In the age of tech boom and constantly developing markets, objects of intellectual property rights have transformed into valuable investments and a potential means of permanent profit. As a result, the process of development of intellectual property law is currently being expeditiously expanded, and the Ukrainian legal system is no exception. One of the main legal aspects of such development is the protection of intellectual property rights by copyright registration.
It should be noted that software retains a special place among intellectual property. In the era of information technology, it has become one of the main strategic resources of states, companies, and individuals. The rapid spread of software and applications, as well as the constant upgrade of software development technologies not only increased the scope of its appliance but have also provided it with new special features.
Meanwhile, the growth of the software development industry in Ukraine has increased the significance of securing source code. The presence of a large variety of domestic and international software development companies’ increases economic development, as such the protection of the results of their work – software and software source code becomes pivotal.
The foregoing only reinforces the need for analysis and characterization of the existing concept of the legal protection of software and software source code. In this article, you will find out about the benefits of copyright registration in Ukraine and the main features of copyright protection.
Why Should C-Suites Execs & Tech Entrepreneurs in Ukraine Copyright Source Code?
According to the results of 2018, IT services outstripped pipeline transport and became the second largest supplier of services exports – more than 20% of all exports. This is stated in the results of the research of the experts of the Association “IT Ukraine” and the Office of Effective Regulation (BRDO). There are over 3,000 service companies, more than a thousand startups and food companies, about two dozen R & D centers, half dozen profile associations and up to 15 IT cluster working on the market. Some of the largest export-oriented companies feel confident in the market and have long-term development prospects.
Despite this, Ukraine is now the leading software development center in Eastern and Central Europe and is the fourth largest exporter of IT products and services in the world. IT industry is one of the four priority sectors for the export strategy of Ukraine.
Undoubtedly, established tech companies and new start-ups vying for a piece of this lucrative pie. However, how many will fall by the wayside from data leaks and source code theft? The risk of having your source code stolen or duplicated, and in the worst scenario, used by a competitor is not one you can afford. As such, the importance of ensuring a competitive advantage by copyrighting your software and source code should never be underestimated.
Under the legal regime of Ukraine, computer programs, as well as software source code belongs to literary works can be protected under copyright laws, domestically and internationally.
Before we get into the registration process and requirements, let us take a look at the intricacies of software copyright law in Ukraine, and some reasons why you should consider copyrighting your source code.
Existing Copyright Laws of Ukraine
First off, the protection of software and source code is governed by the Law “On Copyright and Related Rights” of December 23, 1993, the revised version of which came into force on July 11, 2001. In addition, a number of legislative and normative acts regulating certain issues of copyright protection – the decree “On the minimum rates of royalties for the use of works of literature and art” passed in 1994 and the resolution “On the state registration of author’s rights to works of science, literature and art ” passed in 1995. These documents became the foundation of the Institute of copyright, the main principles of which were enshrined in the Constitution of Ukraine in 1996.
According to the legislation of Ukraine, a computer program is a set of instructions in the form of words, numbers, codes, schemes, symbols, or in any other form, expressed in a form suitable for computer reading, which allows achieving of a certain purpose or result. This concept covers both the operating system and the application program, expressed in source or object codes. The copyright to software source code arises from the very fact of its creation and does not require special registration or compliance with any other formalities (Article 437 of the Civil Code of Ukraine).
The author of the program has the right to demand payment or remuneration for the use of the work. However, if copies of a work are lawfully entered into a civil proceeding through their first sale on the territory of Ukraine, their re-entry into circulation through sale, gift, etc., without the consent of the author and without payment of royalties, may be re-admitted.
Copyright covers both software or its modules or libraries. Please note that in Ukraine, the computer program is protected only by copyright and cannot be “patented”, that is, obtain a patent for an invention or utility model.
Will Ukrainian Copyright Law Protect my Source Code Internationally?
Ukrainian Copyright Laws only offer protection of copyright domestically. Hence, to secure protection for Ukrainian works in foreign countries, Ukraine has become a member of the following international conventions on copyright:
- Berne Convention for the Protection of Literary and Artistic works
- Universal Copyright Convention
- Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
Ukraine copyrights of nationals or entities, as part of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention, and the TRIPS Agreement, are given copyright protection in all member countries.
What are the Benefits of Copyrighting your Source Code?
The software source code is the object of intellectual property that is most affected by offenses, due to the significant difference between the cost of resources for the creation and the costs of their illegal copying and distribution.
Discussions about the choice of an optimal model for the protection of source code and software arise in particular due to a large number of court disputes related to the protection of violated rights to the described object. In most of the cases, courts differentiate source code copyright registration as a crucial keystone.
The procedure for registration of copyright in Ukraine takes up to 3 months. Registration is not a mandatory procedure and is carried out at the will of the author or owner of copyrights.
