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
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.42 N° 80
Enero
Marzo
2024
Recibido el 30-07-23 Aceptado el 11-09/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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Vol. 42, Nº 80 (2024), 136-158
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Intellectual property rights issues
in the digital era
DOI: https://doi.org/10.46398/cuestpol.4280.07
Larysa Didenko *
Olesia Izbash **
Alla Kyryliuk ***
Larysa Halupova ****
Natalia Denysiak *****
Abstract
The development of information and communication
technologies, typical of the digital era, is accompanied by
the emergence of new objects of civil relations. Some of such
objects are the result of intellectual and creative activity and,
consequently, become the subject of intellectual property rights.
However, technology is developing faster than legislation.
Therefore, many problems arise in the eld of intellectual
property due to contradictions and gaps in national legislation. This paper
aims to identify the most important diculties in the eld of intellectual
property and nd ways to overcome them. The article pays special attention
to the problems of copyright infringement on the Internet. The need for
the development of virtual libraries is considered as one of the directions
of knowledge dissemination with simultaneous protection of copyrights.
The preventive means of copyright protection against infringement on the
Internet are analyzed. It is concluded that, recently, the innovative or digital
economy increasingly prevails over the industrial economy, which indicates
the beginning of the transition to a digital society.
Keywords: intellectual property; copyright; piracy and plagiarism;
virtual libraries; protection of intellectual property rights.
* Doctor of Law, Associate professor, Professor of the Department of Civil and Economic Law and
Process of the International Humanitarian University, Odesa, Ukraine. ORCID ID: https://orcid.
org/0000-0002-6806-5017. Email: t795959@gmail.com
** PhD., Associate professor of the Department of General Legal Disciplines of the National University
"Odesa Maritime Academy", Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0001-7629-1957.
Email: olesia1983@hotmail.com
*** PhD, Associate Professor of the Department of Intellectual Property Law, and Corporate Law of the
National University “Odessa Law Academy”. ORCID ID: https://orcid.org/0000-0002-3051-6599.
Email: kyriliuk.ala@gmail.com
**** PhD., Associate Professor of the Department of Intellectual Property Law, and Patent Justice of the
National University "Odesa Law Academy". ORCID ID: https://orcid.org/0000-0001-6263-2773.
Email: galupova_9@gmail.com
***** PhD., Associate Professor of the Department of Civil and Economic Law and Procedure International
humanitarian university. ORCID ID: https://orcid.org/0000-0002-2013-8889. Email: v774910@
gmail.com
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Cuestiones de derechos de propiedad intelectual
en la era digital
Resumen
El desarrollo de las tecnologías de la información y la comunicación,
propio de la era digital, va acompañado del surgimiento de nuevos objetos
de relaciones civiles. Algunos de tales objetos son el resultado de la actividad
intelectual y creativa y, en consecuencia, se convierten en objeto de derechos
de propiedad intelectual. Sin embargo, la tecnología se está desarrollando
más rápido que la legislación. Por lo tanto, surgen muchos problemas en
el campo de la propiedad intelectual debido a las contradicciones y vacíos
en la legislación nacional. Este documento tiene como objetivo identicar
las dicultades más importantes en el campo de la propiedad intelectual y
encontrar formas de superarlas. El artículo presta especial atención a los
problemas de infracción de derechos de autor en Internet. Se considera la
necesidad del desarrollo de bibliotecas virtuales como una de las direcciones
de la difusión del conocimiento con la protección simultánea de los derechos
de autor. Se analizan los medios preventivos de protección de los derechos
de autor contra violaciones en Internet. Se concluye que, Recientemente, la
economía innovadora o digital prevalece cada vez más sobre la economía
industrial, lo que indica el inicio de la transición a una sociedad digital.
Palabras clave: propiedad intelectual; derechos de autor; piratería y
plagio; bibliotecas virtuales; protección de los derechos
de propiedad intelectual.
Introduction
The modern world economy is characterized by radical changes in
determining the directions of economic progress. One of the main features
of the “new economy”, the “knowledge economy” is the transition from
the dominance of material production and the development of the service
sector to the emergence of multifunctional information technologies
and the penetration of information benets into almost all areas of the
economy. A basic tenet of the knowledge-based economy is that knowledge
and information are seen as commercial assets that can be distributed for
prot. Obviously, the knowledge-based economy is more important for
countries with limited natural resources.
Trends in the development of science, culture, technology and
production indicate that humanity has reached the limit in its development,
when further progress will be determined mainly by the mental activity
of a person. Thus, it is the results of intellectual activity that determine
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Larysa Didenko, Olesia Izbash, Alla Kyryliuk, Larysa Halupova y Natalia Denysiak
Intellectual property rights issues in the digital era
the strategy and tactics of socio-economic development of any country.
Increasing human well-being more and more depends on the ability to
acquire new knowledge and apply it.
The digital age modies all areas of activity in society, including
intellectual property. Informatization of society, globalization processes,
the latest technologies are changing the essence and spheres of intellectual
property objects, and therefore require scientic understanding, disclosure
of the essence of the modern paradigm of intellectual property.
