Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 39, Nº 71 (2021), 660-681
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/09/2021 Aceptado el 24/11/2021
The current state of copyright and
intellectual property in the IT eld
DOI: https://doi.org/10.46398/cuestpol.3971.40
Oleksandra S. Yavorska *
Vitaliy M. Kosovych **
Ihor Y. Boiko ***
Leonid L. Tarasenko ****
Iryna I. Shpuhanych *****
Abstract
Fast improvement of the IT eld requires relevant safety
of intellectual assets rights. The legal protection of laptop
applications, software programs and foreign legal practices is a
contentious issue. With the rapid development of the IT sector
within the international context, the issues of copyright safety,
patenting and non-disclosure of personal data have gained
urgency. The research methodology involved the use of methods of analysis
and synthesis, logical and system - structural analysis, control methods,
structural and functional analysis in combination with the method of case
study and the method of content analysis. The article comprehensively
analyses the modern perspective of intellectual belongings proper and
copyright in IT outsourcing. The scope of unconventional challenges in
the sphere of copyright safety inside the area of IT sphere are exemplied
using the case of Ukraine. The case addresses opportunities to enhance
the regulatory framework for copyright safety of experts engaged in IT
outsourcing. It is stressed that the existing legal procedures and methods
are slower in responding to changes in the eld of IT outsourcing than the
world’s quickest trends in this sphere.
* Doctor of Law, Professor, Head of the Department of Intellectual Property, Information and Corporate
Law, Faculty of Law, Ivan Franko National University of Lviv, 79000, Lviv, Ukraine. ORCID ID:
https://orcid.org/0000-0002-6938-2057
** Doctor of Law, Associate Professor, Head of the Department of Theory and Philosophy of Law, Faculty
of Law, Ivan Franko National University of Lviv, 79000, Lviv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-6551-2686
*** Doctor of Law, Professor, Head of the Department of History of the State, Law and Political Law
Teachings, Faculty of Law, Ivan Franko National University of Lviv, 79000, Lviv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-1377-2328
**** PhD in Law, Associate Professor, Department of Intellectual Property, Information and Corporate Law,
Faculty of Law, Ivan Franko National University of Lviv, 79000, Lviv, Ukraine. ORCID ID: https://
orcid.org/0000-0003-4359-8965
***** PhD in Law, Associate Professor, Department of Intellectual Property, Information and Corporate
Law, Faculty of Law, Ivan Franko National University of Lviv, 79000, Lviv, Ukraine. ORCID ID:
https://orcid.org/0000-0002-4149-8939
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 660-681
Keywords: IT outsourcing; copyright protection; IT market, IT services;
intellectual property.
El estado actual de los derechos de autor y la
propiedad intelectual en el campo de las tecnologías de la
información
Resumen
Con el desarrollo del sector de las tecnologías de la información TI en
el contexto internacional, las cuestiones de la seguridad de los derechos
de autor, las patentes y la no divulgación de datos personales han ganado
urgencia. La metodología de investigación implicó el uso de métodos de
análisis y síntesis, análisis lógico y estructural de sistemas, métodos de
control, análisis estructural y funcional en combinación con el método de
estudio de caso y el análisis de contenido. El artículo analiza exhaustivamente
la perspectiva moderna de la propiedad intelectual y los derechos de autor
en la subcontratación de TI. El alcance de los desafíos no convencionales
en el ámbito de la seguridad de los derechos de autor dentro del ámbito
de la esfera de las tecnologías de la información se ejemplica utilizando
el caso de Ucrania. Además, el trabajo aborda oportunidades para mejorar
el marco regulatorio para la seguridad de los derechos de autor de los
expertos involucrados en la subcontratación de TI. A modo de conclusión
se destaca que los procedimientos y métodos legales existentes responden
más lentamente a los cambios en el campo de la subcontratación de TI que
las tendencias más rápidas del mundo en esta esfera.
Palabras Clave: outsourcing de TI; protección del derecho de autor;
mercado de TI, servicios de TI; propiedad intelectual.
Introduction
An important aspect in the IT industry is the transfer of intellectual
property rights from the developer to the purchaser. Within the framework
of IT, highbrow assets present a relevant issue to be highlighted. With the
speedy improvement of the IT sector on the global scale, we encounter, on
the one hand, a big call for oerings within the subject of IT outsourcing,
and on the other hand, increasingly unresolved issues associated with
copyright safety in this sphere.
662
Oleksandra S. Yavorska, Vitaliy M. Kosovych, Ihor Y. Boiko, Leonid L. Tarasenko y Iryna I.
Shpuhanych
The current state of copyright and intellectual property in the IT eld
The huge economic losses of British Airways in May 2017 due to
mistakes made by the IT Department caused many CEOs to rethink their
attitude to digital technology in their companies. More than 1,500 ights
were cancelled for two days. The problems were brought by IT services and
British Airways’ eorts to reduce expenditures by following the advice of
outsourced Indian IT rm Tata Consultancy Services.
The experienced IT outsourcing businesses usually are expecting the
results of positive enterprise decisions and conduct thorough audits. Given
the fast growth of the IT outsourcing market, every other urgent issue
nowadays is the problem of copyright protection.
