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Question 1

What are the different types of evidence of copyright infringement and how do they differ from each other? What are the advantages and disadvantages of each type?

Accepted Answer

Evidence of copyright infringement can be categorised into several main types, each with its own characteristics, advantages and disadvantages:

Written evidence:

Description: Includes any documents that are recorded on paper or other printed form that can prove authorship, infringement, or other facts of the case.
Examples:
- Original works (manuscripts, sketches, musical notations).
- Contracts (copyright, licence, rights transfer agreements).
- Certificates of copyright registration.
- Notarised screenshots of web pages.
- Correspondence with the offender (paper or printed electronic).
- Printed publications, concert posters.
Advantages:
- Relative ease of obtaining and processing.
- Visibility and comprehensibility for the court.
- Possibility of notarisation, which increases their evidentiary value.
Disadvantages:
- Can be tampered with or falsified.
- May not always capture dynamic processes (e.g. public performance of a work).
- Limited applicability in cases of online abuse.

1. Physical evidence:
  - Description: Any tangible objects relevant to copyright infringement.
  - Examples:
    - Counterfeit copies of works (books, discs, paintings, etc.).
    - Equipment used for illegal copying.
    - Packaging of counterfeit products.
  - Advantages:
    - Clearly demonstrate the fact of infringement.
    - Can be examined by experts to confirm counterfeiting.
  - Disadvantages:
    - Difficulty in obtaining in some cases (e.g., seizure of equipment).
    - Need to ensure proper storage conditions.
    - Possibility of damage or destruction before the case is heard in court.
2. 1. Electronic evidence:
  - Description: Any information in electronic (digital) form that can be used as evidence.
  - Examples:
    - Electronic correspondence.
    - Information from websites (including page source code).
    - Source files of works and their metadata.
    - File editing logs.
    - File download and distribution data.
    - Certified electronic copies of documents.
  - Advantages:
    - Indispensable in cases of online abuse.
    - May contain information not available in other types of evidence (e.g. file metadata).
    - Allow for the recording of actions that occur in real time (e.g., an online broadcast).
  - Disadvantages:
    - Difficulty in collecting and capturing them.
    - The need for specialised knowledge to analyse them.
    - Risk of data loss or damage.
    - Possibility of tampering or alteration.
3. 1. Witness statements:
  - Description: Oral testimony of persons who have information about circumstances relevant to the case.
  - Examples:
    - Testimony of persons who were present when the work was created.
    - Testimony of persons who witnessed the infringement.
    - Testimony of persons to whom the author spoke about his work.
  - Advantages:
    - Can clarify circumstances that are not recorded in other evidence.
    - Can provide information about the motives and intentions of the parties.
  - Disadvantages:
    - Subjectivity of perception.
    - Possibility of false testimony.
    - Dependence on the witness’s memory and ability to articulate information clearly.
4. 1. Expert judgements:
  - Description: Written documents compiled by experts in a particular field that provide answers to questions requiring specialised knowledge.
5. - - Examples:
      - Conclusion of an art expert regarding the presence of plagiarism.
      - Conclusion of an expert linguist regarding the similarity of texts.
      - Conclusion of computer-technical expertise regarding the identity of the programme code.
    - Advantages:
      - Allow for an objective assessment of circumstances requiring specialised knowledge.
      - Have great evidentiary value in court.
    - Disadvantages:
      - Cost of conducting the examination.
      - Duration of the examination.
      - The possibility of appealing the expert’s opinion by the other party.

The choice of a particular type of evidence depends on the nature of the infringement, the specifics of the work and other circumstances of the case. Often, effective copyright protection requires the use of a combination of different types of evidence to create a complete and convincing picture of the infringement.

Polikarpov Law Firm lawyers will help you determine what evidence is needed in your situation and ensure that it is properly collected, recorded and presented to the court. We have extensive experience in copyright protection and are ready to provide you with qualified legal assistance at any stage of the case.

Question 2

What are the different types of evidence of copyright infringement and how do they differ from each other? What are the advantages and disadvantages of each type?

Accepted Answer

Evidence of copyright infringement can be categorised into several main types, each with its own characteristics, advantages and disadvantages:

Written evidence:

Description: Includes any documents that are recorded on paper or other printed form that can prove authorship, infringement, or other facts of the case.
Examples:
- Original works (manuscripts, sketches, musical notations).
- Contracts (copyright, licence, rights transfer agreements).
- Certificates of copyright registration.
- Notarised screenshots of web pages.
- Correspondence with the offender (paper or printed electronic).
- Printed publications, concert posters.
Advantages:
- Relative ease of obtaining and processing.
- Visibility and comprehensibility for the court.
- Possibility of notarisation, which increases their evidentiary value.
Disadvantages:
- Can be tampered with or falsified.
- May not always capture dynamic processes (e.g. public performance of a work).
- Limited application in cases of Internet offences.

