Copyright and neighbouring rights are two concepts that are often used together and often confused. Although they both relate to the field of intellectual property, their objects and subjects of protection are different. Understanding these differences is key to correctly applying the law and protecting one’s rights. In this article, we will look at the differences between copyright and neighbouring rights, who is protected by each, and provide practical examples for better understanding.
Section 1: Copyright: protection of creators
Copyright is the basis of intellectual property protection for creators of various works. It gives authors exclusive rights to use their creations and controls how they are distributed. In this section, we will look in detail at what copyright protects, what rights it guarantees, and who exactly is the subject of copyright. Understanding these fundamental aspects will help authors to effectively protect their works and receive the remuneration they deserve for their creative work.
Subsection 1.1: What does copyright protect?
Copyright law protects original works of literature, science and art, regardless of their purpose, type, mode and form of expression. The key criterion for protection is originality – the work must be the result of the author’s creative activity, not a copy or borrowing from other sources.
Here are some categories of copyrightedworks :
- Literary works: novels, poems, articles, plays, scripts, computer programmes, etc.
- Scientific works: monographs, theses, dissertations, scientific articles, reports and the like.
- Musical works: songs, symphonies, operas and the like.
- Audiovisual works: films, television programmes, video clips and the like.
- Works of fine art: paintings, sculptures, graphics, etc.
- Photographic works: photographs, if they are original in their composition, light design, etc.
- Works of architecture: buildings, structures, city layouts, etc.
- Choreographic and mime works.
- Cartographic works.
- Computer programmes and databases.
Author’s rights include:
- Property rights: the right of reproduction, distribution, public display, importation, translation, etc. These rights may be transferred to other persons by contract.
- Personal non-property rights: the right to authorship, the right to a name, the right to inviolability of the work, etc.. These rights are inalienable and belong to the author independently of property rights.
It is important to realise that copyright protects the form of expression of a work, not ideas, themes, plots, methods, processes, systems, techniques, methods, concepts, principles, discoveries or facts. For example, the idea of writing a novel about love is not protected by copyright, but the specific text of the novel written by the author is protected.
Copyright protection arises automatically from the moment the work is created and does not require registration or other formalities. However, registration of a copyright object with UKRNOIVI may be useful to confirm authorship and simplify the defence of rights in court.
Subsection 1.2: Who are the subjects of copyright?
The subjects of copyright, i.e. the persons who own the rights to a work, are the authors – natural persons whose creative labour created the work. Authorship is an inalienable and inherent right.
Who can be an author:
- One person: In most cases, one person is the author of a work.
- Co-authors: If a work is created by the joint creative labour of two or more persons, they are co-authors and own the copyright jointly.
- Legal person : A legal person cannot be an author in the direct sense, but it may possess the author’s proprietary rights in a work if these rights have been transferred to it by contract (e.g. labour contract).
Peculiarities of the definition of authorship:
- Presumption of Authorship: The person named as the author on a work is presumed to be its author until proven otherwise.
- Anonymous and pseudonymous works : Authors of anonymous and pseudonymous works also have copyright. If the author discloses his name, he acquires all rights associated with authorship.
- Proprietary works: If a work is created by an employee as part of his or her official duties, property rights to the work may belong to the employer, but personal non-property rights always remain with the author.
It is important to realise that authorship is determined by the fact of creation of the work, not by its publication, registration or other formalities. Even if the work is not published, the author still has full copyright on it.
Section 2: Related rights: protection of performers, phonogram producers, etc.
Next to copyright, there is a separate category of intellectual property rights – neighbouring rights. They protect not the creators of the works themselves, but those who bring these works to the public by investing their labour and resources. In this section we will look at what related rights protect, how they differ from copyright, and who are the subjects of these rights. In particular, we will look at the rights of performers, phonogram producers and broadcasting organisations, which play an important role in the dissemination of cultural property.
Subsection 2.1: What do related rights protect?
