And what global trends should be taken into account in the Ukrainian legislation.
Ukraine is a leader among countries-violators of intellectual property rights. It was published in early February in a special annual report of the International Intellectual Property Alliance for the protection of property rights (IIPA – International Intellectual Property Alliance), also known as a “301 list”.
Objects of copyright and related rights are lately distributed mostly via the Internet. The Ukrainian legislation regarding protection of such objects has almost no necessary legal instruments for their protection on the web. The proposed draft amendments to various laws are aimed mainly at regulating the sphere and not resolution of the problem. What must be considered when defending copyright, and what other legislative gaps must be filled, Mariia Koval, attorney at law at Ilyashev & Partners Law Firm, explains to Forbes.
Rapid development of information technology not only permits to expand communication and business opportunities, but also poses new threats. Copyright protection on the Internet is becoming increasingly difficult as the existing legal instruments do not meet the realities of today, and the only protection mechanism – initiation of court proceedings – is not always effective.
It should be admitted that in Ukraine people are not used to pay for the licensed software and legal audio and video products posted on the Internet. For example, as reported by Microsoft Corp. for 2015, nearly 85% of its products used in the Ukrainian state institutions is unlicensed.
Most probably the biggest problem in the protection of exclusive rights on the Internet is determination of violator of intellectual property rights, who often is an individual. And if before the entry into force of the Law of Ukraine “On Personal Data Protection” the individual, to whom the domain is registered, could be identified using the WHOIS (though the data were often unreliable), since 2011 almost all information about the domain owner (individual) has been closed. All calls to the provider to give any information about the registrant are currently ineffective as the provider is ready to perform any actions with respect to the domain only at the request of the court or the law enforcement agencies.
Thus, the owners of the exclusive rights, whose interests and rights are violated on the web, have the possibility either to file a claim against the registrar to the court, and in the course of the proceedings request the court to demand from the respondent the information about the registrant, or to file the appropriate application to the law enforcement agencies.
This mechanism of rights protection has been unchanged for five years despite the huge number of violations and the need for legislative consolidation of a simple and faster way to protect the violated rights.
It should be noted that in January 2016 the ICANN, which manages top-level domain zones, adopted the Illustrative Disclosure Framework, which approved a number of recommendations whereby the owners of exclusive rights could obtain personal data of registrants from the providers.
However, access to personal information of registrants in the WHOIS can only receive the owners (or their authorized representatives) of exclusive rights and only as regards those registrants who are accused of violating intellectual property rights, namely:
- when the domain name violates the rights of the trademark owner;
- when the domain name refers to the website on which the copyright is violated;
- when the domain name refers to the website, where the rights of the trademark owner are violated.
At the same time to get the data of the registrant neither a court decision, nor a court summons, or a civil lawsuit filed by the owner of the exclusive rights in respect of the registrant is required.
When filing request to a service provider the owners of the exclusive rights must provide the following information:
- nominal number of trademark registration;
- sufficient information to identify the copyright;
- a statement that the applicant is acting in good faith;
- details of the owner (name, contact information).
Upon receipt of such a request from the owner of the exclusive rights the provider is obliged to inform the registrant, and, depending on the situation, either disclose personal information of the registrant, or provide a reasoned refusal.
Thus, the ICANN moves away from the practice of absolute protection of personal data in case of actual violation by the registrant of anyone’s exclusive rights.
It is hoped that the government draft law “On amendments to some legislative acts regarding protection of copyright and related rights on the Internet” under consideration in the Parliament, will meet the ICANN positions in this matter. The current wording of the document envisages the right of copyright and (or) related rights proprietor to apply to the owner of the website or hosting provider with the complaint, which requires removal or deprivation of access to the information violating its copyright or related rights.
Along with filing of such a complaint the draft law envisages the possibility to send the owner of the website a request for data of the user, which posted on the website the information that violates copyright and (or) related rights, and the hosting provider – about the owner of the website.
When initiating court proceedings, the fact of proving infringement of rights is also a major challenge in the field of protection of intellectual property on the Internet.
Sure, if you could just print the page from the Internet, and upon its notarization provide it as evidence inspection protocol, the problem would be solved easily. However, as this mechanism does not work in Ukraine, it is necessary to resort to foreign notaries.
Speaking about the sites with pirated audio and video content, a serious problem is that the vast majority of these resources have overseas “registration”. Though many “pirates” have moved their servers to Ukraine, a huge number of sites and domains are registered abroad.
In such situations, you need to apply to the courts of the country where the defendant, i.e. the registrant, is registered. Certainly, not all owners of the exclusive rights, which are located in Ukraine, can afford to initiate such lawsuits in foreign countries.
In addition to the huge number of copyright infringements, the issue of infringement of intellectual property rights to trademarks (marks) for goods and services is also relevant on the Internet. Most of such violations surely fall within use of other people’s trademarks in the domains. Considering that during registration of domains (except for .ua domains) in Ukraine the registrant must not have exclusive intellectual property rights, it is quite easy to register a domain using other people’s trademark or a similar mark. It is used actively by a large number of registrants-individuals.
However, neither the administrator nor the registrar of domain names bears responsibility for registration of the domain saying that they have neither possibility nor powers to examine violations of third parties’ rights.
In such a situation, it becomes apparent that the existing regulatory framework in Ukraine regarding protection of intellectual property rights on the Internet is outdated and does not correspond to the rapid development of information technology. It is therefore necessary to introduce amendments to the effective domestic legislation as quickly as possible.