Prylypko D. S. Problems of legal regulation of copyright to official works in the IT sphere under the legislation of Ukraine
The article examines the problems of legal regulation of copyright in official works in the IT field. According to the results of the study, it is established that in the legislation of Ukraine, computer program — a set of instructions in the form of words, numbers, codes, diagrams, symbols or in any other form, expressed in a form readable by a computer, which actuate it to achieve a certain goal or result (this the concept covers both the operating system and the application program, expressed in source or object code). In this case, it is proposed to supplement the legislative definition with an indication that a computer program is an algorithm. It has been found that modern software, which often makes extensive use of graphic images, is more like a work of art than a literary one. Unlike literary works, the text of a computer program (source or object code) have no independent value without the possibility of their application in a computer. It has been established that the conflict of legal norms regarding copyrights to official works, including computer programs, also remains unresolved. It is illustrated that despite the existing presumption of authorship in the legislation, courts take into account only documentary evidence of such authorship. It is established that improper registration of relations between the employee and the employer, as well as the distribution of property rights to the object of copyright created by the employee is one of the most important mistakes in this area. It is proposed to legislate the content of the agreement on the creation of a computer program as an official work. In particular, the content of this type of contract is proposed to include conditions for the transfer of property rights, all methods and limits of use computer program as a service work, an indication of that from which moment the property rights are transferred to the employer. It is emphasized that the fact of transfer of property rights to a computer program as an official work should be confirmed by a separate act.
Key words: legal regulation, copyright, official work, IT sphere, computer program.
References
- Civil Code of Ukraine: Law of Ukraine of January 16, 2003 № 435-IV. URL: https://zakon.rada.gov.ua/laws/card/435-15 (access date: 28.01.2021).
- On copyright and related rights: Law of Ukraine of 23.12.1993 № 3792-XII. URL: https://zakon.rada.gov.ua/laws/card/3792-12 (access date: 28.01.2021).
- On the application by courts of the norms of legislation in cases of protection of copyright and related rights: Resolution of the Plenum of the Supreme Court of Ukraine № 5 of 04.06.2010 URL: https://zakon.rada.gov.ua/laws/ show / v0005700- 10 # Text (appeal date: 28.01.2021).
- Stefan A. S. Copyright and related rights: features of legal protection, implementation and protection: a monograph. Kyiv: Research Institute of Intellectual Property of NAPRNU, LLC «SPE Interservice», 2017. 150 p.
- Category of case № 200/10952/19: civil cases (from 01.01.2019); lawsuit cases; cases in disputes concerning intellectual property rights, including copyright. URL: https://reyestr.court.gov.ua/Review/87041861 (access date: 28.01.2021).
- Gukova A. R. Legal status of individual subjects of legal relations in IT law. Legal scientific electronic journal. 2020. № 8. Рр. 82—84.
- Loposhuk D. V., Yaskorsky M. O. On the need to separate computer programs from objects of copyright protection in a separate category. Legal scientific electronic journal. 2020. № 2. Рр. 130—132.
- Sudakov V. Resolution of conflicts regarding the occurrence of exclusive property rights to the object of copyright, which was created by order of the employer (official work). Theory and practice of intellectual property. 2019. № 5. Рр. 30—38.
- Shcherbyna E. M., Hetman J. V. Problematic issues of legal protection of computer programs as objects of copyright. Law and society. 2018. № 6. Рр. 58—62.