Copyright for software and databases in Ukraine

Computer programme (CP) and database (DB) are the backbone of the digital world. But how to protect your rights to them? In Ukraine , like everywhere else, they are protected by copyright, but their legal protection has its own specificity, which is extremely important for all representatives of the IT industry: from developers to users.

Why specificity? Because software copyright works by analogy with a literary work (the code is protected), which is unusual. And the protection of a database may concern both its creative structure and, potentially (let’s check!), investments in its filling. Failure to understand these nuances of IT law can be costly.

In this article we, the lawyers of Polikarpov Law Firm, will analyse the key aspects of protection and use of KP and DB in Ukraine: what exactly is protected, who owns the rights, what are the exceptions and how it works in practice. Let’s get to the bottom of it.

Section I. Copyright in computer programmes (CPs)

Let’s start with the computer programme – the heart of any digital technology. From the point of view of copyright on software, a programme in Ukraine is protected as a literary work. Yes, exactly like a book! This analogy gives protection, but it also raises questions.

What exactly is protected: the code, the interface, or the idea? Who is the author – the developer or the company? What rights does the owner have? Are there special authorisations for use (e.g. for compatibility)? Let’s look at this specificity of softwareprotection in detail.

Subsection 1.1: What exactly is protected in a computer programme? The code, the interface, or the idea?

So the law says: a computer programme is protected as a literary work. Well, what does that mean in practice? What exactly falls under this protection? After all, a programme is not just lines of code.

The very first and most important thing to understand is that software copyright protects the form of expression of a computer program. What is this form? This is actually the “text” of the programme:

1. Source Code: This is what the programmer writes – instructions written in a programming language that a person can understand (Java, Python, C++, etc.). This is the primary text, the original source.
2. Object Code: This is the result of compiling the source code – a set of instructions already translated into a machine-readable form (usually binary code) that is directly executed by a computer. Although humans cannot read it “just like that”, it is also a form of expression of the same programme and is also protected.

This is where the analogy with a literary work comes into play. Imagine a book: the text itself is protected, the sequence of words, sentences, sections created by the author. It is the same with a programme: a specific sequence of commands, the structure of the code created by the developer is protected. You can’t just copy someone else’s code (or a significant part of it) and pass it off as your own, just as you can’t copy a section from someone else’s book.

What else? The law also mentions the protection of preparatory materials obtained during the development of the computer programme. What can this be? For example, detailed flowcharts, architecture descriptions, specifications that preceded the writing of the code itself and are detailed enough to be considered a creative expression of the idea. That is, protection may extend not only to the final code, but also to some results of the work that directly led to it.

Now about the slippery issue – audio-visual displays, i.e. graphical user interface (GUI). Buttons, menus, windows, general view of the screen – are they protected by software copyright as part of a computer programme? Here there is no unambiguous answer “yes” or “no” in the legislation. The interface is often considered as a separate object – a work of design or even a separate audiovisual work – rather than an integral part of a “literary work” (code). This means that:

• The programme code itself can be original and protected.
• The interface design itself may also be original and protected (but as a work of design).
• It is possible that someone will copy only the appearance of the interface without touching the code – this will be an infringement of the design, but not of the computer programme itself.
• On the contrary, it is possible to copy the logic of the code but create a completely different interface.

Therefore, protecting the interface is, let’s say, a separate song, although it is, of course, closely related to the programme.

What is NOT protected? And this is equally important! Software copyright does not cover:

• Ideas and principles that underlie any element of a computer programme. For example, the very idea of creating a text editor or messenger is not protected.
• The principles on which the user interface is built, for example, the idea of using “windows” or “menus” – this is a general principle, it does not belong to any one person.
• Algorithm per se. An algorithm is a sequence of steps to solve a problem. This sequence itself, as an abstract idea or mathematical method, is not protected by copyright. Only its concrete embodiment in the form of programme code is protected. That is, two programmers can implement the same algorithm with different code – and both codes will be protected independently.
• Programming languages are a tool, like the alphabet or musical notes. You can’t “stake a claim” to use Java or Python.
• File formats.
• Functional purpose of the software.

