Is there an intellectual property right to contracts

Have you wondered whether it is possible to protect intellectual property rights on a contract template? This issue became relevant with the development of the Internet, when many different templates began to appear on the network, some of them freely available, and some on a paid basis. Therefore, questions arise more and more often whether the authors of such contracts can protect their rights and, in general, whether the contract refers to the object of intellectual property .

Let us first turn to domestic law. According to Art. 420 of the Civil Code of Ukraine refers to objects of intellectual property rights:

• literary and artistic works;
• computer programs;
• compilation of data (databases);
• implementation;
• phonograms, videograms, programs of broadcasting organizations;
• scientific discoveries;
• inventions, utility models, industrial designs;
• layout of semiconductor products;
• rationalizing proposals;
• varieties of plants, breeds of animals;
• commercial (brand) names, trademarks (marks for goods and services), geographical indications;
• commercial secrets.

As we can see, there is no clear indication of contracts as objects of intellectual property in the Civil Code of Ukraine.

In addition, the specialized normative legal act - ZU "On copyright and related rights" does not provide an answer. But it is worth paying attention to Art. 8 of the law, according to which the objects of copyright are:

• literary works of a fictional, journalistic, scientific, technical or other nature (books, brochures, articles, etc.);
• computer programs;
• other works.

In my opinion, the contract or its template can be attributed to these three categories. After all, the contract falls under the characteristics of a written work , and as for computer programs, contract templates obtained with the help of a document designer (websites or specialized programs) are suitable here. But this is a subjective interpretation of a normative legal act, so an interpretation from official sources or court practice is needed, which are absent on this issue in Ukraine.

Let's see what specialists from other countries write about this:
- Mark Warburton , Australian and New Zealand patent attorney, intellectual property lawyer and litigator, translated from the original: " Yes, the text of the contract is a literary work and is subject to copyright protection, unless excluded by law . Some countries exclude copyright for certain things for the sake of public convenience. The text of a contract can be one of those things. Also, most contracts use a mixture of text called "template clauses" that have been used in contracts, sometimes for centuries. Someone who asserts copyright in template clauses will struggle with the establishment of ownership of these parts of the contract, since he needs to prove that he is the original author of these template clauses .

- Sean M. Flaim , Intellectual Property Attorney, translated from the original: " I think some aspects of contract drafting (how you draft the clauses, maybe key phrases, etc.) are probably copyrighted . However, I can think of two arguments against full copyright in any general form contract.For example, you might be able to protect specific wording in an article that exempts someone from liability, but you can't prevent people from writing words that exempt someone from liability. liability. Second, copyright only protects original expression. Since a contract must contain certain words to be legally enforceable, I don't think a person can meet the burden of proving that the use of such words is original expression. Only when you make some effort at creative authorship, you will be allowed to claim copyright, and even then only to the extent that you are a creative person."

Regarding the use of template documents, there is a court case in the USA, namely White v. West Publishing Corp. The case was brought by Edward White, an intellectual property attorney from Oklahoma. Some of White's legal briefs, which he drafted and filed in federal court on behalf of his clients, have been republished by Westlaw's "Litigator" and Lexis' "Briefs, Pleadings and Motions" services. These services download selected legal references from the government's PACER system, add hyperlinks and coding (e.g., they mark references by jurisdiction, practice area, etc.) , and then make them available to users either for a fee per document or as part of a monthly subscription. White registered his material with the US Copyright Office and in 2012 filed a copyright infringement lawsuit against Westlaw and Lexis. Judge Rakoff held that three of the four fair use factors indicated that the reprinting of the Westlaw and Lexis legal references was permissible :

• Purpose and Nature of Use : The judge found that the use was transformative because publishing legal briefs for interactive legal research had a different purpose than writing legal briefs as a service to a client. In addition, the hyperlinking and encoding "added something new," and the Court found this transformation so significant that it outweighed the commercial purpose of the use.
• The nature of the copyrighted work : The judge ruled that legal briefs, unlike something more creative like fiction, were a "functional representation of fact and law." Therefore, this factor also plays a role in favor of fair use.
• Extent of Work Used : Although Westlaw and Lexis used all of the material in its entirety, the judge ruled that it was more than reasonable and necessary for their use , so this factor is neutral. In addition, the court found that the emergence of a market for licensing legal services is unlikely , as transaction costs will be prohibitively high.
• Market impairment : The judge found that the disputed use of legal references did not cause material harm (lost profits) to White because White could not prove that he lost customers .

David Kluft's comment on the above decision, translated from the original, is interesting: "This was not the most unexpected result, but one can question some of the Court's findings and conclusions. For example, despite the Court's assumption, it is not difficult to imagine the potential of an online market based on social networks, which would allow lawyers to share or license their opinions with very low transaction costs. It is also tempting to question the Court's assertion that mere hyperlinking actually ``adds something new'' in a transformative sense."

As you can see, the legislation of other countries does not have a 100% answer regarding the protection of intellectual property rights in a contract, but there are already court precedents and comments by lawyers , according to which it can be concluded that a contract or its template can be classified as an object of intellectual property , or rather the order of application of points, key phrases in them, the only thing is that there is a difficulty in proving these facts. I believe that this issue will be resolved in the near future, because more and more model contracts are appearing on the Internet and electronic document circulation is widespread, so the authors will use all possible means to protect the rights to their contracts.

Lawyer of Innovation and Stability Company LLC

Denis Olehovych Ferenchuk

You can find many interesting and functional templates of contracts and other legal documents on our website website _