Commercial use of works: how to avoid breaking the law?

Using someone else’s work for commercial purposes is common practice, but it can lead to serious legal problems if you don’t know the rules. Commercial use of works is governed by copyright law, and ignorance of the law does not exempt you from liability. This article will help you understand the intricacies of copyrightlaw and teach you how to legally use works in your business, avoiding unpleasant consequences. Want to learn more about protecting your own works? Read our article“Copyright: How to Protect Your Works in Ukraine?“. Below we will look at the key aspects of commercialuse of works on and give practical advice to help you act within the law.

Section 1: What is commercial exploitation of works?

Before delving into the nuances of legal use, it is important to clearly understand what exactly is considered commercial exploitation of works. This concept is closely related to copyright law, which protects the rights of creators to their intellectual products. In this section, we will break down the definition of commercial use and provide specific examples to help you clearly identify situations where it is necessary to obtain the author’s permission or to act in accordance with other legal rules. Understanding these basic principles is the first step to safely and legally using other people’s works in your business.

Subsection 1.1: Definition of concept

Commercial use of works means any use of copyrighted works for profit or other economic gain. This includes not only the direct sale of copies of the work, but also its use in advertising materials, websites, product design, music, and many other situations where the work is used to promote a business or increase sales.

Key aspects of commercial use of works:

• Purpose of profit: Even if you do not sell the work itself, but use it to attract customers or increase brand awareness, this is considered commercial use.
• Any form of use: Commercial use covers various forms of use of works: copying, public display, distribution, translation, adaptation, etc.
• Need to comply with copyright law: Regardless of the form and amount of use, commercial use of works requires compliance with copyright law and obtaining permission from the author (or copyright holder) if necessary.

Even posting someone else’s work on your commercial website for free can be considered commercial use if it promotes your business. Thus, commercial use of works is a broad concept that encompasses any activity where a work is used for economic gain. Even the use of a small fragment of a work may qualify as commercial exploitation if it is for profit.

Subsection 1.2: Examples of Commercial Use

To better understand the concept of commercial use of works, let us look at a few specific examples from different business sectors:

• Use of photographs on the website of an online shop: Posting photographs of goods taken by a professional photographer without his or her permission is a commercial use of works because the photographs are used to promote and sell the goods.
• Music in a restaurant or shop: Playing music in public places to create an atmosphere and attract customers is also considered commercial use. In order to legally play music, appropriate licences must be obtained from collective copyright management organisations.
• Use of videos in advertising campaigns: If you use someone else’s video in your advertising without the author’s permission, this is copyright infringement and commercial use of the work.
• Printed products using someone else’s images: Placing illustrations, photographs or other graphic works on brochures, leaflets, product packaging without the author’s permission is commercial use.
• Translation and publication of a book by a foreign author without authorisation: Publication of a translated book without an appropriate contract with the copyright holder is a violation of copyright.
• Developing a computer game based on someone else’s literary work: Creating a derivative work, such as a computer game, based on a book or film requires permission from the copyright holders of the original work.

These are just a few examples and the list goes on. It is important to remember that any use of another’s work for business purposes, even if it seems insignificant, may qualify as commercial use and require copyright compliance . When in doubt, it is always best to contact a lawyer for advice.

Section 2: How can I legally use someone else’s work?

Using other people’s works in business is not necessarily against the law. There are several ways tolegally use works that allow you to use someone else’s intellectual property without infringing copyright. In this section we will look at a variety of options, from obtaining express permission from the author to using works from public domain and works with Creative Commons licences . We will also look at cases where use of works is allowed without the author’s consent under the law “On Copyright and Related Rights”. Knowledge of these mechanisms will help you avoid legal problems and build your business legally.

Subsection 2.1: Obtaining authorisation from the author

The most reliable way to legally use other people’s works in business is to obtain direct permission from the author (or copyright holder). This ensures that you are operating within the law and avoid potential conflicts and lawsuits.

Authorisation procedure:

1. Identifying the copyright holder: The first step is to determine who owns the copyright in the work. This may be the author himself, a publishing house, a production company or other organisation.
2. Contacting the copyright holder: Contact the copyright holder and express your desire to use their work. Describe clearly how exactly you plan to use the work, to what extent and for how long.
3. Contract: If the copyright holder agrees to the use of the work, a written contract must be concluded, which will clearly specify all the terms of use: type of use, duration, territory, amount of remuneration (if any) and other important aspects.
4. Payment of remuneration (royalty): In most cases, commercial use of works provides for payment of remuneration to the author. The amount of remuneration is determined by agreement between the parties and is fixed in the contract.

