利用互联网终止侵犯版权行为的程序:法律规制的创新

L. Tarasenko
{"title":"利用互联网终止侵犯版权行为的程序:法律规制的创新","authors":"L. Tarasenko","doi":"10.30970/vla.2023.76.089","DOIUrl":null,"url":null,"abstract":"The article considers the legal analysis of copyright protection in an extrajudicial manner using the Internet. The author analyzes the procedure for terminating copyright violations that occur in the digital environment. It is established that the Law of Ukraine «On Copyright and Related Rights» No. 2811-IX normalized relations in a new way, including taking into account the development of the digital environment and in connection with the transformation of many copyright objects into digital form. It is established that the legislative changes relate to the procedure for copyright protection. One of the innovations was the updating of the procedure for out-of-court protection of copyright and related rights that are violated on the Internet (the so-called «TAKE DOWN NOTICE» procedure). It is proven that this procedure is important considering the fact that, as of today, almost all objects of copyright have moved to the digital environment, to the Internet, each website is a collection of digital content that includes various objects copyright (written works, photographic works, audiovisual works, etc.). It is also proven that the introduction of an updated procedure for out-of-court protection of copyrights that have been infringed on the Internet is a positive trend for proper legal protection of copyrights. It is substantiated that the specified out-of-court procedure can enjoy significant popularity and be useful to the subjects of property copyrights, provided that the procedure for publishing data about website owners, which is provided for by the copyright law, is established. It is established that the TAKE DOWN NOTICE procedure provided for by the copyright law contains certain debatable points, but its minor shortcomings or certain controversial provisions should not stand in the way of its wide application. It is also established that the participants of the TAKE DOWN NOTICE procedure are the subject of copyright, the provider and the owner of the website. The subject of copyright, for the protection of whose rights this procedure is initiated, is either the author or another subject of property copyright. It is substantiated that it is advisable to extend the extrajudicial procedure for copyright protection to the protection of moral rights (such as the right to a name, the right to preserve the integrity of a work, etc.). In the absence of relevant changes to the law on copyright, it is possible to apply the analogy of the law. It is concluded that unlike the previous copyright law, which allowed the use of the TAKE DOWN NOTICE procedure only for certain objects, such as audiovisual works, musical works (with or without text), computer programs, phonograms, videograms, programs (transmissions) of broadcasting organizations that are in electronic (digital) form, the new approach of the legislator expanded the list of objects of copyright and related rights that may be the subject of protection, and may refer to any object of copyright (and related rights), which falls under the concept of digital content. It is highlighted that a statement on the termination of copyright infringement in the digital environment is a position exclusively of the subject of the appeal (that is, the position of the right holder), which may be unfounded and unfounded. Therefore, the owner of the website (web page) can defend himself and prove the legality of the presentation of digital content on his website (web page) by providing evidence that he has the appropriate copyright for the use of this content or that he has permission for such use. It is established that the right holder may not always be able to identify the owner of the website or web pages, as the registrars, guided by the legislation on the protection of personal data and GDPR, do not publicly disclose information about natural persons - the owners of the website. It is stated that in the event of a dispute regarding the legality/illegality of placing certain digital content on the Internet, the right holder shall provide the hosting provider with confirmation of the opening of court proceedings on the protection of copyright for the object placed as digital content, in respect of which an application for termination of infringement. It is substantiated that submitting an application for the termination of copyright infringement in written form is possible only at the stage of submitting the application and receiving a response to it, because in the future