The changes taking place in the digital society call for the improvement
of intellectual property legislation. Legal conicts in the sphere of regulation
of intellectual property relations require resolution. It is necessary to ll
the gaps in the legislation that appear due to the intensive development
of information and communication technologies and the creation of new
objects of intellectual property.
Therefore, the purpose of this paper is to study the problems of
intellectual property in the context of information activities in the digital age
and to determine the directions for solving these problems. To achieve this
goal, such scientic research methods as analysis, synthesis, comparative
method, method of structuring and functional analysis are used. Special
scientic methods, such as methods of information and source analysis,
made it possible to comprehensively study intellectual property problems
in the eld of information activities in the digital age.
1. Development of information technologies
as a basis for digital society
At the beginning of the last century, the total amount of human
knowledge doubled approximately every fty years, but in subsequent
years it doubled every ve years. The increase in the amount of information
was facilitated by the development of science, engineering and technology,
education, production, and therefore there was a need to solve problems
related to management, accumulation, processing, transfer of information
and knowledge. As a result of scientic and technological progress, mankind
created new means and methods of collecting, storing, and transmitting
information (Belyakov, 2014).
Information technology means an organized set of processes, elements,
devices and methods used for data processing. Such data processing
technology uses personal computers and telecommunications equipment
associated with appropriate software systems and components to solve
specic issues in a chosen subject area. Information technologies can be
also dened as a set of methods and means that ensure the collection,
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accumulation, storage, processing, transmission and display of information
and are aimed at increasing the eciency and productivity of work.
Information technologies are an indispensable component of most types of
intellectual, managerial and industrial activity of man and society (Pivnyak
et al., 2010).
In accordance with the Law of Ukraine “On the National Informatization
Program”, information technology means a purposeful, organized set
of information processes using computer equipment that provides high
speed data processing, fast information search, data dissemination, access
to information sources regardless of their location (Verkhovna Rada of
Ukraine, 1998).
The main goal of the National Informatization Program approved in
Ukraine is to create the necessary conditions for providing citizens and
society with timely, reliable and complete information through the wide
use of information technologies, ensuring the information security of the
state. At the same time, concepts such as information service (actions of
subjects to provide consumers with information products), information
product (documented information that is prepared and intended to meet
the needs of users), informatization (a set of interrelated organizational,
legal , political, socio-economic, scientic-technical, production processes
aimed at creating conditions for meeting the information needs of citizens
and society based on the creation, development and use of information
systems, networks, resources and information technologies, which are built
on the basis of the application of modern computing and communication
technology).
Scholars note that from the second half of the 20th century, the era
of computerization began, during which technologies for improving
information search and processing tools were created. At the same time,
computers became the basic technical component of the process of
informatization of societies, considering that computers are universal
technical means of processing any information, an amplier of human
intellectual capabilities and communication tools that use computers are
intended for communication and information transmission (Stanko and
Bordyugova, 2012). Thanks to software and technical support, operational
services, the computer enables access to various types of information
for all interested persons and operation of large volumes of information
(Tsymbalenko, 2012).
The use of the latest information technologies contributed to the
emergence of electronic documents, electronic form of information,
electronic resources, electronic products, use of e-mail, use of databases,
functioning of data transmission networks, etc.
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Intellectual property rights issues in the digital era
In Directive No. 2000/31/EC of the European Parliament and of the
Council of June 8, 2000 on some legal aspects of information society
services, in particular electronic commerce in the domestic market
(Directive on electronic commerce) the term “information society” is
dened. According to this denition, the information society is a society
in which any services are provided at a distance by means of electronic
equipment used for processing (including digital compression) and storage
of information and at the individual request of the recipient of the services
(European Parliament, Council of the European Union, 2000).
Considering the specied denition, it can be condently stated that the
society in Ukraine is an information society. In 2007, the Law of Ukraine
“On the Basic Principles of the Development of the Information Society in
Ukraine for 2007-2015” was adopted, according to which development of
the information area is dened as one of the main directions of state policy.
In the mentioned Law the tasks of the development of the information
society in Ukraine are also dened regarding opportunities of everyone
to create information and knowledge, use it, exchange it, fully realizing
its potential, using information technologies, adhering to the principles
proclaimed by the UN and contributing to the sustainable development of
the country.
The strategic goals of the development of the information society in
Ukraine were also determined, in particular, the use of information and
communication technologies to improve public administration, in relations
between the state and citizens, the creation of publicly available electronic
information resources of interaction between state authorities and local
self-government bodies and natural and legal persons, citizens guaranteed
access to information, access to telecommunications services, in particular
to the Internet, to information resources, as well as providing citizens,
regardless of their age, with the opportunity to learn, using the full range
of information technologies during education, upbringing and professional
training (Verkhovna Rada of Ukraine, 2007).
