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2023 | Book

Competition and Intellectual Property Law in Ukraine


About this book

This volume provides the most comprehensive contemporary academic writing on Ukrainian competition and intellectual property law in English. Especially over the last few years, these areas have been in considerable flux, a main driver being the EU–Ukraine Association Agreement. The chapters cover a broad range of different topics and share a forward-looking perspective. They also outline the basic background that is necessary to understand the context of the issue discussed, especially with regards to the legal system of Ukraine. The publication is the result of a two-year project, and it is addressed to a wide range of international scholars, practitioners, and policy makers. It aims to make the state-of-the-art in Ukrainian legal scholarship visible and accessible to the international research community and to stimulate global debates in academia and politics. Therefore, it may be of interest and use to anyone who is interested in competition and intellectual property law, and/or in Ukraine.

Table of Contents

Competition and Intellectual Property Law in Ukraine: Navigating the Landscape
This introduction to the volume “Competition and Intellectual Property Law in Ukraine” outlines the goal of the book while providing further factual background. It invites the reader into Ukraine’s legal landscape by briefly outlining the country’s governance and politics. The chapter then offers seven possible “tours” that may guide through the book and help the reader to grasp competition and intellectual property law in Ukraine from different perspectives, namely by legal areas, EU approximation, Ukrainian features of laws, Ukrainian institutions, special interests, methodology and interdisciplinarity, and public policy. The chapter concludes with future considerations.
Heiko Richter

Putting the Legal Framework in Perspective

The EU–Ukraine Association Agreement as a General Framework of Contemporary EU–Ukraine Relations
This chapter looks at the objectives, scope, implementation, and application of the EU–Ukraine Association Agreement (AA), which triggered unprecedented political, economic, and legal reforms in Ukraine. In particular, the chapter focuses on the constitutional challenges that have arisen while the AA is being embedded within Ukraine’s legal system. There are two issues which the chapter considers. The first is the effective implementation and application of the AA within the Ukrainian legal order in line with the “common values” and “market access” conditionality tools provided by the EU. The second issue is the compatibility of the AA with the Constitution of Ukraine. The latest political and legal developments in Ukraine are analysed through the prism of effective implementation of the EU–Ukraine Association Agreement and promotion of EU common values. In conclusion the EU–Ukraine AA is evaluated against the background of Ukraine’s application for EU membership on 28 February 2022. It is argued that the EU–Ukraine AA still remains the main contractual tool to lead Ukraine through the turbulent path of EU accession and considerably contributes to the adaptability of the national constitutional order to the future EU membership and EU common values.
Roman Petrov
Competition and International Trade: Complementing Trade Defense Policy with Effective Competition Policy in Ukraine
This chapter focuses on the relationship between competition and international trade. Competition policy is aimed at achieving the most efficient allocation of resources and thereby the maximization of national welfare. The primary goal of trade defense policy, on the other hand, is to assist domestic producers in recovering from the injury caused by imports. In other words, whereas the focus of competition policy is on preserving competition rather than protecting competitors, the main purpose of trade remedies is protecting domestic competitors. The latter often generates negative effects on competition. The chapter looks at the origin of such inconsistency in objectives, which could be found in both World Trade Organization (WTO) and Ukrainian law, and argues that both policies can nevertheless be complementary. To reconcile the conflicting objectives, it is proposed to introduce competition considerations into the trade defense policy of Ukraine by strengthening one of the elements of trade remedy investigations, namely the public interest requirement.
Zvenyslava Opeida
Legal Support of State Economic Policies of Ukraine in the Context of Investment Development and Protection of Competition
This chapter examines the general legal framework of Ukrainian state economic policies in the sphere of investment and competition development. It presents the descriptions of the tools and role of state economic policy in solving the challenges of today, the main features of the legal framework of Ukrainian state economic policy, the directions of the legal stimulation of investments, including innovations and competition protection in the state economic policy of Ukraine, and the general perspectives of the implementation of successful foreign experience. The material is aimed at suggesting ways of improving the legislative quality of state economic policy of Ukraine in the context of developing the efficiency of law enforcement, transparency and consistency of managerial decisions, sufficiency of incentives and guarantees, anti-corruption effectiveness, access to capital, protection of corporate rights and stability of legal regulation of the economy, ensuring the balance of private and public interests.
Oleg Podtserkovnyi

