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Rights of Copyright Collective Agency For Copyright and Related Rights in Ukraine

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Question:

Can a copyright collective agency be a claimant in cases related to copyright protection in Ukraine?

Answer:

First of all it is necessary to define the list of persons that according are entitled to be claimants in cases related to protection of copyright and (or) related rights.

The following persons are entitled to file a lawsuit about protection of copyright:

  • Authors of works, their heirs and persons that obtained rights to works due to agreement or law (copyright related entities);
  • Performers of works, their heirs that obtained related rights to performances based on an agreement or law;
  • Producers of audio recordings, their heirs (legal successors) and persons that legally obtained related rights to the recordings;
  • Producers of video recordings, their heirs (legal successors) and persons that legally obtained related rights to the recordings;
  • Broadcasting organizations and their legal successors (entities of related rights) as well as other interested persons are entitled to file a lawsuit related to protection of work in case of author’s death and absence of an authorized person.

Article 45 of the Law “On copyright and related rights” provides that holders of copyright and related rights can manage their business: personally, though agent, through copyright collective agency (hereinafter – CCA, Agency).

Subsection “d” of Section 1 of Article 49 of the mentioned law provides that based on authorization granted by copyright and related right holders a CCA must perform in particular the following function on behalf of such holders: apply to court for protection of rights of copyright and/or related rights holders based on charter powers and authorization of these persons.

A special authorization for representation in court is not obligatory.

At the same time upon filing a lawsuit such agency will not become a claimant. This is due to the fact that the lawsuit to court is based on procedure provided by Article 45 of the Code of Civil Procedure of Ukraine and its actions are aimed at protection of rights of copyright and related rights holders, not its own ones. The claimant in this case will be represented by a copyright and/or related rights holder the interests of which are protected by the agency.

In case if a copyright collective agency files a claim about protection of rights of individuals the dispute will be settled within civil proceedings. And if it files a claim about protection of rights of legal entities the dispute will be settled by means of commercial proceedings. At the same time Article 16 of the Code of Civil Procedure of Ukraine prohibits unification of claims that are subject to rules of different proceedings into a single proceeding.

Documents that confirm right of an organization to file a claim about protection of copyright and/or related rights are represented by:

  • certificate about registration of a copyright collective agency;
  • charter;
  • contract with a copyright and/or related rights holder aimed at management of property rights on collective basis;
  • in some cases – a contract with similar foreign agencies which manage same rights, or a letter of attorney.

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