Software copyright protects a specific implementation, creative expression in the form of source and object code, and possibly preparatory materials. The interface is most likely a separate object. But the ideas, methods, algorithms, principles of operation remain free for use by all. This is a fundamental distinction that underlies all IT law.

Subsection 1.2: Subjects of rights to CPs

So, we have sorted out the object of protection – it is a code, a form of expression. Now let’s look at who actually has the rights to this computer programme? There are two key concepts here: the author and the owner of property rights. And, you know, they do not always coincide, especially in the realities of IT business.

The author of a computer program is always an individual (or a group of individuals) who created it with his creative labour. This is the programmer, developer, who sat up nights, drank litres of coffee and translated ideas into lines of code. He is the primary creator, and his non-property rights (remember? the right to be called the author, the right to inviolability) remain with him forever. Here everything is simple and without options. An IT company, even if it has provided resources, tasks and salary, cannot be the author of the programme in the legal sense of the word.

But! When it comes to property rights (the right to use, sell, modify the programme, etc.), the situation changes dramatically. In the vast majority of cases, especially in commercial development, these rights are transferred from the author-developer to another person – usually an IT company (or another customer). Here again we encounter two familiar scenarios, but with the specifics of IT law:

1. A proprietaryprogram: This is a computer program created by a developer in connection with the performance of his employment duties in the employ of an IT company. As we have discussed in the context of proprietary works in general ([a link to a previous article or section on proprietary works may be provided here, if available]), the default property rights are jointly owned by the developer and the employer. However, in the IT industry, this “default” almost never works. The standard practice is to include a clause in the employment contract (or a separate assignment agreement) stating that all property rights to created proprietary software are fully transferred to the employer (IT company) from the moment of its creation. These are the employer’s rights, which the employer seeks to protect as much as possible.
2. Bespoke programme: This is when an IT company or any other client orders software development from an independent developer (freelancer or FOP) or another IT company under a civil law contract. Again, although the law by default provides for joint ownership of property rights, the reality of IT business dictates its own terms. Software development order agreements almost always contain a clause on full alienation (transfer) of all property rights to the created programme from the developer to the customer after the contract terms are fulfilled (usually, after acceptance of the work and full payment).

Because IT companies and customers invest considerable funds in development and want to have full control over the product, freely develop, license and commercialise it without having to ask every developer who has a hand in the code for permission.

Thus:

• The author of the programme is always the developer (an individual).
• The owner of the property rights is usually an IT company (employer or customer), which received these rights under a contract.

Understanding this distribution – who is the author of the software and who is the owner of the property rights to the software – is critical for proper handling of the relationship and avoiding disputes in the future.

Subsection 1.3: Property rights to MEs

So, let’s make up our minds: anauthor is a creator, and property rights to software usually end up in the hands of a company (employer or customer). So what kind of beast is property rights? In the simplest terms, it is, in fact, the “ownership” of a program in the economic sense. It is a set of permissions for the owner to do certain things with the program and, accordingly, prohibitions for everyone else to do those things without the owner’s permission. Understanding these rights is the key to commercialising and controlling the use of computer software.

The Law of Ukraine “On Copyright and Related Rights” gives us a list of basic property rights that apply to computer programs (of course, taking into account their specifics). Let’s take a look at the most important ones:

