ДОГОВІР ПРО СТВОРЕННЯ ЗА ЗАМОВЛЕННЯМ І ВИКОРИСТАННЯ ОБ’ЄКТА АВТОРСЬКОГО ПРАВА АБО ОБ’ЄКТА СУМІЖНИХ ПРАВ

Abstract

Based on the analysis of the current legislation of Ukraine, the concepts, features, essential conditions of the contract on the creation to order and use of the object of copyright or the object of related rights are studied. The expediency of changing the name of the contract in the Civil Code of Ukraine is substantiated. Instead of «agreement on the creation to order and use of an object of intellectual property rights», the name «agreement on the creation to order and use of an object of copyright or an object of related rights» is more accurate, since the contract is the legal basis for the creation and acquisition of intellectual property rights ownership exclusively of objects of copyright/related rights. The creation of objects of patent law, means of individualization of business entities, goods, works, services, etc. on the basis of a contract is excluded due to the need to obtain title-establishing and right-confirming documents for them (patents, certificates). It is proposed to supplement the legislative definition of the contract: under the contract for the creation and use of an object of copyright or an object of related rights, one party (creator – writer, artist, etc.) undertakes to create such an object in accordance with the requirements of the other party (the customer) and within the specified period, and the customer undertakes to accept and pay for the created object. A comparative characterization of the contract under study with the contract of subcontracting was carried out. An essential condition of the contract is the condition about its subject – the object of copyright/related rights, which will be created in accordance with the customer's requirements. The customer's requirements must be clearly spelled out in the contract, otherwise at the stage of implementation when the object is handed over to the customer, it is impossible to establish whether it meets his requirements. If the requirements were not specified, the customer must accept the created object or refuse to accept it with the corresponding legal consequences. The terms of the term, payment, the procedure for its implementation, if such is established, the method of transfer of the object, other conditions are established by the parties by mutual agreement. The contract, according to the imperatives, must define the methods and conditions of the customer's use of the facility. However, the legal consequences of non-compliance with such a requirement have not been established. Therefore, if the parties in the contract did not agree on the methods and conditions of the use of the object by the customer, then such an agreement cannot be considered a contract on the creation and use of an object of copyright or an object of related rights by order, and according to the relationship of the parties, the relevant prescriptions of Art. 1112 of the Civil Code of Ukraine and the Law «On Copyright and Related Rights». In the case of creating a work of art according to the contract, it should be taken into account that the original work of fine art, created by order, becomes the property of the customer. At the same time, intellectual property rights to such a work remain with its author, unless otherwise established by contract or law. The contract is consensual, mutual, retaliatory/non-reciprocal, concluded in written (electronic) form under penalty of nullity.