Advantages of obtaining authorisation:

• Legal security: A contract with the author provides you with legal protection and ensures that you use the work legally.
• Clear terms of use: A written contract excludes any misunderstandings or disputes about the terms of use of the work.
• Possibility to make changes to the work: By agreement with the author, you can obtain the right to make changes to the work, adapting it to your needs.

Oral agreements are not legally binding. Even if the author has given you verbal consent to use the work, this does not protect you from future claims. Always insist on a written contract. Keep copies of all permit-related documents in case disputes arise.

Subsection 2.2: Creative Commons licences

Creative Commons (CC) is a licensing system that allows authors to grant others the right to use their works under certain conditions without requiring individual permission. Creative Commons licences offer a flexible approach to copyright law, allowing authors to determine their own terms of use for their works.

Types of Creative Commons licences:

There are several types of CC licences that combine different terms of use:

• Attribution (BY): This condition requires mandatory attribution of the work. You must provide the author’s name, the title of the work and a link to the original.
• NonCommercial (NC): This condition prohibits commercial use of the work. You may use the work for non-commercial purposes, but not for profit.
• NoDerivs (ND): This condition prohibits the creation of derivative works. You may use the work in its original form, but you may not modify, alter or adapt it.
• ShareAlike (SA): This condition requires that any derivative works you create based on the licensed work be distributed under the same CC licence.

How to use works with CC licences:

1. Find a CC-licensed work: Many sites such as Flickr, Vimeo and SoundCloud allow authors to publish their works under CC licences. You can also find works with CC licences using search engines.
2. Check the licence terms: Read the licence terms carefully to make sure they meet your needs and goals. Pay attention to the combination of terms (BY, NC, ND, SA) to understand exactly what is allowed and what is prohibited.
3. Follow the terms of the licence: If you use a work with a CC licence, be sure to follow all of its terms. For example, if the licence contains an Attribution clause, you must attribute authorship of the work.

Advantages of using CC licences:

• Legal access to a wide range of works: CC licences provide access to a wide range of works that can be used legally.
• Ease of use: You don’t need to get individual permission from the author, just comply with the terms of the licence.
• Flexibility: Different combinations of terms and conditions allow you to find works that meet your specific needs.

Even if a work has a CC licence, it is important to make sure that you properly understand and comply with all of its terms. Improper use of a work with a CC licence may result in copyright infringement .

Subsection 2.3: Public Domain

A public domain is a collection of works whose copyright is no longer valid. This means that these works can be freely used by anyone without obtaining authorisation and without paying a fee. The use of works from the public domain is completely legal and is not restricted by any conditions.

How works get into the public domain:

• CopyrightTermination : In Ukraine, copyright is valid during the life of the author and 70 years after his death. After that, the work passes into the public domain.
• Copyright relinquishment by the author : the author may knowingly relinquish his rights to the work by making it publicly available.
• Works created by public authorities: works created by public authorities as part of their activities usually belong to the public domain.

How to use works from a public domain:

1. Make sure the work is actually in a public domain: Before using a work, check whether the copyright has actually expired . Information on this can be found in copyright databases or by contacting a professional.
2. Use the work freely: Works from the public domain can be used without any restrictions, including commercial use.

Advantages of using public domainworks :

• Complete freedom of use: You can use the works in any way you want, without obtaining authorisation and without paying a fee.
• Large selection of works: The public domain contains a huge number of works of various genres and styles.

Make sure that you are dealing with the original version of a work and not a later version or adaptation that may still be under copyright. For example, an older work may have a modern design whose copyright has not yet expired.

Subsection 2.4: Use of Works under the Law on Copyright and Related Rights

The Law of Ukraine “On Copyrightand Related Rights” provides for a number of cases where the use of works is permitted without the consent of the author (or other right holder) and without payment of remuneration. This is the so-called “free use of works”. It is important to realise that even in cases of free use, certain rules must be followed.

