Copyright protection: court procedures and procedures

When it comes to the protection of intellectual property, in particular copyright, it is important to understand that there is an effective tool that can restore justice and protect your rights – the court. Defending copyright in court is not just a formality, but a real mechanism that allows you to bring infringers to justice and receive compensation for the damage caused.

Of course, the judicial process is not the easiest procedure, it requires time, effort and certain knowledge. But you should not give up and refuse to protect your rights, thinking that it is too complicated. This article is designed to help you understand the intricacies of judicial protection of copyright.

We will consider the main stages of this process, starting from preparation for the court and ending with the execution of the court judgement. Our goal is to give you a clear understanding that copyright protection in court is not a mythical procedure, but a very real and effective way to fight infringements. And the most important thing is that you can use it.

Section 1: Grounds for application to the court

Before starting a lawsuit, it is necessary to clearly determine whether you have sufficient grounds to go to court. After all, not every conflict related to copyright, is necessarily resolved in court. Sometimes a pre-trial settlement may be more effective.

In this section, we will consider which copyrightviolations may be grounds for filing a lawsuit in court. We will find out in which cases judicial protection is necessary and the most effective means of restoring infringed rights. Understanding these grounds will help you properly assess the situation and choose the best way to protect your interests.

Subsection 1.1: Copyright Infringement

So, what actions can be considered copyright infringement and be grounds for appealing to the court? The legislation defines a clear list of such violations. Let’s consider the main ones:

• Unauthorised reproduction of a work: This means copying your work (in whole or in part) without your permission. For example, illegal copying of music, films, literary works, software, photographs, designs, etc.
• Unauthorised distribution of your work: This involves selling, renting, sharing, or otherwise distributing copies of your work without your permission.
• Plagiarism: This is the appropriation of your work or part of it by another person. That is, when someone passes off your work as their own.
• Unauthorised adaptation of a work: Creating derivative works based on your work without your permission, such as translating a literary work, creating a remix of a musical work, adapting a screenplay, etc.
• Misuse of Work: Any other use of your work without your permission, such as public display, use in advertising, etc.
• Failure to acknowledge authorship: When someone uses your work without naming you as the author (unless you have waived the right to acknowledge authorship).
• Infringement: Making changes to your work that distort its content or damage your reputation as an author.

Examples of infringements that may be grounds for a lawsuit:

• Someone uploaded your music album to a torrent tracker without your permission.
• An online shop sells T-shirts with your image printed on them without your consent.
• A website uses your photos without your permission or attribution.
• Someone has published your poem under their name.
• A company uses a packaging design you developed without your permission and without paying you.

If you experience any of these infringements, you have every reason to take legal action to protect your copyright. The court may not only prohibit the infringer from further use of your work, but also order the infringer to pay you compensation for damages.

Subsection 1.2: The need for judicial remedies

We have learnt which actions constitute copyrightinfringement and may be grounds for legal action. But is it always necessary to file a lawsuit right away? Is court the only possible defence?

Of course not. As we mentioned earlier, there is also pre-trial dispute resolution, which in many cases can be more effective and less costly. However, there are situations where going to court is necessary.

When is judicial defence necessary?

• The infringer ignores your demands within the framework of pre-trial settlement: If you have addressed a claim to the infringer and he ignored it or refused to fulfil your demands, the court remains the only option.
• The infringement is systemic: If the infringer repeatedly infringes your copyright, even after your appeals, court proceedings may be the only way to stop his actions.
• You have suffered significant damage: If the unlawful use of your work has resulted in significant property damage or has seriously damaged your reputation, a court will help you obtain fair compensation.
• You want not only a cessation of infringement, but also public recognition of your rights: A court judgement is official and can be a public acknowledgement of your authorship and your rights to the work.
• The dispute concerns complex copyrightissues that require legal expertise: For example, if there are difficulties in determining the scope of rights transferred under a contract or in interpreting the law, the court can resolve these issues in a professional manner.
• You want to preemptively protect your rights for the future: A court judgement preventing an infringer from using your work can be a deterrent to other potential infringers.

In summary, the court is a serious tool for copyrightprotection and should be used when pre-trial resolution has failed or when the infringement is so significant that it requires judicial intervention.

Section 2: How to go to court

You have decided to defend your copyright in court. Where do you start? What steps do I need to take to file a lawsuit and start legal proceedings?

In this section, we will examine step-by-step the procedure of filing a copyrightclaim with the court . We will find out how to determine the jurisdiction of the case, how to properly draw up a statement of claim, what evidence should be collected and what formalities should be completed before filing a lawsuit.

This section will become your practical guide at the first stage of legal defence and will help you prepare for the next stages of the process.

Section 2.1: Determining jurisdiction

Before you file a lawsuit, you need to determine the correct jurisdiction of the case, i.e. which court you need to go to. The correct determination of jurisdiction depends on whether your claim will be accepted for consideration.

What are the rules for determining jurisdiction over copyrightcases ?

In Ukraine there are general rules of jurisdiction established by the Civil Procedure Code of Ukraine (CPC of Ukraine), as well as special rules relating to the consideration of disputes in the field of intellectual property.

