Evaluation concepts in the draft Law of Ukraine on Copyright and Related Rights: the- oretical and practical analysis

Abstract

The article is devoted to the analysis of the draft Law of Ukraine on Copyright and Related Rights registration number 5552-4 dated 09.06.2021 (hereinafter the Draft) for the use of evaluation concepts as a language tool of rule-drafting technique. The definition of evaluation concept is given. It is stated that the use of evaluation concepts is not only a property of domestic law, but also legislation of other countries. Attention is drawn to the fact that their introduction into the texts of legislative acts is objectively inevitable, provides individualization of legal regulation and the fullest protection of the rights and interests of the subject of law, but creates conditions for possible subjective law enforcement discretion. Therefore, the quality of the Draft is determined by the proper use of evaluation concepts.
 The list of evaluation concepts used in the text of the Draft is defined. The latter are compared with the corresponding concepts used in the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand (Chapter 9 «Intellectual Property») and Section 1 «Copyright and Related Rights» of Part 2 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. The conclusion is made that there is a certain correspondence and obvious regularity of the use of evaluation concepts both in the Draft and the mentioned legal acts. Many of these concepts are completely or partially duplicated, such as the «fair reward» and «normal use».
 In order to promote the proper use of evaluation concepts in the text of the Draft by its designers a list of prerequisites for their introduction into the developed regulations is proposed.
 It is noted that the presence of evaluation concepts in the text of normative legal acts necessitates the observance of certain rules of interpretation and application of evaluation norms. A systematic list of such rules, which in the long run will contribute to the effective use of future law to ensure the rights of intellectual property holders, is proposed.