In 2021, an Order of the Cabinet of Ministers of Ukraine dated March
3, 2021 No. 167 “On the approval of the Concept of the development of
digital competences and the approval of the plan of measures for its
implementation” aimed to determine the priority directions and main tasks
for the development of digital skills and digital competencies in terms of
development of digital economy and digital society, in particular, increasing
the level of digital literacy of the population, regardless of age, working
capacity, material security, received education.
This can be achieved by providing opportunities for citizens to
acquire digital education using information resources, new educational
technologies, and digital educational resources, ensuring the continuous
improvement of professional digital competences in the professional
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development system of various elds of activity, creating the Unied state
web portal of digital education “Action. Digital education”, by developing
measures for the implementation of digital means of providing information
(television, social networks, broadcasting on the Internet, etc.).
At the same time, provision of legal regulation on issues of state policy
formation (with coordination of actions at the level of executive authorities)
in the eld of development of digital skills and digital competences of citizens
and the development of changes to the legislation on the provision of digital
education, digital skills and digital competences in the spheres of public life
are provided, in particular on matters of determining the requirements for
the level of possession of employees, regardless of the eld of activity, of
digital skills and digital competences, developing indicators to determine
the state of development of digital skills and digital competences.
The concept also denes the need to increase the level of public awareness
of the dangers of using the Internet, for which it is planned to create and
implement programs to increase the level of awareness of children and
adolescents, the digital competences of parents and pedagogical workers
regarding the dangers for a child in the digital environment, the formation
of intolerant attitude to the violation of rights and freedoms, child safety in
the digital environment.
The positive eect of the implementation of measures in accordance with
the tasks dened by the Concept is the acceleration of digital transformation
processes in Ukraine, a signicant increase in the competitiveness of
employees who possess new digital skills and digital competences, which
contributes to the improvement of the quality of human capital and the
level of competitiveness of both individuals and the state. The introduction
of these measures leads to an increase in the level of accessibility to public
services for senior citizens and people with health disabilities (Cabinet of
Ministers of Ukraine, 2021).
On July 15, 2021, the Law of Ukraine “On Stimulating the Development
of the Digital Economy in Ukraine” was adopted to stimulate the growth
of the digital economy through the development of digital infrastructure,
creation of favorable conditions for innovation, attraction of investments,
human potential (talented specialists). The law establishes the range of
organizational, legal, and nancial foundations for the functioning of
the legal regime of “Diya City” as a self-regulating organization. At the
same time, “Diya City” is considered as one of the stages of creating new
business opportunities in the IT industry in Ukraine. The law declares non-
interference of the state in the work of Diya City.
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Intellectual property rights issues in the digital era
The types of activity of “Diya City” are dened, in particular:
1) computer programming, informatization consulting, computer
equipment management activities, including development,
modication, testing and technical support of software; other work
at all stages of the software development life cycle; development of
a command system for creating and executing software - system
software, application programs, including computer games,
databases, websites; setting up software, including software
developed by third parties, etc.
2) publication of computer games, as well as other software, including
provision and transfer of intellectual property rights to software and
its elements;
3) provision of software products, provision of web services, including
distribution of copies of software in electronic form;
4) educational activities in the eld of information technologies,
including provision of higher, professional pre-higher and vocational
education (computer science, information systems and technologies,
computer engineering, cyber security, data science,) teaching
computer literacy (digital literacy);
5) data processing and related activities, including website management;
6) research and experimental developments in the eld of natural
and technical sciences regarding information and communication
technologies;
7) conducting marketing campaigns and providing advertising services
using software according to the relevant list;
8) activity of organizers of e-sports competitions, e-sports teams,
specialized computer centers, etc.;
9) ensuring cyber security of information and communication systems,
software products and information processed in them;
10) activity of a provider of services related to the circulation of virtual
assets (Verkhovna Rada of Ukraine, 2021)
With help of information technologies, literary and cinematographic
works are translated into a digital analogy (digitized), electronic online
publications and collections have appeared (free access to the texts of
electronic books of libraries, to the digital form of collections of museums
and galleries with availability for viewing on the Internet).
Digitization means that paper documents are transformed into electronic
(digital) analogues (the physical format is transformed into a digital one)
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(Mihrovska, 2021). The digitization of documents or technologies should
be understood as the process of converting paper documents (or processes
that involve paper documentation) into digital form. Digital technologies
require digital information, so digitization is a necessary process which
brings information to a digital format.
However, for digital transformations, digitization of data is not enough,
there is a need in digitalization (Didenko et al., 2022). The latter in a broad
sense is interpreted as the process of introducing digital technologies
to improve the life of a person, society and the state. As a result, digital
governance will be perceived as a digital implementation of public
power (a digital form of public governance), which will become a stage
in the evolutionary implementation of information and communication
technologies in the activities of public authorities (from informatization of
public administration to electronic governance, and then to digitalization of
public governance) (Kuybida et al., 2018).
Considering the above mentioned, it is possible to state, that modern
society:
• widely uses the latest information technologies in all areas (Internet
networks, databases, technical devices for high-speed data
transfer, etc.), which are one of the important factors inuencing
its development, allow to simplify complex calculations, increase
the speed and volumes of transmission and reception information,
(exchange) between users, etc.
