ЗАХИСТ АВТОРСЬКИХ/СУМІЖНИХ ПРАВ У РАЗІ СТВОРЕННЯ ЗАГРОЗИ ЇХ ПОРУШЕННЯ: ТЕОРЕТИКО-ПРИКЛАДНІ ПИТАННЯ

Abstract

With the entry into force of the new Law of Ukraine "On Copyright and Related Rights", the legal regulation of the protection of copyright/related rights has been significantly updated. The theoretical and applied problems of protection of copyright/related rights in the event of a threat of their violation are investigated. In the 1993 Law "On Copyright and Related Rights", committing actions that create a threat of infringement of copyright/related rights was also recognized as one of the types of their violation, without specifying such actions. Unlike the 1993 Law, the new Law defines actions that create a threat of violation of personal non-property and property copyright and related rights. These include, in particular: 1) distribution, importation into the customs territory of Ukraine of technical devices, equipment, which includes a computer program and provides access to the objects of copyright and/or objects of related rights without the permission of the relevant subjects of copyright rights or subjects of related rights (including when the computer program, applications and supplements to it, technologies or technical devices use signals of other Internet resources); 2) setting up a computer program, applications, supplements to them, technologies, technical devices that provide access to objects of copyright and/or objects of related rights without the permission of the relevant subjects of copyright or subjects of related rights such objects (including when a computer program, applications and supplements to it, technologies or technical devices use signals from other Internet resources); 3) provision of instructions on setting up a computer program, applications and supplements to it, technologies, technical devices to gain access to copyright objects and/or objects of related rights without the permission of the relevant copyright subjects or subjects related rights of such objects in any form for the purpose of receiving remuneration from the provision of such instructions. The conditions of civil liability in the event of a threat of infringement of copyright/related rights are studied. The ground for civil liability is the offense as a legal entity. The conditions for civil liability are the following: illegality of the act; damage; causal connection between illegal acts and damage; fault. In the event of a threat of violation of the rights of their subject, no harm occurs. However, the requirement to remove the threat of infringement is inherently a way to protect copyright/related rights. It is worth rethinking traditional approaches to understanding the conditions of civil liability. This may arise and appropriate means of responsibility should be applied not only in the case of committing an offense as a fact of real reality, but also in the event of creating a threat of violation of the law. This is a feature of civil liability, a manifestation of its preventive function. On a practical level, there may be problems in proving a direct causal link between actions and a real threat to copyright/related rights.