Protection of Works Posted on the Internet Under Ukrainian Copyright Law

Abstract

This chapter examines copyright protection and enforcement regarding works posted on the internet in light of the current Ukrainian and EU case-law practice. Along with the process of using a copyrighted work on the internet, the chapter focuses on four legal issues. First, the “making available of a work to the public” is discussed. This should be defined as a type of communication to the public in such a way that members of the public may access this work from a place and at a time individually chosen by them. Unlike current Ukrainian legislation, this interpretation corresponds with the provisions of the WIPO Copyright Treaty and the EU–Ukraine Association Agreement. The chapter goes on to examine the key issue of exhaustion of rights for works uploaded to the internet and provides reasons why exhaustion should not apply to posting works on the internet. Thirdly, the chapter analyzes copyright infringement types susceptible to taking place on the internet. In particular, it discusses the conditions under which the act of placing hyperlinks/framing/hotlinking to other websites and objects can be considered as the use of a work and, therefore, as copyright infringement. Finally, the chapter describes copyright enforcement for works posted on the internet by extrajudicial measures, including the Ukrainian version of the “notice and takedown” procedure.

Parts of Section 5 are a translation of the article Kostiantyn Zerov and Anna Shtefan, ‘Termination of Copyright and Related Rights Infringements on the Internet: a Review of Legislative Novelties’ (2017) 3 Theory and Practice of Intellectual Property journal 18 (19–23)”. The author is grateful for Anna Shtefan for consenting to including it here.