• is increasingly moving away from the era of physical labor, when the
result of a person’s activity is material objects, which serve not only
to satisfy the personal needs of the person who created them, but
also for their sale.
The new society is reorienting itself to mental work. The main assets
of any enterprise are not so much physical units of measurement, such as
the availability of land, complex production facilities, oce premises, the
number of products in warehouses, stocks of raw materials, but intellectual
accumulations (Tsymbalenko, 2012).
In the economy of the information society, the main factor is the
information resource, preference is given to the activities of production,
processing, storage and distribution of information and knowledge, which
replace signicant wealth, capital, i.e., there is a change in the employment
structure; the main sphere of economic activity of the information society
is the production of information.
The main resources of society are knowledge and information, which
play an increasingly signicant role in the economy; at the same time,
an information resource diers from nancial, natural, labor, technical
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Intellectual property rights issues in the digital era
and other resources (information as an information resource, as valuable
information, can be accumulated, stored and used in the process of life
without wearing out, while other resources of the economy are prone to
wearing out) (Shtanko and Bordyugova, 2012).
In recent decades, one of the main trends in the development of
the economy and society in general is the penetration of information
technologies into various spheres of human activity. Nowadays, the
development of informatization is primarily related to the introduction of
digital communication technologies and platforms, for which the Internet
and mobile devices are the basis.
Sectors of the economy, based on information and communication
technologies, are called “digital economy” (Yaremenko, 2011). In Ukraine,
transition to the digital economy was declared by the Concept of the
Development of the Digital Economy and Society of Ukraine for 2018-
2020, approved in accordance with the Decree of the Cabinet of Ministers
of Ukraine dated January 17, 2018.
This executive act establishes the main goals and directions of digital
development, the principles of digitalization, the implementation of digital
governance, and declares the creation of conditions for digitalization in the
economy, society, education, medicine, ecology, etc., for which it is provided
to create market incentives, motivations for the use of digital technologies,
products and services among the Ukrainian sectors of industry, business,
etc., considering the fact that the path to the digital economy (activities
in which the main means (factors) of production are digital (electronic,
virtual) data both numerical and textual) through the internal market of
production, use and consumption of information, communication and
digital technologies.
The activity of the development of innovations and technologies
referred to in the Concept takes place, among other things, thanks to the
development of the Internet, from the archival repositories of which a large
amount of information can be obtained, social networks with constantly
updated information, powerful technologies (Google, Apple, Microsoft,
Amazon, Facebook) etc.
Consumers of digital technologies are the state, business, and citizens. At
the same time, the emergence of the latest technologies, which provides the
possibility of electronic communication, leads to an increase in the variety
of objects of such communication, which, accordingly, causes the need to
include them in the list of objects of intellectual property, to dene such
objects, as well as to develop actions to prevent infringement of authors’
rights for such objects.
Thus, thanks to electronic communication, such varieties as sites,
domains, search engines, electronic documents, electronic digital signatures,
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electronic commerce, electronic publications, mailing lists, Internet stores,
electronic libraries, catalogs have appeared. The application of the norms
contained in the relevant legislation on intellectual property to such objects
is not entirely acceptable.
The world of digital technologies is not only a new logical stage in the
development of the technological sphere of humanity, but also the entire
existing legal and socio-political reality. There are still no generally accepted
and harmonized legal denitions, but digital technologies are already
rapidly capturing the bases for the oensive. Digitization is becoming
the most important factor in the economic growth of the economy of any
country and is generally a modern development trend (Sosnin, 2022).
2. Impact of information technologies on intellectual property
According to Article 2 of the Convention on the Establishment of the
World Intellectual Property Organization (1967), intellectual property
includes rights related to: literary, artistic and scientic works; performing
activities of artists, sound recording, radio and television broadcasts;
inventions in all areas of human activity; scientic achievements; industrial
samples; trademarks, service marks, brand names and commercial
designations; protection against unfair competition, as well as all other
rights related to intellectual activity in industrial, scientic, literary and
artistic areas (WIPO, 1967).
At the same time, the Agreement on Trade Aspects of Intellectual
Property Rights (TRIPS) dated April 15, 1994 also includes into the list
of intellectual property rights’ objects computer programs and databases,
related rights (rights of performers, producers of phonograms, broadcasting
organizations), geographical names, names of places of origin of goods,
topography of integrated microcircuits, undisclosed information. Thus, the
text of the mentioned Agreement already takes into account the changes
that occurred as a result of the development of new technologies.
The development of information technologies, resulting in the emergence
of new objects, was also reected in the Law of Ukraine “On Copyright and
Related Rights” (Verkhovne Rada of Ukraine, 2023). It denes the latest
intellectual property rights’ objects such as database, website, web page,
video gram, hyperlink, computer program, digital content etc.