General rules of jurisdiction (Article 27 of the CPC of Ukraine):

• At the location of the defendant: The claim shall be brought to the court at the legally registered place of residence or stay of the defendant, if the defendant is a natural person. If the defendant is a legal entity, the action shall be brought at its place of residence.
• At the plaintiff’s choice (alternative jurisdiction): In some cases provided for by law, the plaintiff may apply to the court at his place of residence or at the place of infliction of damage.

Special rules of jurisdiction over copyright cases ( Article 30 of the Civil Procedural Code of Ukraine):

• Claims against an individual: Claims for copyright protection may also be brought at the registered place of residence or stay of the plaintiff.
• Claims against multiple defendants: Claims against multiple defendants who reside or are located in different places shall be brought at the place of residence or domicile of one of the defendants at the choice of the plaintiff.
• Claims for damages: Claims for damages caused by copyright infringement may also be brought at the place where the damage occurred.

Exclusive jurisdiction for disputes over intellectual property objects (part 6 of Article 30 of the CPC):
Disputes arising over intellectual property rights are considered by the court of appeal, whose jurisdiction extends to the place of residence (stay) or location of the defendant, as the court of first instance.

Practical advice:

• Carefully study the norms of the CPC of Ukraine regulating the issues of jurisdiction.
• Determine the location or place of residence of the defendant.
• If you have the right to choose the court (alternative jurisdiction), choose the court that is most convenient for you.
• If you have difficulties in determining jurisdiction, consult a lawyer.

Correct determination of jurisdiction is an important stage of preparation for court proceedings. An error in determining jurisdiction may result in the return of the statement of claim or the case being transferred to another court, which will delay the process of protecting your rights.

Section 2.2: Drafting the statement of claim

After determining jurisdiction, the next step is to draw up a statement of claim. This is an official document in which you state your claims against the defendant and justify them with reference to the law and available evidence. The success of the entire case depends to a large extent on how well and convincingly the statement of claim is drafted.

The requirements to the content of the statement of claim are defined by Article 175 of the Civil Procedural Code of Ukraine.

Mandatory requisites of the statement of claim:

1. Name of the court: Enter the full name of the court to which you are applying.
2. Plaintiff: Enter your full name (for individuals) or full name (for legal entities), place of residence or location, postal code, number of means of communication (telephone, e-mail), RNUKPP or passport series and number.
3. Claimant’s representative (if any): If another person represents your interests, please provide his/her full name, place of residence, postal code, communication number, and details of the document confirming the representative’s authority (e.g. power of attorney).
4. Defendant: Enter the defendant’s full name (for individuals) or full name (for legal entities), place of residence or location, postal code, number of means of communication (if known), identification code of the legal entity in the USREOU (if known).
5. Value of the claim: Indicate the amount of money you claim from the defendant (if the claim is of a property nature).
   • • “Oblige the defendant to remove the work (title of the work, author) from the website (website address).”
     • “To recover from the defendant in my favour compensation for copyright infringement in the amount of (amount).”
     • “To recover from the defendant in my favour compensation for moral damage in the amount of (amount).Content of the claim:Clearly and understandably formulate what exactly you demand from the defendant. For example:
       • • “Recognise the defendant’s unlawful use of the work (title of the work, author).”
         • “Prohibit the defendant from using the

       work (title of the work, author).””

6. Statement of circumstances by which the plaintiff substantiates his/her claims:Consistently and logically describe the current situation. Specify:
   • When and how the work was created.
   • What are your rights to the work (whether you are the author or the copyright holder).
   • When and how did you discover the infringement of your rights.
   • How the defendant violated your rights (e.g., by illegally copying and posting your work on its website)
   • .Whether you have contacted the defendant with a request to stop the infringement as part of a pre-trial settlement.
7. Indicate the evidence supporting each circumstance: For each circumstance you have stated, add a list of the evidence that supports it.
8. List of documents and other evidence attached to the statement of claim: Indicate all documents you are adding to the statement of claim (copies of the work, screenshots, contracts, correspondence with the defendant, etc.).

Recommendations:

• Write clearly and understandably: Use simple and clear language, avoid complex legal terms unless you are sure of their meaning.
• Be consistent and logical: State the facts of the case in chronological order, linking them logically.
• Refer to legislative norms: Justify your claims by referring to the relevant articles of laws (for example, the Law of Ukraine “On Copyright and Related Rights”, the Civil Code of Ukraine).
• Consult a lawyer: If you have difficulties with drafting a statement of claim, it is better to seek help from a qualified lawyer.

Remember: the statement of claim is your main document in court. Its quality determines how convincingly you will be able to prove your position and protect your rights.

Subsection 2.3: Collection of Evidence

An important stage of preparation for the judicial defence of copyright is the collection of evidence. It is the evidence that is the foundation of your position in court, and the outcome of the case depends on its completeness and persuasiveness.

What kind of evidence do I need to collect?