Physical evidence:

Description: Any tangible objects relevant to copyright infringement.
Examples:
- Counterfeit copies of works (books, discs, paintings, etc.).
- Equipment used for illegal copying.
- Packaging of counterfeit products.
Advantages:
- Clearly demonstrate the fact of infringement.
- Can be examined by experts to confirm counterfeiting.
Disadvantages:
- Difficulty in obtaining in some cases (e.g., seizure of equipment).
- Need to ensure proper storage conditions.
- Possibility of damage or destruction before the case is heard in court.

1. 1. 1. Electronic evidence:
      - Description: Any information in electronic (digital) form that can be used as evidence.
      - Examples:
        
        Electronic correspondence.
        
        Information from websites (including page source code).
        
        Source files of works and their metadata.
        
        File editing logs.
        
        File download and distribution data.
        
        Certified electronic copies of documents.
      - Advantages:
        
        Indispensable in cases of online abuse.
        
        May contain information not available in other types of evidence (e.g. file metadata).
        
        Allow for the recording of actions that occur in real time (e.g., an online broadcast).
      - Disadvantages:
        
        Difficulty in collecting and capturing them.
        
        The need for specialised knowledge to analyse them.
        
        Risk of data loss or damage.
        
        Possibility of tampering or alteration.
    2. 1. Witness statements:
      - Description: Oral testimony of persons who have information about circumstances relevant to the case.
      - Examples:
        
        Testimony of persons who were present when the work was created.
        
        Testimony of persons who witnessed the infringement.
        
        Testimony of persons to whom the author spoke about his work.
      - Advantages:
        
        Can clarify circumstances that are not recorded in other evidence.
        
        Can provide information about the motives and intentions of the parties.
      - Disadvantages:
        
        Subjectivity of perception.
        
        Possibility of false testimony.
        
        Dependence on the witness’s memory and ability to articulate information clearly.
    3. 1. Expert judgements:
      - Description: Written documents compiled by experts in a particular field that provide answers to questions requiring specialised knowledge.
      - Examples:
        
        Conclusion of an art expert regarding the presence of plagiarism.
        
        Conclusion of an expert linguist regarding the similarity of texts.
        
        Conclusion of computer-technical expertise regarding the identity of the programme code.
      - Advantages:
        
        Allow for an objective assessment of circumstances requiring specialised knowledge.
        
        Have great evidentiary value in court.
      - Disadvantages:
        
        Cost of conducting the examination.
        
        Duration of the examination.
        
        The possibility of appealing the expert’s opinion by the other party.
The choice of a particular type of evidence depends on the nature of the infringement, the specifics of the work and other circumstances of the case. Often, effective copyright protection requires the use of a combination of different types of evidence to create a complete and convincing picture of the infringement.

Polikarpov Law Firm lawyers will help you determine what evidence is needed in your situation and ensure that it is properly collected, recorded and presented to the court. We have extensive experience in copyright protection and are ready to provide you with qualified legal assistance at any stage of the case.

Question 3

What are the methods for confirming authorship of a work and what documents can serve as evidence of authorship?

Accepted Answer

Proof of authorship is a key point in copyright protection. There are several ways that allow an author to fix and prove his/her authorship of a work:

Documenting the process of creating a work:
- Essence: Preserving all materials that arise during the process of working on a work that can attest to authorship.
- Documents:
  - Draft notes, sketches, plans, outlines: Manuscripts, musical notes, sketches, plans for literary works, etc.
  - Source Files: Original files of photographs (RAW), audio and video recordings, 3D models, software code, etc.
  - Working materials: Plaster or clay sketches for sculptors, models for architects, other materials used in the creation of the work.
  - File editing logs: A history of changes to files that records the process of working on a work (for texts, software code, etc.).
  - Email correspondence: Correspondence with co-authors, customers, editors, and others with whom the work was discussed during the creation process.
- Advantages: Allows you to reconstruct the chronology of a work’s creation and provide evidence of authorial intent.
- Disadvantages: Requires careful preservation of all materials; it is not always possible to reconstruct the entire creation process.
1. Registration of copyright in UKRNOIV:
- Essence: Official registration of copyright for a work with the State Enterprise “Ukrainian Institute of Intellectual Property” (UKRNOIVI).
- Documents:
  - Copyright Registration Certificate for the work: Issued by UKRNOIVI and is the official document confirming authorship and date of registration.
- Advantages:
  - Creates a presumption of authorship, meaning the person named in the certificate is presumed to be the author until proven otherwise.
  - Simplifies the procedure of copyright protection in court.
  - Is a strong evidence in resolving disputes about authorship.
- Disadvantages:
  - Not a requirement for copyright to arise.
  - Does not protect the idea of the work, but only its form of expression.

