Right of Reproduction and Right of Making Available to the Public in the Eu-Ukraine Association Agreement*

ISSN 2308-0361 АВТОРСЬКЕ ПРАВО ТА СУМІЖНІ ПРАВА RIGHT OF REPRODUCTION AND RIGHT OF MAKING AVAILABLE TO THE PUBLIC IN THE EU-UKRAINE ASSOCIATION AGREEMENT* Kostiantyn Zerov, Scientific-Research Institute of Intellectual Property, Scientific Researcher; PhD in Law The article deals with the analysis of two specific exclusive economic rights: the right of reproduction and the right of making available of works to the public in such a way that members of the public may access these works from a place and at a time individually chosen by them and compares them under the domestic Ukrainian legislation and under the EU-Ukraine Association agreement. The concepts of «reproduction» and of «communication to the public» are considered. It is concluded that the right of reproduction is the most basic right since it forms the basis of most forms of exploitation of a work. Reproduction is, in reality, the copying of a work in any manner or form. At the same time, it remains uncertain in Ukraine at the legislative level that the right to reproduction of work includes direct or indirect reproduction and reproduction in whole or in part. These issues are up to the court to decide. It is concluded that the approach when the right of making available of works to the public is included in the broader «right of communication to the public» is applied in the EU Member States (Articles 3 and 4 of Directive 2001/29 /EC) and is reflected in Art. 174 Association Agreement. In addition, the concept of communication to the public in the EU must be construed broadly, as referring to any transmission of the protected works, irre- spective of the technical means or process used, this concept includes two cumulative cri- teria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’. This approach should be implemented in the Ukrainian legislation. Keywords: reproduction, communication to the public, making available, Association Agreement On September 01, 2017, after a lengthy Ukraine» in case if the international treaty ratification process, the Association Agree- of Ukraine, which came into force in order, ment between Ukraine and the European rules other than those which provided for Union and the European Atomic Energy in the relevant act of the legislation of Community and their member states had Ukraine, then the rules of the internation- finally entered into force in full scope and al treaty apply» [1]. become a part of domestic legislation. Supreme Court of Ukraine has already According to part 2, Art. 19 Law of stated several rulings concerning the di- Ukraine «On International Treaties of rect of the EU-Ukraine Association Agree- * Стаття друкується в авторській редакції. Теорія і практика інтелектуальної власності # 5/2019 15 К. Зеров АВТОРСЬКЕ ПРАВО ТА СУМІЖНІ ПРАВА ment: it confirmed the primacy of Art. 198 14. distribution of cinematographic adap- of the Agreement, referred to cancellation tations and reproductions of works of trademarks for non-use, over similar (article 14(1)(i)); provisions of Ukrainian legislation [2; 3]. 15. public performance and communica- There has been no case-law in Ukraine re- tion to the public by wire of cinemato- garding copyright issues with the applica- graphic adaptations and reproduction of the Association Agreement yet. tions (article 14(1)(ii)); As one of the obligations of Ukraine is 16. the resale right (droit de suite) in to bring copyright law in line with Euro- original works of art and original pean legislation, it is necessary to exam- manuscripts of writers and composers ine the distinctions between the Ukrain- (article 14ter)[4]. ian legislation and the European stan- In this paper we are going to describe dards and how these distinctions should two specific exclusive economic rights: the be used. right of reproduction and the right of The Berne Convention, as the basic in- making available of works to the public in ternational copyright treaty, refers to vari- such a way that members of the public ous economic rights. These give the rights may access these works from a place and holder power in particular over: at a time individually chosen by them and 1. making a collection of speeches, ad- to compare them under the domestic dresses and or other similar works Ukrainian legislation and under the EU- (article 2bis(3)); Ukraine Association Agreement. 2. translation (article 8); Right of reproduction 3. reproduction in any manner or form This is the most basic right since it (article 9(1)); forms the basis of most forms of exploita- 4. public performance of dramatic, dra- tion of a work. Reproduction is, in reality, matico-musical and musical works by the copying of a work in any manner or any manner or means (article form (Article 9(1) of the Berne Conven- 11(1)(i)); tion). Whether the reproduction of a work 5. communication to the public of perfor- is in a material form or not is irrelevant. mances (article 11(1)(ii)); However, the text of the Berne Con- 6. broadcasting and any communication vention, neither WCT nor the EU- to the public by any means of wireless Ukraine Association agreement do not diffusion of signs, sounds or images contain any complete and explicit defini- (article 11bis(1)(i)); tion of «reproduction». 