PRESUMPTION OF AUTHORSHIP AND ITS APPLICATION IN JUDICIAL PRACTICE
Oleksandra Javorska · Visnyk of the Lviv University Series Law · 2016
The article is devoted to acquiring and certification of copyright on works of literature, science and arts accordance to Ukrainian legislation. The copyright proprietors are the authors of the works, their heirs and persons to whom the authors or their heirs have transferred their copyrights. It is taken to distinguish primary and secondary copyright proprietors. National legislation does not set any formal procedures for author to execute and protect his copyrights. His right arises on a fact of creation. The author has the right to register his authorship in accordance with current legislation. However, the execution and protection of copyrights are not connected with fact of such registration. In order that the author of a literary or artistic work protected by Berne Convention shall be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This rule shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity. The person or body corporate whose name appears on a cinematographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker of the said work. In the case of anonymous and pseudonymous works, other than those referred to in paragraph above, the publisher whose name appears on the work shall, in the absence of proof to the contrary, be deemed to represent the author, and in this capacity he shall be entitled to protect and enforce the author's rights. The provisions of this paragraph shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work. A presumption of authorship has an important part in regulating of copyright plays. According to it a person is considered as the author of the work that indicated in the usual way as the author on the original or copies of work in absence of other evidence. In judicial practice the disputes on copyright are widespread, in which claims about acknowledgement of authorship are combined with other requirements (for compensation of damages, compensation of moral harm, etc.). In solving them courts are to proceed from presumption of authorship. Other evidence relating to authorship of the work are investigated only if the person`s authorship is disputed or challenged. Nevertheless, the courts often acknowledge the facts of authorship by their decisions. The theoretical aspects of presumption of authorship and its application in judicial practice are discovered.