The rst computer systems and prototypes of computers appeared in
the middle of the 20th century, and there were so few that the applications
were customized. There was no point in copying them and no need to protect
them by copyright. However, overtime statistics data generation has come
to be an indispensible part of everyday life, the diculty of protecting the
rights to laptop programs and copyrighted content material came to the
foreground.
A computer program is protected by copyright as a literary work within
the meaning of Article 2 of the Berne Convention for the Protection of
Literary and Artistic Works. In contrast to patent law, copyright in a work
has no territorial regulations and applies in all countries which signed the
Berne convention without any formalities and has the longest time period of
criminal safety. Second, formally a PC software is a textual content written
by programmers and s such it is like a literary work.
There are numerous options for the safety of a laptop software, and the
choice relies upon the scope of its use and the functions of protection. As an
instance, with regards to selling software, general regulations stipulate that
the source code of a PC program is included as a copyright item as opposed
to illegal copying. But if the device that operates on the premise of authentic
software program is marketed, it will be more suitable to gain a patent for
the invention. In America, it is expedient to guard a laptop application as
an invention if it is a part of an object in the world wide web. Provided that
each of the standards for obtaining a patent is met, the principle, method,
algorithm of the software program may be submitted for registration. The
principal advantage of patenting is that it is not the expression of this system
in a reliable programming language, but its realistic implementation and
the underlying idea.
Ukraine is ghting against the problem of copyright protection
for software products. It should be noted that in 2019 Ukraine took a
leading position in the ranking of nations that are most likely to violate
the rights to intellectual assets. As in the case of Microsoft, there
also are almost 85% of products manufactured with the help thereof
and used by Ukrainian authorities in 2018.
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The ndings of the studies addressing IT outsourcing development
problems in Ukraine are covered in the works of domestic researchers:
Chizhov (2016), Koval (2019), Yaremchuk and Kolomiets (2015), etc. The
complexity of IT packages and software for the protection of intellectual
property and copyright to enhance the applicable countrywide mechanism,
the relevant advice for Ukraine’s integration strategy are the fundamental
principles for the implementation of European integration intentions of
Ukraine. The fast improvement of the sphere requires genuine interest
to the accurate protection of intellectual assets rights to those products.
The issue of global protection of computer programs, software and related
products remains topical (Data Unit City, 2019).
Chen et al. (2017) are convinced that the ever-increasing complexity of
the IT tasks performed by an outsourcing company should be associated
with a more comprehensive exchange of intellectual property rights
with suppliers. Outsourcing providers are more likely to gain know-how
redistribution rights if they conclude agreements for super innovative
software development projects Another group of scholars, Hadi et al.
(2017), believe that the most important thing in the provision of services
is the correctness of drafting contractor’s agreements, copyright issues are
not relevant enough for them.
According to Ramasubbu and Kemerer (2021), for modern IT outsourcing
companies, violation of established standards in the development and
subsequent maintenance of corporate systems causes information asymmetry
between customers and suppliers. Conversely, balanced manipulation, i. e.
periodic adjustment of outsourcing assignment management congurations
facilitates mitigation of statistics asymmetry shortcomings. Mazzola et al.
(2018) emphasize that the challenges associated with technical problems
in the later stages of the innovation process are positively related to the
growing importance of copyright protection. Traditional content of
IT structures is usually no longer associated with a big role of
copyright protection. Kotlarsky et al. (2018) emphasize the pace of technology
changes, thus aecting society. This results in new ways of handling the
relationships with suppliers and a deeper understanding of a variety of
things. The researcher raises, but does not resolve, the issue of copyright
in the sphere of information technology. In their work, Hergueux and
Jemielniak (2019) emphasize that in the public sector (including the
judiciary and academia), specialists are even more tolerant of online
copyright infringement than those in the private sector. Scholars noted the
consequences of the copyright reform debate for the country at present,
but do not answer all questions. We hold that this subject matter is given
sucient attention in the scholarly publications.
The objective of this review is to address in more detail the challenges of
copyright and IT outsourcing, involving interview techniques for managers
664
Oleksandra S. Yavorska, Vitaliy M. Kosovych, Ihor Y. Boiko, Leonid L. Tarasenko y Iryna I.
Shpuhanych
The current state of copyright and intellectual property in the IT eld
of IT companies, attempting to identify recommendations for enhancing
regulatory protection of copyright inside the area of IT on the example of
Ukraine.
Of course, each creator or rightful owner desires to guard their copyright
from infringement to the maximum feasible extent. However, this isn’t so
easy to do within the Ukrainian context, as the mechanisms for protective
and preventing piracy in Ukraine are far from being perfect. Similar to
the sale and replication of counterfeit software program, the distribution
of software program merchandise over the net is tremendous these days,
entailing serious problems in resolving the copyright infringements. The
highest court of intellectual belongings is presently starting its operation
in Ukraine. It has no longer yet furnished enough case-law for scientic
analysis. However, in any case, the life of a specialized court docket in this
area is a tremendous and serious step for Ukraine. This demonstrates the
relevance of the safety of intellectual property rights, along with the subject
of IT (therefore, it is suggested in the article to take a closer look at assessing
the case of Ukraine).
1. Methods and Materials
The study method is concerned with the usage of a number of research
tools in a logical succession.