Here are some examples of free use of works:

• Citation: Citation for scientific, research, polemical, critical and informational purposes is permitted to the extent justified by the intended purpose. The name of the author and the source of the borrowing must be indicated.
• Educational use: The use of works for educational purposes, such as illustrating lectures or preparing teaching materials, is permitted. The amount of use must be justified by the educational purpose.
• Personal Reproduction: You may copy works for your own use, such as making copies of books or films for your home library. However, distribution of these copies is prohibited.
• Use of works permanently located in places open to the public: The reproduction of images of works of architecture, photography and filming of works permanently located in places open to the public are permitted, except when the images of the work are the main object of reproduction and/or when they are used for commercial purposes.

Important clarifications:

• Free use of works must not prejudice the normal use of the work and must not infringe the legitimate interests of the author.
• Even in the case of free use, it is usually necessary to indicate the name of the author and the source of the borrowing (if known).

To learn more about the types of copyrighted works, we recommend reading the article “Types of Copyrighted Works”. Remember that a correct understanding and application of the provisions of the law “On Copyright and Related Rights” will help you avoid problems and use works legally. If you have any doubts as to whether a particular use of a work is free, it is better to seek advice from a lawyer who specialises in intellectual property issues.

Section 3: Liability for Unlawful Use of Works

Unauthorised commercial use of works is a serious copyright infringement that can cause significant financial and reputational damage to your business. In this section, we look at the types of liability for copyright infringement and provide practical advice on how to avoid these infringements. Understanding the potential consequences of illegal use of other people’s works will help you make informed decisions and protect your business from legal problems.

Subsection 3.1: Types of liability

Copyright infringement entails different types of liability, depending on the nature and scale of the infringement. The Law of Ukraine “On Copyright and Related Rights” provides for the following types of liability:

• Civil liability: Includes compensation for material and moral damage caused to the author as a result of infringement of his rights. The amount of compensation is determined by the court and can be quite significant, especially in cases of commercial use of works without authorisation. The court may also order the infringer to cease illegal use of the work and seize all counterfeit copies.
• Administrative liability: Provides for the imposition of fines for illegal reproduction, distribution and other use of works. The amount of fines may vary depending on the severity of the offence.
• Criminal liability: In some cases, such as particularly large-scale illegal use of works or the creation and distribution of counterfeit goods, criminal liability may arise, which may carry more severe penalties, including imprisonment.

It is important to understand: Even unintentional copyright infringement can lead to serious consequences. Ignorance of the law does not exempt you from liability. Therefore, it is important to be careful when using other people’s works and always check whether you have the right to use them. Timely consultation with a lawyer who specialises in intellectual property will help you avoid unpleasant situations and protect your business from financial and reputational losses.

Subsection 3.2: How to avoid copyright infringement

Avoiding copyrightinfringement in the commercial use of works is possible by following a few simple rules:

• Always check copyrightavailability and status : Before using a work, find out who the copyright holder is and whether the work is still under copyright. If the work is on a public domain or has an appropriate Creative Commons licence, you are free to use it, subject to the terms of the licence (if any).
• Obtain permission from the copyright holder: If the copyright in the work is valid, the safest way is to obtain written permission from the copyright holder to use it. Clearly spell out all the terms of use in the contract, including the type of use, term, territory and remuneration.
• Use legal sources of content: There are many paid and free resources that offer legal access to photos, videos, music and other works. Using such resources ensures that you are not violating copyright law.
• Consult a lawyer: If you have any doubts about the legality of using a particular work, it is better to consult a lawyer who specialises in intellectual property issues. This will help you avoid potential problems and protect your business.
• Provide attribution: Even in cases of free use of works, it is usually necessary to include the name of the author and the source of the borrowing (if known). This is a sign of respect for the author and helps to avoid misunderstandings.
• Keep up to date with changes in the law: Copyright law is subject to change, so it is important to keep up to date with the latest changes and updates.

By following these tips, you will be able to use others’ works in your business legally and effectively, minimising the risks of copyright infringement .

Conclusions

Commercial use of works is an important aspect of doing business that requires careful attention and compliance with copyright law . Illegal use of another’s work can lead to serious legal problems and financial losses. In this article we have considered the basic principles of commercial use of works, various ways of legal use of other people’s intellectual products, as well as types of liability for copyright infringement . Remember that compliance with the law in this area is not only a legal necessity, but also a demonstration of respect for the creative work of others. By using works legally, you contribute to the development of the creative industry and create a favourable environment for your own business. For more information about protecting your copyrights we recommend reading the article“Copyright: How to protect your works in Ukraine?“. We hope that this information will help you avoid problems and successfully develop your business.