Deposit of a work:
- Essence: Transfer of a copy of a work to a specialised institution or a notary public for safekeeping, with the date of deposit recorded.
- Documents:
  - Document confirming the fact that the work has been deposited: Issued by the organisation or notary who accepted the work for deposit and contains information about the author, the title of the work and the date of deposit.
- Advantages:
  - Allows the date of presentation of the work to be fixed.
  - May serve as additional proof of authorship in conjunction with other evidence.
  - Can be an alternative to copyright registration.
- Disadvantages:
  - Not an official recognition of authorship by the state.
  - The evidentiary value may be weaker than that of a registration certificate.
1. Publicising a work:
- Essence: Making a work available to the public by publication, public performance, display, posting on the Internet, etc.
- Documents:
  - A copy of a work with output data containing the author’s name, date and place of publication (e.g. a book with publisher’s output data).
  - Playbills, concert programmes, where the author’s name is mentioned.
  - Publications in mass media, where the author and his work are mentioned.
  - Screenshots of web pages with the work, where the authorship and date of publication are indicated, preferably notarised.

- Advantages: Makes the work available to the general public; the date of disclosure can serve as a starting point for calculating the term of copyright.
- Disadvantages: It is not always possible to establish the exact date of first publication; it may be difficult to prove that you are the author if the work is published anonymously or under a pseudonym.
  1. Witness testimony:
  - Substance: Involving individuals who can attest to your authorship, such as being present when you created your work, seeing your work materials, hearing you discuss your work with others, and the like.
  - Documents:
    - A transcript of the examination of a witness in court.
  - Advantages: Can supplement other evidence of authorship, especially in cases where written evidence is lacking.
  - Disadvantages: Subjectivity of testimony; reliance on witness memory; risk of perjury.

The best way to prove authorship is a combination of several methods. For example, you can register the copyright, deposit a copy of the work and keep all working materials.

Polikarpov Law Firm lawyers will help you choose the best way to confirm authorship, prepare the necessary documents and protect your copyright in case of a dispute. We have extensive experience in the field of intellectual property and are ready to provide you with qualified legal assistance.

Question 4

How can one record the fact of copyright infringement on the Internet and what are the features of notarization of screenshots of web pages?

Accepted Answer

Fixing copyright infringement on the Internet has its own peculiarities, given the dynamic and changeable nature of the online environment. Information can be quickly deleted or changed, so it is important to record evidence of infringement promptly and properly.

Ways of capturing violations on the Internet:

Creating screenshots of web pages:
- Description: The easiest and most affordable way is to take a screenshot of the page where the infringing content is posted.
- Recommendations:
  - Use special programmes or browser extensions that allow you to take screenshots of the entire page, not just the visible part.
  - Make sure that the screenshot clearly shows the URL of the page, the date and time the screenshot was taken.
  - Take multiple screenshots from different angles, capturing as much information about the violation as possible.
  - Save the original screenshot files without editing or modifications.
- Disadvantages:
  - Ordinary screenshots can be ruled inadmissible evidence by the court because of the ease of tampering with them.
Notarisation of screenshots:
- Description: Applying to a notary to inspect a web page and record its contents in a website inspection protocol. The protocol is usually accompanied by printouts of the pages, which are notarised screenshots.
- Features:
  - Official status: A notary is an independent person authorised by the state to perform notarial acts.
  - Increased evidentiary value: A website inspection report prepared by a notary has increased evidentiary value in court compared to ordinary screenshots.
  - Procedure: The notary personally visits the site where the infringement has been recorded, examines it and records what he or she has seen in a protocol. Printouts of the site pages are attached to the protocol.
  - Cost: There is a fee for notary services.
- Advantages:
  - High credibility and evidentiary value.
  - Difficulty of appeal in court.
- Disadvantages:
  - Higher cost compared to regular screenshots.
  - Necessity of personal reference to a notary.
Use of specialised online services:
- Description: There are online services that allow you to automatically capture the content of web pages and create certified copies that can be used as evidence.
- Advantages:
  - Convenience and speed of fixation.
  - Possibility to automate the process of monitoring violations.
  - Some services offer additional features such as searching for copies of content on the Internet.
- Disadvantages:
  - Fee-based services.
  - Evidentiary value may be lower than notarised screenshots.
Video recording of infringements:
- Description: A video recording of a computer screen on which a web page containing infringing content is being played. This recording may include additional actions that demonstrate the context of the infringement.
- Advantages:
  - Allows you to capture dynamic elements of a web page (e.g. video or audio playback).
  - Can be used as additional evidence to screenshots.
- Disadvantages:
  - Requires specialised software.
  - Can be difficult to analyse.
Involvement of experts:
- Description: Complex cases may require the involvement of IT experts to capture and analyse online breaches.
- Advantages:
  - Highly qualified and experienced experts.
  - Ability to conduct in-depth analyses of the breach.
- Disadvantages:
  - High cost of services.
  - Duration of the study.

