Theoretical and methodological basis of forensic examination of literary and artistic works as objects of copyright

Abstract

The study of copyright in Ukraine is a part of a separate class dedicated to the forensic examination – “expertise in the field of the intellectual property”. The subject of the examination of literary and artistic works are the facts and the circumstances of the case about properties, characteristics, patterns of creation and usage of the various copyright objects relevant to legal proceedings and established by application expertise.

When conducting research related to the aforementioned works, the following main objectives are addressed: defining features of the object of copyright in the research facility; determining, in the product or its part (including the title), signs of originality and creative nature; establishing the fact of reproduction of a copyright object or its part that has independent significance; establishing the method of usage of the object of copyright; establishing the fact of changing literary works and how it changes.

Revealing the signs of counterfeit in goods which contain objects of copyright without the examination of properties and characteristics of the object referred to the intellectual property rights does not require the use of special knowledge in the field of intellectual property and is beyond the competence of the expert.

Considering the specificity of the objects of study, specialists in the relevant subject field are often involved with the examination for the establishing of certain facts. For example, to establish the reproduction of a musical work, sound engineers or composers are involved; establishing signs of originality and creative nature of the fine work involves art critics and more. Many expert tasks require a comprehensive solution with special knowledge in various areas of legal expertise. For example, in disputes concerning recognition of copyright in a literary work, there may be a necessity in complex issues, both within authorship examination and expertise in the field of intellectual property.

Provided requirements for the availability of special education of the intellectual property experts who are going to get the qualification in this area and developed theoretical and methodological foundations of research of various copyrights, in our opinion, are those foundations that will ensure effective litigation in the Supreme Specialized Court for Intellectual Property that is planned to be created in Ukraine in late 2017.