1. Playing an application: This is perhaps the most fundamental right. What is reproductionin relation to software? This is much broader than just making a copy on a disc. It includes:
   • Making any copies of the programme (in whole or in part) – whether on a USB stick, on a server or in the cloud.
   • Installing a program on a computer or other device is already an act of reproduction.
   • Loading a program into RAM for execution (running it) is also reproduction, albeit temporary.
   • Displaying a program on the screen (e.g., showing the interface) can also be considered an element of reproduction.
     In other words, almost any use of a program is inevitably associated with its reproduction in one form or another.
2. Translation of a program: While this right is traditionally associated with literary works, in the context of software it can mean, for example, translating interface elements or documentation into another language.
3. Adaptation., modificationand other similar changes:This is a very important right for the IT industry. It includes:
   • Adaptation: Adapting an application to run on a different platform, in a different operating environment, integrating with other systems.
   • Modification of: Making any changes to the program code – fixing errors (if done by the rights holder or with his permission), adding new functions, changing the logic of operation, creating new versions. In essence, this is the right to develop and evolve a software product.
4. Distribution of copies of the program: This is the right to control any alienation (sale, gift, exchange) of the original copy or copies of the program. This includes selling boxes of discs and providing access to download the program via the Internet. It is important to keep in mind the first sale doctrine, which is usually applied to physical copies: after the first legal sale of a disc, the buyer can resell it without the permission of the copyright holder. However, the application of this principle to digital copies is a complex and controversial topic.
5. Leasing (rental): The rights holder may allow or prohibit commercial rental of copies of the program (e.g., as was once popular with video games). There are certain exceptions, for example, when the program is not the main object of the rental (e.g., renting a car with a navigation system).
6. Public Notification (including making available to the public): This right covers any communication of the program to the public in such a way that its members can access the program from any place and at any time of their choice. This is a key right for modern software distribution models, such as providing access to software through a website (Software as a Service – SaaS), selling it through online app stores, hosting it on download servers, etc.

Therefore, the owner of the property rights to the software has exclusive control over all these actions. Anyone else can perform them only if they have permission – that is, a licence, which we will discuss later. It is this set of rights that constitutes the economic value of a computer program as an object of intellectual property.

Subsection 1.4: Exceptions and limitations to copyrights

We have just covered a fairly wide range of property rights that belong to the copyrightowner of software. It would seem that any step with software without a licence is an infringement. But not everything is so strict. Legislation, understanding the specifics of computer programmes and the needs of users and developers, provides for certain exceptions – cases of so-called free use of KP, when certain actions can be performed without the permission of the right holder and without payment of remuneration. This does not mean permissiveness, these exceptions are clearly defined and have strict conditions. Let’s look at the key ones:

1. 1. Making an archive or backup copy: This is perhaps the best known exception. A person who lawfully owns a copy of a computer program (i.e., has purchased a licence or otherwise lawfully obtained it) has the right to make one copy of the program solely for archival purposes or to replace the lawfully acquired copy if it is lost, destroyed, or becomes unusable. Important: this backup copy may not be used for any other purpose and must be destroyed if possession of a copy of the software ceases to be lawful (e.g. by reselling the underlying licence, if permitted).
   2. Investigation of the functioning of the programme (observation, study): A person who has the right to use the programme (again, a legitimate user) may, without the consent of the copyright holder, observe, study, investigate its functioning. What is the purpose? To identify the ideas and principles that underlie any element of the programme. Remember when we said that the ideas and principles themselves are not protected? Well, this exception allows a legitimate user to “look under the bonnet” (not the code, but the operation of the programme) to understand how it works. This is done by performing any actions related to loading, displaying, functioning, transferring, or saving the program that the user is entitled to do.
   3. Correction of errors: If you are legally using a programme and it contains obvious errors that prevent its normal use for its intended purpose, you have the right to correct these errors. This is possible unless otherwise provided for in a contract with the copyright holder and unless the copyright holder itself provides the means for correction or fails to do so within a reasonable time after your request. However, this right usually refers specifically to correction for your own use, not to creating a “corrected” version for distribution.
   4. Decompilation(reverse engineering) to achieve compatibility(interoperability):This is perhaps the most complex and specific exception for computer programs. Decompilation is a conversion process– it is the process of converting object code(machine code) back into something resembling human-understandable source code. Usually it is forbidden, because it is a form of reproduction and modification. BUT!The law allows you to decompile a programme (or parts of it) for one purpose only: to obtain information necessary to achieve compatibility (interoperability)* of an independently developed computer programmewith other programmes. That is, so that your new program can communicate or interact correctly with an existing program from another vendor.
      However, this permission to decompileis subject to very strict conditions:
      • Only the person who legally owns the program (the licensee), or someone on his or her behalf, may do so.
      • The information needed to achieve interoperability has not been previously available to that person from other sources (e.g. documentation from the developer).
      • Decompilation is limited to only those parts of the original program that are necessary to achieve interoperability.
      • The information resulting from decompilation may only be used to achieve interoperability of the independently created programme.
      • This information may not be passed on to others unless it is necessary for the interoperability of the independently created programme.
      • This information may not be used to develop, produce, or sell a computer program that is substantially similar in expression to the decompiled program (i.e., to create a direct clone competitor).