The research method draws on the premise of a conceptual evaluation of
the issues covered in the article. This allowed guring out the functionality
of IT services and analyzing them on the domestic and global markets.
This technique received primary importance with the help of applying the
relevant state-of-the-art scientic methods, In particular: analysis and
synthesis, generalization, logical and well-established gadget evaluation,
management methods, experimental assessment and others were used.
Structural and focused, combined with the case study technique (which is
a specic author’s approach) was used within the framework of observing
Ukraine’s experience of IT outsourcing and IT oerings as a separate case
in the international context of analyzing this issue. The method of content
material analysis was applied while considering the criminal oences.
The next level of the research technique was the use of qualitative
sociological strategies and quantitative techniques of statistical facts
evaluation, collection of empirical information in order to characterize the
problematic scenario within the eld of copyright safety in IT outsourcing.
Strategies of high-quality processing records (records of IT professionals
and the services they provide, special classication methods, dierentiation
of issues in the eld of copyright protection) were completely grounded on
certain characteristics of the IT sphere in the case of Ukraine.
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CUESTIONES POLÍTICAS
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The author made ample use of empirical study method that allowed
obtaining scientic facts in the IT outsourcing commentary route; analysis
of the home and global market; experiment and forecasting of the IT
services growth, awareness of specialists as regards copyright protection.
Qualitative methodology of sociological surveys using focused in-depth
interviews was used. This method allowed obtaining a wide range of
opinions to problematize issues related to the research topic. Focused in-
depth interviews resulted in transcripts of 10 in-depth interviews.
This method involved individual meetings with representatives of certain
target groups (namely: medium-level managers of companies that provide
services in the eld of IT outsourcing — heads of departments, divisions,
units) to study their attitudes to current issues of copyright protection in
Ukraine in the eld of IT. This interview was conducted using open-ended
questions and was not clearly structured. At the same time, it allowed to
reveal the deep attitude of the target audience to the problematic issues, to
hear real thoughts, ideas, views of the respondents.
The procedure for arranging and conducting an in-depth interview
included the following stages: designing an in-depth interview plan for
each of the identied target groups; the process of planning and preparing
for the interview; organizing and conducting interviews; processing and
analysis of transcripts; preparation of the report.
The main criteria for selecting respondents for in-depth interviews
were as follows: 1) belonging to one of the target groups; 2) the ability to
provide quality and reliable information on problematic issues of copyright
protection in the eld of IT outsourcing in Ukraine (based on the results
of a previous interview); 3) maintaining the balance of the geographical
sample in the selection of participants — the emphasis was on the cities of
Ukraine with a population of over one million.
The guiding questions were used while conducting the interviews,
including open-ended questions, techniques that helped to reduce emotional
tension, establish friendly and partnership relations with respondents,
techniques that stimulated the answers or “cut o” side topics that did not
relate to the study. There were 3 people trained as interviewers.
2. Results
The Ukrainian IT market shows consistent growth from year to year.
In line with an evaluation by way of the international agency percent,
the IT market in the entire country market has accelerated 2.5 times. In
2011-2020, it increased by 150%, and is expected to reach $ 5.7 billion
in 2021 (Figure 1). At the same time, 80% of medium-level managers of
666
Oleksandra S. Yavorska, Vitaliy M. Kosovych, Ihor Y. Boiko, Leonid L. Tarasenko y Iryna I.
Shpuhanych
The current state of copyright and intellectual property in the IT eld
IT outsourcing companies in Ukraine interviewed by the author reported
insucient protection of copyright in IT outsourcing as “very important”
and “important” problem.
Figure 1: Increase of ІТ market for 2011-2020
Ukraine is a European leader in the variety of outsourcing agencies.
According to Ukrainian experts, 90% of our IT specialists work based on
outsourcing and are not developers of their own IT products (Data Unit
City, 2019). In the second half of February 2020, the domestic press actively
discussed the news that of the 100 best providers of outsourcing services in
the world, which were carefully selected by the International Association
of Outsourcing Professionals (IAOP) for its annual Global Outsourcing
100 (GO100), 18 places were taken this year by companies with RandD
oces in Ukraine (International Association of Outsourcing Professionals,
2020; UNESCO, 2020).
They include 12 Ukrainian employers and six “legionnaires” — global
agencies which have their personal development centers in Ukraine. The
Ukrainian IT outsourcing industry maintains its position in the global
market. Ukrainian providers have already managed to prove themselves
as ones of the most socially responsible and, exceptionally, to ensure an
overwhelming success. On their initiatives, 94% of customers are satised
with the Ukrainian level of service, whilst this gure is only 84% with the
big foreign businesses. This is determined, in particular, by the fact that
72% of Ukrainian providers are actively engaged in innovation.
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 660-681
In Ukraine, the IT industry ranks second on the market (3% of GDP)
and brought in about $5 billion in 2020. That is just the beginning: the
quantity on the Ukrainian market will increase, 10% of the United States
of America’s gross domestic product will reach $ 10 billion. IT groups lack
criminal experts to protect copyright and propose on legislation. Export of
PC technology is turning into one of the predominant sources of sales in
Ukraine. According to the macroeconomic studies of the IT Committee of
EVA and Pricewaterhouse Coopers, which are subject to a positive scenario
of the computer industry in the top countries, the volume of exported
information technology could double and attract more than UAH 27 billion
to the state budget (Deloitte, 2016).
