Legislation in the field of copyright: evaluation of effectiveness

Keywords: effectiveness of legislation, criteria for assessing the effectiveness oflegislation, copyright, intellectual property The effectiveness of legislation is its ability to cause for the participants of socialrelations the expected consequences due to the purpose of legal rules, includingthe ability to satisfy the interests of the participants of these relations. Effective legislationis characterized by such features as quality, the ability to act, stability, dynamism,sufficiency. These properties reflect the level of reproduction in legal acts ofthe needs and trends of development of society, technical characteristics of legislation,its ability to comprehensively and optimally determine all the necessary meansof protection and regulation of relations without excessive and unjustified interferencein the behaviour of the subjects of these relations.The Ukrainian copyright system comprises two basic laws: the Civil Code of Ukraineand the Law of Ukraine «On Copyright and Related Rights». In addition, there are anumber of laws that regulate certain areas of creation and use of works. This applies inparticular to architecture, theatres, publishers, media. However, the existence of an extensivesystem of regulations is not a guarantee of the effectiveness of legislation in thefield of copyright which has a number of shortcomings, in particular:•the lack of unification of terminology when in different laws different terms areused for the same phenomenon. For example, the subject of copyright in some cases iscalled «right holder» or «person owning the copyright»;•the presence of collisions when the same aspect of relations is regulated differentlyin different acts. For example, in Art. 29(2) of the Law on copyright the group ofpersons who can protect the inviolability of work after the author’s death is limited bythe heirs while Art. 439(2) of the Civil Code includes not only heirs but, also a personauthorized by the author to carry out such protection and other interested persons. InUkraine, there is no clear clarification of which rule is to be applied in case of collisionsthat causes problems in practice;•the presence of outdated provisions that do not correspond to the modern developmentof science, technology, and society, and therefore cannot be effectively applied; •the presence of provisions that cannot be implemented due to the lack of appropriatelegal mechanisms. These are cases in which the law declares a certain rule orstandard which must act in the manner prescribed by law but, this legal regime doesnot exist. This applies, for example, to the extension of the sui generis right to nonoriginaldatabases mentioned in Art. 10(1)(e) of the Law on copyright, while the legislationcontains no provision for this right;•gaps in the legal regulation associated with the essential needs that have beenobjectively formed in society. Copyright legislation does not contain rules for the useof orphan works, some important exceptions and limitations that exist in many othercountries. Due to these and other gaps, legislation incompletely and non-exhaustivelyregulates relations in the sphere of creation and use of works.This negatively affects the effectiveness of legislation and can significantly complicatelaw enforcement. Therefore, the improvement of copyright law is one of the mostimportant tasks of today.