As you can see, the conditions are very strict. Decompilation is not a way to legally “steal” someone else’s code, but a very narrow exception to ensure technical interaction of programmes.

It is important to remember: all these cases are just exceptions to the rights of the copyright owner of the software. They must not cause unjustified harm to the normal use of the programme by the copyright holder and must not unreasonably restrict his legitimate interests. And, of course, the terms of the licence agreement (EULA) may attempt to further restrict these rights, although the possibility of contractually overriding peremptory norms of the law (especially regarding decompilation) is debatable.

Subsection 1.5: Copyright vs. Patents

We have looked in detail at how software copyright protects a computer programme as a text, as a literary work – that is, its concrete expression in the form of code. If you copy the code, you have violated copyright. It seems to be clear. But a program is not just a text, it is a tool that performs a certain function, implements a certain process, and often solves some technical task. And what if someone doesn’t copy your code line by line, but simply takes your brilliant idea, your unique method of programme operation and writes his own code that does the same thing? Copyright law is powerless here, as we remember – it does not protect ideas and principles, even if they are very cool.

And this is where another player from the world of intellectual property enters the scene – patent law. Is it possible to obtain a patent for software? The question is, you know, very debatable and depends on the legislation of a particular country. In Ukraine, as in many other jurisdictions, there are nuances.

The general rule is as follows:acomputer program per se, or an algorithm as an abstract sequence of actions or mathematical method, generally are not considered to be subject matter that can be patented as an invention or utility model. That is, directly patenting algorithms or software code as a patent is a no rather than a yes.

But! If your computer programme is part of a technical solution, if it controls some process, device, system and as a result of its operation a certain technical result is achieved, which is new, has inventive level (for an invention) and is industrially applicable, then such a technical solution as a whole (which may include software) may well be patented.

In other words, it is not the programme itself that is patented, but the method ( method) that is implemented using the computer and the programme, or the system/device incorporating the programme to achieve the technical result.

Example:

• The very code of a photo editing programme – protected by copyright.
• But if you have invented a completely new technical method of image processing (a new algorithm that gives a unique technical effect, for example, restoration of damaged data in a certain way), and this method is implemented with the help of your programme, then this method (method) can potentially try to patent as an invention.

In Ukraine there is also such an object as a utility model. The requirements for its patenting are somewhat lower than for an invention (in particular, no inventive step is required, novelty and industrial applicability are sufficient), which theoretically may open certain opportunities for patenting some technical solutions related to software, although the scope of utility model patents for software is quite specific.

What is the difference between copyright and patent protection?

• Copyright: protects a specific code (expression). Acts automatically from the moment of creation. Prohibits code copying. Does not protect the idea/function.
• Patent (for invention/utility model): Protects technical solution (idea / function / method), regardless of the specific code. Requires registration with the patent office(UKRNOIVI). Prohibits anyone from using the patented solution (even if they developed it independently).

Software copyright and software patent (or rather, the technical solution that uses it) are not mutually exclusive, but complementary protection tools. Copyright protects the “text”, while a patent protects the “essence” of the technical solution. For comprehensive protection of an innovative software product it is worth considering both options, of course, if your solution meets the patentability criteria.

Section II. Copyright and Databases (DB)

Now let’s talk about databases – the repositories of today’s “oil”, information. From CRM to scientific archives, databases are everywhere. But how do you protect them? The rules here are different from software copyright. Database protection is a separate story, where both the structure of the database, its contents, and possibly the investment in its creation are important.

Is any dataset protected? Is the originality of the structure of important ? Is the information itself protected? And what about the right sui generis (investment protection) in Ukraine? We, Polikarpov Law Firm, will deal with these questions: what is a database legally, what is copyright protection for a database, and how it works for us.