There were many IT groups in Ukraine that could compete within the
world market, but the development of the computer era market is limited
by a range of factors, consisting of the risky political and economic situation
— existing customers are able to place orders in neighbouring Poland,
while actively hiring Ukrainian specialists and oering dicult working
conditions and low wages. The second reason is that it’s far tougher to
attract new clients.
Developing markets in neighbouring countries are making an investment
into a whole lot of assets to promote their IT services on the global market.
Poland (22% growth), Belarus (12% gain) and Romania (19% increase) are
key competing nations. The third reason is that the number of IT experts
of the professional stage is reducing. According to average estimates in
other countries for 2019-2020, there were about 5,000 specialists, many of
whom have a high qualication level (Deloitte, 2016).
Experts are simultaneously working on these issues in several areas. The
rst problem is incentives for the improvement of the IT industry. In the
end, it ought to become the part of the enterprise’s improvement strategy.
At the same time, tax policy must be consistent and predictable for 5 -10
years. The second problem is the reform of IT education: technology is
developing faster than schooling at the colleges, so the curricula should be
well tailored to new realities for preparing exceptionally professional IT
specialists.
The third problem that’s important to be addressed for the safety of
intellectual belongings rights is that IT specialists ought to develop the
cutting-edge programs to eciently sell them overseas. Therefore, the
safety and respect of highbrow property rights should be one of the vital
concerns on the agenda of cooperation between IT agencies and the public.
The extent of oerings inside the IT market multiplied during 2011-
2020. In accord with industry forecasts, Ukraine has been estimated to
have about 240,000 IT professionals as of 2021. Such speedy growth is
explained with the help of the prestige and dynamism of the IT sector in
668
Oleksandra S. Yavorska, Vitaliy M. Kosovych, Ihor Y. Boiko, Leonid L. Tarasenko y Iryna I.
Shpuhanych
The current state of copyright and intellectual property in the IT eld
Ukraine. There are also certain advantages in terms of working conditions:
in most oces, advanced technology and a exible work schedule are
available (Table 1).
Table 1. Dynamics of volumes and growth rates of the global
IT outsourcing market, 2015–2021 (based on International
Association of Outsourcing Professionals (2020).
Year Outsourcing market volume, billion $ % to the previous year
2015 369.3 -5.1%
2016 370.9 2.4%
2017 386.5 3.8%
2018 394.4 4.0%
2019 404.1 4.5%
2020 415.3 5.4%
2021 426.4 5.7%
The increase in the growth rate of IT outsourcing is due to the restoration
of the business segment of the market. In 2019 – 2021, the global IT
outsourcing market has shown high dynamics due to favorable monetary
conditions. During this period, the IT outsourcing market was taken into
consideration as one of the quickest growing and promising segments of the
IT services market. Next, we present the diagram of the global market for IT
oers by segments (Figure 2).
Figure 2: Structure of the global market of IT services by
segments, 2020, % (based on International Association of
Outsourcing Professionals (2020).
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 660-681
In 2020, a large share of IT services was provided in the eld of
development and integration — 30% of the total market. Help and upkeep
of hardware and software program in 2020 gave 20% of the market for
IT services. Enterprise process control segments accounted for 26% and
15% of the market, respectively. In 2020, net outsourcing accounted
for more than a quarter of the global IT market oerings.
The Indian IT market attracts companies around the arena with low
value and a large quantity of software builders. As of 2019, the market
price of Indian IT oerings has approached the United States with its 2.75
million neighborhood software improvement professionals (the USA has
approximately 3.5 million developers). At the end of the previous year, the
Indian industry employed approximately 5 million profess ionals.
The comparison of the Ukrainian and Polish markets of IT services
makes it clear that according to the latest indicators, Ukraine is lagging
behind in the development of IT outsourcing but is equated to developed
countries (Table 2).
Table 2. Comparative characteristics of the Ukrainian
and Polish markets of IT services (based on International
Association of Outsourcing Professionals (2020))
Indicator Ukraine Poland
Number of developers 166, ooo 160,000
Number of IT companies 11,932 60,700
The cost of the industry $ 1.256 billion $9.457 billion
The focus market USA Western Europe
The average cost of software
development
$25-149 per hour
for the development
of applications $40-77 per hour
Number of new IT specialists + 27,000 +15,000
English language prociency 40% of specialists 90% of specialists
The rst three programming
languages Java, Java
Script, C# PHP, Java
Script, RUBY
Having compared the data of the Ukrainian and Polish markets of IT
services, it can be argued that Poland, in terms of aggressive education and
migration policy, has every chance to become a leader not only in IT but also
in other areas. Poland has already taken up the global struggle for talents.
Unfortunately, Ukraine is still out of this process (Business.ua, 2019). The
level of Polish programmers is no worse than Ukrainian programmers in
terms of price or quality of work. Our domestic IT products are similar to
Estonian in their innovations and results. Of course, it is inappropriate to
670
Oleksandra S. Yavorska, Vitaliy M. Kosovych, Ihor Y. Boiko, Leonid L. Tarasenko y Iryna I.
