COMPENSATION FOR COPYRIGHT AND RELATED RIGHTS VIOLATIONS AS A SPECIAL FORM OF CIVIL LIABILITY

Abstract

The importance of copyright and related rights has grown during the past few years. At the same time legal norms dedicated to the protection of intellectual property rights have changed too. Methods of protection of copyright and related rights in the EU differed significantly from domestic norms. Until 2018, the methods of protection of copyright and related rights were almost the same as in 1993, when the Law of Ukraine «On Copyright and Related Rights» was created. With the adoption of the Law of Ukraine “On effective management of property rights of copyright holders in the field of copyright and (or) related rights” in the Law of Ukraine “On Copyright and Related Rights” appeared rules that repeat the provisions of Directive 2004/48/EU. In this article, attention will be paid to the new version of compensation for infringement of copyright and related rights. Despite the fact that the domestic legislator implemented the pan- European standard, however, the experience of applying compensation for copyright and related rights violations was not taken into account. As a result, the current form of compensation for infringement of copyright and related rights combines penalties and compensatory nature. In addition, there is a disharmony of the main elements of compensation for copyright and related rights and damages. Thus, compensation for infringement of copyright and related rights widely operates the mechanism of hypothetical deduction of royalties of the owner’s right if his property rights were not violated. At the same time, domestic civil law is moderate to the possibility of recovering lost profits, requiring the most complete and reliable confirmation of the reality of such a possibility. That is why the previous version of Art. 52 of the Law “On Copyright and Related Rights” with purely punitive compensation better fit into the system of civil law of Ukraine.