Neighbouring rights are intellectual property rights that differ from copyright and protect the interests of performers, producers of phonograms, videograms and broadcasting organisations. They provide a level of control over the use of their products and protect against unauthorised copying and distribution.
Who are protected by neighbouring rights:
- Performers: actors, singers, musicians, dancers and others who perform works. Related rights protect their performances even if the work itself (e.g. a song or play) is already subject to copyright.
- Phonogram producers: companies that record and publish music albums, audiobooks, etc. Their rights relate to the recording and not to the musical work itself.
- Videogram producers: companies that create and distribute films, television programmes and other video recordings. Their rights protect the video recording as an audiovisual product, separate from copyright in the script, music, etc.
- Broadcasters: radio and television companies that broadcast programmes on the air. Their rights relate to the broadcasting and not to the content broadcast.
Related rights give their subjects the exclusive right to authorise or prohibit:
- Performers: recording of their performance, reproduction of the recording, broadcasting of the performance, public display of the recording of the performance.
- Producers of phonograms: reproduction of the phonogram, distribution of copies of the phonogram, import of the phonogram.
- Producers of videograms: reproduction of the videogram, distribution of copies of the videogram, its rental, broadcasting.
- Broadcasting organisations: retransmission of their broadcasts, fixation and reproduction of fixed broadcasts.
It is important to remember that neighbouring rights are closely related to copyright, but are separate and independent. For example, a performer has neighbouring rights over his or her performance of a song, while a songwriter has copyright over the musical work itself. Both of these rights exist simultaneously and protect different aspects of the same cultural product.
Subsection 2.2: Who is the subject of neighbouring rights?
Like copyright, neighbouring rights have specific subjects – the persons to whom these rights belong. Unlike copyright, which belongs to the creators of works, neighbouring rights protect the rights of those involved in the process of bringing works to the public.
The subjects of neighbouring rights are:
- Performers: These are artists, musicians, actors, singers, dancers and other persons who present works to the public. It is important to note that a performer can be either a single person or a collective.
- Producers of phonograms: These are legal entities that make the first sound recording of a work. It should be understood that it is the recording and not the work itself.
- Producers of videograms: Similar to producers of phonograms, these are the legal entities responsible for the first fixation of an audiovisual work.
- Broadcasting organisations : These are the television and radio organisations that broadcast radio and television programmes. It is their right to broadcast that is protected, regardless of the content of the programmes.
Important aspects of the definition of subjects:
- Transfer of rights: Subjects of neighbouring rights may transfer their property rights to others by contract. For example, a performer may transfer the right to use a recording of his or her performance to a producer.
- Term of rights: Related rights have a limited term of validity, which is different from that of copyright.
- Defence of rights: Subjects of neighbouring rights have the right to defend their rights in case of infringement, similar to the defence of copyright.
Understanding who is a subject of neighbouring rights makes it clear who has the right to control the use of the subject matter and to protect their interests in case of infringement. This is key to the effective functioning of the entertainment industry and to ensuring fair remuneration for all those involved in the creation and dissemination of cultural property.
Section 3: Key differences between copyright and neighbouring rights
Although copyright and neighbouring rights are closely related and both fall within the realm of intellectual property, they have significant differences. Understanding these differences is critical to the correct application of the law and effective enforcement. In this section, we will make a detailed comparison ofcopyright and neighbouring rights, examine the differences in objects of protection, subjects of rights, duration and provide practical examples to illustrate key aspects. This will help you to clearly distinguish between the two types of rights and navigate the intellectual property legal landscape.
Subsection 3.1: Object of Protection
One of the key differences between copyright and neighbouring rights is the object of protection. Copyright protects original works of literature, science and art, while neighbouring rights protect performances, phonograms, videograms and broadcasts by broadcasting organisations.
Comparative table:
| Law | Object of protection |
| Copyright | Original work (literary, musical, artistic, etc.) |
| Related rights | Performance of the work, phonogram, videogram, transmission to a broadcasting organisation |
- Copyright: Protects the work itself as a result of the author’s creativity. For example, the text of a novel, the notes of a piece of music, the code of a computer programme.