1. Evidence to prove your copyrightto the work:
   • Original Work: If possible, provide the court with the original work with the earliest date of creation, preferably one that is identifiable.
   • Copies of the work: Provide copies of the work in tangible media (e.g., printouts of illustrations, photographs, text, CD/DVD recordings of music or video).
   • Source files: If the work was created digitally, provide source files with metadata (date of creation, author information).
   • CopyrightRegistration Certificate : If you have registered a copyright for the work, provide a copy of the certificate.
   • Contract for the creation of a customised work: If you have created a customised work, provide a copy of the contract with the customer.
   • Deposit documents: If you have deposited the work, provide a copy of the deposit document.
   • Publication of the work: If the work has been published, provide a link to the publication or copies of the publication with the imprint.
   • Testimony: In some cases, testimony from persons who can attest to your authorship may be helpful.
2. Evidence of infringement of your copyrights:
   • Screenshots of web pages: If the infringement occurred on the Internet, take screenshots of the pages where your work is illegally posted. It is advisable to make a notarised report of the web page inspection.
   • Photo or video recording of the infringement: Document the infringement by taking photos or video (e.g. photos of the infringing product).
   • Counterfeit copies of the work: If possible, purchase or otherwise obtain copies of products on which your work has been illegally used.
   • Broadcast recordings: If the work was illegally broadcast on television or radio, make a recording of the broadcast.
   • Correspondence with the infringer: Keep all correspondence with the infringer, including your complaint and the infringer’s response (if any).
3. Evidence proving the amount of damages (if you are claiming damages):
   • Documents proving your income from the use of the work before the infringement.
   • Documents confirming lost profits (income that you could have received if your rights had not been infringed).
   • Calculation of the amount of damage caused by an expert (if necessary).

Recommendations for collecting evidence:

• Carefully record all evidence: Keep all original documents, making copies for the court.
• Properly authenticate evidence: Some evidence, such as screenshots of web pages, may be better notarised.
• Seek expert evidence: In complex cases, expert evidence may be required to confirm the infringement or the extent of the damage.
• Do not delay: Start gathering evidence as soon as you discover the breach.

Remember that the court evaluates evidence on its own internal conviction, so it is important to gather as complete and convincing evidence as possible. The quality of the evidence you gather will determine the court’s decision in your favour.

We also recommend reading the article “Evidence of copyright infringement: what evidence is needed?” for a more detailed understanding of this issue.

Subsection 2.4: Paying court fees

Before you can file a lawsuit in court, you must pay a court fee. This is a compulsory fee, which is paid for the consideration of the case by the court. The amount of the court fee depends on the nature of the claim (property or non-property) and the status of the plaintiff (individual or legal entity).

The issues of court fee collection are regulated by the Law of Ukraine “On Court Fees”.

Rates of court fee:

The rates of court fee for filing a statement of claim for copyright protection (of a non-property nature) are:

• For individuals: 0.4 of the minimum subsistence level for able-bodied persons established by law as of 1 January of the calendar year in which the statement of claim is filed.
• For legal entities: 1.5 of the minimum subsistence level for able-bodied persons established by law as of 1 January of the calendar year in which the statement of claim is filed.

Rates of court fee for filing a statement of claim of a property nature:

• For individuals: 1 per cent of the claim price, but not less than 0.4 times the minimum subsistence level for able-bodied persons and not more than 5 times the minimum subsistence level for able-bodied persons
• For legal entities: 1.5 per cent of the claim price, but not less than 1 times the minimum subsistence level for able-bodied persons and not more than 350 times the minimum subsistence level for able-bodied persons.

Important:

• The size of the subsistence minimum for able-bodied persons changes annually. Up-to-date information on the amount of the living wage can be found on the website of the Verkhovna Rada of Ukraine.
• When filing a lawsuit containing both property and non-property claims, the court fee shall be paid for each claim separately.
• If the amount of the claim is increased or the subject matter of the claim is changed, the plaintiff must pay the court fee.

Court fee can be paid:

• Online: on the official web portal “Judicial Power of Ukraine” in the section “Court Fee”
• Through the bank: by bank details, which can be found on the website of the court where you are filing a lawsuit or on the portal “Judicial Power of Ukraine”.

Requisites for payment:

• Beneficiary of funds: MC in ____ district/m.____/ USREOU code (recipient of funds)
• Beneficiary code (USREOU code)
• Beneficiary’s bank
• Beneficiary bank code (MFI)
• Beneficiary’s account
• Budget revenue classification code: 22030101 (for claims of non-property nature), 22030102 (for claims of property nature)
• Purpose of payment: *; court fee on the claim of (name or surname of the plaintiff), in (name of the court), case No. (case number, if known)

Consequences of non-payment:

• Failure to pay the court fee is a ground for leaving the statement of claim without movement (Article 185 of the Code of Civil Procedure of Ukraine). The court sets a term for the plaintiff to eliminate the deficiencies, and if the plaintiff fails to pay the court fee within the established term, the statement of claim is considered not filed and is returned to the plaintiff.

Certain categories of persons are exempted from paying the court fee. The list of these categories is defined in Article 5 of the Law of Ukraine “On Court Fee”.

Recommendations:

• Before paying the court fee, carefully read the Law of Ukraine “On Court Fee” and make sure that you calculate its amount correctly.
• Keep the receipt for payment of the court fee, as it must be attached to the statement of claim.

Always check the official web portal “Judicial Power of Ukraine” or the website of the relevant court for up-to-date information on the rates and details for payment of the court fee.

Section 2.5: Filing a lawsuit with the court

You have determined jurisdiction, drafted your statement of claim, gathered the necessary evidence, and paid the court fee. Now it is time to file a lawsuit in court. How do you do it the right way?

Ways of filing a statement of claim:

• In person: You may submit the statement of claim in person to the clerk’s office of the relevant court.
• By post: You can send the statement of claim with attachments by registered letter with acknowledgement of receipt to the court.
• Through the Electronic Court: You can file a claim electronically through the Electronic Court subsystem, if you are registered in it.

