The Illegal Behaviour as a Condition of Civil Liability for Copyright Infringement

Abstract

The article is devoted to the analysis of the concept and signs of illegal behaviour as a condition for the emergence of civil liability for copyright infringement. Approaches to the definition of illegal behaviour along with other conditions of civil liability are analyzed. It is established that illegality should be considered due to violation of the norms of objective and subjective law. It was found that illegality as a condition for the emergence of civil liability for copyright infringement is manifested through action, and in isolated cases through inaction. In particular, such actions are violation of personal non-property and property rights of the subjects of copyright, publication of another’s work under the name of a person who is not the author of this work, and so on. Special attention is paid to piracy and import and export from the customs territory of Ukraine without the consent of the author, as well as distribution, publication and reproduction of counterfeit copies of the work. It has been analyzed the cases of lawful actions on the use of works without the consent of the author, free use of the work with the name of the author, reproduction in court and administrative proceedings, free reproduction by libraries and archives of copies of the work, free reproduction of copies of the work for educational, personal purposes, etc.It has been clarified the difference between the concepts of ‘camcording’ and ‘cardsharing’, which are also illegal behaviour in copyright infringement. The author establishes that plagiarism is a type of illegal behaviour as a condition for the emergence of civil liability for copyright infringement. The definition of plagiarism as the appropriation of someone else’s work or its elements without indication of authorship, presenting them as their own has been introduced. Unlawful conduct as a condition of civil liability for infringement of copyright is also a violation of the terms of the contractual obligation, i.e. non-performance or improper performance of the terms of the obligation. Along with civil wrongdoing, criminal and administrative wrongdoing is analyzed. It has been proved that the application of the norms of administrative and criminal law does not deprive the offender of the obligation of civil liability, and therefore it is wrong to think that the liability is less than the sanction of an administrative offense is civil.