The new spheres of appearance of intellectual property rights’ objects
are also reected in the Law of Ukraine “On Stimulating the Development
of the Digital Economy in Ukraine” dated July 15, 2021 (Verkhovna Rada
of Ukraine, 2021) regarding the right to works developed by gig specialists.
According to the rst part of Article 24 of the mentioned Law, personal
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Intellectual property rights issues in the digital era
non-property intellectual property rights belong to such a gig specialist. As
for the property rights to the object created by a gig specialist as a result
of performing a gig contract, the legislator left such rights to the resident
of Diya City as the customer, although the parties to such a gig contract
(the gig specialist and the resident of Diya City) have the right to establish
a dierent procedure for the distribution of such rights under the terms
of the contract. This position is similar to the position under the Civil
Code of Ukraine regarding property rights to computer programs and (or)
databases.
The main trends of modern information development aecting changes
in the eld of intellectual property are:
• ongoing development of the information society, in which the
production, use and consumption of information becomes a dening
method of activity in all spheres of social life.
• close economic integration of all countries because of liberalization
and further increase in the volume and diversity of international
trade in goods and services, growth in the number of the workforce
and accelerated spread of the latest technologies on a global scale.
The digital economy is a fundamentally new stage in the development
of the modern information society, and, accordingly, a shift in emphasis
towards the production of knowledge, intellectual capital, the growth of
the production of information technologies, software, education services,
and the use of innovative methods in management. In the digital age, the
success of the economy and, accordingly, the state is not so much connected
with the possession of natural resources and gold and currency reserves, but
with the high development of science, the increase in the number of people
engaged in eective creative research and development, technological
development.
In the digital economy, intellectual property issues are of particular
importance. This is due to the rapid development of electronic means of
communication, the latest digital technologies, as well as the rapid delivery
of intelligent products to consumers. The economy of intellectual property
in the era of Internet acquires new features, and the Internet, as a super
media means of communication, contributes to the globalization of the
market for rights to intellectual property objects (Shevchenko et al., 2015).
Intellectual activity is a driving factor in the development of the
information society, and in terms of liberalization of world markets, the
rapid progress of technologies in the eld of international communication
systems, the aggravation and changes in the forms of competition, the
development of international relations in the eld of intellectual property,
intellectual property rights are becoming an important tool of global
competition of states for access to resources and markets of high-tech
products (Logvynenko and Dykovets, 2020).
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At the same time, the accumulation of achievements of the state’s
cultural heritage and scientic and technical potential contribute to the
progressive development of society.
In terms of market relations, the results of creative activity can become a
product that brings prot to its creator. At the same time, the development
of any sphere of creativity is of special importance for the entire society.
The accumulated achievements of the human mind make up the cultural
heritage of the nation, determine the scientic and technical potential of
society, and condition its progressive development. That is why not only
they themselves are interested in preserving creative results and protecting
the interests of their creators, but also society as a whole (Kurganova, 2017).
The intellectual property market has the potential for development,
but under the condition of the development of a system of protection of
the intellectual property rights and state support to stimulate innovation
(Bazilevich, 2014).
The duty of the state in the development of the intellectual property
institute is to dene the state policy regarding intellectual property, the
legislative basis for its implementation, guarantees for the protection of
intellectual property, and to promote the formation of favorable socio-
economic conditions for the development of the potential of intellectual
property in order to attract investments in economic circulation,
participation in international cooperation on intellectual property issues,
implementation of constant monitoring of the compliance of the national
and international legislative framework and updating of national legislation
in order to meet their requirements with international and European legal
norms, as well as the elimination of obstacles to the progressive development
of the innovation process at the state level.
Current approach to the use of Internet (absence of national borders,
speed of information transfer, user anonymity, freedom in obtaining the
necessary information) gives users access to a wide range of information
of any kind, and a person who seeks to “get” the information posted in the
network, does not care about the observance of the rights of the authors of
information, and therefore the issue of protection of the authors’ rights is
the cornerstone of intellectual property.
At the same time, the Internet complicates the protection of intellectual
property rights due to the imperfection of the legal acts, which do not
contain norms regarding the protection of information products in digital
form, databases on the Internet, copyright, distribution of cheap counterfeit
copies, etc. In addition, the sphere of intellectual property relations has
expanded in the digital age. New objects of intellectual property appeared
- computer programs, databases, websites, network video grams, digital
broadcasting (Nekit et al., 2019). Therefore, under the inuence of the
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development of information technologies, the spheres of occurrence
and types of objects of intellectual property rights are growing. This is
accompanied by the emergence of legal conicts and gaps that need to be
resolved.
3. Current issues of intellectual property in the digital
age and ways of their solution
Internet has become a key technology among the latest technologies and
plays a huge role in the distribution of intellectual property objects. States
cannot unreasonably restrict individuals’ access to the Internet (except
when the dissemination of certain information is prohibited by law) and
must be responsible for ensuring such access.
Internet has become important in almost all spheres of public and
private life. According to the UN, in 2021 the number of Internet users
increased from 4.1 to 4.9 billion compared to 2019, in particular due to
the COVID-19 pandemic. In the rst year of the pandemic, the number of
people who started using the Internet increased by 10% - this is the largest
annual increase in the last decade (United Nations, 2021).