Subsection 2.1: What is a database? Breaking it down into its components

Before we talk about security, let’s find out what it is – the database – from the point of view of the law. We hear this word all the time, but what is behind it legally? The Law of Ukraine “On Copyright and Related Rights” gives us a definition. To simplify, a database is a set of some elements independent of each other (it can be works, data or any other materials), which are systematised in a certain way (i.e. not just a pile of everything, but there is some logic in the arrangement, selection) and which can be accessed individually by electronic or other means.

That is, the key attributes of a database:

1. Aggregation of elements: It is not a single piece of work, but specifically a collection of individual particles (articles, photos, numbers, customer records, etc.).
2. Systematisation/Methodicality: These elements are not just piled up in a heap, but are organised according to a certain principle, ordered. This can be alphabetical order, chronology, thematic classification, relational model – any system.
3. Individualised access: It is important that a user can find and access a specific, individual element within this population (e.g. find a relevant article by keyword, find a client contact by surname).

The law also distinguishes (although this has less practical significance now, but is useful for understanding) between two main types:

• Computerised databases: These are what we usually have in mind today – electronic databases. They exist in digital form and are accessed using computer hardware and special software (database management systems – DBMS). Examples: customer database in CRM, online catalogue of an online shop, electronic library.
• Uncompiled databases: These are “analogue” versions, so to speak. Imagine an old library card catalogue, a telephone directory in the form of a book, an encyclopaedia on paper. Here, too, there is a set of elements, systematisation and individual access, but without electronics.

What else is important to understand when we talk about a database as an object of law? That it consists of two fundamentally different components:

1. The structure of the database: This is the “skeleton”, the architecture, the way in which data is organised, selected and presented. It is this structure (if it is the result of creative labour, as discussed below) that can be the subject of database copyright.
2. Database content: This is the “meat”, the data itself, the works, the information that fills this structure. It can be articles, photos, videos, statistics, personal data, product descriptions – anything. And so this database content has a life of its own. Some content elements may themselves be copyrightable (like articles or photos), and some may simply be facts or data that are not protected by copyright (like the temperature of the air or the price of a product).

A database as a whole (or rather, its structure) and its content are different objects from the point of view of legal protection. Protection of the database structure does not mean automatic protection of its content, and vice versa – the presence of protected content in the database does not automatically protect the database structure itself. More about this in the following subsections.

Subsection 2.2: Copyright protection of a database

So, we’ve determined that a database is a systematised collection of something. But is any such aggregate automatically copyrighted as a database? The answer is an emphatic no. Not every list, not every catalogue deserves such a high status.

Ukrainian legislation, following international approaches (in particular, the Berne Convention and EU directives), considers a database as a collection. And collections (as well as anthologies, encyclopaedias, etc.) are protected by copyright only under one key condition: if the selection or arrangement of its constituent parts is the result of the author’s creative labour. In other words, there must be originality of structure, creative selection or creative ordering.

What does this “creativity” and “originality” mean in relation to a database? It means that the author (database compiler) has not just mechanically collected all possible data according to an obvious criterion, but has made certain intellectual, creative efforts for:

• Selecting materials: Decided what to include in the database and what not to include, guided by certain non-obvious, original criteria.
• Arrangement of materials: Arranged these elements within the database according to a unique, non-trivial scheme or system, which is itself the result of his creative design.

Database copyright protects this original structure, this creative selection or creative arrangement. It does NOT protect the data itself, or the material contained within the database.

That is, if someone copies your database, but presents the same data in a completely different, original structure of their own, there may be no copyright infringement on the database (the structure itself). On the other hand, if someone takes your unique, creatively designed structure (schema, classification, linking system) and fills it with completely different data, this may be a violation of the structure protection rights.

Regarding the data itself inside:

• If it’s factual information (prices, dates, temperatures, phone numbers), it’s not copyrighted at all.
• If they are works (articles, photos, music), they are protected by their own copyright, whether they are included in some database or not.

