Sui Generis Right to Non-Original Objects Generated by a Computer Program Under Ukrainian Law: First Impressions and (In)Compatibility with EU Law

Abstract Whereas the reasonableness of conferring some protection on GenAI output that does not meet the criteria for copyright protection is being debated, in Ukraine such output could be subject to sui generis rights since the beginning of 2023. Article 33 of the Ukrainian Copyright Act confers sui generis protection on non-original objects generated by a computer program and is worded broadly enough to cover a wide range of outputs of computer programs, such as GenAI, including mere data. Given that the provision has been in place for over three years, questions arise as to whether it has had any practical effect and about the provision’s potential incompatibility with EU law. This article analyses the novel provision under Ukrainian law and concludes on multiple ambiguities within it, as well as a lack of an articulated rationale, only underscored by the absence of a designated right holder. There is little evidence that the provision has had any impact so far. There are no decisive grounds for concluding that sui generis rights such as those under Art. 33 would infringe EU law, as long as they do not extend to certain types of output, such as reproductions of works of visual art in the public domain. At the same time, the EU should follow these developments closely and reconsider its limited engagement with IP-like rights under the national laws of its Member States, as similar divergent solutions across the EU/EEA might place undue pressure on the public domain.