As a result of the application of the Web 2.0 process, Internet users
are both consumers of services and authors. In general, copyright objects
are constantly developing and require high-quality protection. This issue
became especially relevant after the development and spread of the
World Wide Web. The world system has become an integral part of the
development of society and the world.
The interaction between the system of intellectual property rights as a
category of private law and the sphere of public legal interests, which is the
Internet, has the following results:
• the development of technologies makes it possible to track the
appearance of new objects of intellectual property law, which in
turn allows, taking into account information about such objects, to
plan one’s future activities, to make forecasts (in the activities of
individuals or legal entities, and on the state level);
• increasing the level of the threat of infringement of intellectual
property rights, the appearance of an “atypical” place for
counterfeiting - the Internet.
• the interdependence of intellectual property rights, other intangible
rights of individuals and legal entities on the Internet and the
specics of their implementation.
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Modern technologies signicantly aect the development of the
intellectual property market. The market becomes cross-border and ultra-
fast, access to it is simplied, which creates advantages, but there are also
risks in terms of eective protection of intellectual property rights.
The advantages of the intellectual property market in the digital age are:
• allocation of objects of intellectual property rights in digital form on
the Internet;
• allocation of information products (objects of intellectual property)
by authors who do not have the opportunity to distribute their work
in any other way;
• expanding the range of product selection for users;
• placing objects in a digitized form helps to reduce costs for providers
(saving money on product release, delivery, storage, in particular,
maintaining libraries), reducing costs and saving time for users to
obtain the desired information product.
At the same time, the risks associated with the imperfection of the
legislation are signicant. The use of intellectual property rights via the
Internet is cross-border, which makes it dicult to apply national legislation
in this area in case of the need to protect rights. There is a problem in
managing the reproduction and use of intellectual property objects on the
Internet, and the diculty of proving the fact of violations (if information
is quickly displayed, changed, or deleted), the complication of technical
xation of the fact of copyright infringement in the global information
network as a prerequisite for starting to prove the fact violation (Lucci,
2006).
At the same time, technological developments have made the Internet
an extremely eective means of distributing pirated content, causing
signicant economic damage to the authors of intellectual property (e.g.,
streaming, unauthorized conversion of a le from a licensed streaming site
into an unauthorized copy, music piracy), and also leading to undermining
legitimate online services. New times give birth to new technologies and
new violations, respectively, especially if there are no preventive measures
or there are no legally established norms aimed at collecting money from the
violator or applying other responsibility. This situation poses a signicant
threat to online libraries containing text, music and video les, as well as
web pages of printed periodicals with open access.
Types of violations of authors’ property and non-property rights on the
Internet are illegal reproduction and copying of copyright objects without
the prior consent of the author or right holder, distribution of the author’s
work (in whole or in part) under one’s own name without mentioning the
author’s name (plagiarism).
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Internet piracy and plagiarism are easier to commit in Ukraine due to the
principle of mainly non-commercial access to information. The Ukrainian
user pays a fee only to the provider, and has the right during the paid period
to have access, including for illegal purposes, to any information posted on
the Internet. It is clear that electronic libraries with digitized text and music
les, electronic periodicals with open access, etc., are particularly attractive
to violators.
Intellectual property rights play a huge role in global economic growth
and development because they aect the protability of industrial research
and the rewards for creative activity. If the protection of intellectual property
rights is strengthened, counterfeit products are eliminated, and goods and
services on the market are limited to those companies that own intellectual
property rights, then the market will become monopolized.
Rights holders will receive a prot, but for users the price may be higher
than before due to a decrease in the number of goods and/or services. At the
same time, if protection is strengthened, eorts to create new technologies,
goods and services are rewarded, which will have the eect of encouraging
the activities of new entrants working on the invention and supply of goods
and services. As a result, the market becomes competitive, the size of the
market expands, and trade becomes active.
As for the market of intellectual property objects, it occupies a special
place among the segments of the global market, since it is not standard
types of goods and services that are bought and sold, but scientic and
technical knowledge, which are the results of innovative developments and
research, design, experience of their industrial development, embodied in
relevant security documents - patents, licenses, industrial samples, scientic
reports, trade secrets, etc. In other words, this market is the foundation
of the internationalization of intellectual production and the international
socialization of intellectual work.
Thus, the proper level of protection of intellectual property rights is a
necessary condition for ensuring social development and fair distribution
of intellectual rent. However, the introduction of high standards for the
protection of intellectual property and the establishment of a monopoly on
its rights can cause the impoverishment of the global bank of knowledge
accumulated by mankind and limit the access of poor countries to the
global “technological base”.
With the development of the World Wide Web, the lack of proper
regulation of the activities of the mass media as a means of communication
can also be attributed to certain issues aecting the violation of intellectual
rights.
