DETERMINATION OF MATERIAL DAMAGE IN VIOLATION OF COPYRIGHT AND RELATED RIGHTS IN UKRAINE FROM THE STANDPOINT OF THE ECONOMIC AND LEGAL NATURE OF CRIMINAL LIABILITY: PROBLEMS OF THEORY AND PRACTICE

Abstract

The article considers topical issues of determining material damage in violation of copyright and / or related rights in the manner prescribed by civil, commercial, administrative and criminal law, with emphasis on determining the economic and legal nature of criminal liability for infringement of works of science, literature and art . A retrospective digression into the processes of copyright and related rights in Europe after the «Guttenberg Publishing Revolution» was made, as well as the standardization of their protection first in national and later in international law, in particular in the Berne Convention for the Protection of Literary and Artistic Works (1886). ). The peculiarity of judicial consideration of disputes in the XIX century is analyzed. – at the beginning XX century in the Russian Empire, which at that time included a large part of Ukraine, on copyright and related rights. It is noted that such disputes were considered in arbitration, civil and criminal proceedings, with the possible involvement of experts («knowledgeable people»). Although, such disputes were not frequent, primarily due to the difficulty of establishing material damage from the illegal use of works of science, literature and art. It is concluded that in the XX-XXI centuries. plagiarism and counterfeiting remain the most common types of copyright and / or related infringement in Ukraine and abroad. At the same time, the procedure for establishing pecuniary damage for the relevant torts still remains one of the most controversial issues in the forensic examination of economic research in the field of intellectual property and, accordingly, a controversial aspect of criminal charges. The main categories and concepts of copyright and related rights, which are important for the forensic examination of economic research in the field of intellectual property, are covered, based on the provisions of current legislation and in a systematic relationship. The legal provisions on liability for infringement of copyright and / or related rights, and the legal grounds for the qualification of illegal actions, as well as the grounds for satisfying a civil claim are analyzed. Based on the generalization of theoretical and methodological, methodological and practical experience of forensic examination for special. 13.9 in cases of protection of property and personal non-property rights of authors, performers, producers of phonograms and broadcasting organizations, consistently substantiates the economic and legal nature of criminal liability for material damage, according to certain criteria for material damage in a significant, large and especially large amount of illegal consequences. action. The calculations of material damage are analyzed and specified (modernized) as a necessary basis for criminal prosecution (minimum amount of material damage) provided by the sanctions of Articles 176, 177, 229 of the Criminal Code of Ukraine. The publication is designed for the attention of domestic forensic experts, pre-trial investigators, judges and scholars, and is an invitation to a professional discussion on issues relevant to our country.