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Difficulties of digital proof


Author: Taras Utiralov, lawyer, Ilyashev & Partners Law Firm
Source: Companion

Observance of copyright leaves much to be desired, not only in Ukraine, their infringement is also common in other countries. It is much due to rapid development of the Internet, namely social networks, increasing capacity of Internet channels.

If in pre-information era it was hard to imagine immediate distribution of a work around the world, which could cause huge losses to the author, currently, it is quite possible.

Internet virtually destroyed the territorial limitations of copyright law, although it still exists legally. International treaties are called to overcome it, but even one non-aligned country is enough to infringe copyrights without any actual legal basis for their protection. However, most states are still bound by international legal obligations to protect copyright, so there are legal mechanisms to counteract the majority of violations.

It is worth noting that identifying the offender, e.g. in case of selling counterfeit discs in the street, is not particularly difficult. Sure, to identify and punish, or prevent violation in the future is not the same thing, though in such a situation, knowing a direct law breaker, it is possible to identify the head of crime and subsequently prevent it.

However, what if copyrights are infringed online? How to search the offender? It is clear that for large media companies that own hundreds of copyrighted works, it is not reasonable and appropriate to prevent each violation of copyright by each network user – there are not enough either human or time resources. In case of large-scale infringement on a particular site the rights holders may still be tempted if not to eliminate the violation of their rights as a whole (the offender can simply go to another site), then at least to make things difficult for the offenders.

In fact, copyright infringement can be pursued in criminal or administrative proceedings, and in civil or commercial proceeding, or through their consolidation.

You can also try to resolve the conflict in private with the administration of the site on which the infringing content is laid out. However, firstly, not all sites cooperate with copyright holders, and secondly, such measures usually do not result in compensation of losses of copyright holder, but allow discontinuation of infringement. It is also possible to delete links to the site infringing copyrights of the search results of the American search engines by notifying the latter with reference to the U.S. Digital Millennium Copyright Act. This method, however, also does not provide for redress of rights holder and does not even eliminate infringement as such (although minimizes its negative effect).

Criminal proceedings in connection with copyright infringement can be useful to establish the identity of infringers and their search, and in case of indictment, the illegal actions by specific individuals will not have to be proved again in civil or commercial proceedings.

In case of civil or commercial proceedings after the detection of rights infringement on a particular site the rights holder is primarily concerned with determination of the offender. Here the first problem arises. Whois service is designed to provide information about the website owners currently hides data about the owners of the Ukrainian sites – individuals for compliance with the legislation on the protection of personal data. It means if the site is registered in Ukraine (if not a second level domain in the zone .ua) to an individual, not a company or organization, information about the owner cannot be obtained from public sources, except that he himself makes it public.

The author has the opportunity to request the court to demand information about the owner, but it may be that even the domain name administrator has no complete or accurate information. When registering domain names in most zones it is required to provide minimum information about yourself, and no one checks it. Thus, it is very likely to come across the problem whom to sue to protect copyrights.

Perhaps, only zone .ua makes an exception – to register a domain it requires a registered trademark identical to the domain name. Accordingly, knowing the domain name you can find trade name and as a result – its owner, who must be a site owner.

Even more difficult it may be to identify a user of a specific site, if he, not the site owner, is the infringer of copyright (e.g. social networks).

Placement of the author’s products on foreign websites can also cause a problem for the protection of copyright, because the courts hear cases on copyright infringement by location of an offence.

If not to prosecute offenders, the burden of proof becomes particularly urgent in court. On the plaintiff bears burden of proof of the defendant’s wrongful conduct, caused injury and a causal link between the two. The offender may prove that it was not his fault. If losses cannot be recovered without proving guilt of the offender, he is still obliged to discontinue the violation. Without proving the defendant’s guilt the court can also decide on the publication of information about copyright infringement in the media. In any case, the plaintiff must prove that he owns the copyright, which violation he states, and the exercise of these rights by the defendant. It is assumed that the author is the person named as the author on the original or copy of the work.

If copyright was registered with the State Service of Intellectual Property, the person named in the certificate issued, shall not prove his respective rights, and others, on the contrary, may prove the contrary.

Perhaps the most difficult is to prove copyright infringement on the Internet, as technically it is not difficult to delete the copyrighted works after filing the claim, and then inspection of the site will not make sense. Therefore, it is necessary to collect evidence in advance. It shall be remembered that printing of the Internet pages cannot be evidence in this case. Means of proof can be, e.g. video recording of the site research, written statements from providers, owners of search engines. However, the most reliable evidence on this point is the inspection records of the sites certified by the Russian notaries (the Ukrainian notaries still do not provide such services, and official Russian documents do not require legalization in Ukraine).

In court, the copyright holder may require the offender, in particular, to recover of losses, including lost profits, recover of income received as a result of copyright infringement or payment of compensation. When recovering lost profits it is difficult to prove a specific amount, but in any case it cannot be less than the offender’s income received as a result of such violation.

To reclaim compensation from the infringer of copyright it is not required to prove the amount of damages (as opposed to an action for recovery of actual damages); it is enough to prove a violation. The amount of compensation is ultimately determined by the court within the set limits.

Therefore, in Ukraine there are legal mechanisms for the protection of copyright, they can be protected even in case of violations on the Internet. However, it is connected with some practical difficulties and requires a thorough legal approach to the problem.

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