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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

The Ex-Files: The Reason Behind Ukrainian File-Hosting Web-Sites

15.12.2016

Mariia Koval, attorney at Ilyashev & Partners Law Firm
Source: Forbes.ua

On December 01 the biggest of Ukrainian file-hosting web-sites ex.ua stopped its work, namely – terminated public access to the content. The possibility of transferring personal users’ accounts, as well as access to the e-mail, was extended till Decmber 31 of this year, about which the resourse announced at its web-site. In its address to the users ex.ua the site announced that the site domain is put on sale for $1 mln. All the proceeds are supposed to be donated for charity.

The company believes that the recent legislative initiatives in the sphere of anti-piracy fight bear all the marks of uncivilized lobbyism. Forbes is talking to Mariia Koval, attorney of Ilyashev & Partners Law Firm about the initiatives and chances of curbing illegal use of unlicensed contents.

It must be noted that in 2012 the law-enforcement agencies had already attempted to close ex.ua, however, the web-resouse renewed its work.

As distinct from fs.to – the resourse which had been closed by law enforcers two weeks earlier, ex.ua announced its decision to leave the market mentioning about it at its web-site. As the representatives of web-resourse state they have always acted in a lawful manner and dinamicly reacted anyt any violations at the platform, and new legislative initiatives in the sphere of foighting piracy are bearing all the marks of uncivilized lobbyism.

Without charge or trial

It is obvious that the decision about termination of ex.ua was taken as a step of precaution and protest in light of adoption of the Law of Ukraine “On the state support of cinematography in Ukraine” (draft law No. 3081-д).

The mentioned draft law stipulates for the possibility of the owners of the rights to apply to the web-site owner with the request to remove or block access to the electronic (digital) information (content) violating the intellectual property and/or related rights without court decision within 24-hour term.

If the owner of the web-site declines to remove such content, access to it must be blocked by the supplier of technical services. If the content is not blocked also by the supplier the owner of the corresponding rights may file a suit to court.

Notable is the fact that in case of failure to fulfill the said demands on removal (blocking) of the content, the owners of the web-sites or hosting-providers may bear responsibility for violation of intellectual property and/or related rights.

In essence, the draft law stipulates out-of-court removal or blocking of the access to the content and web-sites more often with assistance of providers themselves. In such way any content and the web-site may be blocked without interference of the court.

It needs to be noted that such out-of-court procedure of content removal or blocking the access to it contradicts provisions of the he Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which stipulates for protection of the violated rights via the court procedure.

As of nowadays the draft of the said Law was vetoed by the President and returned to the Parliament with the President’s proposals. Truth be said the proposals to the law are not related to intellectual property matters.

Where, whose and why?

Undoubtedly, Ukraine must tighten protection of intellectual property and intencify struggle with piracy. But will the fight with file-hosting web-sites give the desired result in the long run?

As of today there is a totally logical question: where may Ukrainian users legally (for a fee) download all the audio and/or video files they want? The reply is evident: almost nowhere. Will the Ukrainian users be (materially) ready to pay around $10 for one downloaded audio- and/or video file? It is unlikely.

Opinions of the lawyers and the specialists if the sphere of intellectual property and telecommunications in relation to such fight with piracy are divided: one believe that without fight with such “pirate islands” as the mentioned file-hosting web-sites, Ukraine will not see any positive shifts. Others are of the opinion that closure of such platforms will not influence the general situation and that such file-hosting web-sites have been carrying out lawful activities.

It is evident that ex.ua was an ideal platform for violations in the sphere of intellectual property and related rights at which any person could freely and openly publish obviously unlicensed objects of intellectual property and related rights.

The administrators of the resource have always responded to the claims of the copyright holders and removed the unlawful content. But not all copyright holders had a possibility to submit their claims to this particular resource and, in each particular case, they would have to submit their claims daily, and not only to ex.ua.

It is also must be noticed that the persons who created such file-hosting web-sites carry out their further hosting and administration by which apparently encourage violation (albeit by the hands of their users) of intellectual property and related rights.

More trouble than it is worth

A good a example in this case is the court process related to Thepiratebay.org, the web-site of a Swedish torrent-tracker. The Stockholm district court sentenced four persons implicated in creation and administration of the mentioned resource to 1-year imprisonment and settlement of the fine in the amount of $ 3.5 mln. The court of appeal decreased the term of imprisonment, but increased the amount of fine up to $ 6.5 mln.

It must be mentioned that Piratebay made it possible for the users to exchange files bud did not save copies of such files which is allowed by ex.ua.

This court procedure is indicative of the fact that file-hosting resources containing unlicensed content are provided with the status of “pirate” according to the provisions of the European law,

Is it possible to curb illegal use of non-licensed content in Ukraine? Yes, it is possible, but blocking the content or web-sites will likely constitute an efficient countermeasure in this case.

A whole complex of measures is required here: making it impossible to escape responsibility for violation of violated rights, replacing non-licensed software by the licensed software in all the state bodies, decreasing the price for the Ukrainian users for acquisition of the software of the same kind etc.

Moreover, as a result of charging fees for using contents of file-hosting resources all the piracy charges (publishing, reproduction, import to the customs territory of Ukraine and distribution of infringing materials) would cease on their own. As a matter of fact the question is whether ex.ua would be able to come to arrangement with all the copyright holders who are striving to receive considerable sums of money for their objects of intellectual property.

 
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