Competition Law

The “Europeanization” of Competition Law in Ukraine
The EU–Ukraine Association Agreement (the EU–Ukraine AA) significantly affects the particular application of national competition rules. Due to including strict and specific provisions on competition rules within the EU–Ukraine AA, we can observe a tendency towards the “Europeanization” of competition law due to the transposition of commitments on the implementation of competition acquis into Ukrainian legal order. The competition chapter of the EU–Ukraine AA is lengthy and divided in two sections: anti-trust and mergers; and state aid. This chapter analyzes the main achievements of Ukrainian competition law from the perspective of the transposition of substantial norms (merger regulation, vertical restraints and exemptions) and the implementation of procedural principles. Particular attention is paid to the practice of the Anti-monopoly Committee of Ukraine (the AMCU), including the grounding of decisions and the adoption of specific by-laws. This chapter also analyzes current judicial practice of Ukrainian courts with strict reference to the provisions and commitments of the EU–Ukraine AA, and it examines the norms of the obligatory approximation of substantial norms, as well as the necessity of their enforcement to the system. Particular attention is also paid to state aid and the current enforcement practice of the AMCU, as well as judicial practice, including two current Ukrainian Supreme Court decisions in the field of state aid.
Kseniia Smyrnova
Vertical Agreements in the Competition Law of Ukraine and the EU: A Closer Look at Resale Price Maintenance
The chapter examines resale price maintenance (RPM) in Ukraine in detail with reference to the practice of the Antimonopoly Committee of Ukraine (AMCU) and compares this with the current approach of the European Commission (EC). The comparative analysis goes beyond identifying the gaps between Ukraine and the European Union (EU) in this legal area; it provides a constructive normative analysis on means for Ukraine to advance. Following the Introduction, Sec. 2 focuses on the overview of the strict approach towards RPM in the legal framework of Ukraine. Cases of the AMCU as well as the courts are also cited here to understand the Ukrainian specifics of the subject matter. Section 3 provides highlights of RPM in the EU and its approach in this regard under the new Vertical Block Exemption Regulation, where such practices are viewed as restrictions of competition by object which may be exempted. Section 4 deals with the discussion on the weaknesses and strengths of the per se and rule of reason approaches to RPM, as well as further legislative reforms. It is suggested that when a supplier does not have significant market power, from an economic standpoint, such a small firm should be allowed to benefit from RPM. The strict approach should be relaxed at least de facto. Additionally, it is highly recommended that the AMCU improves its case search engine to allow any interested party to benefit from it.
Hanna Stakheyeva
The “New Normal” in Competition—Filling the Gaps of Ukrainian Competition Law in the Digital Economy Age
This chapter analyses the current state of and perspectives on Ukrainian competition law and policy development to help meet the challenges arising from the evolution of the modern digital economy. It provides the technological and social framework of competition in the twenty-first century, which is substantially determined by the strategic behavior of e-platforms, a fact that holds true for economies worldwide, including Ukraine. This chapter provides a review of some Ukrainian markets marked by the presence of e-platforms. Such a framework provides the range of competition-related challenges, including those to vertical competition, market definition and procompetitive data management. Some of these challenges can be met partially with the current Ukrainian competition law, while others need the latter to be further developed. The authors suggest the introduction of the concept of vertical competition into the legislation; the development and adoption of a new methodology of market definition that accounts for the challenges of multisided contracting, zero-pricing and network effects, etc.; the management of killer-acquisitions through keeping the pre-reform merger control thresholds in the digital sphere; the cooperation of the Antimonopoly Committee of Ukraine and the National Commission for the State Regulation of Electronic Communications, Radiofrequency Spectrum and the Provision of Postal Services (NCEC) in granting gatekeeper status to e-platforms and regulating their impact on competition. This kind of regulatory cooperation does not replace the need for the soft regulation of data management, multihoming and self-preferencing, but enlarges it.
Anzhelika Gerasymenko, Nataliia Mazaraki
Towards a New Digital Competition Policy of Ukraine: The EU Matrix
The leading antitrust jurisdictions are introducing a paradigmatic reform of the rules regulating competition in digital markets. Not only do they revolutionize the enforcement mechanism, they are equally innovative in terms of the constitutional and ideological questions concerning the very role of economic competition in the broader constellation of societal values. Against this background, the system of competition law of Ukraine is following a different path. The chronologic gap keeps it somewhere in the 1990s with the dominance of the reductionist beliefs in the omnipotent power of neoclassical economics to solve axiomatically all antitrust conundrums. The Ukrainian competition policy is currently being shaped by the normative imperative of non-intervention, invoked in opposition to the previous central planning system inherited from the Soviet past. This situation is counterintuitive because the main influencer behind this paradigm—the European Union—itself is undergoing a U-turn in many questions of its own competition policy. Now, when the approach is being so fundamentally revised, it would be a dead-end street for Ukraine to continue pursuing it without a systemic readjustment. The new philosophy of “smart regulation” should be transposed. After the illegal war against Ukraine was brutally initiated by Russia, it became clear that Ukraine will be ultimately offered a meaningful perspective of joining the EU. This requires a fundamental revision of the current conception of Ukraine’s digital competition policy. This chapter aims to articulate the key elements of the emerging EU digital competition law, indicating the areas requiring transposition to competition policy of Ukraine.