Let’s use examples:

• A city phone book, where the subscribers are arranged simply alphabetically. Is there a creative selection process? I don’t think so, it’s just a bunch of people. Is there any creative ordering? Alphabetical order is the standard, unoriginal method. Most likely, such a database will not be protected by copyright as a collection (although there may be another type of protection, about which more later).
• A database of court decisions, where the decisions are not simply collected all in a row, but selected by a lawyer according to a certain non-obvious criterion (for example, only decisions relating to a particular rare legal problem), and then classified and indexed according to a unique system of tags and relationships developed by that lawyer. There are already signs here of both creative selection and creative ordering. This database structure is likely to be protected by copyright.
• Online catalogue of all products of a certain type, collected automatically from manufacturers’ websites and arranged by price. Selection is mechanical, ordering is standard. Most likely, there will be no copyright protection.
• A curatorial selection of “100 Best Ukrainian Films of the XXI Century” with annotations and a unique classification by genre and theme. There is an obvious creative selection (someone decided which films are “the best”) and, perhaps, creative ordering. Such a database (collection) has all chances to be protected by copyright.

So, copyright protection of the database structure is not an automatic thing. You have to prove the creative, original nature of the selection or arrangement of its contents. And remember: this defence does not apply to the information inside.

Subsection 2.3: A special kind of right (sui generis) for databases

In addition to the copyright protection of the original database structure, which we mentioned above, the modern legislation of Ukraine, following the approaches of the European Union, has introduced another, quite different level of protection. We are talking about a special kind of right (sui generis) on databases. It is not a copyright in the classical sense, but an independent, specific right, which has a completely different purpose.

What is the point? If copyright protects creativity , the originality of the structure, the sui generis right is designed to protect the investment. Whose investment? The producer of the database. Who is a producer? It is a person (natural or legal) who has taken the initiative and made a substantial contribution (investment) to the creation, verification or presentation of the content of the database.

What is a “substantial contribution“? The law says it can be:

• Quantitative: For example, significant financial resources have been invested, many man-hours have been spent, and serious technical means have been employed in order to collect, verify, or present a huge amount of data.
• Qualitative: Even if the amount of data is not impressive, but unique knowledge, specific skills, sophisticated methodologies were required to obtain, verify or systematise it, this can also be considered a significant qualitative contribution.

The sui generis right arises regardless of whether the structure of the database is original (i.e. whether it is protected by copyright). The main criterion is that had asubstantial contribution to its creation (namely, in obtaining, verifying, presenting thecontents of). That is, even the same telephone directory, which is not protected by copyright because of its unoriginal structure, can be protected by a sui generis right, if its producer can prove that it has made a significant investment in collecting and verifying all those phone numbers.

What rights does the sui generis rightconfer ? It gives the database producer the right to prohibit the extraction and/or re-utilisation of all or a substantial part (quantified or qualitative) ofthe contents of the database without its authorisation.

• Extraction: The transfer of all or a substantial part of the contents to another medium by any means.
• Reuse: Any form of making all or substantially all of the contents of a database available to the public by distributing copies, renting, leasing, digital transmission, etc. Д.

That is, if someone takes your database in which you have made a substantial investment, and simply copies a significant portion of its content (even if the structure is unoriginal), they will have violated your sui generis right.

This right is valid for a period of 15 years, which runs from 1 January of the year following the year of completion of the database. If the database has been lawfully made public within this period, the 15 years shall run from 1 January of the year following the year of such disclosure.

It is important to distinguish between:

• Database copyright: Protects the original structure/setting. Arises automatically from the author of the structure. Valid for the life of the author + 70 years.
• Right sui generis: Protects a substantial contribution (investment) in the content. Arises from the producer of the database. Lasts for 15 years. It protects even non-original databases.

Thus, Ukraine now has two-level protection of databases: one for the creative structure and the other for investments in its content. This significantly strengthens the position of database producers and incentivises investment in the creation of valuable information resources.

Subsection 2.4: Rights in the contents of the database

We have already dealt with the two levels of protection of the databaseitself – the copyright in its original structure and the sui generis right to invest in its creation. But what about what’s inside? The very content of thedatabase for which it was actually created? Does gaining access to the database (for example, under a licence) automatically mean that you have permission to use all data and all the information that is contained therein? You need to be very careful here.

