On 26 April 2017 amendments to the Law of Ukraine “On Copyright and Related Rights” (the Law) and a number of other normative acts adopted by the Verkhovna Rada of Ukraine (the VR of Ukraine) on 23 March 2017 and aimed at combating piracy on the Internet1 entered into force.
The amendments to the Law introduced the so-called “take-down notice”, the instrument well known in Western countries that allows right holders to cease infringement of copyright and/or related rights on the Internet without referring the matter to the court.
Ukrainian “take-down notice” applies only in case of infringement of rights to the following objects on the Internet: audiovisual works, computer programs, videograms, phonograms, broadcasts (programs) of broadcasting organizations, and can be served by submitting an application seeking cessation of infringement to be sent by the right holder to owners of websites/webpages, and/or hosting services providers.
Important! A “take-down notice” may be given by the right holder solely through the intermediary of a lawyer admitted to the bar who checks whether the applicant enjoys the relevant rights. For the application purposes, a lawyer must have a digital signature (if the application is sent by e-mail). These requirements may complicate the implementation of the introduced procedure.
The Law envisages that upon receipt of a “take-down notice”, owners of websites/webpages and hosting services providers shall be obliged during the period of time from 24 to 72 hours from the date of receipt thereof:
- to cease infringement of copyright and/or related rights on the Internet, thus making access to electronic (digital) information impossible; or
- to deny such application, if there are relevant grounds, by sending a notice to the applicant.
Important! Although “take-down notice” is a simplified rights protection procedure which does not require subsequent recourse to the court, there is an exception when such recourse is necessary. If a hosting services provider makes access to electronic (digital) information impossible (for example, blocks access to a website/webpage), and the website owner objects to such actions and notifies in writing thereof, such blocking will not be removed if within 10 business days the hosting services provider receives a confirmation of institution of the judicial proceedings from the right holder. Otherwise, within ten (10) business days access to electronic (digital) information will be restored.
Timely and immediate measures taken to prevent access to the information containing signs of infringement of copyright and related rights as provided for by the Law shall release website/webpage owners, hosting services providers as well as interim information services providers from liability for infringement of copyright and related rights.
In addition, the Law obliges hosting services providers to include a number of conditions and rules with respect to the provision of services, specifically obligations not to publish electronic (digital) information in violation of copyright and/or related rights, in agreements for the provision of such services. If the above requirements of the Law are met, hosting services providers shall be released from liability to the customer.
The Law requires that website owners and hosting services providers publish reliable information about themselves on their own websites and/or public databases of domain names records. Important! Website/webpage owners, hosting services providers as well as interim services providers should set up measures, procedures and bring agreements into compliance with the requirements of the Law.
In its turn, failure to fulfil the requirements of the Law shall serve as a ground for imposing on the web-site owners and hosting services providers penalty in the amount from 500 to 1000 untaxable minimum incomes of citizens (the “UMIC”) (approximately up to US$650) for each violation, or from 1000 to 2000 UMIC (approximately up to US$1.260) in case of repeated commission of these violations during a year.
Claims arising from infringement of copyright and/or related rights on the Internet shall be referred to and considered by courts not at the defendant’s location as stipulated by the general procedural rules, but at the location of the state authority implementing the state policy in the field of intellectual property, namely the courts of Kyiv.