Oles Andriychuk
The Intersection Between Intellectual Property and Competition Laws in the Pharmaceutical Sector: A Ukrainian Perspective
Robust protection of competition is particularly important in the field of pharmaceuticals as this may help to improve access to affordable medicines and foster medical innovation. While the Antimonopoly Committee of Ukraine (AMCU) has undertaken certain activities in the pharmaceutical sector aimed at combating price increases, these activities do not cover practices that rely on intellectual property (IP) rights that may have a negative effect on the pharmaceutical market. The aim of this chapter is to explore the current competition law approach to IP-related practices in Ukraine. It will discuss certain exemptions related to IP agreements and will suggest that the current competition law rules may require clarification. Specifically, to ensure that only genuinely procompetitive IP agreements are allowed, it will be suggested that it may be necessary to develop specific guidance on the correct interpretation of the law and its application to IP-related agreements. By way of example, the chapter will discuss anticompetitive IP-related agreements that are unique to the pharmaceutical industry, i.e. “pay-for-delay” agreements. While such agreements have not been the subject of investigation by the AMCU, they have attracted particular attention in the European Union (EU) and the US. The chapter will discuss the approaches for assessing such agreements developed in the EU and the US, and will provide some recommendations that, it is believed, will help to create more effective competition law enforcement in the field of pharmaceuticals for the benefit of Ukrainian patients. The discussion in this Chapter, while focusing on Ukraine, may also be useful to other jurisdictions that seek to improve their competition law enforcement in the field of IP to facilitate access to medicines.
Olga Gurgula
Legal Mechanisms of Protection Against Unfair Competition in Ukraine—Prerequisites, Problems and Trends
Fair competition embodies certain moral-ethical and socio-historical ideas about good and evil in business activity, determining the limits of permitted behaviour, especially in competition. Studying the issues of economic competition legislation, we found that researchers have not tried to define the concept and content of fair competition in their research, although each of them pointed to the need to provide conditions for its development and protection. Thus, fair competition serves as a certain ideal or goal of legal regulation for most researchers, but there is no specific objective form of its implementation. The judicial and administrative practices of terminating unfair competition in business activity are based on a similar position, although the decisions of the Antimonopoly Committee of Ukraine and the courts sometimes differ. For 20 years, the Antimonopoly Committee of Ukraine has been the leader of legal protection against unfair competition, having promoted the ideas of pro-competitive awareness through competition advocacy mechanisms. In the last few years, the leading role in ensuring an effective mechanism for protection against unfair competition has lain with the courts, in particular the Commercial Division of the Supreme Court of Ukraine. That is why we have been observing changes in approaches to the definition of unfair competition and the combination of a general prohibition of unfair competition with related categories of the abuse of rights and the protection of intellectual property rights over the last three to five years.
Olga Bakalinska
Protecting Intellectual Property Rights from Unfair Competition in Ukraine
This chapter examines the protection of intellectual property from unfair competition in Ukraine. Infringements in this area have now become widespread. The objects of intellectual property rights (such as trademarks, trade names, trade secrets, geographical indications) are a means by which some business entities can obtain illegal benefits by exploiting the reputation of other business entities. In order to maintain or restore their reputation on the market and ensure their competitiveness, business entities pay great attention to monitoring and preventing possible infringements of their intellectual property rights on the market. This, in turn, requires the use of effective remedies. This chapter discusses the general concepts of and the charged relationship between unfair competition and intellectual property, and specific forms of unfair competition with regards to intellectual property rights (i.e. the illegal use of designations, the illegal use of comparative advertising, the dissemination of misleading information, and violations of trade secrets). Since Ukraine became independent, it has become the practice to consider such cases, and this chapter will analyse key cases in detail. Finally, this chapter will discuss the role of and the protection procedure applied by the Antimonopoly Committee of Ukraine in courts. In the future, all disputes concerning infringements in the field of unfair competition and intellectual property rights will be considered by the High Court on Intellectual Property.
Olha Kronda

