright.

The Law of Ukraine "On Copyright and Related Rights", the last edition 2011 (hereinafter - the Law), provides a list of copyright [1]:

* Written literary works of fiction, journalistic, scientific, technical or other nature;

* Computer programs;

* A database;

* Musical works with or without text;

* Audiovisual works;

* Works of fine art;

* Photographic works, including works made by methods similar to photography;

* Illustrations, maps, plans, drawings, sketches and other works relating to geography, geology, topography, engineering, architecture, and other activities;

* Collections of essays, encyclopedias, anthologies, compilations and other composite works that are the result of creative work on the selection, coordination and ordering of content, made without infringement of copyright for works that are part of them as component parts.

It is well known that information Internet resources contain the information listed above and provided in electronic form. It is clear that this is an indisputable fact complicates compliance with the current legislation of Ukraine in enforcing copyright owners' rights to such information.

It should be noted, that the current legislation of Ukraine ( art. 1109 of Civil Code [2 ], art. art. 31, 32 of the Act) requires the parties of the agreement on the disposition of copyrights, to indicate the specific rights assigned under the contract, where the subject of copyright law should regulate the rights and methods of use. However, in a real situation when there is no single qualification of actions regarding the placement of copyright works on the Internet, the rights of the person to whom they are transferred under the agreement are violated almost everywhere. Violation of rights on composition may take two forms: 1 - form of violation of property; 2 - form of violation of moral rights.

In the first case, it is - posting information on the web-site and providing public access to it without author’s permission, as a result of which the author loses the profit that he could get by permitting the use of his information.

In the second case, violation of non-property rights, whether the authorship of the posted material will be assigned by a different person, that is, we are talking about plagiarism.

It should be noted, that according to Article 15 of the Act, the property rights of the author include the exclusive right to use the composition and the exclusive right to authorize or ban the use by other persons. And the term "use" in its turn, includes the ability to play, publicly display and display, transfer, processing and distribution of their works through sale, putting a property lease, commercial rental. In this case, there is no clear clarity if the placement of copyright in the Internet is one of the ways to use a composition. If we turn to practice, in particular, to the judiciary.

According to paragraph 29 of Recommendations of the Presidium of the Supreme Economic Court of Ukraine of 10.06.2004 № 04-5/1107 «On some issues of dispute resolution practice relating to the protection of intellectual property rights" placing the composition on the Internet in a form accessible to the public use, is their reproduction within the meaning of Article 1 of the law, and so such placement of products is covered by Article 15 of this Law. [3]

Also, according to paragraph 31 Resolution of the Plenum of the Supreme Court of Ukraine of 04.06.2010, #5, "On the application of the legislation by the courts in cases of copyright protection and related rights" placing composition on the Internet in a form accessible to the public use, means presenting the compositions to the public, in a way that its representatives may access the works from a place and at any time of their own choosing, in accordance with paragraph 9 of the third part of Article 15 of Law number 3792 - XII, it mean that this placing is lawful only with a permission of the author or any other person who owns the copyright. [4]

According to Article 1 of the Law number 3792-XII reproduction is the making of one or more copies of a work, video programs, phonograms in any form, as well as their entry for the temporary or permanent storage in electronic (including digital), optical or other form, which a computer can read. Article 14 of the Act provides the author's right to claim authorship, by specifying the proper name of the author on the product and its duplicate.

Protection of property and non-property rights can have a judicial or non-judicial character.

However, in the legislative framework of Ukraine there is no clear algorithm to bring those responsible to justice for the dissemination of information through the posting on the resources (sites) on the Internet. Here, first of all, is taking into account a profit or providing free access without the permission of the author or copyright holder information.

At the beginning, the subject of the violated rights may prevent the resource owner of the violation and ask to stop copyright infringement by removing information from the site, or ask the author to identify the name of the product. After that, you can go to court protection methods.

However, the current legislation of Ukraine does not allow to implement strictly regulated procedure to establish the liability of persons who are the owners of Internet resources that violate copyrights.

To solve this problem, you must make the appropriate changes:

1. In the law of Ukraine "About telecommunication" to make the definition of " owner of the domain."

2. Create a state registry of owners of domain names in a national domain zone .ua, including regional ones, such as .org.ua, .kiev.ua, .odessa.ua, .od.ua etc.

3. To provide hard-coded rules for registering domain names with the possibility of mandatory background checks for the owner of a domain while the registration of domain is from Ukrainian segment of global Internet network.

In this case, the rights holders will have a real opportunity to personalize responsibility for unauthorized posting of copyright on the Internet.

Source: Author publication

Published: 4.11.2013

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