What you need to do when filing a lawsuit:

• • Prepare a statement of claim with annexes in the number of copies corresponding to the number of parties to the case plus one copy for the court.
  • Attach to the statement of claim the original receipt for payment of the court fee (except for cases of filing a claim via the Electronic Court).

• When filing in person:

• • Go to the court clerk’s office and submit the prepared set of documents.
  • Receive a mark of receipt of the statement of claim on your copy (with a date, signature and stamp) from the clerk.
• When filing by mail:
  • Send the statement of claim with annexes by registered mail with a notice of delivery and an inventory of attachments.
  • Keep the receipt for sending the letter and the notice of service.
• When filing via “Electronic Court”:
  • Register in the “Electronic Court” system using an electronic digital signature (EDS).
  • Fill in the electronic form of the statement of claim and upload scanned copies of the required documents.
  • Sign the statement of claim with EDS and send it to the court.

After filing the statement of claim:

• The court checks the statement of claim for compliance with the requirements of the Civil Procedural Code of Ukraine.
• If the statement of claim complies with the requirements, the court opens the proceedings and sets the date of the preparatory hearing.
• If the statement of claim does not fulfil the requirements, the court may leave it without movement and grant the plaintiff a period of time to remedy the deficiencies or return it to the plaintiff.

Important:

• Carefully check the correctness of the statement of claim and documents before submitting them to the court.
• Observe the procedural deadlines established by the Civil Procedural Code of Ukraine.
• In case of any difficulties, consult a lawyer.

Filing a lawsuit in court is a responsible step that requires careful preparation. Following the procedure for filing a lawsuit is the key to ensuring that your case will be accepted for consideration and you will be able to effectively defend your copyrights in court.

Section 3: Proceedings in Court

So, the lawsuit is filed and the case is accepted for consideration. The litigation process begins, which consists of several stages. Understanding these stages, your rights and obligations at each stage will help you effectively protect your interests in court.

In this section we will consider in detail the procedure of consideration of a case on copyrightprotection in the court of first instance. We will familiarise ourselves with the main stages of judicial proceedings, find out the peculiarities of proof in such cases, analyse the procedure of court debates and decision-making by the court.

Be prepared for active participation in the court process, because the outcome of the case will depend on your position and your ability to justify it.

Subsection 3.1: Preparatory proceedings

Once the proceedings have been opened, the court begins preparatory proceedings. This is an important stage of the judicial process, the purpose of which is to ensure the correct and timely consideration of the merits of the case.

What happens at the stage of preparatory proceedings?

1. Preparatory hearing: The court sets the date and time of the preparatory hearing and notifies the parties to the case.
2. Clarification of claims: At the preparatory hearing, the plaintiff may clarify his/her claims and the defendant may submit his/her objections to the claim.
3. Determination of the subject of proof: The court determines what circumstances in the case are subject to proof and what evidence the parties must provide.
4. Deciding whether to involve third parties: If there are interested parties in the case who are not the plaintiff or defendant, the court may involve them in the case as third parties.
5. Deciding whether to demand evidence: The court may demand necessary evidence from the parties or from other persons or organisations.
6. Appointment of expertise (if necessary): If specialised knowledge is required to resolve the dispute, the court may appoint an expertise (e.g. art, technical).
7. Decision on securing the claim (if necessary): At the request of the plaintiff, the court may take measures to secure the claim, such as seizure of the defendant’s property.
8. Taking other procedural actions: The court may take other actions necessary to prepare the case for consideration on the merits, such as summoning witnesses, appointing an interpreter.
9. End of preparatory proceedings and assignment of the case for trial: After completion of all necessary preparatory actions, the court shall issue a ruling on the end of preparatory proceedings and set the date and time of the court hearing for consideration of the case on the merits.

The parties are obliged to participate in the preparatory hearings, provide the court with the necessary documents and explanations, and comply with the court’s rulings. Failure of a party to attend the preparatory hearing without valid reasons may have negative consequences, for example, the court may consider the case in the absence of the party.

Preparatory proceedings are an important stage of the judicial process, which allows:

• Clarify the positions of the parties.
• Determine the subject of proof and the volume of necessary evidence.
• Resolve organisational issues related to the consideration of the case.
• Ensure that the merits of the case are considered in a timely and correct manner.

Effective use of the possibilities of preparatory proceedings will help you better prepare for the merits of the case and increase your chances of success.

Subsection 3.2: Trial on the merits

Once the preparatory proceedings have been completed, the court proceeds to the trial on the merits. This is the main stage of the trial, where the court examines the evidence, hears the parties’ explanations and makes a decision on the case.

How does the trial on the merits take place?

