UKRAINE Law and Practice Contributed by: Yaroslav Ognevyuk, AMBASSADORS
Criminal liability may arise in cases involving large- scale or repeated infringement, particularly where commercial intent is present. While not the primary enforcement route, it may serve as an additional pres- sure mechanism in complex or organised cases. Copyright enforcement in Ukraine is not limited to a single remedy or forum. It requires a co-ordinated approach combining civil litigation, platform engage- ment, and, where appropriate, criminal mechanisms, particularly in the context of digital and cross-border infringement. 3.8 Infringement Tests and Substantiality Ukrainian courts assess substantiality primar- ily through qualitative analysis. The key question is whether the part used reflects elements that embody the author’s creative choices, rather than the volume of material taken. In software-related disputes, non-literal copying may be actionable. Courts may consider similarities in structure, sequence, and organisation, provided these elements are not dictated solely by technical function or industry standards. The central difficulty lies in separating protected expression from unprotected functionality. This assessment is typically carried out through expert analysis, with courts examining whether similarities result from copying or from independent development based on common technical solutions. Infringement analysis therefore extends beyond direct copying and requires a structured evaluation of how creative elements are embedded within technical or functional systems. 3.9 Collective Management and Licensing Collective management of copyright and related rights in Ukraine is carried out by accredited collective man- agement organisations (CMOs), which administer rights on behalf of authors and other rights holders in specific sectors, including music, audiovisual works, and broadcasting. The system has undergone signifi- cant reform in recent years, aimed at increasing trans- parency, accountability, and state oversight.
CMOs operate on the basis of accreditation for defined categories of rights and uses. This results in a semi-centralised system in which certain uses, particularly public performance and broadcasting, are administered through a limited number of authorised organisations. Rights holders may manage their rights individually in certain cases, but collective manage- ment remains dominant in mass-use scenarios. Tariffs for the use of works are subject to regulation and are typically approved or influenced through pro- cedures involving CMOs, users, and, in certain cases, state authorities. Tariff-setting remains a contested area, with disputes arising over methodology, pro- portionality, and market impact. Compulsory or extended collective licensing mecha- nisms apply to certain uses, including broadcast- ing and public performance. These frameworks are designed to facilitate access to works while ensuring remuneration, but their application raises recurring concerns regarding fairness and transparency among both users and rights holders. Disputes over royalties and tariffs are common and may be resolved through negotiations, administrative procedures, or litigation. Courts increasingly review tariff structures and the conduct of CMOs, particularly in cases involving allegations of overcharging or lack of transparency. Collective management in Ukraine operates within a regulated but evolving environment. While reforms have strengthened institutional structures, the system remains a focal point of tension among rights holders, users, and intermediaries, particularly in sectors char- acterised by large-scale, repeated use of protected content. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Industrial design protection in Ukraine is governed by national legislation aligned with international stand- ards and ongoing EU approximation. In parallel, aspects of product appearance may also be protect-
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