Recommendations:

Integrated approach: To maximise effectiveness, it is recommended to combine several methods of recording violations.
Promptness: Fix infringements as soon as possible, before the information is deleted or altered.
Legal support: It is advisable to contact lawyers specialising in copyright law to ensure that evidence is properly prepared and admissible in court.

Polikarpov Law Firm provides services for fixing online copyright infringements, including notarisation of screenshots and expert studies. We will help you to collect and prepare evidence in such a way that it will be as effective as possible in protecting your rights.

Question 5

What requirements must evidence meet in order for it to be accepted by the court for consideration (admissibility, relevance, reliability, sufficiency)?

Accepted Answer

In order for evidence to be admissible in court and to be used to support a judgement, it must meet four basic requirements: Admissibility, Relevance, Credibility and Sufficiency.

1. Admissibility:
- Definition: The admissibility of evidence means that it is lawfully obtained by following established procedures for gathering, recording, and presenting evidence.
- Criteria:
  - Legitimacy of the source: Evidence must be obtained from sources provided for by law (e.g. witness statements, written documents, physical evidence, expert opinions). Information obtained in violation of the law (e.g., through illegal wiretapping, hacking into computer systems) should not be used.
  - Proper subject: Evidence must be collected by an authorised person. For example, in criminal proceedings, evidence is collected by an investigator or prosecutor, and in civil proceedings by the parties or their representatives.
  - Compliance with procedure: The procedure for collecting and recording evidence must comply with the requirements of the law. For example, a search must be conducted in accordance with a court order and the examination of a witness must follow the rules set out in the procedural code.
  - Proper form: Evidence must be properly formalised. For example, written evidence should be submitted in originals or duly certified copies, and an expert’s report should comply with established requirements for its content and form.

1. 1. Consequences of inadmissibility: Inadmissible evidence cannot be used by the court in making a decision. They are recognised as having no legal effect.
    Relevance:
    - Definition: Relevance of evidence means that it is relevant to the case, i.e. it contains information that relates to the circumstances to be proved in a particular case.
    - Criteria:
      - Relation to the subject of proof: Evidence must be related to the circumstances that need to be established for the correct resolution of the case. In cases of copyright infringement such circumstances are: the existence of copyright in the plaintiff, the fact of infringement, the person of the infringer, the amount of damage caused, etc.
      - Ability to confirm or refute the circumstances: Evidence must be relevant to the establishment of the circumstances of the case, that is, be able to confirm or refute the facts relevant to the resolution of the dispute.
    - Consequences of non-relevance: In appropriate evidence shall not be accepted by the court for consideration, as it does not relate to the essence of the case and does not help in establishing the truth.
  2. 1. Credibility:
      - Definition: The credibility of evidence means that it is true, i.e., it truthfully reflects the circumstances that occurred.
      - Criteria:
        
        Truthfulness: The information contained in the evidence must be true and correspond to the real facts.
        
        Absence of contradictions: Evidence must not contradict each other and other materials of the case.
        
        Reliability of the source: The credibility of evidence depends on the reliability of the source from which it is obtained. For example, official documents have a higher credibility than anonymous reports.
        