1. Opening of the court session: The court session begins with the announcement by the presiding judge of the opening of the court session and the announcement of the case under consideration.
2. Checking the attendance of the parties to the case: The court clerk shall report to the court on the attendance of the parties to the case and witnesses.
3. Clarification of the parties’ rights and obligations: The presiding judge shall explain to the parties their procedural rights and obligations.
4. Consideration of motions: The parties have the right to make motions, e.g. to summon witnesses, to demand evidence, to appoint an expert examination. The court considers these motions and decides whether to grant or deny them.
5. Opening speech of the parties: The plaintiff and the defendant (or their representatives) make opening speeches, in which they state their positions on the case.
6. Examination of evidence: The court examines written evidence, hears testimonies of witnesses, conclusions of experts, examines material evidence.
7. Explanations of the parties: The parties provide the court with their explanations regarding the examined evidence and the circumstances of the case.
8. Court deliberations: After all the evidence has been examined, the court will proceed to the court deliberations (see subsection 3.4).
9. Adoption of judgement: After the court deliberations, the court goes into a deliberation room to adopt a judgement (see subsection 3.5).

Peculiarities of consideration of copyrightcases :

• Subject of proof: In copyright cases, the court establishes the following circumstances: whether the plaintiff has a copyright in the work; the fact of infringement of copyright by the defendant; the amount of damages caused (if a claim for compensation is made).
• Proof : Proof in copyright cases has its own peculiarities related to the specificity of the object of defence (see subsection 3.3).
• Expertise: In copyright cases an expert examination is often appointed to establish the fact of use of the work, to determine the amount of damages, etc.

Important:

• The trial on the merits shall take place in a court session, which shall be held orally and openly, except in cases provided for by law.
• The parties shall be obliged to exercise their procedural rights and fulfil procedural obligations in good faith.
• Failure of a party to appear in court without valid reasons shall not prevent consideration of the case on the merits, but may have negative consequences for that party.

The trial on the merits is the most important stage of the judicial process, which decides the fate of the case. Your active participation in the trial, a clear and reasoned position, and a proper evidentiary basis are the key to the successful defence of your copyright.

Subsection 3.3: Evidence in court

Evidence is a key element of the judicial process. It is on the basis of the evidence presented by the parties that the court establishes the circumstances of the case and makes a decision. In copyright cases, the proof has its own peculiarities related to the specificity of the object of protection – the work.

The principle of adversarial proceedings applies in civil proceedings, according to which each party must prove the circumstances to which it refers as the basis of its claims or objections. This means that the plaintiff must prove the fact that he has a copyright to the work and the fact that the defendant has violated this right. The defendant, in turn, may provide evidence to refute the plaintiff’s allegations.

Types of evidence in copyrightcases :

• Written evidence: These are any documents containing information about the circumstances of the case. They include: original or duly certified copies of the work, agreements on creation or transfer of rights to the work, copyright registration certificate, deposit documents, correspondence of the parties, notarised screenshots of web pages, receipt for payment of court fees, etc.
• Physical evidence: These are material objects that contain information about the circumstances of the case. For example, counterfeit copies of a work, products with illegally used designs.
• Witness testimony: Witnesses can provide information about the fact of creation of the work, the fact of copyright infringement, the circumstances of use of the work, and so on.
• Expert evidence: Expert evidence is an important source of evidence in copyright cases. An expert can give an opinion on the identity of works, determine the amount of damages, establish the fact that a work has been processed, etc.
• Sound and video recordings: Can confirm the fact of illegal use of a work, for example, a recording of a television broadcast or a video recording from a surveillance camera in a shop where counterfeit goods are sold.
• Electronic evidence: This is information in electronic (digital) form that can be used as evidence in court. This includes emails, messenger messages, data from websites, source files of a work with metadata, etc.

Peculiarities of proof in copyrightcases :

• Proof of authorship: The plaintiff must prove that he or she is the author or copyright holder of the work. Various evidence may be used for this purpose, including source files of the work, copyright deposit or registration documents, and testimony.
• Proving infringement: The plaintiff must prove that the defendant has unlawfully used his or her work. This can be done by using screenshots of web pages, infringing copies of the work, broadcast recordings and the like.
• Proof of the amount of damages: If the plaintiff claims damages, he or she must prove the amount of damages. This can be done with the help of documents proving the income from the use of the work before the infringement, as well as with the help of an expert calculation.

Important:

• All evidence must be proper, admissible, reliable and sufficient.
• The court shall evaluate the evidence on its internal conviction based on comprehensive, complete, objective and direct examination of the evidence available in the case.
• Failure of a party to provide evidence in support of its claims or objections may lead to a decision not in its favour.

Effective evidence is a decisive factor of success in copyright cases. Careful preparation of the evidentiary base, its proper execution and presentation in court significantly increase the chances of satisfaction of your claims.

Subsection 3.4: Trial deliberations

After all the evidence in the case has been examined, the court proceeds to the trial deliberations. This is the stage of the trial where the parties summarise the case, express their final position and analyse the evidence examined.

What happens during a court debate?

1. Speeches of the parties: The plaintiff or his representative speaks first, followed by the defendant or his representative. If third parties are involved in the case, they shall speak after the parties.
2. Content of speeches:In their speeches, the parties
   • : State their legal position on the case.
   • Analyse the evidence examined in the court hearing
   • . Provide arguments in support of their claims or objections.
   • Express their opinion as to what decision the court should make.
3. Replays: After the main speeches, the parties have the right to a rejoinder – a short additional speech in which they can respond to their opponent’s arguments.
4. End of the judicial debate: After the rejoinders, the presiding officer declares the judicial debate over.

Importance of court debates:

• Formation of a final position: The court debate allows the parties to clearly formulate their final position on the case, taking into account all the evidence examined.
• Convincing the court: This is the last opportunity for the parties to convince the court of their case before it retires to the deliberation room to make a decision.
• Identifying the strengths and weaknesses of a position: Court debates help to identify the strengths and weaknesses of both your own and your opponent’s position.