Shpuhanych
The current state of copyright and intellectual property in the IT eld
compare Estonia with Ukraine, which is 6 times larger in territory and 30
times larger in population. Ukrainian IT companies have revenues of $ 3.6
billion, and India earns $ 150 billion, ranking 1st in the Global Services
Location Index with a huge number of young specialists (A.T. Kearney
Global Services, 2019).
In 2021, international analytical forecasts are quite positive. The
principal driving force of marketplace development will be ‘cloud’
technology. In keeping with forecasts, approximately 80% of corporations
will function within the “clouds” for approximately 5 years. This opens up
a lot of possibilities for remote work, including overseas contractors and
connecting them to the control and coordination of all activities. Articial
intelligence is increasingly gaining popularity. At the same time, many
specialists have to broaden individual solutions.
Presently, the development of cybersecurity isn’t always a legally fast
technological solution. It’s essential to have additional experts within
the corporation of eective records protection. Similarly, the connection
among outsourcing agencies and customers will alter in future. These
aren’t any striking statistics yet, but rather better work ethics and the rising
relevance of professional abilities that have been evaluated in recent years.
Organizations have begun to recognize the importance of outsourcing
business, and this means that there’s big room for development.
Currently, there are more than 140,000 programmers in Ukraine, and
this range is growing approximately 20% due to the inux of programmers
recently who form a strong innovative enterprise. Our domestic intellectual
ability and the advent of innovations create a new perception. IT enterprise
in Ukraine is progressively turning into consulting in the area of services.
IT creates additional jobs in the related industries (the programmer creates
two or four extra jobs). The state budget revenues for 2018 - 2020 increased
annually by 27% and reached UAH 4.1 billion (Businessviews, 2017).
A great proportion of taxes paid by IT businesses has increased because
of the considerable amount of salaries of IT specialists (as of 2020, the legal
prots in the IT eld became 69% higher than the countrywide average).
Among the primary constraints to the improvement of the IT enterprise
in Ukraine is the lack of regular payment of taxes; low safety of intellectual
property rights of IT specialists; unstable development of the IT business,
in addition to weak investor safety at the legislative stage. Every other
feature proves that the IT market industry is dicult to investigate due
to the lifestyle in Ukraine of particularly quasi-product companies, whilst
the organization’s headquarters and market are placed overseas, and the
manufacturing itself — in Ukraine.
The evaluation of the facts in the eld of IT revealed the principal issues
associated with the improvement of methodological techniques and the
formation of the market of IT services in Ukraine:
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a) restrained set of statistics at the IT market (together with problems
in collecting information to investigate the scenario of copyright
infringement inside the IT subject), the duties inside the IT region
are not tailored to global standards.
b) methodological issues related to the development of statistical
analysis of the application of IT technologies in numerous elds
according to international practice have now not been developed.
c) there is a need for continuous tracking of the IT area, which helps
the consistent implementation of the national software for the
improvement of ICT.
The role of the IT market and IT technologies is constantly growing,
but Ukrainian researchers poorly study the ICT exports, which is in some
way related to copyright. After all, the volume of the domestic market
of IT products is the most important economic indicator that shows our
development of IT in relation to other countries and their indicators. The
IT sphere has a signicant potential to attract educated young people aged
22-33, which has a positive eect on the formation of the middle class.
The object of copyright safety inside the IT discipline are specially PC
programs (software program), it can additionally be part of a PC software (if
it can be used independently), layout materials acquired in the course of the
improvement of a laptop software however now not included in it, dierent
kinds of objects disguised in the laptop software (audio-video materials,
images). Generally, copyright safety applies to all styles of laptop packages
that can be expressed in any language, including supply code and item code.
It ought to be remembered that new ideas, software algorithms, innovations
used to expand this system aren’t disguised by means of copyright.
Copyright may be divided into categories: non-public non-property
rights and assets rights. Non-public non-assets rights include the author’s
right to a name, the property to post, which cannot be transferred to others
in any way. Personal non-property rights belong to the author. The author
is a person who created the PC application. Only the author can allow other
people to use the work: publish the program; remodel, adapt and make
modications; use part of an application or its element to another program;
distribute (through sale, lease, subscription, etc.); import copies.
Property rights (the right to apply, distribute, alienate) can be transferred
(for instance, under a license agreement, under a software improvement
settlement). Property rights may be transferred by using the author to any
other character(s) (individuals and criminal groups).
Under the license settlement, one party — the right holder (licensor)
— grants the other party — the user (licensee) — the permission to use the
item of copyright. The license may be extraordinary or non-special. Under
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the special license agreement, the licensor has the right to apply the item
of copyright eectively within the manner and within the scope supplied by
means of the agreement. In this case, the right holder (licensor) has no right
to use and allow other people to apply this copyright item within the part
provided to the licensee.
Under a license agreement other than a non-one kind (easy license), the
proper holder (licensor) presents the licensee the right to apply the item
of copyright whilst maintaining the proper to apply the object of copyright
and the proper to oppose a license to other people. The license settlement
ought to specify the following obligatory conditions: the item of copyright
in recognition of which the use is authorized; remuneration transferred
below the license settlement, or the situation of loose settlement; license
type; license validity duration; the authorized territory for the use of the
item of copyright.