- Related rights: Protect not the work itself, but certain acts related to its use and communication to the public. For example:
- Performance: An actor’s interpretation of a role in a play, a musician’s performance of a piece of music.
- Phonogram: A recording of a performance on a tangible medium (CD, vinyl record, digital file).
- Videogram: a recording of an audiovisual work (film, television
- programme
- ).
- Transmission by a broadcasting organisation: a broadcast of a radio or television programme.
Example:
Imagine a song. Copyright protects the melody and lyrics of the song created by the composer and author of the words. Related rights protect the performance of the song by the singer, the recording of that performance on a CD (phonogram) and the broadcasting of that recording on radio (transmission to a broadcasting organisation).
Copyright and related rights thus protect different aspects of the same cultural product, securing the rights of both the creators and those who bring their work to the public. Understanding this distinction is fundamental to navigating the intellectual property legal field.
Subsection 3.2: Subjects of rights
Although copyright and neighbouring rights protect different objects, they also differ in the subjects to which these rights belong. This is an important distinction that must be understood for the correct application of the law.
- Copyright: belongs to the author of the work – an individual whose creative labour created the work. In case of co-authorship, the right belongs to all co-authors jointly.
- Related rights: belong to performers, producers of phonograms and videograms, and broadcasting organisations.
More information:
- Authors are the creators of original works – writers, composers, artists, photographers, programmers, etc.
- Performers are actors, singers, musicians, dancers and others who publicly present works. They put their creative personality into the performance, which is protected by neighbouring rights.
- Producers of phonograms and videograms are generally companies that record and distribute music, films and other audiovisual works. They invest funds and resources in the creation and distribution of these products.
- Broadcasting organisations are radio and television companies that broadcast programmes.
Example:
If we take a music video as an example, the copyright on the music belongs to the composer, the copyright on the lyrics belongs to the author of the lyrics , thecopyright on the video belongs to the director and cameraman. Therelatedrights to the performance of the song belong to the singer, the related rights to the phonogram belong to the record company, the neighbouringrights to the videogram belong to the company that shot the clip, and the neighbouring rights to broadcast the clip on television belong to the television company.
Thus, copyright and related rights protect the interests of the various actors involved in the creation and distribution of works. Understanding this distinction is important for determining exactly who has the right to control the use of a work and to protect their rights in case of infringement.
Subsection 3.3: Duration of Rights
Another important difference between copyright and neighbouring rights lies in the terms of their validity. These terms differ significantly, which affects the possibilities of using works and objects of neighbouring rights after the end of the term of protection.
- Copyright: Lasts for the lifetime of the author and 70 years after his death. After this period, the work enters the public domain and may be freely used by anyone.
- Related rights:
- Performers: 50 years from the date of the first recording of the performance.
- Producers of phonograms and videograms: 50 years, calculated from the date on which the phonogram (videogram) was first made public or, if no public disclosure took place, from the date of its first recording.
- Broadcasting organisations: 50 years, calculated from the date of the first broadcast.
Comparative table:
| Law | Term of validity |
| Copyright | All the author’s life + 70 years after death |
| Related rights of performers | 50 years from the date of first recording |
| Related rights of producers of phonograms and videograms | 50 years from the date of first publicising or recording |
| Related rights of broadcasting organisations | 50 years from the date of the first broadcast |
Why are the dates different?
Copyright law protects the result of creative activity, which is considered the author’s unique contribution to culture. The long term of validity is designed to ensure that the author and his heirs can receive remuneration for the use of the work. Although related to creativity, neighbouring rights protect investments and organisational efforts to a greater extent, so their term of validity is shorter.
When the term of related rights expires, the corresponding object (performance, phonogram, videogram, transmission) also passes into the public domain. This means that, for example, a recording of a performance can be freely used even if the copyright in the work itself is still in force.
Understanding the duration of copyright and related rights is important for the proper use of works and related rights objects and to avoid infringements of the law.