Recommendations for speaking in court debates:

• Be clear and concise: State your thoughts clearly and concisely, without deviating from the topic of the dispute.
• Argue your position: Support your statements with references to the evidence and legislation examined in the court hearing.
• Be persuasive: Use rhetorical techniques to make your statement more convincing.
• Respect the court and your opponent: Observe the rules of etiquette in court, behave with restraint and correctness.
• Be prepared to answer questions: The court may ask you questions during your presentation, so be prepared to answer them.

This is important:

• You should prepare thoroughly for a court debate. Think through the structure of your speech, prepare the necessary materials, practise in front of a mirror or in front of friends.
• If you are not confident in your abilities, it is better to seek the help of a professional lawyer who will be able to expertly represent your interests in court.

Court debates are an important stage of the legal process, which requires careful preparation and the ability to convincingly present your position. Your performance in the court debate will largely determine the court’s decision, so take this stage with all responsibility.

Subsection 3.5: Adoption of a judgement by the court

After the conclusion of the court’s deliberations, the court will retire to the deliberation room to make a decision. This is the final stage of the case in the court of first instance, where the court decides the dispute on the merits.

What happens in the deliberation room?

• Discussion of the case: Judges in the deliberation room discuss the circumstances of the case, the evidence examined, the positions of the parties and the rules of law to be applied.
• Voting: The decision shall be adopted by a majority vote of the judges. If the case is heard by a panel of three judges, the decision shall be considered adopted if at least two judges vote in favour.
• Drawing up the judgement: The court shall draw up the judgement in writing. The judgement must be lawful and well-founded.

The judgment consists of four parts:

1. Introduction:It indicates:
   • The date and place of the decision.
   • Name of the court that issued the decision.
   • The composition of the court.
   • Parties to the case.
   • The subject of the claim.
2. Descriptive part:In this part, the court sets out:
   • A summary of the plaintiff’s position.
   • A brief statement of the defendant’s objections.
   • Explanations of the persons involved in the case.
   • Other evidence examined by the court.
3. Motivational part:This is the most important part of the judgement in which the court:
   • States the circumstances of the case as established by the court.
   • Determines which legal rules are applicable to the disputed legal relationship.
   • Assesses the evidence examined.
   • Sets out the reasons why the court concluded that the claim should be sustained or dismissed.
4. Resolutive part:In this part, the court formulates its decision on the merits of the claim:
   • To satisfy the claim (in full or in part).
   • Dismissal of the claim.
   • On the distribution of court costs between the parties.
   • The term and procedure for the entry into force of the decision and its appeal.

After drafting and signing the judgement, the court returns to the courtroom and announces it. The presiding officer explains the content of the judgement and the procedure and time limit for appealing against it.

Entry into force of the decision:

• The decision of the court of first instance enters into force after the expiry of the time limit for filing an appeal, if no appeal has been filed.
• If an appeal is filed, the judgment, unless cancelled, becomes effective upon return of the appeal, refusal to open or close the appeal proceedings, or adoption of a resolution of the court of appeal following the results of the appellate review.

Important:

• The court decision is binding throughout Ukraine.
• The parties have the right to review the full text of the court decision.
• A court decision may be appealed.

The court’s decision is the culmination of the litigation process. It is in the judgement that the court resolves the dispute between the parties and establishes whether the plaintiff‘s copyright has been infringed by .

Section 4: Enforcing the judgement

Obtaining a favourable court decision is only the first step in restoring justice. The next, no less important stage is the execution of the court judgement. After all, it is the execution of a judicial act that allows you to really protect thecopyright infringed and receive proper compensation.

In this section we will consider the procedure of execution of court judgements in cases of copyrightprotection . We will find out how to obtain a writ of execution, how a judgement is enforced and what actions must be taken in order to achieve real enforcement of a judicial act.

Subsection 4.1: Obtaining a writ of execution

After a court judgement has come into force, it is necessary to obtain a writ of execution to enforce it. This is an official document issued by the court and is the basis for opening enforcement proceedings.

How to obtain a writ of execution?

1. Apply to the court that made the decision with an application for a writ of execution.The application must specify
   • : Name of the court.
   • Number of the case
   • . Date of the decision.
   • Name of the parties to the case.
   • Request to issue a writ of execution.
2. The application can be submitted in person to the court office or sent by mail. Also, if technically possible, the application can be submitted through the “Electronic Court” system.
3. Pay the court fee for issuing a duplicate of the writ of execution (in case of loss of the original).
4. Receive the writ of execution at the court office or by mail (depending on the method of filing the application).

The writ of execution is issued by the court after the judgement enters into legal force. This usually takes place within 5-10 days after receipt of the relevant application from the claimant.

The writ of execution must contain the following information:

• Name of the document.
• Name of the court that issued the writ of execution.
• Number of the case.
• Date of the decision.
• Resolution part of the decision.
• The date on which the judgement enters into legal force.
• Information about the debtor and the recoverer.
• Term of submission of the writ of execution for execution.
• The signature of the judge and the stamped seal of the court.