So what is the benefit of such a registration? In the case of litigation, the existence of a certificate of registration of copyright on source code deprives the author of the burden of proof in the court of the existence of his copyright in the work. This is called the presumption of authorship. In other cases, the author must prove and provide evidence to the court confirming his authorship, which in some cases is problematic because of the features of Ukrainian legislation.
Remedies for Infringement
According to Article 52 of the Law of Ukraine “On authors right and related rights”, the court has the right to pass a verdict which may demand infringer to:
- a) pay compensation for moral (non-property) damage caused by violation of copyright with a determination of the amount of compensation;
- b) reimburse damages caused by violation of copyright;
- c) pay to author all income received as a result of the violation;
- d) pay compensation, determined by the court, in the amount of from 10 to 50 thousand minimum wages, instead of indemnification or collection of income. The minimal sum is equal to 41730 UAH and maximal is to 208 mil. UAH;
- e) prohibit the publication of works, their performances or production, including confiscation of counterfeit;
- f) provide information about third parties involved in the production and distribution of counterfeit copies of works.
What happens if the offender is found guilty?
The use of source code without the appropriate authorization (license) of the author is considered is a violation of copyright and may be grounds for bringing the offender to the following types of liability in accordance with the current legislation of Ukraine:
- Administrative liability. According to Article 51-2 of the Code of Ukraine on Administrative Offenses illegal use of source code, assignment of authorship to such ] source code or other intentional violation of copyrights entails the imposition of a fine with confiscation of illegal copies of source code.
- Criminal liability. According to Article 176 of the Criminal Code of Ukraine distribution of source code without authorization, or other deliberate infringement of copyright and related rights, as well as the financing of such actions, if it caused material damage to a significant extent is punishable by a fine or correctional labor for a term up to two years, or imprisonment for the same term.
What’s more to Copyright Law in Ukraine?
Legal protection of copyright applies to all types of computer programs, including operating systems, applications, online services and software systems that can be expressed in any programming language and in any form including source code and object code. Copyright objects do not include the ideas and principles that underlie the programs, the ideas, and principles of the organization of the interface, and the algorithm, the programming language. In other words, copyright does not cover the functions performed by the source code and protects only a form of expression. This means that only source code is important, not the idea, concept or principles.
In the context of software, copyright is obtained automatically when the source code is written. However, if you wish to enforce copyright against someone making an unauthorized duplication or use, say for example a rogue employee is looking to sell your source code to a direct competitor, you MUST obtain a certificate of registration of the software containing the source code.
How to Copyright Source Code?
Although it is not obligatory to register copyrights to a software source code, it is important for the author in many cases to have evidence of the date of creation of his source code. Underestimation of this moment in the future may complicate the protection of copyright to the one’s own work. Therefore, one of the means of fixing the date of copyright appearance is its registration.
Ukrainian law introduced two types of registrations:
- Registration of the copyright to the work
- Registration of the copyright to the work, created in the course of employment relationships.
To register copyrights to the source code, author shall file an application, which consists of the following documents:
- the statement set forth in the Ukrainian language, which is in the form approved by the State Service of Intellectual Property;
- document certifying the facts and date of the publication of the work (if any);
- a document or a copy of the document for payment of the fee for preparation for the registration of copyright;
- a document on payment of fees for registration;
- power of attorney, executed in an established manner, if the application is submitted by the authorized person;
- the source code of the computer program (in paper or electronic form).
In addition to these materials, an application for the registration of copyright for a source code, created in the course of employment relationships shall be accompanied by a document confirming the ownership of the property rights to the work created in connection with the implementation of the employment contract (Article 429 of the Civil Code of Ukraine).
The author or the person who has the copyright signs application. The registration process can take up to 3 months.
The copyright office only begins verification once the presence of all attachments and their correctness is confirmed. In case of successful registration, information about the issuance of a copyright certificate is published in the newsletter of the Department of Intellectual Property, as well as entered in the relevant State Register. In conclusion, the applicant receives a certificate of registration of copyright to the work.
How long will Source Code Copyright last?
The copyright on a source code arises from the fact of its creation and appears from the day the source code was created. The copyright is valid throughout the life of the author and 70 years after his death.
The copyright on source code created in co-authorship stay effective during the life of co-authors and 70 years after the death of the last co-author.
Where exactly do I apply to Copyright Source Code?
The application is filed to of Ministry of Economic Development and Trade of Ukraine
Postal address: st. M. Hrushevsky, 12/2, Kyiv, 01008.
Personal submission of documents is carried out at the address: 28, Druzhby Narodiv St., Kiev Contact telephone for incoming correspondence: (044) 596-67-54
Contact phone numbers for consultations with questions of copyright and related rights: (044) 494-06-50, 494-06-51