        Verifiability: The credibility of evidence must be verifiable, for example, by comparison with other evidence, examination and the like.
      - Consequences of unreliability: Unreliable evidence cannot form the basis of a judgement. If the evidence is found to be unreliable, the court may exclude it from consideration. Deliberately presenting false evidence may result in legal liability.
    2. 1. Sufficiency:
      - Definition: Sufficiency of evidence means that the totality of the evidence is convincing to the court and makes it possible to draw an unambiguous conclusion about the presence or absence of circumstances relevant to the case.
      - Criteria:
        
        Coherence and completeness: The evidence must be interrelated, complement each other and create a coherent picture of the event.
        
        Persuasiveness: The totality of the evidence must be sufficient to leave the court with no reasonable doubt as to whether the circumstances relied upon by a party have been proved.
        
        Absence of gaps: The evidence must not have significant gaps that would call into question the inferences that can be drawn from it.
      - Consequences of insufficiency: If the evidence is insufficient to substantiate a claim or defence, the court may dismiss the claim or decide against the party who has not provided sufficient evidence.
Important: The court evaluates the evidence on its internal conviction based on comprehensive, complete, objective and direct examination of the evidence available in the case.

Polikarpov Law Firm lawyers will help you collect evidence that meets all legal requirements and ensure that it is properly prepared and presented to the court. We will carefully analyse your situation, determine what evidence is necessary to protect your copyright, and develop an effective evidentiary strategy. Contact us for professional legal assistance!

Question 6

In what cases is it advisable to conduct a test purchase to confirm the fact of copyright infringement and what are the legal aspects of its implementation?

Accepted Answer

Control purchase is an appropriate way of recording copyright infringement in cases where the infringement is related to the illegal production, distribution or sale of counterfeit copies of works. It allows not only to record the fact of infringement, but also to obtain physical evidence – a counterfeit copy of the work.

Cases when it is advisable to conduct a control purchase:

Sale of counterfeit goods:
- Physical shops: If you suspect that a particular shop, market or other outlet is selling goods with illegal use of your copyrights (e.g. books, discs, printed clothing, toys, souvenirs), a controlled purchase will allow you to record the sale and purchase the counterfeit item.
- Online shops: Similarly, if you find an online shop offering counterfeit goods, you can order the goods through that shop, recording the process of ordering and receiving the goods.
Illegal distribution of copies of the work:
- Distribution of leaflets, booklets: If someone distributes promotional materials containing your work without authorisation (e.g. photographs, illustrations), a control purchase (receipt of such a booklet) will help to record the infringement.
Identification of illegal counterfeit manufacturing sites:
- Clandestine workshops: In exceptional cases, a test purchase may be part of an operational activity to detect and suppress the activities of clandestine counterfeit production facilities.

Legal aspects of conducting a test purchase:

Legality: A test purchase must be conducted in compliance with legal requirements. It is important not to provoke the seller to sell counterfeit goods unless he offers to do so. That is, the initiative to sell should come from the seller.
Recording the process:The entire purchasing process, from the selection of goods to payment and receipt, should be carefully recorded. For this purpose:
- Video and audio recording: It is recommended to make a hidden or open video or audio recording of the purchasing process.
- Photofixation: Phot ographing the goods, receipts
- , receipts
- , packaging, etc.
- Written evidence: Retaining receipts, receipts, delivery notes confirming the purchase.

- Participation of witnesses or witnesses:
  - Witnesses: It is advisable to involve witnesses who are not interested parties and who will be able to confirm the circumstances of the purchase in court.
  - Confidential witnesses: In cases provided for by law (e.g. during operational activities), confidential witnesses may be involved.
- Identification of goods:
  - After acquiring counterfeit goods, it is necessary to carry out identification of the goods and, if necessary, expertise to establish the fact of copyright infringement.
- Preservation of physical evidence:
  - Purchased counterfeit goods are physical evidence and must be preserved in unaltered condition until the case is heard in court.
- Further use:
  - The results of the test purchase (video, audio recordings, photographs, receipts, the goods themselves) can be used as evidence in court.

Recommendations:

- - Consultation with a lawyer: It is advisable to consult a lawyer who specialises in copyright law before conducting a test purchase.
  - Involvement of a lawyer: A test purchase should preferably be conducted with or under the supervision of a lawyer who can ensure that all legal nuances are observed.
  - Ethical: A test purchase should be conducted in an ethical manner and should not be intended to provoke or deceive the seller.

Polikarpov Law Firm provides services in organising and conducting control purchases in cases of copyright infringement. Our lawyers have considerable experience in this area and will help you to effectively document the fact of infringement, collect the necessary evidence and protect your rights in court. We will ensure compliance with all legal requirements and ethical norms when conducting a test purchase.

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