Copyrights infringements on the Internet in Ukraine: whose fault is it?

Modern Internet technologies allow quickly and easily copy, publish, reprint and spread any information. On the one hand it allows to deliver information to consumers without significant costs including through its copying and forwarding to other users. On the other hand very often this leads to copyright infringements of authors’ works which contain some information. Objects of copyright infringement are represented by movies, music, computer programs, literary and other works that are placed, copied or distributed on the Internet without the consent of their authors and without paying them any royalties. As a result the authors of these works receive lesser profits and sometimes (for example because of plagiarism) do not even get popularity.

Dealing with these violations is difficult because of their scale and uncontrolled nature. However legislation and its interpretation by higher judicial authorities allow prosecute malignant violators who commit offences on the Internet for copyright infringement.

First of all it is worth mentioning that the Supreme Court Plenum in Resolution № 5 dated 04.06.2010 and Plenum of the Higher Commercial Court of Ukraine in Resolution number 12 dated 17.10.2012 ruled that placing a product on the Internet and its use (even if the work was posted on the Internet with the consent of the author) is possible only with the consent of an author or owner of copyrighted works. Relationship of such placement falls under all the property rights of an author stipulated in article 15 of the Law "On Copyright and Related Rights" and therefore a violation of these rights on the Internet allows to apply legal protection against copyright infringement.

At the same time works posted on the Internet with consent of an author are not subject to provisions of the Law "On Copyright and Related Rights" that provides the right to sell or grant copies of a lawfully published work that were duly included into civil turnover through their first sale in Ukraine without the consent of the author and payment of royalties to him. Based on subsections 40 and 42 of Resolution of the Plenum of Higher Commercial Court of Ukraine № 12 dated 17.10.2012 this right applies only to copies of works in tangible form. However there is a proviso that for other forms of work an exhaustion of this right may not occur including the right to distribute the product on the Internet. This may be interpreted as a permission to post works on the Internet that were copied from legally produced tangible media (for example original CDs or scanned originals of books).

However, other stipulations of the Resolution indicate that following actions are also most likely to be considered illegal by a court. It indicates that the recording of a work or object of related rights on the computer as the result of which based on the initiative of a person who made the recording the object is accessed by an unlimited number of people is recognized as its use. Correspondently if such use was without consent of the copyright owner and / or without receiving royalties then created or received as a result of such action copies are considered counterfeit products and those who committed such acts are considered violators of copyright. In addition a violation of exclusive property rights to a work may take a form of making one or more copies made from counterfeit copy or in case of illegal placement on the Internet.

Copyright infringers are recognized as such even if they are owners of sites that hosted posted works or objects of related rights without obtaining the necessary approvals. And the mere fact of posting on the site works of intellectual property rights that belong to a claimant constitutes a violation of such rights by the defendant on condition that the latter did not provide evidence to support the legality of placing a disputed object of intellectual property on his website. At the same time copying (reproduction) of the object from another website without confirming the legality of its use cannot be a ground for dismissal of a defendant from liability.

Thus placement of copyrighted works and objects of related rights (movies, music, books, software, etc.) on a website, torrent tracker, file sharing website, video sharing website or other resource on the Internet which is available to public access of other persons without the consent of copyright owner and / or paying him royalties is a violation of copyright. This applies if this work itself is stored on the computer of the person who performed such actions and / or if it was copied (scanned, rewritten) from legally purchased copy that entered turnover with the consent of an author. Copyright infringement is recognized as such during copying and / or distribution of works available on the Internet without the consent of the author and / or payment of royalties to him (for example by downloading them or placing on another website) including if the work was originally posted on the Internet.

Liability for such actions is stipulated for both those who committed them and owners of websites that hosted some content without the consent of authors and / or payment of royalties. This can be either civil liability (compensation, income collection, payment of compensation in the amount of 10 to 50 thousand minimum wages, etc.) and administrative one (a fine from 170 to 3400 UAH) or criminal (maximum penalty - 6 years of imprisonment).

Thus since the Civil Code and the Law "On Copyright and Related Rights" contains no specific legal regulation concerning placement and use of works on the Internet with few exceptions they are subject to the general rules established by these regulations. And due to interpretations of higher courts in most cases we can determine what actions related to intellectual property are considered a violation of copyright. It results in increasing number of court rulings related to liability for copyright infringement on the Internet.