On September 16, Verkhovna Rada of Ukraine approved the Law on ratification of the European Union Association Agreement (the “Agreement”). In connection with this significant event, below we give a summary of amendments to be made to the Ukrainian legislation in part of the issues related to the regulation in the sphere of information technologies (“IT”).
Recognition of European electronic signature certificates
Currently, the Law of Ukraine “On the Electronic Digital Signature” recognizes only the electronic digital signature certificates that are issued in Ukraine. Now, Ukraine and EU have to agree the procedure, terms and conditions of recognizing European electronic digital signature certificates in Ukraine.
Economic rights in computer programs created as Work Made for Hire
Where a computer programme 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 programme so created, unless otherwise provided by contract.
Currently, the rules of the Civil Code of Ukraine stipulate that that proprietary rights to the program vest jointly with the employee and the employer, unless otherwise set out by the agreement between them. To comply with the respective requirements of the Agreement, now the Civil Code of Ukraine should be amended to include provisions specifying that it is sufficient for the employer to duly document the fact that the computer program was created at the employer's instructions.
Defining the regime and the terms of applying the “Safe harbor” for intermediary service providers
National legislation should be amended to include provisions on the basis of which service providers may be exempted from liability for intellectual property infringement made as a result of transmission, caching or storage of information.
Specifically, the communication networks access or data transmission services provider may enjoy “Safe harbor”, if he:
a) does not initiate the transmission;
b) does not select the receiver of the transmission; and
c) does not select or modify the information contained in the transmission.
Caching services (automatic, intermediate and temporary storage of that information, performed for the more efficient information transmission) provider is exempted from the liability if he:
a) does not modify the information;
b) complies with terms on access to the information;
c) complies with rules regarding the updating of the information;
d) the provider does not interfere in the lawful use of technology, used to obtain data on the use of the information; and
e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
Hosting services provider is not liable for the information stored by a client, only on condition that:
a) the provider does not have actual knowledge of illegal activity or information; or
b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
All above provisions should be polished and taken into account when adopting the Law “On Amendments to Certain Acts of Legislation of Ukraine Regarding the Protection of Copyright and Related Rights in Internet”.