Remember a simple rule: Protecting adatabase ( its structure or as an investment) and protecting its contents are two very different things. The materials that fill your database can have a completely independent legal life of their own.

Think of the database as a kind of container or, if you like, a bookshelf. You may have rights to the bookshelf itself (its unique design iscopyrighted ; or to the fact of its creation, if you put a lot of effort into it – sui generis right). But that doesn’t mean you automatically get the rights to all the books on it!

It is the same with the database. Its content can consist of a wide variety of elements:

• Factual data and information: e.g. statistics, timetables, telephone numbers, measurement results. Such elements are generally not protected by copyright in themselves, as they are not the result of creative work.
• Works protected by copyright:Here’s where it gets interesting. Your databasemay contain:
  • Articles (as in the media database).
  • Photos (as in a photo bank).
  • Music tracks (like in an online music library).
  • Video clips.
  • Literary excerpts.
  • Even other, smaller databases!

And each such work has its own author and/or copyright holder. And each such work is subject to its own content copyright.

What does this mean in practice? If you have obtained a licence to use a database (e.g. access to its structure or the right to extract information from it under sui generis law), this does not automatically give you the right to freely use the copyrighted content of contained within.

• The fact that an article is stored in a certain database does not mean that you can copy it and publish it on your website without the permission of the author or the publication that owns the rights to this article.
• The fact that a photo is part of a photobank (which is itself a database) does not mean that you can use this photo in your advertising without purchasing a separate licence for this particular photo.

To use a specific work from the database content, you need a separate permission from the owner of the rights to that particular work (article, photo, music, etc.), unless the terms of the licence for the database itself explicitly provide otherwise (which is rare and usually clearly stated).

When working with databases, always keep in mind this layering of rights. There are rights to the “container” (structure, investments), and there are separate rights to the “content” (data, information, works). And using the “container” does not give carte blanche to use everything inside, if this content is itself protected by copyright.

Section III. Licensing of software and databases

So, we have learnt what computer programs and databasesare , who has rights to them and what exactly these rights mean. But what is the interaction between the owner of the rights and the person who wants to use it? Do we buy software the same way we buy, say, a book or a car? In most cases, no.

In the world of software and databases, a different model reigns – the licensingmodel . When you “buy” a programme or access a database, you do not actually become its full owner in the classical sense. You get permission, i.e. alicence, to use it under certain conditions. These conditions are specified in a special document – licence agreement. For commercial software, you have probably come across the abbreviation EULA (End-User Licence Agreement) – this is a typical example of such an agreement.

And the world of licences, it must be said, is very diverse. The terms and conditions can differ dramatically. At one pole are rigid proprietary licences, where you have to pay for every action (installation, copying) and the user’s possibilities are very limited. At the other pole is a whole universe of open licences (Open Source) such as GPL, MIT, Apache, which allow free use, study, modification, and even distribution of software, though also with their own rules and obligations (e.g., to keep derivative works open). There are also specific licences for databases that take into account the specifics of their use.

Understanding which software licence or database licence governs your relationship with the copyright holder is critical. It determines what you can and cannot do with the product, whether you can use it for commercial purposes, or whether you must share your modifications. In this section, we briefly review the main licensing approaches so that you can better navigate this variety.

Section IV. Common violations and defence of rights

In theory, everything sounds great: there is a law, there are rights, there are licences…. But practice, as always, makes its own corrections. Unfortunately, the software and database industry is one of the leaders in the number of intellectual property rights violations. From banal piracy to more complex schemes of misuse, problems exist for both right holders and users who risk sanctions.

