Intellectual property rights to the text of the document by O. Chomakhashvili

We offer to your attention to consider and discuss the issue of legal protection (in terms of intellectual property rights) of texts, drafts of documents prepared/written/created by employees in practical legal activity.

Let's assume that the most common situation is when a specialist found a ready-made template of the contract text in open sources of information (open access website, printed edition), filled it with his own relevant information and did not put in any creative work. In this situation, we are not talking about intellectual rights, because they are absent.

The argument that all legal documents are created to solve practical problems, aimed at describing the algorithm of actions, record significant legal facts and current legislative norms, which are not protected by copyright, can put an end to all this discussion. This is, perhaps, the shortest and most irrevocable answer to the question of finding intellectual rights in contract texts. But we will continue.

The intellectual property right protects the external form of the creative expression of the decision. And in legal documents, in particular, in contract texts, the content is more important than the form.

When considering copyright in a broad sense, it is necessary to remember that any work is protected regardless of purpose, and a minimum of invested creativity is required for protection to occur. Thus, copyright does not protect the method of solving the problem, but it precisely protects the form of expression, that is, the literary text. Therefore, the practical side of solving the task, the set of legal tools used in the contract (rights and obligations of the parties, sanctions, guarantees, preventive measures, dispute settlement) cannot claim protection of intellectual rights. But the form of expression, the way they are set out in the contract, the original constructions used, the creative forms of expression set out separately in the Ukrainian language, and separately in the translation, can be protected by copyright.

There is no doubt that comments on certain sections or clauses of the contract are a separate type of creativity. Such comments may contain a scientific component, that is, new hypotheses on the issue of regulation in the contractual and legal sphere, detailed interpretations of novelties or current legislation. In this case, it will be a new scientific literary work . Here it is appropriate to remind that a part of the work, which can be used independently, is considered as a work and is protected separately.

We also remind that the legislation on copyright contains a non-exhaustive list of objects of copyright (Article 8 "Objects of copyright" of the Law of Ukraine "On Copyright and Related Rights") and an exhaustive list of objects that are not protected (Article 10 "Objects that are not protected" of the Law of Ukraine "On Copyright and Related Rights" ).

Not subject to copyright:

a) announcements about the news of the day or current events, which have the character of ordinary press information;

b) works of folk creativity (folklore);

c) official documents of a political, legislative, administrative nature (laws, decrees, resolutions, court decisions, state standards, etc.) issued by state authorities within their powers and their official translations;

d) state symbols of Ukraine, state awards; symbols and signs of state authorities, the Armed Forces of Ukraine and other military formations; symbols of territorial communities; symbols and signs of enterprises, institutions and organizations;

e) money signs;

e) traffic schedules, schedules of television and radio broadcasts, telephone directories and other similar databases that do not meet the criteria of originality and are subject to sui-generis law.

Projects of official symbols and signs specified in points "d" and "d" of the first part of Art. 10 of the Law "On Copyright and Related Rights", until their official approval, are considered as works and are protected in accordance with this Law.

A separate important aspect in the creation of the text of the contract is co-authorship. Co-authors are persons whose joint creative work created the work.

Thus, the copyright for a work created in co-authorship belongs to all co-authors, regardless of whether such a work forms one inseparable whole or consists of parts, each of which has an independent meaning.

The relationship between co-authors is determined by the agreement concluded between them. An agreement to join a public offer can also be used if the co-authors intend to work on the same resource (for example, InstaDoc offers the authors of document templates to sell their works, the terms of cooperation are defined in the Offer at the link ) .

If the work created in co-authorship forms one indivisible whole, then none of the co-authors may, without sufficient grounds, refuse permission to the others to publish, otherwise use, or modify the work.

Recall that there are contracts that contain commercial secrets and their text cannot actually be made public. Its content is physically protected from encroachment by third parties. In fact, it is classified. There are intellectual rights in such contracts, but they are protected by the object of intellectual property - commercial information. The very fact of the prohibition of publication closes the possibility of the effective use of the institution of copyright, although there is a possibility of protection of unpublished works provided by law.

Olena Chomakhashvili, candidate of legal sciences, associate professor, Research Institute of Intellectual Property of the National Academy of Sciences of Ukraine