IP and Show Business: Regulation, Protection and E-Contracts

Following the gain of independence, Ukraine entered a new era of socio-economic development. As the result, previously unknown industries and businesses started to emerge. One of these spheres was show business. Despite the fact that Ukraine remains far behind its western partners, show business remains one of the most promising and underestimated industries in the country. One of its cornerstones is the protection of IPsector, which takes on enormous importance in creating opportunities for attracting domestic and foreign investments in this area and its further development. The relevant situation is due to the fact that the subject of this business is always a product of creative activity, commercialization thereof always depends on the demand for this product and the status of its legal security. For this reason potential investors and private businesses in the field of entertainment industry are trying to find the most effective ways to protect their intangible assets.

Interconnection of IP and Show Business: Regulation

The relationship between IP and show business is observed at all stages of creation, development and functioning of show business. Regardless of the fact that show business is a complex industry, the high-priority key force of its commercialization is intangible assets. The relevant objects, in particular, may be:

— marks for goods and services that can serve as a reliable means for the protection of brands owned by record companies; producers’ record labels; names of musical bums; stage-names of performers;

— inventions, utility models and industrial designs that can be used to protect innovation technologies in show business: devices for sound recording and digital processing of video; various online platforms designed for purchase and sale of musical works; innovative ways for tracking the lawfulness of use of copyright and related rights objects, etc;

— copyright objects, the processing thereof is required for protecting the texts of musical works, plots of videos, artistic images, stage costumes, artistic scenery, audiovisual works and so on;

— phonograms and videograms.

This list is not exhaustive and reflects only some edges of interrelatedness between show business and IP. In this regard, in recent years the issue of determining the current system of show business regulation is arising. The law of Ukraine provides a large number of legal acts regulating the legal relations in IP which is an integral part of show business. The major legislative acts, in particular, are the following:

— Civil Code of Ukraine No.435-15;

— Commercial Code of Ukraine No.436-15;

— Law of Ukraine No.3689-12 On the Protection of Rights to Marks for Goods and Services;

— Law of Ukraine No.3792-12 On Copyright and Related Rights;

— Law of Ukraine No.3687-12 On the Protection of Rights to Inventions and Utility Models;

— Law of Ukraine No.3688-12 On the Protection of Rights to Industrial Designs;

— Law of Ukraine No.675-19 On E-Commerce;

— Law of Ukraine No.852-15 On Electronic Digital Signature;

— other statutory and regulatory enactments.

Legal Protection of Intangible Assets in Show Business

Any intangible assets in show business  have its own specific form. Ukrainian law offers a wide range of rights protection for such objects. One of the main such tools is registration of relevant objects at the Ukrainian Institute of Intellectual Property. The bright illustration of such a protection is registration by production companies of its brand, label and commercial name in the form of trademark. As trademarks other intangible assets can be registered, including stage-names of performers, names of music albums, etc. Due to such a legal protection, show business representatives will have the opportunity to obtain legal protection of their assets in Ukraine, monopolize their right to use these assets and create favorable conditions for reinvestment and business expansion.

Another means of protecting the rights to intangible assets is conclusion by show business representatives of agreements on alienation of IP property rights with the authors, other persons making a contribution to the creation of an intangible asset. As the result of such contract execution, after payment of fees to authors and other persons, the company or person who has organized and funded the creation of the product, becomes the owner of all exclusive property rights to such a product, that allows its owner to use and dispose of the product every how, including receiving profit from its use.

An additional means of protecting intangible assets is registration of copyright objects. A large number of artistic works falls under this category, in particular: sceneries, plots of movies, artistic images, texts of musical works etc. An interesting fact is that the legal protection for these objects is provided immediately after its creation and does not require mandatory state registration. In spite of this, we strongly recommend to register such objects to ensure documentary evidences that would confirm the legal status of such objects. As business practice shows, the right holders often have some difficulties in proving their authorship to the object or the origin of property rights to it, that provides unfair competitors with the opportunity to illegally use the object and assign authorship to it. In this case, the most effective way to solve this issue shall be judicial remedy wherein the major written evidence of authorship or property rights origin shall be the certificate of copyright registration to the work. It’s worth noting that the above-mentioned measures are exclusively preventive ways for rights protection. The law of Ukraine provides for other means of protecting the rights to intangible assets, which are mainly intended to protect already infringed rights. These measures include, in particular: suspension of the pass of counterfeit copies of phonograms and videograms through the customs border; prohibition of illegal use of identification means owned by show business representatives); exclusion from the civil circulation of goods manufactured or imported into civil circulation in violation of IP rights; demand for financial recompense for copyright infringement; and other measures.

Under all circumstances, it should be kept in mind that solving any legal issue requires, primarily, a delicate approach and use of extra-judicial remedies for its resolution.

E-Contracts in Show Business

In recent years, the output of business online has become increasingly popular. This situation also applies to show business, where IT takes this industry to a new level. With the adoption of Law of Ukraine No.675-19 On E-Commerce show business representatives got the opportunity to create a variety of online platforms (net labels), for  sale and distribution of music and other products among consumers on the Internet. These steps of lawmaker ensured the right holders a legal basis for business activity on the Internet, and brought Ukraine closer to its Western partners. As the result of this enactment, the rights holders and consumers are empowered to enter into e-contracts for sale and purchase of work copies without worrying about the possible legal risks of such transactions. One more interesting issue concerning show business e-contracts is the issue of concluding contracts on IP rights disposal. It’s noteworthy that Law of Ukraine No.675-19 On E-Commerce does not apply to this kind of contracts. However, the law of Ukraine specifies that agreements on IP rights disposal shall be executed exclusively in writing. Pursuant to the provisions of Civil Code of Ukraine the electronic form of contract is an equivalent to the written one. Based upon this, we can conclude that the rights holders and show business representatives are entitled to enter into any contract on IP rights disposal in an e-form. This form of contracts allows for the right holders to freely dispose of their intangible assets on the Internet, including by way of alienating their property rights to partners, concluding license agreements for media product use, or otherwise transferring intangible assets to other participants in show business. An essential requirement for the use of e-form of these contracts is the use by parties to the contract of electronic digital signature, the legal status and use thereof are set forth by Law of Ukraine No.852-15 On Electronic Digital Signature. Notwithstanding the above, the issue of the use of EDS by non-residents using EDS, issued pursuant to the law of foreign state, still remains open. Ukraine has not yet passed a law that would regulate the recognition process of EDS, issued under foreign law, and define the status of documents certified by this EDS. However, there are many other mechanisms in Ukrainian law that allow for implementation of the corresponding projects in another form.

Epilogue

To sum it up, we can conclude that the domestic show business industry is still at the stage of its formation. The law of Ukraine offers a wide range of methods for legal regulation of relations in this area and ensures show business representatives the opportunity to apply innovative technologies in business and ways to protect their rights. Though the legal edge of ​​show business by all accounts still requires additional legal regulation, that would provide a new wave of development of this type of business and rapprochement process of Ukraine with its western partners in the media sphere.