all correspondence between the copyright holder, the owner of the website (web page), the provider will take place only in electronic form, because in the opposite case it is impossible to comply with short deadlines (24-48 hours) for taking certain actions, which are provided by law. It is proven that returning to the written form of correspondence within the framework of the TAKE DOWN NOTICE procedure is impractical. It is established that the owner of a website or web page is not liable for copyright infringement committed using the Internet, if within 48 hours after receiving a notice of termination of the violation, he has prevented access to the digital content referred to in the notice.","PeriodicalId":139620,"journal":{"name":"Visnyk of the Lviv University. Series Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2023-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"PROCEDURE FOR TERMINATION OF COPYRIGHT VIOLATIONS USING THE INTERNET: INNOVATIONS IN LEGAL REGULATION\",\"authors\":\"L. Tarasenko\",\"doi\":\"10.30970/vla.2023.76.089\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"The article considers the legal analysis of copyright protection in an extrajudicial manner using the Internet. The author analyzes the procedure for terminating copyright violations that occur in the digital environment. It is established that the Law of Ukraine «On Copyright and Related Rights» No. 2811-IX normalized relations in a new way, including taking into account the development of the digital environment and in connection with the transformation of many copyright objects into digital form. It is established that the legislative changes relate to the procedure for copyright protection. One of the innovations was the updating of the procedure for out-of-court protection of copyright and related rights that are violated on the Internet (the so-called «TAKE DOWN NOTICE» procedure). It is proven that this procedure is important considering the fact that, as of today, almost all objects of copyright have moved to the digital environment, to the Internet, each website is a collection of digital content that includes various objects copyright (written works, photographic works, audiovisual works, etc.). It is also proven that the introduction of an updated procedure for out-of-court protection of copyrights that have been infringed on the Internet is a positive trend for proper legal protection of copyrights. It is substantiated that the specified out-of-court procedure can enjoy significant popularity and be useful to the subjects of property copyrights, provided that the procedure for publishing data about website owners, which is provided for by the copyright law, is established. It is established that the TAKE DOWN NOTICE procedure provided for by the copyright law contains certain debatable points, but its minor shortcomings or certain controversial provisions should not stand in the way of its wide application. It is also established that the participants of the TAKE DOWN NOTICE procedure are the subject of copyright, the provider and the owner of the website. The subject of copyright, for the protection of whose rights this procedure is initiated, is either the author or another subject of property copyright. It is substantiated that it is advisable to extend the extrajudicial procedure for copyright protection to the protection of moral rights (such as the right to a name, the right to preserve the integrity of a work, etc.). In the absence of relevant changes to the law on copyright, it is possible to apply the analogy of the law. It is concluded that unlike the previous copyright law, which allowed the use of the TAKE DOWN NOTICE procedure only for certain objects, such as audiovisual works, musical works (with or without text), computer programs, phonograms, videograms, programs (transmissions) of broadcasting organizations that are in electronic (digital) form, the new approach of the legislator expanded the list of objects of copyright and related rights that may be the subject of protection, and may refer to any object of copyright (and related rights), which falls under the concept of digital content. It is highlighted that a statement on the termination of copyright infringement in the digital environment is a position exclusively of the subject of the appeal (that is, the position of the right holder), which may be unfounded and unfounded. Therefore, the owner of the website (web page) can defend himself and prove the legality of the presentation of digital content on his website (web page) by providing evidence that he has the appropriate copyright for the use of