Draft Association Agreement between the European Union and Its Member States and Ukraine. Chapter 9 Intellectual Property

This is the final part of the document which did not happen to become effective.

Article 179
Unwaivable right to equitable remuneration

1. Where an author or performer has transferred or assigned his/her rental right concerning a phonogram or an original or copy of a film to a phonogram or film producer, that author or performer shall retain the right to obtain equitable remuneration for the rental.
2. The right to obtain equitable remuneration for rental cannot be waived by authors or performers.
3. The administration of the right to obtain equitable remuneration may be entrusted to collecting societies representing authors or performers.
4. The Parties may regulate whether and to what extent administration by collecting societies of the right to obtain equitable remuneration may be imposed, as well as the question from whom this remuneration may be claimed or collected.

Article 180
Protection of computer programs

1. The Parties shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention. For the purposes of this provision, the term "computer programs" shall include their preparatory design material.
2. Protection in accordance with this Agreement shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Agreement.
3. A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.

Article 181
Authorship of computer programs

1. The author of a computer program shall be the natural person or group of natural persons that has created the program or, where the legislation of the Parties permits, the legal person designated as the right holder by that legislation.
2. In respect of a computer program created by a group of natural persons jointly, the exclusive rights shall be owned jointly.
3. Where collective works are recognised by the legislation of the Parties, the person considered by the legislation of the Parties to have created the work shall be deemed to be its author.
4. Where a computer program is created by an employee in the execution of his/her duties or following the instructions given by his/her employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.

Article 182
Restricted acts relating to computer programs

Subject to the provisions of Articles 183 and 184 of this Agreement, the exclusive rights of the right holder within the meaning of Article 181, shall include the right to carry out or to authorise:
(a) permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. Insofar as acts of loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, those acts shall be subject to authorisation by the right holder;
(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;
(c) any form of distribution to the public, including the rental, of the original computer program or of copies thereof.

Article 183
Exceptions to the restricted acts relating to computer programs

1. In the absence of specific contractual provisions, the acts referred to in Article 182(a) and (b) of this Agreement shall not require authorisation by the right holder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.
2. The making of a back-up copy by a person having a right to use the computer program may not be prevented by contract insofar as it is necessary for that use.
3. The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

Article 184
Decompilation

1. The authorisation of the right holder shall not be required where reproduction of the code and translation of its form within the meaning of Article 182 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:
(a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;
(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a) of this paragraph; and
(c) these acts are confined to the parts of the original program which are necessary to achieve interoperability.
2. The provisions of paragraph 1 shall not permit the information obtained through its application:
(a) to be used for goals other than to achieve the interoperability of the independently created computer program;
(b) to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.
3. In accordance with the provisions of the Berne Convention, this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the right holder's legitimate interests or conflicts with a normal exploitation of the computer program.

Article 185
Protection of databases

1. For the purposes of this Agreement, "database" shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.
2. Protection under this Agreement shall not apply to computer programs used in the making or operation of databases accessible by electronic means.

Article 186
Object of protection

1. In accordance with Sub-section 1, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.
2. The copyright protection of databases provided for in Sub-section 1 shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.

Article 187
Database authorship

1. The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Parties so permits, the legal person designated as the right holder by legislation.
2. Where collective works are recognised by the legislation of the Parties, the economic rights shall be owned by the person holding the copyright.
3. In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly.

Article 188
Restricted acts relating to databases

In respect of the expression of a database which is protectable by copyright, the author of the database shall have the exclusive right to carry out or to authorise:
(a) temporary or permanent reproduction by any means and in any form, in whole or in part;
(b) translation, adaptation, arrangement and any other alteration;
(c) any form of distribution to the public of the database or copies thereof;
(d) any communication, display or performance to the public;
(e) any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in subparagraph (b).

Article 189
Exceptions to restricted acts relating to databases

1. Performance by the lawful user of a database or a copy thereof of any of the acts listed in Article 188 of this Agreement which is necessary for purposes of access to the contents of the database and normal use of the contents by the lawful user shall not require the authorisation of the author of the database. Where the lawful user is authorised to use only part of the database, this provision shall apply only to that part.
2. The Parties shall have the option of providing for limitations on the rights set out in Article 188 in the following cases:
(a) in the case of reproduction for private purposes of a non-electronic database;
(b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
(c) where there is use for purposes of public security or for the purposes of an administrative or judicial procedure;
(d) where other exceptions to copyright are traditionally authorised by each Party, without prejudice to subparagraphs (a), (b) and (c).
3. In accordance with the Berne Convention, this Article may not be interpreted in such a way as to allow its application in a manner which unreasonably prejudices the right holder's legitimate interests or conflicts with normal exploitation of the database.

Article 190
Resale right

1. The Parties shall provide, for the benefit of the author of an original work of art, a resale right, to be defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.
2. The right referred to in paragraph 1 shall apply to all acts of resale involving as sellers, buyers or intermediaries art market professionals, such as salesrooms, art galleries and, in general, any dealers in works of art.
3. The Parties may provide in accordance with their legislation that the right referred to in paragraph 1 shall not apply to acts of resale where the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed a certain minimum amount.
4. The royalty shall be payable by the seller. The Parties may provide that one of the natural or legal persons referred to in paragraph 2 other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty.

Article 191
Broadcasting of programmes by satellite

Each Party shall provide the author with an exclusive right to authorise the communication of copyright works to the public by satellite.

Article 192
Cable retransmission

Each Party shall ensure that when programmes from the other Party are retransmitted by cable in their territory the applicable copyright and related rights are observed and that such retransmission takes place on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators.

To be continued? Remains unknown.

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