A copyright settlement is a form of license settlement, applicable inside
the copyright agreement the author of the item is the licensor. Under the
mission settlement for the special proper to the object of copyright, one
party (the right holder) alienates the one-of-a-kind property to the object
of copyright in full to the other party. The mission settlement must contain
a circumstance on the quantity of remuneration or on the technique for its
determination, or an instantaneous indication of being free.
In the IT sphere, the realization of an agreement for the improvement of
laptop programs is common (in line with the eects of the writer’s survey
of managers of IT outsourcing agencies, this is 70% of all agreements).
This agreement governs copyright issues. The developer is a legal entity in
the event of agreements for the creation of computer programs. These are
mixed contracts which could include the following factors of contractor’s
agreement (appearing work to create a computer software, its installation
and edition); carrier agreement (training the customer’s personnel on the
use of the advanced laptop software, provision of consulting oerings);
license settlement or project agreement (in terms of transfer of unique
rights to use the created computer application to the client). Therefore,
such contracts need to incorporate all the vital situations for each of the
abovementioned forms of agreements. In such agreements it is necessary to
specify the scope of the contract, in addition to the technical characteristics
of the developed program.
Most often, Ukrainian entities are not organizations in their classical
sense, however marketers who work under a civil agreement. The transfer of
intellectual property rights is one of the most important aspects of such an
agreement. According to Ukraine’s Copyright and Related Rights Law, Art.
31 (Verkhovna Rada of Ukraine, 1993), property rights transferred under a
copyright agreement must be dened in it. Property rights not specied in
the copyright agreement as alienable are taken into consideration are not
transferred.
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This means that the phrase within the agreement “all intellectual
property rights belong to the purchaser” has no practical meaning. Because
Ukrainian developers frequently work for European or American clients,
it is critical to specify the extent of rights and the law under which they
are transferred. For instance, non-public non-assets rights cannot be a
priori alienated in Ukraine. In this example, the scope of rights that may
be transferred under the regulation and which the purchaser desires to
receive is compared, the full scope will be listed in the settlement, but it is
possible to provide a reservation that an indenite license can be issued for
the rights that cannot be transferred, or a responsibility not to assert such
rights to the consumer’s detriment.
It’s important to collect all copyrights from each developer in the
company, and only then transfer them to the consumer. Switching copyright
clause also can be used as a mechanism to manage the client. For example,
it can be stipulated that each intellectual assets rights may be transferred
only after complete payment of the supplier.
As part of copyright activity, there may be a method for identifying
complex nature of a video game, which includes a PC application, a literary
work, and an audiovisual picture.
On the market of computer video games, a very commonplace
phenomenon is copycat games — those are clone games that are very just
like each other and the average consumer cannot distinguish them. They
typically create a “twin” of the famous arena for the countrywide market.
For instance, in 2013, Wargaming led a copyright lawsuit to Chinese
developers Chang you and Games, who created a twin of globally well-
known Tanks. The maximum exciting aspect is that the plagiarists not only
copied the sport space, plot, dialogues, also reproduced all the historical
inaccuracies and ctional tanks in their game.
There is an exception for the concept of “scenes à faire”, in keeping with
which there are obligatory elements for certain genres. For example, if the
studio creates a computer recreation approximately the world of myth, it’s
going to make sure to have orcs, elves, gnomes, to have certain traits which
might be repeated by means of dierent agencies.
To counter infringers within the U.S., direct claims can be led, or
infringing content material can block the use of the take down notice
technique. This device is provided via US regulation, namely the digital
Millennium Copyright Act (DMCA). It increases the duty for copyright
infringement inside the virtual age, and additionally permits to speedy
eliminate irrelevant content material without going to court. Under this
system, the issuer shall, upon the right holder’s demand, in keeping with the
DMCA, remove the infringing object by using notifying the individual that
published it if you want to avoid legal responsibility, or in case of refusal
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shall be responsible for infringement. If the internet site does no longer
have a DMCA utility form, a demand about copyright infringement may be
led with the sellers that ensure the operation of this internet site at the net.
With the help of intellectual assets, you may consolidate leadership in
the market and gain user loyalty. Informing customers that the product
contains copyrighted materials reects well on the rm and is a big
competitive advantage.
During an in-depth interview with managers of IT outsourcing
organizations, we identied the following most common examples of
copyright infringement. These are actions committed without a relevant
agreement (authority), which gives the right to commit them, namely:
making a copy and transferring it to a third party (both paid and free of
charge); processing; reproduction of a computer program; dissection
(hacking) of the program security, etc.
The performance of these acts by people who do not have rights to the
program permits the program’s owners to seek protection for their rights
that have been infringed. To defend their violated rights, the proper holder
can also: apply to a notary to attract up a protocol of overview of written
evidence to record the oense. This can be appropriate if there may be a
need to report copyright infringement on the internet; ship a claim to the
perpetrator; record a copyright infringement le with law enforcement
agencies.