The development of the Internet and IT technologies, information wars
pose new needs and challenges to states in ensuring legal regulation of
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mass media. For example, in Ukraine today there is no ocial denition of
mass media existing on the Internet. This signicantly narrows the general
understanding of the media. Print mass media can have their own electronic
versions, the work of journalists is distributed in social networks, scientic
publications can have an electronic version on the Internet.
Legal relations related to mass media activities are regulated by the
Constitution of Ukraine, the current Laws “On Information”, “On Access to
Public Information”, the Law of Ukraine “On Printed Mass Media (Press)
in Ukraine”, “On State Support of Mass Media and social protection of
journalists”, etc., however, Internet publications do not nd sucient legal
regulation. However, Ukrainian legislation still does not contain norms that
would reect the peculiarities of the use and protection of an information
product (work) on the Internet (Nekit et al., 2020).
It seems that author’s self-actions to independently protect intellectual
property on the Internet can signicantly contribute to the intellectual
property protection. Thus, copyright owners have a wide range of
technical and legal options for protecting copyright and related rights on
the Internet. Which one to choose depends on the nature of the work, the
objective form of existence and the restrictions on use established by the
author. Conventionally, technical methods of copyright protection on the
Internet can be divided into methods of identication of copyright objects
and related rights, access restrictions, cryptographic conversion, etc. The
use of protective means depends on the nature of the protected intellectual
property.
Regarding the determination of preemptive actions, in particular, in the
distribution of the object of copyright, it is considered possible to take such
protective actions regarding one’s intellectual property at the stage before
the violation (Ivashenko, 2012). Thus, the author has a right to:
• limit functionality, that is, distribute programs that are not capable
of printing documents or storing them in the computer’s memory.
• set the date after which access to the object will be impossible and
(or) set how many times the le can be copied or set the frequency
of issuing the command to open the product, i.e. the information
product is unavailable after a certain number of views and (or)
copies (for example, after 10 viewings of a computer le, it will be
impossible to view), use so-called code words (the introduction of
rare and exotic words into the text, which can be used to trace the
use of one’s own work);
• carry out preliminary publication of information products, with
notarization of the date of creation and (or) publication, to have
conrmation of the fact of such date.
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• record on a laser disc with transfer to an archive or web depository.
• mark information products with a label that will be activated during
unauthorized use of the products, providing an opportunity to nd
the copyright infringer.
• installation of the copyright icon (©), although this icon does
not protect against content theft, but its presence is an indirect
protection, declaring to users who is the author of the object and
showing that the author is able to control the use of works on the
Internet and, in case of infringement of copyright and related rights,
provide conrmation of his or her authorship.
• provide access to the Internet resource for a fee, in particular,
copyright holders can protect their rights to works by distributing
them in crypto-envelopes and requiring users to pay for keys that can
be used to “remove” the work from the “envelope” as a limitation of
the copyright owner functionality of the work (the user is provided
with a copy of the work with functional limitations, for example, the
full version is provided after appropriate payment for acquisition
and (or) renewal, etc.);
• to protect the information product from unauthorized use on
the Internet by creating a web repository that allows registering
intellectual property objects on the Internet and xing their legal
status, that is, determining who owns this object.
An eective measure of copyright protection at the stage of their violation
can be considered the use of computer programs that automatically execute
predetermined commands, for example, search the Internet for copies of
counterfeit works, or identify the infringer with the help of a special mark
that is placed in the work and is triggered during unauthorized use, which
provides the possibility of identifying the copyright infringer (Cantatore,
2021).
Despite the absence of a requirement for mandatory state registration of
copyright and contracts relating to the author’s right to a work, registration
of a work, as dened by the Resolution of the Cabinet of Ministers of Ukraine
“On State Registration of Copyright and Contracts Concerning the Author’s
Right to a Work” (Cabinet of Ministers of Ukraine, 2001) is one of the most
eective proofs of copyright infringement on the Internet.
Although the issue of the circulation and protection of intellectual
property is not new, but due to the rapid progressive development of new
technologies, there are diculties in applying liability to violators due to
the inability to provide an evidentiary basis for the committed violation
(Nekit et al., 2020). With the development of new technologies, which is a
positive dynamic of the development of the information society, there is a
need to update the legal framework regarding intellectual property rights.
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The strengthening of copyright protection would be facilitated by the
implementation at the state level of appropriate measures to empower
the author to apply prejudicial actions when placing intellectual property
objects on the Internet and directly at the stage of violation of such rights.
In order to protect intellectual property rights, it is also worth paying
attention to the possibility of more signicant state support and expansion
of the work of virtual libraries and virtual reading rooms in Ukraine. On
the one hand, they provide access to the necessary information, and on
the other hand, they protect the copyright of the owner. Some libraries
have already begun to operate in Ukraine (Library of Ukrainian Literature
“UkrLib”, Ukrainian electronic library “Libruk”, Book Brotherhood
“Flibusta”, Electronic Library “Ukrainian Literature”, Ukrainian and
foreign literature in Ukrainian “Shift Library CMS”, Electronic Library
of the National libraries of Ukraine for children, Children’s public online
library “Chitanka”).