Unit 3.4: Practical Examples
Let’s look at some practical examples to help you better understand the differences between copyright and neighbouring rights in different situations.
Example 1: A classical music concert
- Copyright: Belongs to the composer (or his heirs), if less than 70 years have passed since his death, for a musical work (e.g., a symphony).
- Related rights:
- Performer’s rights: Belongs to the orchestra and conductor performing the symphony. Valid for 50 years from the date of recording of the performance.
- Phonogram Producer: If the concert is recorded on CD, the record company receives the related rights to the phonogram. Valid for 50 years from the date of its release.
Example 2: Screen adaptation of a book
- Copyright: Belongs to the author of the book (literary work).
- Related rights:
- Producer of the video programme: Belongs to the film studio that made the film. Valid for 50 years from the date of release of the film.
- Performers: Belong to the actors who play in the film. Valid for 50 years from the date of the recording of their performance.
- Broadcasting Organisations: If the film is broadcast on television, the television channel obtains related broadcasting rights
.
Example 3: Use of a song in an advert
- Copyright: Belongs to the author of the music and the author of the lyrics.
- Related rights
- :Performer: Belongs to the singer who performed the song.
- Phonogram producer: Belongs to the record company that released the recording of the song.
In each of these examples, permission must be obtained from all copyright holders in order to use the object (musical work, film, song):
- From copyright owners ( authors of music, text, literary work, director, cameraman, etc.).
- From owners of neighbouring rights (performers, producers of phonograms and videograms, broadcasting organisations).
These examples illustrate that copyright and neighbouring rights exist in parallel and protect different aspects of the same intellectual property. Both types of rights should always be considered when using works and related rights objects.
Conclusion
Copyright and related rights are important institutions for the protection of intellectual property, balancing the interests of creators and those who help bring works to a wider audience. Although these two types of rights are closely related, they have significant differences regarding the objects and subjects of protection, as well as the duration of validity. Copyright protects original works, while related rights protect performances, phonograms, videograms and broadcasting organisations’ programmes. Understanding these differences is necessary for the correct application of intellectual property law and avoiding violations of the rights of authors and subjects of neighbouring rights. For a deeper understanding of the nuances of copyright we recommend to refer to the article “Copyright: how to protect your works in Ukraine?“. Remember that knowing your rights and obligations is the key to successful activity in the creative sphere.
What is the difference between copyright and neighbouring rights in simple words?
Copyright and neighbouring rights are two types of intellectual property protection that are often confused. In simple terms, copyright protects the work itself, i.e. the result of creativity, while neighbouring rights protect those who perform, record, distribute or broadcast the work.
Imagine a song. Copyright law protects the song itself: its melody and lyrics, created by the composer and the author of the lyrics. It is their intellectual property.
It’s their intellectual property:
- The singer’s performance of this song. His manner of performance, voice, interpretation are his contribution, which is protected.
- Recording the song on CD or in digital format (phonogram). The recording studio has invested money and effort in the recording and its rights are also protected.
- Broadcasting the song on radio or television. The radio station or TV station has the right to control the use of their broadcast.
So:
- Copyright belongs to the author of the work (writer, composer, artist, etc.).
- Related rights belong to performers, producers of phonograms and videograms, broadcasting organisations.
Another important difference is the term of validity:
- Copyright lasts for the life of the author and another 70 years after his death.
- Related rights generally last for 50 years from the date of performance, recording or broadcast.
The key difference is that copyright protects the original work, while neighbouring rights protect the ways in which it is used and communicated to the public. Both of these rights are important and exist independently of each other. To use a song in an advertisement, a film or on YouTube, you need permission from both the copyright owner (the composer and the author of the words) and the owners of the related rights (the performer, the record company). We hope this explanation has helped you understand the difference between copyright and neighbouring rights in simple terms.
Is it necessary to register neighbouring rights to a song performance in Ukraine?
