Copyright liability: legal aspects for modern business

Deliberate and unintentional copyright violations

It is essential to consider that violations can be either deliberate or unintentional.

Deliberate infringement occurs when an individual is aware that they are using someone else’s content without permission but continues to do so. For example, a person might go to a cinema to record a popular new movie using a portable video camera or smartphone. They might consciously ignore the warnings against recording, which are often shown before the movie starts, and proceed with the filming.

Unintentional infringement might happen when content is used without proper research into its status. For instance, the owner of a small cinema in a rural town decides to show an old movie, not realizing that it is still under copyright. They assume that due to the age of the film, it has become public domain and does not require a licensing agreement to show it. This can still be considered a violation despite the lack of intent to infringe. The rights holders might file a lawsuit, although the court may consider the absence of intent to violate as a mitigating circumstance.

It is crucial to remember that ignorance of the law or rules does not exempt one from liability, but it can influence the severity of the penalty.

Liability for embedded content in technical devices

When specific content is embedded in technical devices, it is crucial to determine who is responsible for it. This could be the distributor, manufacturer, or even the retailer who offers these devices to end consumers. Different parties may bear different levels of responsibility in the event of a copyright infringement, from warnings to criminal liability.

According to the Ukrainian “Law on Copyright and Related Rights,” the distribution or configuration of technical devices, equipment, and programs that allow access to copyrighted or related rights objects without the permission of the rights holders is considered an action that merely creates a threat of infringement. Direct distribution, use, or reproduction of someone else’s content without proper permission is regarded as a direct infringement of copyright rights.

Advertising and copyright: legislative restrictions

It is necessary to consider the legislative norms that regulate the use of intellectual property also in the context of advertising. Advertising that includes intellectual property elements of others without their permission may be prohibited following complaints by such persons.

A prominent example of illegal copyright use in advertising and during the distribution of goods in Ukraine is the case of “Verka Serduchka against LLC ‘Monastyrsky Kvass.'”
In 2005, LLC “Nova” entered into licensing agreements with LLC “Monastyrsky Kvass” and LLC “DarL,” which allowed them to use the plaintiff’s character image on their products “Verkin Kvass Classic” and “Verkin Kvass Hangover Cure.”

However, the manufacturer continued this activity illegally after the contracts expired.
In 2015, Andriy Danilko, who performed as the character Verka Serduchka, decided to defend his copyright in court. The court recognized that the character and stage image of “Verka Serduchka” are original works protected under copyright law.

As a result, the court ordered the manufacturer to cease copyright infringement, withdraw all illegal goods from circulation, and pay Andriy Danilko 1.3 million hryvnias in compensation.

Conclusions

This case vividly illustrates the importance of adhering to copyright laws in commercial activities and the consequences that can arise from their violation.

It is important to remember that every creative work has an author who has invested time, talent, and energy into it, and failing to respect their rights constitutes a legal violation.

Entrepreneurs and companies should view the use of content as an opportunity for collaboration and mutually beneficial partnerships with authors. Obtaining permissions and negotiating agreements will not only ensure the absence of legal risks but also promote the development of positive relationships in the business environment.

This material was prepared at the request of the AIN.UA editorial team to clarify intellectual property issues within the context of infringement liability.

The full AIN.UA article can be found at the following link