The present thesis is one of the first comprehensive researches in Ukraine concerning the copyright enforcement for works posted on the Internet, considering the current reform of the copyright legislation.
The author’s conception concerning the copyright enforcement for works posted on the Internet has been elaborated, based on the analysis of legal relations, arising from using work, enjoying, acquiring and enforcing copyright in the digital media environment. Such analysis was done by studying the Ukrainian legislation, including the Association Agreement provisions, the legislation of other countries (the EU Member States, the US, Japan), doctrinal provisions, case-law.
The research’s purpose and objectives have defined the structure of the Ph.D. thesis, consisting of three chapters and covering the following questions: the legal regime for works uploaded to the Internet, a liability of the intermediary service providers, copyright enforcement forms and measures for works, posted on the Internet.
The research includes theoretical foundations and practical recommendations to improve the national copyright protection system, the categories, and notions used in the field have been defined.
As the result of the research, the following definition of the right to copyright enforcement was achieved: a right which enables the rightsholder, as well as persons entitled to a free use of work, to freely apply legal measures aimed at stopping the infringement of his/her copyright (or at preventing such infringement in case of its potential happening), at restoration or recognition of the infringed, unrecognized or disputed copyright and/or other interest, protected by law.
Particular attention has been given to the types and stages of using a copyrighted work on the Internet. Indeed, two types of legal acts are included when uploading work to the Internet: reproduction and making the work available 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. Depending on the method selected to upload work on the Internet, the alternation of such legal acts may vary. At the same time, it is suggested to consider the making available of a work 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, as a type of communication to the public, which corresponds with the provisions of the WIPO Copyright Treaty and of the Association Agreement. It is defended that the hyperlink is not an independent copyrightable work. Nevertheless, the descriptive informative part of the hyperlink may be protected by copyright.
The exhaustion of rights for works uploaded to the Internet was analyzed. It is concluded that such notion may not be applied to such relations, due to the following: 1) such notion is applied exclusively to the physicial copies of the works, that is to their material form of expression, and not to the digital copy; 2) exhaustion of right shall be applied exclusively to the act of distribution, and not to other categories of acts; 3) the fact of saving a work’s copy in the digital form at the end user’s device is a reproduction of another object, which is the work’s copy at another information carrier, and not a copy of a work which is stored by the person who uploaded the corresponding work to the Internet.
Separate categories of work that might be uploaded to the Internet are analyzed. The conclusion concerning the dualistic nature of the fonts’ copyright protection is reached: on the one hand, fonts are independent copyrightable objects, protected as graphic works; on the other side, computer counter fonts are subject to copyright protection as software.
Copyright infringement types, susceptible of taking place on the Internet, are analyzed. It is defended, that, under certain conditions, the act of placing hyperlinks/framing/hotlinking to other websites and objects can be considered as the use of a work, and thus copyright infringement. The copyright infringement of work posted on the Internet is defined as an illegal act or inactivity of a person when using a work through the Internet, where such use contradicts the legislative provisions and causes, directly or indirectly, negative consequences for the rightsholder, taking into account the limitations to such rightsholder’s rights and the liability of intermediary service providers, as established by law.
The issues related to the enforcement of copyright for works, available on the Internet, are analyzed; for instance, those related to the identification of the copyright infringer in order to define the subject of the corresponding legal relation and the ways to fixate the web-page’s content.
The main copyright enforcement forms and measures are considered with the view of the Association Agreement. For instance, it is defended that the injunction, being a special enforcement measure foreseen under the Assoc