Relying on the character of the copyright infringement, the right holder
has the right to call for the following: cessation of actions that infringe the
proper or create a hazard of its infringement; restoration of the scenario
that existed earlier than the infringement (for instance, elimination of
adjustments made in a laptop software without the consent of the copyright
holder); reimbursement for non-pecuniary damage (best an character can
declare it); compensation for damages or fee of reimbursement; seizure of
items by using which the unique property is violated, and material objects
created as a result of such violation. However, only every second manager
of IT outsourcing companies in Ukraine we interviewed was able to name
most of the actions they can take from the list below. This indicates a low
legal awareness of IT outsourcing specialists in the eld of copyright in
Ukraine.
3. Discussion
Yaremchuk and Kolomiets (2015) believe that the legal protection and
protection of computer programs in the legal practice of foreign countries
is a controversial issue.
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That is due to the truth that the prevailing mechanisms and methods
of legal law are slower to reply to modications associated with rapidly
growing volumes of software program improvement.
The problem of copyright and related rights is regulated the law of
Ukraine on Copyright and Related Rights. In keeping with this regulation,
the non-public assets proper is dicult to protect — copyright and rights of
contractors, producers of phonograms, broadcasting organizations, which
might be related rights. The regulation stipulates that software program,
creation of websites, databases is recognized as works inside the area of
technological know-how, literature and artwork which have a scientic-
and-technical, technical, or dierent nature. This means that the nished
software product is covered by way of regulation as a literary work. However,
this does not apply to the technological manner of statistics processing, the
algorithm itself, that’s frequently a critical made of intellectual interest.
This is a practice is applicable not only in Ukraine, but all over the world
(Verkhovna Rada of Ukraine, 1993).
Chizhov (2016) suggested that it is necessary to consider the industrial
process approach to software development, which requires clear and
complete protection of these products. The level of software copyright
safety ought to correspond to the complexity of making this type of product.
The very concept, technique or method of a product have to be protected in
a well-timed manner (due to the fast lifestyles cycle of this type of product).
In our opinion, all thoughts may be covered not simplest as a form
of expression, but also as inventions of products or software fashions, a
technical solution, that should solve any hassle. According to The Law of
Ukraine on Copyright and Related Rights (Verkhovna Rada of Ukraine,
1993), copyrights are divided into personal non-property and property
rights.
Personal non-property rights include, among other things, the right to
demand that the work’s integrity be preserved and to resist any distortion
or other change of the work, as well as any other infringement on the
work that would harm the author’s honor and reputation. For example, a
programmer created an authentic script this is used on web sites to create
the illusion of moving slides, after which saw the same animation on every
other internet site that promotes terrorism. This will damage the dignity
and popularity of the writer.
In keeping with Ukrainian regulation, most eective a man or woman
may be the holder of private non-belongings rights, and that they cannot be
alienated. Inside the USA, the situation is particularly special. Those (moral)
rights have been identied recently, and special regulations governing
their felony safety have not yet been advanced. As a result, copyright in the
United States only covers the property aspect of the work; but, when the
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author’s property rights to the work are alienated, he may decline to include
his name when the work is used.
The assets rights of the author consist of an exclusive right to use
the paintings; a unique right to authorize or prohibit using the work via
dierent humans.
It is important to highlight that only the author can be the original
subject to whom the copyright belongs, although the rights might be held
by a legal body.
As for the validity period, private non-belongings rights are indenite,
whilst assets rights are constrained in time. In Ukraine, non-public assets
rights are valid at some point of the life of the writer and 70 years after his
death, however in dierent countries this time can be exclusive.
In case your software is so modern that it has no analogues at the time of
guide, it makes sense to test whether or not it can be patented.
Since that the patent presents a monopoly at the manufacture and
sale of such programs from experts, it is hard to obtain, it has a shorter
safety length and it have to be cautiously prepared for state registration.
A patent to an invention that comprise a software program and a software
copyright are specic cases. You may be the holder of a copyright of this
system and/or the patent holder, both concurrently and one after the
other. As a preferred mode, copyright protects a certain embodiment of
a certain idea (as an instance, a set of rules written in code). If you want
to protect a particular technical solution that underlies the software, it is
expedient to do so through a patent. The patent comes into action upon
country registration and is restrained by way of the country of registration.
Copyright arises routinely from the moment the idea is implemented in a
greater or less xed form, without the need for country of registration.
Unlike patent regulation, copyright arises from the moment a piece
is created and does now not require any formalities of registration.
Registration of a work is performed in Ukraine and in other countries. The
author’s certicate conrms that the object was created on a certain date,
and is also a good cause to apply to court in case of violation of rights.
For example, copyright registration also exists within the USA it is
executed by using a state body — the Copyright workplace as part of the
Library of Congress. They sign both published and unpublished paintings,
however, not like the registration of literary works, the PC software is going
through a positive process in particular to verify area of expertise: whether
or not the source code submitted for copyright registration includes
elements of other rights holders. It’s believed that through depositing you’ve
got automatically notied every person of your copyright, and in case of
violation it will likely be less complicated with the intention to protect your
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function in court. It must be taken into account that by way of depositing
this system in the Library of Congress, you are making the supply code
public, however it is also feasible to put the source code for registration by
means of hiding some records that contain a trade secret.
