Free use of works as a subjective civil right. Part I: The legal nature of free use of works in modern Ukrainian doctrine

This article is the first in a series of publications in which the author aims to justify that the free use of works should be understood as a subjective civil right. The first article in the series of publications is devoted to a critical analysis of the three most common approaches to understanding the legal nature of the free use of works: as a limitation of intellectual property rights, as a limit to the exercise of intellectual property rights, and, finally, as a subjective right. When studying the first and most common approach, the author identifies two contradictions. The first is terminological - the author emphasizes that in international acts the free use of works is classified either as an exception or as a limitation of intellectual property rights. In contrast, in national legislation, the Constitution of Ukraine provides only for exceptions to intellectual property rights, while other legislative acts use the terms both “limitations” and “exceptions”, thereby mistakenly identifying them. Further, the author evaluates the identified terminological contradiction through the prism of constitutional guarantees, under which the adoption of new laws cannot lead to a narrowing (restriction) of existing rights. These reflections prompt the author to ask whether free use can really limit the right holder in the exercise of his rights? Based on the results of the study of the second approach to understanding the free use of works, the author gives a negative answer to this question and concludes that none of the legislative acts limits the author in his ability to object or create any other obstacles to the free use of his works. Based on the results of the research, the author questions the appropriateness of applying such approaches, and instead turns to the third, according to which the free use of works is a subjective right. The author emphasizes the existing inaccuracies and contradictions expressed by supporters of this approach and concludes that the concept of free use of works as a subjective right requires further new justification, which the author will carry out in the next article in the publication series.