this content or that he has permission for such use. It is established that the right holder may not always be able to identify the owner of the website or web pages, as the registrars, guided by the legislation on the protection of personal data and GDPR, do not publicly disclose information about natural persons - the owners of the website. It is stated that in the event of a dispute regarding the legality/illegality of placing certain digital content on the Internet, the right holder shall provide the hosting provider with confirmation of the opening of court proceedings on the protection of copyright for the object placed as digital content, in respect of which an application for termination of infringement. It is substantiated that submitting an application for the termination of copyright infringement in written form is possible only at the stage of submitting the application and receiving a response to it, because in the future all correspondence between the copyright holder, the owner of the website (web page), the provider will take place only in electronic form, because in the opposite case it is impossible to comply with short deadlines (24-48 hours) for taking certain actions, which are provided by law. It is proven that returning to the written form of correspondence within the framework of the TAKE DOWN NOTICE procedure is impractical. It is established that the owner of a website or web page is not liable for copyright infringement committed using the Internet, if within 48 hours after receiving a notice of termination of the violation, he has prevented access to the digital content referred to in the notice.\",\"PeriodicalId\":139620,\"journal\":{\"name\":\"Visnyk of the Lviv University. Series Law\",\"volume\":\"9 1\",\"pages\":\"0\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2023-05-16\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Visnyk of the Lviv University. Series Law\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.30970/vla.2023.76.089\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"\",\"JCRName\":\"\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Visnyk of the Lviv University. Series Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.30970/vla.2023.76.089","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 0

摘要

本文对利用互联网进行法外保护的著作权问题进行了法律分析。作者分析了数字环境下著作权侵权行为的终止程序。乌克兰《版权及相关权利法》第2811-IX号以一种新的方式规范了关系,包括考虑到数字环境的发展以及许多版权对象向数字形式的转变。可以确定的是,这些立法变化与版权保护程序有关。其中一项创新是更新了在互联网上侵犯版权和相关权利的庭外保护程序(所谓的“删除通知”程序)。事实证明,考虑到以下事实,这一程序是重要的,截至今天,几乎所有的版权对象都转移到数字环境中,到互联网,每个网站都是数字内容的集合,其中包括各种版权对象(书面作品,摄影作品,视听作品等)。同时也证明,对网络侵权著作权的庭外保护程序的更新,是对著作权进行适当法律保护的积极趋势。事实证明,只要确立著作权法规定的网站所有人数据公布程序,规定的庭外程序对财产著作权主体具有显著的普及性和实用性。作者认为,版权法规定的“撤下通知”程序存在一定的争议点,但其不足之处或某些有争议的规定不应妨碍其广泛适用。还确定,撤下通知程序的参与者是版权的主体,是网站的提供者和所有者。为保护其权利而启动本程序的版权主体,可以是作者,也可以是财产版权的其他主体。实践证明,将著作权保护的法外程序扩展到对精神权利(如姓名权、保护作品完整性的权利等)的保护是可取的。在著作权法未作相关修改的情况下,可以运用著作权法的类比。结论是,与以前的版权法不同,以前的版权法只允许对某些对象使用“删除通知”程序,例如视听作品、音乐作品(带或不带文本)、计算机程序、录音制品、录像制品、广播组织的电子(数字)形式的节目(传输),立法者的新方法扩大了版权和相关权利的对象列表,这些对象可能是受保护的对象。并且可以指版权(和相关权利)的任何对象,属于数字内容的概念。需要强调的是,关于数字环境下版权侵权行为终止的声明,完全是申诉主体(即权利人的立场)的立场,可能是毫无根据和毫无根据的。因此,网站(网页)的所有者可以通过提供证据证明他拥有使用该内容的适当版权或他获得使用该内容的许可,来为自己辩护并证明在其网站(网页)上呈现数字内容的合法性。可以确定的是,权利持有人可能并不总是能够识别网站或网页的所有者,因为注册商在个人数据保护立法和GDPR的指导下,不会公开披露有关自然人(网站所有者)的信息。规定,在对将某些数字内容放置在互联网上的合法性/违法性发生争议时,权利人应向托管提供商提供关于对放置的数字内容进行版权保护的法院诉讼程序的确认书,并就此申请终止侵权。事实证明,只有在提交申请并收到回应的阶段,才能以书面形式提交终止侵犯版权的申请,因为在未来,版权持有人、网站(网页)所有者、提供商之间的所有通信将仅以电子形式进行,因为在相反的情况下,不可能遵守采取某些行动的短期限(24-48小时)。这是法律规定的。事实证明,在撤下通知程序的框架内恢复书面通信形式是不切实际的。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
PROCEDURE FOR TERMINATION OF COPYRIGHT VIOLATIONS USING THE INTERNET: INNOVATIONS IN LEGAL REGULATION
The article considers the legal analysis of copyright protection in an extrajudicial manner using the Internet. The author analyzes the procedure for terminating copyright violations that occur in the digital environment. It is established that the Law of Ukraine «On Copyright and Related Rights» No. 2811-IX normalized relations in a new way, including taking into account the development of the digital environment and in connection with the transformation of many copyright objects into digital form. It is established that the legislative changes relate to the procedure for copyright protection. One of the innovations was the updating of the procedure for out-of-court protection of copyright and related rights that are violated on the Internet (the so-called «TAKE DOWN NOTICE» procedure). It is proven that this procedure is important considering the fact that, as of today, almost all objects of copyright have moved to the digital environment, to the Internet, each website is a collection