Important:

• The writ of execution is a document of strict accountability and must be duly executed.
• If errors are found in the writ of execution, it is necessary to apply to the court with an application for their correction.
• A writ of execution has a limited period of time (usually 3 years).

Obtaining a writ of execution is a prerequisite for enforcing a court judgement. Without this document, the state enforcement authorities will not be able to initiate enforcement proceedings and take measures to enforce the court judgement by the debtor.

Subsection 4.2: Enforcement of the judgement

Once the writ of execution has been issued, the stage of enforcement of the judgement begins. This stage is carried out by state enforcement authorities or private bailiffs.

Where do I apply to enforce the judgement?

• State Enforcement Service: You can apply to the department of the State Enforcement Service at the place of residence or stay of the debtor (if the debtor is an individual) or at the location of the debtor (if the debtor is a legal entity).
• Private executors: Since 2017 Ukraine has introduced the institute of private executors. You can apply to any private executor, regardless of the place of residence or stay of the debtor.

Enforcement procedure:

1. Submission of an application for the opening of enforcement proceedings: The claimant shall submit to the state enforcement service body or to a private enforcement officer an application for the opening of enforcement proceedings and attach to it the original writ of execution.
2. Opening of enforcement proceedings: Within 3 working days from the day of receipt of the application and the writ of execution, the executor shall issue a ruling on the opening of enforcement proceedings.
3. Sending a copy of the ruling on the opening of enforcement proceedings to the parties: The executor shall send copies of the ruling on the opening of enforcement proceedings to the claimant and the debtor.
4. Granting the debtor a term for voluntary execution of the decision: The enforcement officer grants the debtor a term for voluntary execution of the decision (usually 7 days).
5. Taking enforcement measures: If the debtor does not fulfil the decision voluntarily within the deadline, the executor starts enforcement.

Enforcement measures:

• Seizure of the debtor’s funds: The executor may seize the debtor’s funds on accounts in banks or other financial institutions.
• Seizure of the debtor’s property: The executor may seize the debtor’s movable and immovable property.
• Description, seizure and realisation of the debtor’s property: The executor may describe, seize and realise the debtor’s property in order to satisfy the claims of the claimant.
• Foreclosure of the debtor’s salary, pension, scholarship and other income: The executor may foreclose on the debtor’s income by obliging the employer or other institution paying the income to transfer a part of this income in favour of the claimant.
• Eviction of the debtor: In cases stipulated by a court decision, the executor may carry out forced eviction of the debtor from the residential premises.
• Other measures: The executor may take other measures provided for by law to enforce the judgement.

Peculiarities of Enforcement of Decisions on Protection of Copyright:

• Seizure of counterfeit copies of the work: The executor may seize counterfeit copies of the work from the debtor and destroy them.
• Termination of the use of the work: The executor may oblige the debtor to stop illegal use of the work (e.g. remove it from the website).

Important:

• Enforcement of a court judgement is mandatory.
• The debtor is obliged to fulfil the court decision and to assist the executor in carrying out enforcement actions.
• Failure to comply with a court judgement may entail liability, including administrative and criminal liability.
• The recoverer has the right to appeal against the actions or inaction of the enforcer in court.

Compulsory enforcement of a court judgement is an effective mechanism for protecting infringed copyrights. Active co-operation with the executor and control over his actions will help you to achieve real enforcement of the court decision and restoration of justice.

Section 5: Appealing the judgement

Not always the decision of the court of first instance satisfies the parties to the case. In such a case, the legislation provides for the possibility of appealing a court judgement to higher courts. This is an important tool that allows you to review the court decision, correct possible errors and ensure fair consideration of the case.

In this section we will look at the procedure for appealing court decisions in copyrightcases . We will find out what types of appeals are available, the time limits and procedure for appealing a first instance court decision, and the powers of appeal and cassation courts.

Subsection 5.1: Appellate review

An appeal is a review of the decision of the court of first instance by the court of appeal upon a complaint from one of the parties or another participant in the proceedings. The purpose of the appeal is to verify the legality and validity of the decision of the first instance court.

Who has the right to appeal?

• Parties to the case (plaintiff and defendant).
• Third parties asserting independent claims regarding the subject matter of the dispute.
• Third parties who do not assert independent claims regarding the subject matter of the dispute, if the court has resolved the issue of their rights, freedoms, interests and (or) obligations.
• Persons who did not participate in the case, if the court has decided on their rights, freedoms, interests and (or) obligations.

Time limit for appeal:

An appeal against a court decision shall be filed within thirty days from the date of its announcement. If only the introductory and operative parts of the court decision were announced at the court hearing, or if the case was considered (resolved) without notifying (summoning) the parties to the case, the said period shall be calculated from the date of the full court decision.

The procedure for filing an appeal:

1. An appeal shall be filed directly with the court of appeal.
2. The appeal shall be filed in writing and shall contain the information provided for in Article 356 of the Code of Civil Procedure of Ukraine, in particular
   • Name of the court of appeal.
   • Name (surname) of the person filing the appeal, his/her place of residence or location.
   • Names of the parties and other participants in the case.
   • The court decision being appealed (date, case number).
   • What is the illegality and/or unreasonableness of the decision.
   • New circumstances to be established, evidence to be examined or evaluated, justification of the validity of the reasons for not submitting evidence to the court of first instance, objections to the evidence used by the court of first instance.
   • Requirements of the person filing the complaint.
   • List of documents and other materials to be attached.
3. The following are attached to the appeal:
   • Document on payment of the court fee.
   • Copies of the appeal and attached written materials in accordance with the number of participants in the case.
   • Evidence confirming the date of receipt of the copy of the appealed court decision of the court of first instance (if any).

