Features of compensation for property and moral damage caused by violation of a contractual obligation to dispose of property rights to objects of related rights

Abstract

This paper raises the issue of compensation for property and moral damage caused by a violation of the contractual obligation to dispose of property rights to objects of related rights from an unusual aspect, namely, the fact that according to the provisions of Clause 3, Part 2, Article 53 of the relevant Law of Ukraine “On Copyright and Related Rights”, in fact, issues of compensation for moral and property damage can be addressed only in connection with such forms of disposal of property rights to objects of related rights that provide for the granting of a property right for use (the author emphasizes that, in his opinion, it is the property right for use in a certain way/ways that is granted, and not the object of related rights itself, since according to the current legislation of Ukraine, the object of intellectual property rights and the property right to it are separated from each other). The appeal in connection with such forms of disposal of property rights to objects of related rights, which provide for the transfer (alienation) of property rights, remains outside the scope of the above-mentioned provision. In connection with which, the author proposes in the work an updated version of clause 3, part 2, article 53 of the relevant Law of Ukraine “On Copyright and Related Rights” by means of a corresponding addition and forms of disposal of property rights to objects of related rights, which also provide for the transfer (alienation) of property rights. For this purpose, the author conducted a thorough analysis, in particular, of such forms of disposal of property rights to objects of related rights as an employment contract (contract) - in terms of the distribution of property rights to an official object of related rights, a contract for the creation by order and use of an object of related rights, another contract (it is meant that another contract as a form of disposal is provided for in accordance with the provisions of the current legislation of Ukraine, due to the fact that the list of forms of disposal is not exhaustive). Why else did the author of the work conduct such a thorough analysis of the forms of disposal? It was conducted in order to demonstrate that not only do there exist other forms of disposal, in addition to granting a property right for use, but also to demonstrate that a property right, including to objects of related rights, can still be transferred not completely (partially), that is, in certain ways, thus, being as if split.

A separate aspect raised in the work and actually the main one is the issue of the uncertainty of the identity of the creator of related rights, the depersonalization of such a person, by not including him in the composition of the subjects of related rights. And how can a person who is the creator of a particular related right apply for compensation for moral or property damage caused by a violation of the contractual obligation to dispose of property rights to objects of related rights, being uncertain, although according to the provisions of the current legislation of Ukraine, for example, personal non-property rights to an object, including related rights, created by an employee belong to him. In connection with the above, the author conducts a corresponding thorough analysis with a proposal also to make changes to the current wording of Part 1 of Article 55 of the relevant Law of Ukraine “On Copyright and Related Rights” in order to be consistent with the provisions of Articles 41, 54 of the Constitution of Ukraine.