Some issues of application of the Association Agreement as the source of copyright of Ukraine

Abstract

The article covers the main aspects of the Association Agreement as a source of copyright and problems of its application.On the example of the practice of the Court of the European Union, the criteria on the basis of which the law of the EU can be applied directly and without the implementation in the domestic law were established.Based on the analysis of the rules of the current legislation of Ukraine, it was concluded that the Association Agreement is the part of the national legislation and is applied in the same manner as foreseen for the rules of the national legislation. In the context of copyright, the Agreement has primacy over domestic law provisions that contain rules other than those in the Agreement.Since Ukrainian courts do not refer to the authentic text of the international treaty in a foreign language but to its official translation, the article analyses the legislation in this regard. It is established that in the law of Ukraine there is no provision which obliges to use only the official translation of the international treaty and prohibits the use of the authentic text of the treaty in another language in which it was concluded. However, if the party of the case indicates that the translation of the text of the international treaty is inaccurate and will refer to the authentic text in a foreign language, the court will not take this into account. The article gives an example of such a case, where the claimant tried to draw the court’s attention to the English text of the Association Agreement but the court used the text of the official translation.There are some problems in the official translation of the text of the Association Agreement illustrated by two examples. In Part 2 of Art. 180 translators added the term «mathematical expression» which significantly influences the criteria for providing legal protection to computer programs while in the original text of the Agreement there is no such a term. In Art. 174 translators confused «right of making the work available to the public for the first time» and «right of communication to the public» and incorrectly translated the term «exhaustion of rights». As a result of these errors, a new content was formed which completely differs from the wording of this article in the authentic English text.Due to the fact that some errors found in the official translation of the text of the Agreement have a direct effect on the legal relationships in the field of copyright, this means that the same legal relationship in the EU and Ukraine is regulated differently by the same rule of the Agreement. It is concluded that the official translation of the Association Agreement needs to be amended as the accuracy of the translation is very important for the application of the Agreement.