Copyright and intellectual property rights are important components of the sphere of legal regulation, which ensure innovative development of society and protection of intellectual creativity. Ukraine, as a member of the world community, complies with international obligations and national legislation in this area. Abuse of rights to intellectual property objects, their illegal use and violation of copyright are recognized as criminal acts in accordance with Art. 176 and 177 of the Criminal Code of Ukraine.
Article 176 of the Criminal Code of Ukraine: Violation of copyright and related rights.
Article 176 of the Criminal Code of Ukraine defines responsibility for infringement of copyright and related rights. According to this article, it is illegal to use someone else’s copyright and related rights if it is committed:
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In the form of public performance or reproduction of the work;
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In the form of distribution of a work or other object of related rights;
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Public demonstration or use of objects of related rights for the purposes of direct communication with the air or other forms of signal transmission;
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Publishing houses and distribution of works under a different name of the author.
In addition, the article provides for responsibility for the production or distribution of illegal copies of works or objects of related rights.
Violation of this article of the Criminal Code of Ukraine leads to criminal liability, which can be expressed in the form of punishment from a fine to imprisonment for a term of up to five years.
Article 177 of the Criminal Code of Ukraine: Infringement of rights to inventions, utility models, industrial designs, topographies of integrated microcircuits, plant varieties, rationalization proposals.
Article 177 of the Criminal Code of Ukraine concerns the violation of rights to intellectual property objects, in particular inventions, utility models, industrial designs, topographies of integrated microcircuits, plant varieties, as well as innovative proposals. According to this article, the illegal production, use, storage, transportation or distribution of objects of intellectual property without the permission of their owner entails criminal responsibility.
Criminal liability for violation of this article may be expressed in the form of a fine, restriction of liberty, or imprisonment for a term of up to five years.
The structure of this article is general, therefore, to reveal the signs of this offense, you should refer to the Law of Ukraine “On Copyright and Related Rights” , as well as to the Civil Code .
According to these laws, copyright includes both personal non-property rights and property rights of authors and their successors in title, related to the creation and use of works of science, literature and art.
Personal non-property rights include the right to demand recognition of one’s authorship, the right to prohibit mention of one’s name during public use of a work, the right to choose a pseudonym, the right to resist distortion or distortion of works, and the right to make public.
Property rights include the right to use the work (including sale, rental, hire, etc.), the right to reproduction, public performance, display, the right to translate and import works of science, literature, and art.
Copyright covers both published and unpublished works in the field of science, literature and art, regardless of their purpose, genre, quality, size, purpose (educational, informational, advertising, propaganda, entertainment, etc.), as well as the method of reproduction, whether oral, written or other format.
Neighboring rights refer to the rights of performers, producers of phonograms and broadcasting organizations, and they are related to the use of these works under legal conditions.
In accordance with these laws, the subject of infringement of copyright (or related rights) are works of science, literature and art, such as published or unpublished musical works (with and without text), sculptures, paintings, illustrations, narratives, photographs, computers computer programs, etc., and the subject of violation of related rights is performance, phonograms, videograms and broadcasting programs.
Mandatory signs of this violation include:
1) lack of ownership or ownership not fully assigned to the culprit;
2) an objective (material) form of expression, such as a manuscript, typescript, printed text, sheet music, phonogram, videogram, electronic recording, etc.;
3) novelty and originality.
Reports on the news of the day, reports on current events, works of folk art, official documents (laws, decrees, resolutions, court decisions, etc.), state symbols and signs (flags, coats of arms, orders, money signs) approved by state bodies are not considered items this violation.
The Law of Ukraine “On Copyright and Related Rights” defines the list of persons who are granted copyright protection and includes authors regardless of citizenship and place of residence, authors whose works were originally published or are in an objective form on the territory of Ukraine, as well as authors
Illegal use is not considered a violation of copyright in the following cases: a person, before the date of filing a patent application or, if there is a priority, before the priority date, has taken bona fide actions for commercial purposes, using a technological (technical) solution identical to what was claimed in the invention (utility model), or has conducted significant and serious preparation for such use in Ukraine.
It is also not considered a violation of the rights to use a patented invention (utility model) in certain cases, for example:
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Use in the construction or during operation of a vehicle of a foreign state, which is temporarily or accidentally in the waters, airspace or on the territory of Ukraine.
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Non-commercial use.
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Scientific or experimental use.
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Use in exceptional circumstances, such as natural disasters, disasters, epidemics, etc. d.
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One-time production of drugs in pharmacies according to a doctor’s prescription.
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Introduction into commercial circulation of a product manufactured using a patented invention (utility model), which was purchased without violating the rights of the owner (for example, by a court decision under the conditions stipulated in Article 30 of the Law of Ukraine “On Protection of Rights to Inventions and Utility Models”).
The onset of the consequences of illegal use consists in causing significant material damage to the owner, which according to the note to Art. 176 of the Criminal Code exceeds normal material damage by twenty or more times. For example, it may be the author’s lack of royalties for subsequent sales or rentals, competitive damages, reputational damage, etc.
The crime is considered completed from the moment of causing material damage, and it involves a causal connection between the action and the specified consequence.
Regarding the subjective side of the crime, it includes intent. The culprit must be aware of the illegality of his actions, want to cause material damage to the owner and have motives that can be different, such as benefit, careerism, revenge, envy, etc.
The subject of this crime can be any person who has reached the age of 16, including the author himself in cases where his actions are not coordinated with other co-authors. According to ch. 2 Art. 177 of the Criminal Code, the guilty person may be prosecuted for the same actions, if they are committed repeatedly or in cooperation with other persons. In ch. 3 of this article provides for liability for the same actions, if they are committed by an official using his official position, an organized group, or if material damage of a large size is caused, that is, an amount that exceeds the normal material damage by a thousand or more times.
Author: Iryna Starodub
Head of Litigation LLC MONEYVEO