Anisimov K. Wrap license agreements in civil law and judicial practice of Ukraine, the US and the EU countries.

The dissertation is the first research paper in the domestic civil law science which comprehensively studies the legal nature of wrap license agreements, highlights a wide range of features of such contractual structures as transactions for disposal of intellectual property rights with a simplified procedure for their conclusion, and also considers civil law mechanisms for protection and defense of subjective civil rights and interests of end users as weaknesses of these agreements, and suggests areas for further improvement of these mechanisms. The author defines wrap license agreements as a group of license agreements under which one party (the licensor) grants the other party (the licensee) permission to use the copyright and (or) related rights object on the terms and conditions established by the licensor in standard forms, and the licensee may join the proposed agreement only in general by performing actions expressing its agreement with the terms and conditions in the manner provided for by the offer. The complex essence of the legal nature of wrap license agreements is substantiated. It is stated that it is reflected in three main aspects: 1) the contractual structures under study are related to transactions in the field of intellectual property, which are an independent group of civil law contracts; 2) wrap license agreements are license agreements, not licenses; 3) the agreements under study are agreements with a simplified procedure for concluding, which consists in using the structure of an accession agreement. The classification of wrap license agreements is developed according to the following criteria: 1) the object for which permission to use is granted under the agreement; 2) the existence of a counter-obligation of the licensee to provide a certain benefit to the licensor; 3) the term for which wrap license agreements are concluded; 4) the procedure for payment of fees; 5) the degree of coordination of the parties’ intentions; 6) the purpose of using the copyright and (or) related rights object; 7) the content of the provisions of the wrap license agreement; 8) the method of conclusion; 9) the specifics of the simplified procedure for conclusion. The author argues that the main classification criterion which allows forming a holistic view of the system of wrap license agreements is the specifics of the simplified procedure for their conclusion. Within the framework of this criterion, the author distinguishes between: shrink-wrap license agreements, click-wrap license agreements and browse-wrap license agreements. The scientific concepts regarding the status characteristics of the parties to wrap license agreements have been improved. Thus, licensors may be both primary and secondary subjects of copyright and (or) related rights. The author recognizes that the scientific position regarding the inappropriateness of an expanded interpretation of the category of “authorship” in national civil law is the most reasonable. Using the example of a wrap license agreement for granting permission to use software, the author proves that the licensee is a person who owns a computer on which such software is legally installed. Based on this approach, the identification of the licensee should be carried out with certain clarifications depending on the type of wrap license agreement or on a specific object of copyright and (or) related rights. The author suggests that distributors, resellers and other partners should not be considered parties to wrap license agreements, since it has been proven that agreements between them and copyright holders only mediate the distribution of copies of copyright and (or) related rights. The study proves that the licensee is the weaker party to wrap license agreements. Based on this conclusion, the author establishes that the balance between the parties to the contracts can be achieved by: expanding the licensee’s rights and increasing the licensor’s obligations; strengthening the licensor’s civil liability for non-performance or improper performance of the contract; limiting the licensee’s civil liability; establishing a special procedure for concluding, amending and terminating the contract, etc. Based on the analysis of national scientific works, the dissertation proves that the civil law category “subject matter of a contract” is self-sufficient and that the dichotomy of the subject matter and object of a license agreement is inappropriate as such, which is based on the identification of the agreement with an obligation as a legal relationship arising under the relevant license agreement. The author formulates a definition of the subject matter of a wrap license agreement as a permit to use an object of copyright and (or) related rights. The research proves that the only right granted under a wrap license agreement is the right to use the copyright and (or) related rights object.