Maksym Koval, Esq.
The protection of copyright and related rights in Ukraine has undergone significant modernization with the adoption of a new Law No. 2811-IX “On Copyrights and Related Rights” (the “Copyright Law”), which came into effect on January 1, 2023.
The primary goal of the Copyright Law is to streamline Ukrainian legislation in the field of copyright and related rights, aligning it with European Union norms and implementing provisions from the effective Association Agreement between Ukraine and the EU, as well as EU Directives concerning the protection of copyrights and related rights.
Accordingly, the Copyright Law introduces numerous changes, such as expanding the list of protectable and non-protectable objects, specifying the rights of authors, and establishing new procedures for the use of orphan works (works for which copyrights exist but the author is either unknown or cannot be located) and databases. These improvements are designed to strengthen the legal framework for intellectual property, enhance transparency, and create an environment for creativity and innovation in Ukraine.
Despite the positive steps, however, significant challenges in protecting copyright and related rights in Ukraine remain. The implementation of the most recent changes requires additional steps, from raising awareness about new rules to improving enforcement mechanisms and addressing infringement issues, especially in light of today’s prevalent digital domain.
Liability for copyright violations has increased and new responsibilities have been placed on content-sharing service providers. However, ensuring effective compliance and addressing unauthorized use of copyrighted works, both online and offline, continues to be problematic, andadditional efforts are still necessary to create a reliable system of intellectual property protection.
The key changes introduced by the Copyright Law include the following:
• The Copyright Law has expanded the list of copyright-protected works. Notably, it now includes artistic designs, including stage design, and typeface designs;
• The Copyright Law revised the list of objects ineligible for copyright protection. Additions include abbreviations and non-original photographs. A new provision introduces a “sui generis” right for non-original objects generated by computer programs (including AI-generated works) and for non-original databases;
• The list of moral rights of authors has been expanded. New rights include the right to name a work or leave it untitled and anonymous, including the right to dedicate a work to a person(s), event or date;
• The Copyright Law has clarified the conditions under which the placement of hyperlinks or framing of works is considered use or non-use of the work;
• The Copyright Law sets out clear guidelines for the distribution of rights to works created as part of employment or commissioned work. By default, commercial rights to hired works or commissioned works are transferred to the employer or commissioner, unless otherwise provided by law or specific agreement of the parties. For commissioned visual artworks (excluding works specifically created as part of a computer program), commercial rights belong to the author if not otherwise stipulated by contract or law;
• Computer programs are protected in the form of their expression, such as source or object code, which must be original. Elements such as graphical user interface, functions sets and file formats are not considered forms of expression and are therefore excluded from protection;
• The Copyright Law clarifies that databases are protected by copyright if they are the result of intellectual effort through selection or arrangement of their components. It introduces a “one of its own kind” right for database generators, who have made a substantial qualitative or quantitative investment in obtaining, verifying or presenting content. This right is independent of the copyright status of the corresponding database;
• New categories have been added to permit the free use of copyrighted objects without the permission of copyright holders, without payment and without mentioning the author’s name and source. There are also specific cases for the free use of databases;
• The Copyright Law dedicates an entire section to the essential terms and conditions of contracts for the management of copyrights and related rights, including assignment agreements, license agreements, public licenses and collective management agreements;
• Content exchange service providers are held legally responsible for the infringement of copyrights and related rights if they have not obtained necessary permission to use objects through interactive access or public notification.
In conclusion, the Copyright Law represents significant reforms in the field of copyright and related rights in Ukraine. The introduction of new rights, updated definitions and increased liability are aimed at providing a more open, encompassing and honest system that encourages creative industries in Ukraine while bringing it into close alignment with EU and globally acceptable legislation.