In Ukraine, as in the case of copyright, registration of neighbouring rights for the performance of a song is not mandatory. Related rights arise automatically from the moment of the first performance of the work. However, registration of neighbouring rights with the Ukrainian National Office of Intellectual Property and Innovation (UKRNOIVI) provides the performer with a number of advantages, especially in case of disputes.
Why can registration of neighbouring rights be useful?
- Official confirmation of rights: A certificate of registration of neighbouring rights is an official document that confirms your rights to the performance of a song and the date on which it was performed. This simplifies the process of proving your rights in court or elsewhere.
- Simplified defence of rights: Having a registration certificate makes it much easier to defend your rights in case of their violation. You will not have to additionally prove the fact of execution and its date.
- Recognition of rights abroad: A registration certificate issued by UKRNOIVI can be used as proof of your rights in other countries that are parties to international treaties for the protection of intellectual property.
- Increase in the value of rights: Registered neighbouring rights can be valued higher when contracts for their use are concluded. This is especially true for commercial use of performances.
What is protected by neighbouring rights in song performance?
Related performance rights do not protect the song itself (its melody and lyrics), but the performance itself: the individual manner of singing, the interpretation of the work, and the vocal data of the performer.
How to register neighbouring rights?
To register neighbouring rights for the performance of a song, it is necessary to submit an application to UKRNOIVI. The registration procedure is similar to copyright registration. It is recommended to contact an intellectual property specialist for qualified assistance in preparing and filing the application.
Although registration of neighbouring rights to a song performance is not mandatory in Ukraine, it provides the performer with significant advantages in protecting his rights and facilitates the process of their commercialisation. It is recommended to register neighbouring rights, especially if you plan to use the performance of a song for commercial purposes or enter into agreements on the transfer of rights for its use. Contact UKRNOIVI or a lawyer specialising in intellectual property for details on the procedure for registering related rights.
Who owns the copyright to the photograph: the photographer or the model?
The question of whether the photographer or the model owns the copyright in a photograph is a fairly common one and depends on several factors. As a general rule, copyright in a photograph belongs to the photographer, as he is the creator of the work, i.e. the person who made the creative contribution to the creation of the photograph. The photographer independently chooses the angle, lighting, composition, camera settings and other creative decisions.
However, there are nuances that may affect the allocation of rights:
- Contractual relationship: If there is a contract between the photographer and the model, it may specify the terms of use of the photograph and the allocation of copyright. The contract may provide for the model to transfer certain rights to use the photograph (e.g. the right to use the photograph in her portfolio), or even a full transfer of property rights. It is important to carefully read and understand the terms of the contract before signing it. In the absence of a contract, the general provisions of copyright law apply.
- Model’s Creative Contribution: In some cases, a model may make a significant creative contribution to a photograph. For example, if the model independently developed the concept of the photo shoot, suggested poses and images, her contribution may be recognised as co-authorship. However, simply posing in front of the camera is not usually considered sufficient to be recognised as co-authorship.
- Type of photograph: If the photograph is a work of employment, i.e. created by the photographer as part of his or her employment (e.g. the photographer works for a magazine and photographs a model for publication), proprietary rights in the photograph may belong to the employer. However, personal non-property rights (right of authorship, right to name) always remain with the photographer.
Practical tips:
- Make contracts: Always make a written contract with the model, in which the terms of use of the photo and the allocation of copyrights are clearly stated. This will help avoid misunderstandings and conflicts in the future.
- Negotiate terms and conditions: Before the photo shoot, discuss with the model how she plans to use the photographs and agree the relevant terms in the contract.
- Consult a lawyer: If you are in doubt about the copyright of photographs, consult a lawyer specialising in copyright law.
Copyright in a photograph usually belongs to the photographer. However, the contract between the photographer and the model, the model’s creative input and the type of photograph may affect the allocation of rights. In order to avoid misunderstandings and protect your rights, it is always advisable to enter into a written contract with the model and clearly state the terms of use of the photographs.
How many years do related rights to a phonogram last after the death of the performer?
It is important to realise that related phonogram rights and performer’s rights are different rights belonging to different subjects. The death of the performer in no way affects the term of validity of neighbouring rights to the phonogram.