Let’s look at the most common types of software and databasecopyright infringements in Ukraine:

1. Use of unlicensed software ( “piracy”): This is a classic of the genre. Installing and using software obtained from unofficial sources (torrents, “cracked” versions) without purchasing a licence. This concerns both private users and, what is especially risky, businesses. The use of “cracked” software in commercial activities is a direct infringement of software copyrights, which can lead to serious fines and confiscation of equipment.
2. Breach of licence(EULA):Even if you have purchased a licence, this is not a guarantee of non-infringement. Many people do not read the terms and conditions of the licence agreement, and for nothing. Typical licence violations
   • :Installing the software on more computers than allowed by the licence.
   • Using the “home” or “educational” version of the
   • software
   • for commercial purposes.
   • Transferring the licence to another person if this is prohibited by the terms.
   • Using software components (e.g. fonts or libraries) separately from the software if this is not allowed.
3. Unauthorised modification or distribution: Modifying the code of the software (unless permitted by the licence or subject to free use exceptions), removing copyright information, creating “cracked” versions and distributing them are all serious violations.
4. Code plagiarism: Although it may be difficult to prove it, copying significant fragments of someone else’s code (especially if it is not under an open licence) and including them into your product without permission is a direct violation. Modern code analysis tools allow you to detect such borrowings.
5. Infringement of database rights:
   • If a database is copyrighted (original structure), copying that structure is an infringement.
   • If the database is protected by sui generis copyright, unauthorised removal or reuse of a substantial part of its contents (even if the structure is not original) is an infringement of the database producer’s rights.
   • Unauthorised use of protected database content (articles, photos, etc.) without the permission of the owners of the rights to this content.

So how can you protect your rights and avoid infringements?

• For developers and rights holders (developer protection):
  • Technical means of protection: Use of activation keys, DRM (Digital Rights Management), copy protection systems, watermarks in the code. While no technical means provides a 100% guarantee, it makes life difficult for infringers.
  • Legal mechanisms:
    • Clear and understandable licence agreements (EULA).
    • Registration of copyright for the software (although it is not necessary for a right to arise, it may help to prove it in court).
    • Monitoring infringements (tracking illegal distribution).
    • Sending complaints (cease and desist letters) to infringers.
    • Seeking legal action to stop infringement, seize infringing copies, damages or compensation.
  • Labelling: Clear indication of copyright information (© Name of copyright holder, Year) in the software itself and accompanying documentation.
• For users (especially businesses):
  • Use only licensed software: This is the most important rule. The cost of a licence is disproportionate to the potential fines and reputational damage from using unlicensed software.
  • Read licence agreements carefully: Make sure you understand and comply with the terms of use.
  • Conduct software audits: Regularly review software installed on company computers to ensure that licences are in place and that their use is compliant. This helps identify and fix potential problems before they lead to sanctions. Maintaining licence records is an important part of IT management.

It is worth remembering that infringement of copyright for software and database rights can lead to civil (damages, compensation), administrative (fines) and even criminal (in cases of large-scale damage) liability. Therefore, software/database licensing and use should be taken seriously.

Conclusions

So, we have considered the key aspects of legal protection of such specific objects as computer programmes and databases in Ukraine. As you can see, software copyright and database copyright live by their own rules, different from the protection of more traditional works.

The main conclusions worth remembering:

• Software is like a literary work: It is the code(source and object code) that is protected, not ideas or algorithms. There are specific exceptions for free use (backup, decompilation for compatibility).
• Double protection of databases: Copyright protects the original structure/content, while sui generis rights protect the producer’s substantial investment in the content, regardless of originality.
• Rights to content – separate: Rights to the database itself do not mean an automatic right to use its content if it is itself protected.
• Licensing is the key to everything: The use of almost any software or database is governed by a licence agreement (EULA, Open Source licence, etc.). Its terms define what you can and cannot do.
• Contractual drafting – the key to peace of mind: Clearly defining rights and obligations in employment contracts (for service programmes) and ordering contracts is critical in IT law to avoid disputes.

Understanding these specifics is not just legal theory. It is a necessity for everyone who works in IT business or simply actively uses digital products. Developers need to know how to protect their labour, companies need to know how to correctly register rights to their assets and avoid infringements, and users need to know how to use software legally.

Proper licensing, respect for other people’s intellectual property and reliable protection of intellectual property is a catalyst for the development of innovation and the entire IT industry in Ukraine.

Do you want to once again consolidate the main points specifically on software and delve into the details of its legal protection? Read our specialised article: Software Copyright in Ukraine