A virtual library is dened as an online research environment in which
digital materials are made available for free, with intentionally limited
downloads. Cloud services make it possible to store information, including
in libraries and reading rooms of state bodies. This technology is simple
and provides access to collections of books, magazines, presentations,
educational materials, helps to protect copyright and intellectual property
(Ugwu, 2019).
With such an approach, users can become new partners and help
improve their service, and the services provided by library institutions in
the electronic environment can be expanded to reach a wide range of remote
users and materials, both in terms of content and in terms of available new
technologies. This is how audio and video content are used.
In terms of modern scientic and technical development, access and
knowledge of relevant materials are of great importance for the realization of
human rights to information, education and development while preserving
property rights and copyrights for relevant works placed in virtual libraries.
Virtual reading rooms generally protect the author’s rights from illegal use
and promote copyright enforcement. The mission of the authorities and the
government is to provide citizens with legal standards that meet modern
realities, and to maintain such an unstable balance of interests between
copyright owners and users.
Among the diculties in the development of intellectual property rights
protection is the issue of nancial and organizational support, as there is
a need for constant modernization and innovation in this area, because
new forms and technologies of infringement of intellectual property rights
appear due to gaps in legal regulation. Therefore, the question arises of
attracting innovations and investors who are ready to manage and approve
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the development of information technologies and methods of intellectual
property protection.
Ukraine is taking increasingly eective steps to solve the problem of
intellectual property. Thus, the National Economic Strategy of Ukraine for
the period until 2030 contains the principle of protection of intellectual
property rights. This document contains long-term and short-term plans
for each item and is mandatory, and the rst step in this direction should
be the adoption of an intellectual property development strategy. After all,
intellectual property is an important tool for creating an environment that
enables innovation, investment, invention and the development of creative
industries.
Full protection of intellectual property rights and the creation of tools
necessary for their functioning will contribute to the development of human
capital as the greatest asset of the Ukrainian government.
We should also not forget about such threats as cyberterrorism and
cyberespionage as a global problem of information security: with deliberate
illegal actions by other persons, information can disappear or be changed
beyond recognition. The rapid development of technologies leads to the
growth of the information array, which can then be used both for good and
in an information war. Computer technology and the proliferation of digital
networks have fundamentally changed the way ideas and information are
collected and manipulated, and this has given rise to new conicts between
public use and private rights.
From the security perspective, any kind of electronic communication is
extremely vulnerable - with help of technical means, any information can
be removed from computers. There are, of course, methods of protection,
but there are no guarantees that they will work.
The threat is not only that the special state services are able to connect
and “take” information even from optical ber (digital) cables with help
of technical means. The free market of technical means, unfortunately,
provides access to huge volumes of data through modern communication
networks to foreign intelligence and criminal structures, which constantly
produces new threats and challenges.
Thus, the most disturbing issues of intellectual property in the
information and communication sphere include the following: imperfection
of the legislative framework, lagging behind foreign legislative and
normative practices of intellectual property regulation, the need to adapt to
international agreements in the eld of intellectual property.
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Conclusions
Recently, the innovative or digital economy increasingly prevails over
the industrial economy, which indicates the beginning of the transition to
a digital society. The modern framework of the development of Ukrainian
society allows us to condently state that the society in Ukraine is already
informational. However, the digital age brings not only advantages, in
particular, the possibility of using technical solutions, access to the global
Internet, rapid exchange of information, development of the service sector,
increasing value of knowledge as the basis of the digital economy. The
active development of information technologies also contains danger and
threatens human rights.
The development of the information sphere, the growth of the value of
information and knowledge, leads to the stimulation of intellectual activity,
the results of which are, in particular, objects of intellectual property
rights. The spheres of occurrence and types of intellectual property objects
are expanding. In the digital economy, intellectual property issues are of
particular importance. This is due to the rapid development of electronic
means of communication, the latest digital technologies, as well as the
rapid delivery of intelligent products to consumers.
The intellectual property market has the potential for development,
but under the condition of the development of the system of protection
of intellectual property rights, state support to stimulate innovation. The
duty of the state in the development of the intellectual property institute
is to dene the state policy regarding intellectual property, the legislative
basis for its implementation, guarantees for the protection of intellectual
property, and to promote the formation of favorable socio-economic
conditions for the development of intellectual property in order to attract
investments at the state level.
Copyright infringement on the Internet, in particular, piracy and
plagiarism, is an especially problematic area. The strengthening of copyright
protection would be facilitated by the implementation at the state level of
appropriate measures to empower the author to apply prejudicial actions
when placing intellectual property objects on the Internet and directly at
the stage of violation of such rights. It would be also helpful to pay more
attention to the development of virtual libraries with appropriate technical
means for copyright protection. Support of virtual libraries at the state level
will ensure both access to information and protection of authors’ rights at
the same time. Ultimately, this will contribute to the development of society
in the digital age.
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Esta revista fue editada en formato digital y publicada
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Vol.42 Nº 80
