Ostrovskyi S. Subjective copyright of the architect in the design, construction and operation of buildings.
The dissertation is the first systematic and comprehensive study of the content of the architect's subjective right to the work of architecture, the prerequisites for its emergence and the specifics of its implementation in Ukraine and foreign countries, as well as the legal status of the architect at various stages of the creation of the work of architecture. Within the scope of the dissertation research, the results were obtained, which have scientific novelty for further improvement of the legislation of Ukraine in the spheres of copyright and architectural and construction activities. Within the framework of the study, the normative legal acts of Ukraine and foreign countries, the law-enforcing judicial practice of Ukraine and foreign countries, as well as scientific sources regarding the emergence and exercise of the subjective copyright of the architect were analyzed.
The dissertation defines the key legal aspects of the subjective copyright of the architect, in particular the conceptual apparatus of the problem is clarified, the prerequisites and grounds for its occurrence are defined, as well as the composition of the subjective copyright of the architect, the features of the realization of personal rights to a work of architecture and the dependence of their realization on property rights are revealed and proven, the types of works of architecture and the features of the realization of personal copyrights in relation to some of them are identified and proven, as well as the main risks of violation of subjective copyrights and their means decrease. A definition of the subjective copyright of an architect is proposed, as provided by the norms of copyright, the possibility of carrying out legitimate creative activity on the basis of freedom of expression, aimed at satisfying interests in the acquisition of goods by taking certain actions regarding personal non-property and/or property copyrights to a work, the right to demand the performance of certain actions (or to refrain from their performance) from other persons, the right to choose the method and form of protection of rights and interests.
The dissertation substantiates that the right to indicate one's name or the right to remain anonymous, the right to choose a pseudonym, as well as the right to properly indicate the author's name on the object of architecture as an object of copyright, if it is practically possible according to its content, are not independent personal copyrights of the architect, but are ways of the right to the name of the author of the creation of the work. Also, as a result of the conducted research, it was proved that the architect has a subjective right to follow certain forms of expression of his creative activity in the field of urban planning, such as a sketch, an architectural model, a mock-up, which in their form of expression are similar to works of fine art. In addition, certain types of artistic works created by an architect (frescoes, mosaics, stained glass windows, sculptures, balusters, etc.), separated from built buildings or structures, as parts thereof, can also be considered as independent objects of copyright and objects of the right of reproduction.
The dissertation proves that an architectural project, as a work of architecture that finds its external expression in sign-language and graphic forms, can acquire a volumetric-spatial form of embodiment and exist in the form of buildings, structures and other objects of architectural activity, that is, the same work of architecture can be represented by an architectural project, a building, a structure, etc.
A comparative legal analysis of the legislation of Ukraine and foreign countries made it possible to additionally argue the need to introduce professional liability insurance of architects into the insurance legislation as a mandatory type of insurance used in EU countries. The relationship between the concepts of the right of authorship and the presumption of authorship is determined.
In the dissertation, approaches to contractual forms of regulating relations in the creation of works of architecture were further developed, in particular, based on the experience of France, the possibility of using franchise contracts in the creation of works was proven.
The non-property legal nature of the right to participate in the further implementation of the project of a work of architecture is additionally argued as a manifestation of architectural supervision, the purpose of which is to ensure the compliance of construction works with the project documentation in order to preserve the connection between the author-architect and the object of architecture created by him as an object of copyright.