Consideration of the case by the court of appeal:

• The appellate court reviews the case within the arguments of the appeal.
• The court of appeal may examine evidence that was not examined in the court of first instance, if it deems it necessary.
• Based on the results of consideration of the appeal, the appellate court may:
  • Leave the decision of the court of first instance unchanged.
  • To reverse the decision of the court of first instance and make a new decision.
  • Change the decision of the court of first instance.
  • Cancel the decision of the court of first instance and close the proceedings or leave the claim without consideration.

Important:

• An appeal is a complex legal document, so it is best to consult a lawyer to draft it.
• It is crucial not to miss the deadline for filing an appeal, as missing this deadline without valid reasons may result in the loss of the right to appeal the decision.

An appeal is an effective way to protect yourcopyright in case you disagree with the decision of the court of first instance. Using this tool allows you to review the case in a higher instance and achieve a fair decision.

Subsection 5.2: Cassation appeal

A cassation appeal is a review of court decisions that have entered into force by a cassation court. The cassation court checks the correctness of the application of substantive and procedural law by the courts of first instance and appeal.

Who has the right to appeal in cassation?

• Participants in the case.
• Persons who did not participate in the case, if the court has decided on their rights, freedoms, interests and/or obligations.

Subject of cassation appeal:

• Decisions of the court of first instance after appellate review.
• Decisions of the court of appeal.
• Rulings of the court of first instance that prevent further proceedings in a case after their review on appeal.
• Rulings of the court of appeal that prevent further proceedings in the case.

Time limit for cassation appeal:

A cassation appeal against a court judgement shall be filed within thirty days from the date of its announcement. If only the introductory and operative parts of the court decision were announced at the court hearing, or if the case was considered (resolved) without notifying (summoning) the parties to the case, the said period shall be calculated from the date of the full court decision.

The procedure for filing a cassation appeal:

1. A cassation appeal is filed directly with the court of cassation – the Supreme Court.
2. A cassation appeal shall be filed in writing and shall contain the information provided for in Article 392 of the Code of Civil Procedure of Ukraine, in particular
   • Name of the court of cassation.
   • Name (surname) of the person filing the complaint, his/her place of residence or location.
   • Names of the parties and other participants in the case.
   • The court decision under appeal (date, case number).
   • Substantiation of the claims of the person filing the cassation appeal, indicating the incorrect application of substantive law or violation of procedural law.
   • Requirements of the person filing the appeal.
   • List of written materials attached to the appeal.
3. The cassation appeal shall be attached:
   • Document on payment of the court fee.
   • Copies of the appealed court decisions.
   • Copies of the cassation appeal and attached written materials in accordance with the number of participants in the case.
   • A power of attorney or other document certifying the authority of the representative, if the cassation appeal is signed by a representative.

Consideration of the case by the cassation court:

• The cassation court reviews the correctness of the application of substantive and procedural law by the courts of first instance and appeal.
• The cassation court does not establish the circumstances of the case and does not examine the evidence.
• Upon consideration of a cassation appeal, the cassation court may:
  • Leave the appealed court decision unchanged.
  • Set aside the court decisions in whole or in part and pass a new decision.
  • To set aside the court decisions and transfer the case for a new trial to the court of first instance or appellate court.
  • To cancel the court decisions and close the proceedings or leave the claim without consideration.
  • Change the court decision.

Important:

• A cassation appeal is a complex legal document, so it is better to consult a lawyer to draft it.
• The cassation court does not accept new evidence that was not presented in the courts of first instance and appeal.
• The cassation appeal does not suspend the execution of the contested court decision, unless otherwise provided by the court.

The cassation appeal is the last instance in the national judicial system of Ukraine. This is a complex process that requires high legal qualifications, so it is advisable to seek professional legal assistance to protect your copyright at this stage.

Conclusion

Copyright protection in court is a complex but effective way of restoring violated rights and bringing the perpetrators to justice. We have considered in detail the main stages of the court process, starting from the grounds for applying to the court and ending with the execution of the court judgement and the possibility of appealing against it.

Remember that judicial defence is your legal right and should not be neglected. Timely application to the court, competent preparation of documents, careful collection of evidence and professional legal support – these are the main components of success in cases of protection of copyrights.

Of course, it may be difficult to understand all the intricacies of the judicial process on your own. Therefore, in such situations it is better to turn to professionals. Polikarpov Law Firm is a team of experienced lawyers who specialise in intellectual property protection, including copyright. We have many years of experience in successfully handling court cases of various complexity and are ready to provide you with qualified legal assistance at all stages of the legal process.

We will help you:

• Evaluate the prospects of court consideration of your case.
• Collect the necessary evidence and prepare all procedural documents.
• Develop an effective strategy to protect your rights.
• Represent your interests in courts of all instances.
• Achieve enforcement of court judgements.

With Polikarpov Law Firm you can be sure that your copyright will be reliably protected. Do not hesitate, contact us for a consultation and we will help you to restore justice! We also recommend reading the article “Copyright Infringement: How to Protect Your Rights?“.