ФОТОГРАФІЧНИЙ ТВІР ЯК ОБ’ЄКТ ПРАВОВОЇ ОХОРОНИ

Abstract

The article analyzes a photographic work as an object of legal protection. The author researches the peculiarities of legal protection of photographs, characterizes their legal nature, analyzes the peculiarities of the exercise of copyright in photographs. It is established that a photographic work can exist in various forms, but as of today photography is created and exists mainly in digital form, which determines the peculiarities of the exercise and protection of rights to it. It is highlighted that the national copyright law does not contain a definition of a photographic work, a photograph as well as a work made by means similar to a photograph, which is a shortcoming of legal regulation. It is proved that the object of legal protection is a photographic work, not a photograph, which may have all the features of the object of copyright. In addition, it is substantiated that the legal regime of a photographic work is also not defined in the legislation of Ukraine, which is a shortcoming of legal regulation. It is established that the Law of Ukraine «On Copyright and Related Rights» practically does not pay attention to the characteristics of a photographic work, only mentioning it among the objects of copyright. Moreover, it is proved that the features of a photographic work as an object of copyright are its creative character (as a result of creative activity), original character (expressed in a creative way of expressing the author’s idea – framing, lighting, focus, camera settings, etc.) and objective form of expression as a result of transferring the work from the author’s consciousness in the form of a creative idea to an independent material object, mainly in digital form). It is established that the creative and original nature of photography are often identified as features of the object of copyright. In turn, it is justified that a photograph and other works of art depicting an individual may be publicly shown, reproduced, distributed only with the consent of this person, and in case of his death – with the consent of persons specified by the law. It is proved that such an institution as the freedom of panorama, which characterizes the ability to photograph architectural objects that are in public places, is practically not regulated at the level of law. Consequently, it is established that the right to photograph the relevant architectural object as an object of copyright belongs to the personal non-property rights of the architect, but this approach of the legislator seems questionable, as the photography is a way to capture and reproduce the object of architectural activity as an object of copyright, which is a way to use property rights as a copyright. The imperfection of the application of the so-called «take down notice» procedure, provided for in Art. 52-1 of the Law of Ukraine «On Copyright and Related Rights», is stated, as this out-of-court procedure for protection of copyright in the digital environment does not apply to photographic works, which is a shortcoming of legal regulation.