According to The Law of Ukraine on Copyright and Related Rights
(Article 21), there are several ways to use the work without the consent of the
copyright holder, but with mandatory reference to the author’s name and
source (Verkhovna Rada of Ukraine, 1993). There could be amendments to
the code to execute certain technical works, making a duplicate for archival
purposes or to replace the legally obtained uniqueness in case of failure of
utilization or loss. Such techniques also include observing the software for
scientic purposes.
Any country that is a signatory to the Berne Agreement can benet
from copyright protection. Ukraine, like most countries in the world, is a
member to this agreement. However, granting patents for PC applications
isn’t a cutting-edge practice in Ukraine. The Civil Code of Ukraine presents
the safety of laptop packages as literary works, and the law of Ukraine
“On safety of Rights to inventions and utility fashions” no longer species
anything about the patentability of software program. Consequently, it’s
the software program copyright this is specically disguised.
It is frequently possible to guard software that is used t in the agency
and was developed independently to keep change secret. Most outsourcing
agencies in Ukraine are non-citizens of Ukraine. They provide their
personnel to signal a non-disclosure settlement (NDA), that’s drawn up
according with the regulation of the USA of a in which those groups are
registered. In view of this, the NDAs may additionally contain provisions
that are not simply peculiar for Ukrainian law, but which are invalid in any
respect, that is those who cannot be implemented in Ukraine.
In our opinion, for cases where there may be no choice to transfer the
right, the NDA could be a method to protect copyright. The usual method
under the NDA practices is the “automated” transfer of rights to the created
software program to the organization.
The developer can assign copyright to the following items: software;
personal factors of the system; pictures on display presentations; menu and
person interface layouts; databases; command lines.
Programming languages and targeted codecs, as well as the codecs for
recording documents, are do not present a problem to copyright safety (as
evidenced through the choice in the case of SAS Institute Inc. vs global
Programming Ltd. (C-406/10). As already mentioned, copyright arises
automatically through the appearance of the work itself. Any registration,
printing of the code or transfer to the depository is the most expedient
consequence of the authorship and does not necessarily entail an obligatory
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situation. In Ukraine, registration of a software in a high-level asset
department basically requires a record on a tangible instrument. However,
copyright isn’t always tied to the time the computer application that is
provided on paper.
In Ukraine, illegal storage of a copy of a PC program in computer
memory is a violation of copyright property. But in Ukraine, judges hardly
ever have a look at copies of PC applications. Properly certied experts
generally cope with it at the request of a party and/or by a court order. This
is not an unusual legislative practice in Ukraine to limit the ability to create
the multiple copies of software program for private use, since it is allowed
for copies of books or paintings.
Copyright does not shield thoughts of: the introduction of a program
that performs the identical function as a formerly launched comparable
software, without dierent “suspicious” factors, have to no longer be taken
into consideration an infringement of intellectual property rights.
Having analyzed the records obtained, we are able to make the
subsequent generalizations. In present day Ukraine, the hassle of copyright
safety within the IT discipline remains very pressing. In 2016, Ukraine still
ranked 4th many of the pinnacle 10 nations for the usage of pirated web
sites. The Ukrainian authorities is trying to implement sure measures, but
Ukrainians are still seeking out opportunity ways now not to pay for content
and software. A unique cyberpolice unit has been installation in Ukraine to
cope with these problems. Best while the hassle of protection of intellectual
belongings rights is solved in Ukraine it is going to be feasible to anticipate
investments and the preference to increase intellectually in-depth spheres.
Ukrainian IT experts ought to be assured of their copyright when working
on their new projects.
Conclusion
Laptop applications are disguised as literary works. However, this does
not allow to fully protect technical solutions, algorithms and ideas, venture
designs, information about the programs that are being developed. In this
case, the answer can be the trade secret of security procedure. Additional
measures need to be taken to ensure the security in Ukraine, there is the
best operating mechanism for including the said information into the listing
of records constituting an industrial mystery. Further measures should be
taken to ensure the condentiality of these facts (identifying who will get
right of access, concluding non-disclosure agreements with developers in
relation to change secrets, improving the guidelines for sharing secrets and
techniques). It is possible to register the name of the computer software as
a trademark. The software product’s legal protection will be strengthened
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because of this. In this situation, a registered brand of the Windows
operating system can be an example.
The reality and moment of introduction of the PC program may be
registered. The registration of a PC software may be one of the proofs that
the laptop software existed at that time, and the author of the program was
the man or woman indicated in the registration certicates.
Further improvement of IT outsourcing in Ukraine is feasible provided
the assistance of the inner market, strengthening of the regulatory
mechanism of public administration within the discipline of intellectual
property protection, granting proper rights to customers, improving a
reasonably good tax structure and relevant rules for IT enterprise.
The analysis of copyright protection in Ukraine should pay more
attention to the shortcomings of security mechanisms for PC packages.
Implementation of copyright protection for PC packages with individual
patent elements must be properly exercised. The Law of Ukraine on
Copyright and Related Rights (Verkhovna Rada of Ukraine, 1993) should
be detailed. An essential element of ensuring copyright in Ukraine in IT
outsourcing can be the adoption of a special law “On Protection of Rights to
Computer Programs”. In such documents it is vital to address and outline
the concept of “laptop software” and its related characteristics.
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Esta revista fue editada en formato digital y publicada
en diciembre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 71
