Фотографічний твір як об’єкт авторського права

The article considers certain problematic aspects of the legal regime of photographic works under the legislation of Ukraine. It has been established that the Law of Ukraine “On Copyright and Related Rights” pays insufficient attention to photographic works as objects of copyright. It has been proved that it is advisable to systematize the legislative provisions on photographic works into a separate article in the Law of Ukraine “On Copyright and Related Rights”, which will allow for a comprehensive definition of the legal regime of a photographic work, the grounds for acquisition and the features of exercising rights to it. It has been proved that the features of a photographic work are originality and a specific form of expression (representation on a material medium or in electronic (digital) form in the form of a three-dimensional three-dimensional image). An innovation in legal regulation is the application of the right of resale to photographic works, however, the legislator does not outline the features of the application of the rules on the right of resale to a photographic work that exists in digital (electronic) form. It has been proved that a photographic work must be the result of the intellectual creative activity of the photographer (author), which reflects his creative decisions regarding the creation of the corresponding photograph. It is substantiated that a photographic work is a digital object of copyright, since practically always, as of today, taking into account the development of technologies, photographic works are created, exist, and are distributed in digital form. It has been proven that the creation of a photographic work using so-called «analog» technologies, when the photographic work is recorded, in particular, on film (and not in digital form), is an exception to the general practice of creating photographic works. It has been substantiated that photographic works should be distinguished from photographs – objects (photographs) that are not endowed with the sign of originality. It has been established that the legal regime of photography as an object is not defined by law, therefore it is proposed to provide legal certainty to photography as an object at the law level by applying a special kind of right (sui generis) to it, as is the case with non-original databases and objects generated by a computer program. In order to provide legal certainty regarding the legal regime of photography, it is proposed to provide a separate article in the copyright law (as is done with respect to non-original objects generated by a computer program), and in it to define the legal regime of photography, to provide for the extension of a special kind of right (sui generis) to it, to determine the subjects of the right to photography, their property and personal non-property rights, to provide for the term of validity of the special kind of right to photography, the features of the exercise and protection of such rights to photography, etc.