Policies and Law on Intellectual Property

Association Agreements and Problems Approximating Intellectual Property Legislation of Third Countries with the EU Acquis: The Case of Ukraine
Is it possible for a non-EU country to reach a level of IP legislation compatible with that of the EU and to apply it effectively? This chapter explores this issue based on the analysis of the content and the implementation practices of EU Partnership and Cooperation Agreements with Ukraine and other Newly Independent States and the Association Agreements with Ukraine, Moldova and Georgia, as well as other EU free trade agreements. It examines the problem of incompleteness of the IP provisions of these Association Agreements compared to the respective EU acts, the lack of an approximation mechanism in the Agreements and the problem of interpretation of the implemented EU provisions. The chapter considers possible measures to create a sustainable mechanism for approximating Ukrainian IP legislation to EU law and for efficiently applying the implemented provisions of the Agreement and EU acts. Furthermore, it discusses methodological issues of approximation of the IP legislation of third countries to EU law, including EU candidate countries, and illustrates the specifics of approximation of national legislation to EU law by focusing on certain IP subject matter.
Yuriy Kapitsa
Strategic Directions of the Intellectual Property Area Development in Ukraine
This chapter is devoted to analysis of the National Strategy on Intellectual Property Area Development in Ukraine till 2025 (the National IP Strategy). The research is based on expert approaches, the World Intellectual Property Organization’s guidelines, analysis of the international IP framework, and on activities of the state authorities within the context of development and implementation of the National IP Strategy. The National IP Strategy puts special emphasis on the tasks facing the national legislator in the adoption of national legislation to fulfill Ukraine’s obligations under the Association Agreement with the EU in the field of intellectual property. It underlines the need to promote the development of IP management, ensure the growth of innovative potential of research institutions, review the role of intellectual property in the activities of small and medium-sized enterprises (SMEs), and to enhance the functional potential and transparency of collective management organizations (CMOs). The demand of developing the security system for geographical indications, which should include practical methods for the registration, protection and promotion of national geographical indications in the EU market, based on the Association Agreement with EU, is pointed out. The agenda also includes actions against patent trolling as well as organizing campaigns to inform the public about the adverse effects of piracy and counterfeiting. The joint actions with the international community will continue within the WTO cooperation, considering the WHO’s position to demonopolize the IP rights for the objects involved in counteracting the COVID-19 pandemic.
Olena Orliuk
The New Intellectual Property Court in Ukraine: Its Creation and Exclusive Jurisdiction
Ukraine has set out to establish a new specialised IP Court. The creation of this IP Court is an important element of current reforms that are aimed at improving the operation of the Ukrainian judicial system. It is believed that the new Court will improve IP enforcement by decreasing the duration of court proceedings and simultaneously increasing the quality of decisions in IP cases. While the creation of the IP Court is generally considered to be highly desirable, certain issues in the set-up and operation of this Court may reduce the effectiveness of the judicial process in IP cases and require clarifications and/or adjustments. Among such matters is the exclusive jurisdiction of the IP Court and a potential overlap with the jurisdiction of the administrative courts and other state authorities. This chapter will outline the developments leading to the establishment of the IP Court. It will also discuss certain examples of a potential collision between the jurisdictions of the IP Court and the administrative courts, and will provide suggestions on how this could be rectified.
Anna Shtefan, Olga Gurgula
Legislative Reforms on Patents, Utility Models and Industrial Designs in Ukraine
This chapter is devoted to the characteristics of Ukrainian patent law, which regulates the relationship of granting, exercise, termination and protection of intellectual property rights to inventions, utility models and industrial designs. The questions are of high current relevance, due to the implementation of the last Ukrainian patent law reform, which took place in 2020. The chapter elaborates the history and characteristics of the current state of legal regulation and identifies associated problems and the prospects for improvement. It focuses on the main innovations of patent legislation on inventions, utility models and industrial designs, including the procedure for granting and exercising exclusive rights. Furthermore, it describes of the status of the National Intellectual Property Authority and discusses its role in protecting industrial property rights.
Leonid Tarasenko
Patent Law and Access to Medicines in Ukraine