7. communication to the public by wire of From the viewpoint of the concept of broadcasts and rebroadcasts (article «reproduction» and the coverage of the 11bis(1)(ii)); right of reproduction should be noted 8. public communication of broadcasts by that: (i) the method, manner, and form of loudspeakers or other analogous in- the reproduction are irrelevant; (ii) it is struments (article 11bis(1)(iii)); irrelevant whether the copy of the work 9. public recitation of literary works (arti- may be perceived directly or only cle 11ter(1)(i)); through a device; (iii) it is irrelevant 10. public communication of recitations of whether or not the copy is embodied in a literary works (article 11ter(1)(ii)); tangible object that may be distributed; 11. public recitation and public communi- (iv) it is irrelevant whether the reproduc- cation of translations of literary works tion is made directly (for example, on the (Article 11ter(2)); basis of a tangible copy) or indirectly (for 12. adaptation, arrangement and other example, off-air from a broadcast pro- alterations (Article 12); gram); and (v) the duration of the fixa- 13. cinematographic adaptation (Article tion (including the storage in an electron- 14(1)(i)); ic memory) — whether it is permanent or 16 Теорія і практика інтелектуальної власності # 5/2019 К. Зеров АВТОРСЬКЕ ПРАВО ТА СУМІЖНІ ПРАВА temporary — is irrelevant (as long as, on On the other hand, the Civil Code of the basis of the [new] fixation, the work Ukraine, as the central act of civil legisla- may be perceived, reproduced or commu- tion, in Art. 441 contains no reference to nicated)[5]. the specimen of a work, thus the approach The Directive 2001/29/EC on the har- of the Ukrainian legislator on the use of monization of certain aspects of copy- the reproduction right to works expressed right and related rights in the informa- in digital form is fully harmonized with tion society in Article 2 provides that: the established world practice, especial The Member States shall provide for with the Agreed statements concerning the exclusive right to authorize or pro- Article 1 (4) of the WIPO Copyright Treaty hibit direct or indirect, temporary or per- (WCT): the reproduction right, as set out manent reproduction by any means and in Article 9 of the Berne Convention, and in any form, in whole or in part: the exceptions permitted thereunder, fully (a) for authors of their works […][6]. apply in the digital environment, in partic- This article was completely transmit- ular to the use of works in digital form. It ted to Article 173 of the EU-Ukraine as- is understood that the storage of a protect- sociation agreement: ed work in digital form in an electronic The Parties shall provide for the ex- medium constitutes a reproduction within clusive right to authorize or prohibit di- the meaning of Article 9 of the Berne Con- rect or indirect, temporary or permanent vention [10]. reproduction by any means and in any At the same time, it remains uncertain form, in whole or in part: in Ukraine at the legislative level that the (a) for authors, of their works […][7]; right to reproduction of work includes di- So, there are no rules in this provision rect or indirect reproduction and reproduc- that would differ from the EU Directive. tion in whole or in part. These issues are According to the Article 1 of Law of up to the court to decide. Ukraine «On copyright and related The right of making available of rights» reproduction means manufactur- works to the public in such a way that ing of one or more specimens of a work, members of the public may access these videogram, phonogram in any material works from a place and at a time individ- form, as well as recording thereof for ually chosen by them was introduced temporary or permanent storage in elec- first time in the provisions of the WIPO tronic (including digital), optical or other Copyright Treaty (1996) in the article 8 computer-readable formp [8]; as the essential part of more broad It shall be noted that According to the right of Communication to the Pub- Article1 of the law of Ukraine «On copy- lic. (Although for the first time this term right and related rights» the specimen of is used in Article 7 (2) and (3) of the work means only a copy of a work pro- Berne Convention on the terms of protec- duced in any material form; tion of cinematographic (and other audio- The law of Ukraine is acquainted with visual) works and of anonymous or pseu- the concept of «copy of a work», and the donymous works, respectively.) material form (copy) is only one of the The development of information tech- types of existence of such a copy, which nology services has contributed to a signif- cannot be placed on the Internet, since a icant change in the right of distribution of copy of a work made in material and not works because when work is downloaded digital form is recognized as a copy of the from the Internet, end-user create new work.

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