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IRIS 2017-7:1/34


New mechanisms to combat audiovisual piracy on the Internet

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Kateryna Horska

Institute of Journalism, Taras Shevchenko National University of Kyiv

The Law on State Support of Cinematography in Ukraine (see IRIS 2017-6/30), which was signed into law on 20 April 2017 by the President of Ukraine, entered into force on 26 April 2017.

The law provides for a set of rules aimed at easing copyright enforcement on the Internet and creates a secondary liability regime for third party copyright and related rights infringements through the introduction of a new ‘Notice and Takedown’ procedure.

As per the established procedure, the copyright and related rightsholder must send a Notice to the website owner to take down the allegedly infringing material. Upon receipt of the Notice, the website owner must, within 48 hours, terminate access to the infringing material on the website and give notification of it to the rightsholder. If the website owner declines to comply with the Notice or if there is insufficient information in the WHOIS databases (public database for domain name's owners) to identify the website owner, the rightsholder can send the Notice directly to the hosting provider. Within 24 hours of receiving the Notice, the hosting provider must send it to the website owner and, within 48 hours, terminate access to the infringing material. The website owner can send a notification to the hosting provider objecting to the termination of access to the allegedly infringing material. The hosting provider shall restore access to such material if the rightsholder has not provided him with documents confirming that he has initiated court proceedings within 10 working days.

This procedure may be applied only to audiovisual works, musical works, computer programs, videograms, phonograms, and broadcasts (Ph. 1 Article 52-1). According to Article 52-1 of the Law on Copyright and Related Rights, the website (web page) owners that respond to the rightsholder’s Notice and prevent access to the allegedly infringing material in accordance with the requirements of the procedure, are exempt from liability, except in cases of repeat (two or more) infringement allowed by website and web page owners not complying with the Notices, related to the same infringing materials on their web pages within a three month period.  

In order to prevent the practice of unfair competition and abuse, the applicant may only file the Notice through a legal representative (attorney-at-law). The Notice shall include a set of information, such as the applicant’s identification, the proof of rights ownership over the disputed content and it shall attach the supporting documents to it.

At the same time, the amendments of Articles 164-17 and 164-18 of the Code on Administrative Offenses of Ukraine establish that website owners and hosting providers will be held liable in the case of inaction regarding the protection of copyright and related rights on the Internet; failure to respond or provide a timely response, as well as the submission of incorrect information in response to a Notice; non-provision of accurate information in the domain name's owners section of the public (WHOIS) databases; and false statements by the applicant about rights ownership in the Notice will be subject to a fine.

A provision of the Criminal Code of Ukraine has also expanded the scope of criminal liability to include copyright infringement in the audiovisual sphere, for example ‘camcoding’, card sharing, and the financing of these actions (Ph. 1 Article 176 Code). Specifically, the paragraph on the criminalization of these activities was introduced in accordance with the International Intellectual Property Alliance's (IIPA) recommendations regarding priority actions and legal reforms in Ukraine, presented in the 2017 Special 301 Report on C opyright Protection and Enforcement.

These latest amendments were part of the intellectual property system reform undertaken in Ukraine and aim to prescribe clear regulatory mechanisms to facilitate law enforcement practice. They also establish the legislative framework for the Supreme Court on Intellectual Property as stipulated in the Ukrainian Law on the Judiciary and Status of Judges (Article 31), which will be applied for settling disputes in this area.

Закон України «Про авторське право та суміжні права» UK
  Act "On Copyright and Related Rights" of 23 December 1993 N 3792-XII as amended on 23 March 2017      
Кодекс України про адміністративні правопорушення UK
  Code on Administrative Offences of 7 December 1984 N 8073-X as amended on 23 March 2017      
Кримінальний кодекс України UK
  Сriminal Code of 5 April 2001 N 2341-III as amended on 23 March 2017      
Закон України «Про судоустрій і статус суддів» UK
  Act "On the Judiciary and Status of Judges" of 2 June 2016 N 1402-VIII      
International intellectual property alliance (IIPA). 2017 Special 301 report on copyright protection and enforcement EN