This chapter is devoted to aspects of the impact of intellectual property on the market of medicines through the prism of the balance of private and public interests. It describes Ukraine’s path to reform in the field of intellectual property (IP) in the context of expanding access to medicines and presents a review of the social and legal factors that accelerated patent reform in medicine and pharmacy. Novelties in legislation are reviewed from the standpoint of their deferred impact on the market of medicines and the rapid effect of the reform. The events of the COVID-19 pandemic, which caused rapid changes in the spirit of IP, which culminated in proposals for its liberalization, influenced the preparation of this material. Calls for exemptions from IP rights concerning the objects used to counter the pandemic are heard even more often within the framework of the TRIPS Council at WTO events. In the current Ukrainian legislation, most of the norms that provide for IP exemptions in the interests of society to protect public health are declarative in nature and do not provide a legal mechanism for their implementation. Unfortunately, the patent reform did not implement all IP exemptions, and compulsory licensing and government use should be drafted by the government of Ukraine. It should be noted that during the preparation of this material the task force involving the WHO and World Bank experts as well as leading Ukrainian experts began its work at the Ministry of Health of Ukraine with the aim of developing the Health Care Reform Strategy until 2030, “Access to Medicines” being part of it. Among others, it will include provisions on IP and access to treatment.
Oksana Kashyntseva
The Patentability of Biotechnological Inventions in the EU: The Ukrainian Context
The problems of bioengineering development and the use of its results in medicine have become extremely important due to the powerful development of modern technologies and their capabilities. At the same time, this issue cannot be attributed purely to the field of medicine, as it is also closely related to the ethical, social, economic and, of course, legal spheres. If we talk about the legal side of the issue, it is impossible not to touch on the topic of patenting the results of bioengineering. Patenting the results of bioengineering has begun to form a new vector in scientific research. If earlier the scientific study of cells of organisms, including human ones, was based on openness and access of the whole scientific community to its course and results, now it has become a commercialised and monetised domain. The difficulty in understanding this issue is compounded by the fact that the use of living cells in research remains an area in which there is no consensus among states. This chapter aims to identify the spheres in which it is forbidden to patent the results of medical research and as a consequence there is no legal protection of biotechnological inventions. It focuses on Ukrainian and European legislation and their comparison because Ukraine must study the European experience and practice of patenting the results of bioengineering, as the Association Agreement makes European standards in this area part of its legal system. Moreover, the chapter outlines some trends in the development of legal regulation of bioengineering. All these questions are important in the light of the development of the Ukrainian market for biotechnological developments (according to the Annual Report of the National Intellectual Property Office of Ukraine, in the period 2016–2020 1208 applications for inventions in the field of “biotechnology” were submitted).
Tetyana Komarova
The Reformed Design Law in Ukraine: What is Right with EU Trade Agreements?
This chapter will examine the recent legal reform of Ukrainian design law against the background of the discussion concerning the adverse effect of European Union law on third countries’ legal order, which is being particularly pursued in European scholarly circles. The author will trace the positive impact of the EU norms on Ukrainian design legislation. This positive impact is namely achieved through the introduction of new registrability requirements modelled on the EU system. The author will further examine how Ukrainian policy-makers fill legal gaps in the definitions and interpretation of those notions that are not covered in the EU–Ukraine Association Agreement, namely those that are not included in the letter of the law but have been developed within ECJ judicial practice (e.g. freedom of the designer, informed user). Lastly, the author will discuss the practicalities and difficulties of the export of norms from the EU to third countries, particularly complicated in areas where there is a gap between codified norms and the actual judicial practice of the ECJ.
Anastasiia Kyrylenko
Why so Few Geographical Indications in Ukraine? Legal, Political and Socio-Economic Perspective
In September 2017, the EU–Ukraine Association Agreement entered into force, and with it, some 3,000 geographical indications (GIs) from the EU received protection in Ukraine. In turn, only two Ukrainian GIs were filed by Ukrainian authorities for protection in the EU. This chapter looks into the reasons behind such a low number of registered GIs in Ukraine, from a legal, political and socio-economic perspective. This is achieved mainly through historical research, which is complemented by a comparative perspective from other countries in the Central and Eastern Europe region, as well as discussion with local policy-makers. Although many causes are uncovered throughout this chapter, recent developments of the GI system in Ukraine also show that many of them can be surmounted, provided there is sufficient interest and support.
Anastasiia Kyrylenko
Copyright and Its Exceptions and Limitations in Ukraine