Neighbouring rights to a phonogram belong to the producer of the phonogram, i.e. the legal entity (record company, studio) that made the first sound recording. These rights are valid for 50 years from the date of:
- The first publicisation of the phonogram, i.e. from the date on which it became available to the public.
- The first recording of the phonogram, if it has not been made public within 50 years from the date of recording.
The performer’s neighbouring rights (to the performance itself) are valid for 50 years from the date of the performance, regardless of whether it was recorded or not. If the performance was recorded, the term of these rights runs from the date of the first recording. The death of the performer, as already noted, does not affect this term.
Consequently, after the death of the performer:
- Related rights in the phonogram continue for a further (50 years – the number of years that have elapsed since the phonogram was made public or recorded).
- The performer’s neighbouring rights (to the performance itself, not to the recording) continue for a further (50 years – the number of years that have elapsed since the performance or the first recording). The performer’s heirs may inherit property rights related to the performance (e.g. royalty rights), but the related rights themselves are not inherited as such. They simply terminate after 50 years.
Example:
The performer recorded the song in 1980 and the phonogram was released to the public in 1981. The performer died in 2000.
- The performer’s related phonogram rights will run until 2031 (50 years from the date of publicity).
- The performer’s related performance rights will run until 2030 (50 years from the date of recording).
Important to remember:
- To use a phonogram, permission must be obtained from both the owner of the related rights to the phonogram (the producer) and the owner of the copyright to the musical work (the composer and author of the words).
- Once the copyright and related rights expire, the work and phonogram enter the public domain and can be freely used by anyone without permission.
Contact UKRNOIVI or a lawyer specialising in intellectual property for more information on the duration and specifics of related rights.
How to get permission to use music in YouTube videos: copyright and related rights.
Using music in YouTube videos requires careful adherence to copyright and related rights. Without obtaining the necessary permissions, your video could be blocked and your channel could get a strike. Here are step-by-step instructions on how to get permission to use music in YouTube videos:
Step 1: Identify the copyright holders.
To use music in your video, you need permission from two parties:
- The copyright owner: this is usually the composer and the author of the lyrics. Copyright protects the musical work itself (melody and lyrics).
- The owner of related rights: this is usually the performer of the song and the producer of the phonogram (the record company). Related rights protect the performance and recording of the song.
Step 2: Contact the copyright holders for permission.
- Direct contact: You can try to find the contact details of copyright holders (e.g. on their official websites) and contact them directly to request permission to use the music.
- Collective management organisations: Ukraine has collective management organisations for copyright and related rights (e.g. UAASP, OASU). They represent the interests of copyright holders and can grant you a licence to use the music.
- Music libraries and services: There are music libraries and services (e.g. Epidemic Sound, Artlist) that offer music for use in videos for a fee or subscription. Using music from these libraries usually does not require separate permission.
Step 3: Agree the terms of use.
When obtaining permission from the copyright holders, it is important to agree on the following terms:
- Licence term: for what period you are granted the right to use the music.
- Licence territory: in which territory you can use the music (for example, only in Ukraine or worldwide).
- Uses: in what types of videos you can use the music (for example, only in non-commercial videos or in any videos).
- Licence fee: how much you have to pay to use the music.
Step 4: Follow the terms and conditions of the licence.
Once you’ve obtained permission and agreed on the terms of use, it’s important to follow these terms carefully. Include in the video description information about the author and artist of the music, as well as the source from which you obtained permission to use it.
Alternatives:
- Use music with Creative Commons: On the YouTube platform and in some music libraries, you can find music with a Creative Commons licence that allows you to use it under certain conditions (such as attribution).
- Use free YouTube music: YouTube offers its own library of free music and sound effects that you can use in your videos without obtaining permission.
Using music in YouTube videos requires permission from copyright and related rights owners. Ignoring these rules can result in your video being blocked and getting strikes on your channel. Follow these guidelines to legally use music in your videos and avoid problems.
