Pre-judicial procedure of pirate content blocking in Internet
In March 2017 Ukrainian Parliament had adopted amendments to the copyright legislation that should allow copyright owners to efficiently remove the infringing content under Ukrainian jurisdiction from the World Wide Web.
Upon discovery of unauthorized use of the copyrighted works at a web-site in the Internet the rights holder can opt for submitting a written demand to the owner of a web-site (and/or his hosting provider) to cease the infringement, and if the latter complies with this demand he is indemnified of liability for copyright infringement.
Below you can find information on the key features of this new copyright protection procedure.
1. What types of works are protected under the new legislation?
- Audiovisual works;
- Musical works;
- Computer programs;
- Video records, audio records, broadcasts.
2. Can the claim be filed directly by the rights holder?
No, the claim must be presented through a certified local attorney, who verifies the identity of the rights holder, his contact information, documents of title and existence of the infringement.
3. What information is required to initiate the action?
- Information about the applicant (rightholder):
- location (place of residence);
- information about registration in the company register, including name of the register and registration record number (for legal entities).
- Type and name of the infringed copyrighted work(s);
- Reasoned statement about ownership of the copyright or related rights, with reference to the chain of title and duration of the exclusive rights (in order to simplify the process it may be expedient to obtain copyright registration for any relevant work that may be subject of enforcement, e.g. in the US Copyright Office);
- Hyperlink to the digital information posted or used otherwise at the web-site;
- Information about the web-site's hosting provider:
- E-mail or postal address.
4. What is the procedure of the claim consideration?
The claim is sent by e-mail (with digital signature) or certified mail to the web-site owner with a copy to the web hosting service provider. The web-site owner has 48 hours to consider the claim and either comply with the demands (i.e. remove access to the infringing content) or refuse to satisfy them.
If the web-site owner does not control the web-page where the copyrighted works are located (if the web-site is a social network or an online marketplace for example) he should redirect the claim to the owner of the web-page within 24 hours of its receipt and inform the rights holder accordingly. The owner of the web-page then bears the same rights and responsibilities as the web-site owner and has 48 hours for claim consideration.
If the owner of the web-page does not provide his response within the specified time limit the web-site owner disables the access to the infringing content by himself and reports to the rights owner.
5. When can the addressee of the claim refuse to comply with the demands of the rights holder?
The refusal of the addressee can be based on the following grounds:
- He has the legal rights to use the identified copyrighted works and has provided the proof of such rights to the claimant within the time limit for response.
- The addressee is not the owner of the web-site in question.
- The claim is not compliant with the requirements of the legal provisions, and addressee has informed the claimant about the fact within the time limit for response.
In addition to the above-mentioned information the refusal of the web-site owner should also contain his name and contact information (address, registration number) sufficient for filing the court claim against him, as well as indication of the digital information under dispute.
6. When can the claim be sent to the web hosting service provider instead of the web-site owner?
The web hosting service provider can be addressed directly on the subject of copyright infringement on the hosted web-site under one of the following circumstances:
- The web-site owner has not provided a timely response to the initial claim of the rights holder or the provided response was incomplete;
- Information on the web-site and in WHOIS database does not allow to identify the web-site owner in order to present a claim to him directly.
Upon receipt of such claim the hosting provider sends its copy to the web-site owner within 24 hours. The latter has 24 hours to consider the claim and either comply or refuse to satisfy it.
If no response is provided within 24 hours the hosting provider should remove the access to the disputable digital content and inform the claimant and the web-site owner.
7. Can the web-site owner restore access to the disputable digital information blocked by the web hosting service provider?
Yes, after receiving information about removal of the access to the web-site from the hosting provider, the web-site owner can provide the provider with his written refusal to satisfy the claim (as described in § 5 above). The hosting provider should send a copy of the refusal to the rights holder within 48 hours of its receipt.
After receiving a copy of the refusal the rights holder has 10 days to initiate the court action against the web-site owner and provide a proof of commencement of the proceedings to the hosting provider. In absence of such proof the hosting provider restores access to the disputable digital content.
8. Is there any penalty for the repeated infringement?
Yes, no indemnification of liability for copyright infringement is provided to the web-site/web-page owner who committed a second infringement of the same copyrighted work on the same web-site within three months of the first one, even if the corresponding claims of the rights holder were satisfied and the content was removed.
9. What is the liability for non-compliance with the established rules?
Administrative liability in the form of a fine in the amount between 500 and 1 000 tax-free allowances (between 1 000 and 2 000 tax-free allowances for the repeated violation of these rules within a year).
10. Are there any sanctions for providing inaccurate information about availability of the copyright and related rights.
Yes, a fine in the amount between 1 000 and 2 000 tax-free allowances is stipulated for providing inaccurate information.