This chapter outlines the main provisions of the copyright law of Ukraine in the light of the Berne Convention for the Protection of Literary and Artistic Works, WIPO models, EU legislation and TRIPS. On this basis, the chapter enquires deeper into the peculiarities of exceptions and limitations as a mechanism for balancing the interests of the author and society. As a member of the Berne Convention, Ukraine applies the three-step test to copyright exceptions and limitations. At the same time, each type of free use of works has its own specific conditions which determine the scope and characteristics of the lawful free use of works: for some exceptions and limitations, the use of works must be exclusively non-commercial; in other cases, the possibility of obtaining a commercial benefit is irrelevant. Some types of copyright exceptions and limitations that are provided for in the legislation of EU Member States do not yet apply in Ukraine, although they are mentioned in the EU–Ukraine Association Agreement. The study of the types of free use of works allows one to characterize the system of copyright exceptions and limitations, the rules of their application, and their further development in Ukrainian copyright law.
Anna Shtefan
Protection of Works Posted on the Internet Under Ukrainian Copyright Law
This chapter examines copyright protection and enforcement regarding works posted on the internet in light of the current Ukrainian and EU case-law practice. Along with the process of using a copyrighted work on the internet, the chapter focuses on four legal issues. First, the “making available of a work to the public” is discussed. This should be defined as a type of communication to the public in such a way that members of the public may access this work from a place and at a time individually chosen by them. Unlike current Ukrainian legislation, this interpretation corresponds with the provisions of the WIPO Copyright Treaty and the EU–Ukraine Association Agreement. The chapter goes on to examine the key issue of exhaustion of rights for works uploaded to the internet and provides reasons why exhaustion should not apply to posting works on the internet. Thirdly, the chapter analyzes copyright infringement types susceptible to taking place on the internet. In particular, it discusses the conditions under which the act of placing hyperlinks/framing/hotlinking to other websites and objects can be considered as the use of a work and, therefore, as copyright infringement. Finally, the chapter describes copyright enforcement for works posted on the internet by extrajudicial measures, including the Ukrainian version of the “notice and takedown” procedure.
Kostiantyn Zerov
Legal Framework for Output Based on Artificial Intelligence: Ukraine’s Place on the Global Search Path
This chapter outlines the Ukrainian discussion on providing a legal framework for output based on artificial intelligence (AI) with a view to identifying its place and embedding it in the global debate. To this end, the author briefly sets out a common theoretical basis together with practical insights of copyrightability requirements under Ukrainian copyright law and then proceeds to examine output based on AI against them. This assessment reveals the particularities of scholarly approaches to treating such output in Ukraine and other jurisdictions. While the threshold of human involvement sufficient for a work to obtain copyright protection is yet to be clarified, the Ukrainian academic sector generally considers that Ukrainian copyright law does not protect a considerable part of output based on AI. Further, the more sophisticated AI systems in creative industries will become, the more output based on AI will be non-copyrightable. Under these circumstances, Ukrainian scholarly circles have actively embarked on a search for a legal framework for such output. The chapter offers an overview of ideas put forward in this regard and puts them in an international context. Particular attention is paid to the initiative on introducing a new sui generis right for non-original computer-generated objects as the only proposal that has so far made its way to the legislative initiative level. By shedding light on the Ukrainian ideas, the chapter shows the way for future considerations and perspectives.
Kateryna Militsyna
On the Reforms, Practice and Perspective of the Law on Collecting Societies in Ukraine
This chapter explores the current state and potential of collective management of copyright and related rights in Ukraine after the adoption of the Law on Collective Management Organisations in 2018 (Law on CMOs). Despite the overall success of the collective management reform, this remains one of the most controversial areas of copyright in Ukraine. This chapter identifies and explores positive and negative processes caused by the new law and perspectives for collective rights management in Ukraine. The following positive outcomes of the reform of the Law on CMOs are considered: (1) bringing Ukrainian CMOs’ standards closer to European standards; (2) elimination of state involvement; (3) introduction of new types of rights into collective management; and (4) increased transparency of CMOs. Further, the law has strengthened the obligations and rights of all subjects of the Law on CMOs, but first and foremost of CMOs with regard to transparency and accountability of their activities. The process of liquidating the state CMO, as a vestige of Soviet legal approaches, is also considered as a positive outcome of the reform. As a negative practice, certain problems of applying the law are discussed. These are: (1) the slow implementation of the law’s provisions; (2) the uncertainty surrounding the procedure of withdrawing rights from collective management; and (3) problems relevant to the tariff-setting process. Although the introduction of the rights withdrawal procedure has undoubtedly strengthened the rights of authors and rightholders, the Ukrainian practice so far has been ambiguous. Based on these findings, the chapter considers perspectives for collective management in Ukraine.
Liubov Maidanyk
Competition and Intellectual Property Law in Ukraine
Heiko Richter
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Springer Berlin Heidelberg
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