of digital content that includes various objects copyright (written works, photographic works, audiovisual works, etc.). It is also proven that the introduction of an updated procedure for out-of-court protection of copyrights that have been infringed on the Internet is a positive trend for proper legal protection of copyrights. It is substantiated that the specified out-of-court procedure can enjoy significant popularity and be useful to the subjects of property copyrights, provided that the procedure for publishing data about website owners, which is provided for by the copyright law, is established. It is established that the TAKE DOWN NOTICE procedure provided for by the copyright law contains certain debatable points, but its minor shortcomings or certain controversial provisions should not stand in the way of its wide application. It is also established that the participants of the TAKE DOWN NOTICE procedure are the subject of copyright, the provider and the owner of the website. The subject of copyright, for the protection of whose rights this procedure is initiated, is either the author or another subject of property copyright. It is substantiated that it is advisable to extend the extrajudicial procedure for copyright protection to the protection of moral rights (such as the right to a name, the right to preserve the integrity of a work, etc.). In the absence of relevant changes to the law on copyright, it is possible to apply the analogy of the law. It is concluded that unlike the previous copyright law, which allowed the use of the TAKE DOWN NOTICE procedure only for certain objects, such as audiovisual works, musical works (with or without text), computer programs, phonograms, videograms, programs (transmissions) of broadcasting organizations that are in electronic (digital) form, the new approach of the legislator expanded the list of objects of copyright and related rights that may be the subject of protection, and may refer to any object of copyright (and related rights), which falls under the concept of digital content. It is highlighted that a statement on the termination of copyright infringement in the digital environment is a position exclusively of the subject of the appeal (that is, the position of the right holder), which may be unfounded and unfounded. Therefore, the owner of the website (web page) can defend himself and prove the legality of the presentation of digital content on his website (web page) by providing evidence that he has the appropriate copyright for the use of this content or that he has permission for such use. It is established that the right holder may not always be able to identify the owner of the website or web pages, as the registrars, guided by the legislation on the protection of personal data and GDPR, do not publicly disclose information about natural persons - the owners of the website. It is stated that in the event of a dispute regarding the legality/illegality of placing certain digital content on the Internet, the right holder shall provide the hosting provider with confirmation of the opening of court proceedings on the protection of copyright for the object placed as digital content, in respect of which an application for termination of infringement. It is substantiated that submitting an application for the termination of copyright infringement in written form is possible only at the stage of submitting the application and receiving a response to it, because in the future all correspondence between the copyright holder, the owner of the website (web page), the provider will take place only in electronic form, because in the opposite case it is impossible to comply with short deadlines (24-48 hours) for taking certain actions, which are provided by law. It is proven that returning to the written form of correspondence within the framework of the TAKE DOWN NOTICE procedure is impractical. It is established that the owner of a website or web page is not liable for copyright infringement committed using the Internet, if within 48 hours after receiving a notice of termination of the violation, he has prevented access to the digital content referred to in the notice.
求助全文
通过发布文献求助,成功后即可免费获取论文全文。 去求助
来源期刊
自引率
0.00%
发文量
0
×
引用
GB/T 7714-2015
复制
MLA
复制
APA
复制
导出至
BibTeX EndNote RefMan NoteFirst NoteExpress
×
提示
您的信息不完整,为了账户安全,请先补充。
现在去补充
×
提示
您因"违规操作"
具体请查看互助需知
我知道了
×
提示
确定
请完成安全验证×
copy
已复制链接
快去分享给好友吧!
我知道了
右上角分享
点击右上角分享
0
联系我们:info@booksci.cn Book学术提供免费学术资源搜索服务,方便国内外学者检索中英文文献。致力于提供最便捷和优质的服务体验。 Copyright © 2023 布克学术 All rights reserved.
京ICP备2023020795号-1
ghs 京公网安备 11010802042870号
Book学术文献互助
Book学术文献互助群
群 号:604180095
Book学术官方微信