Ukraine was designated a Priority Foreign Country (PFC) in the United States 2013 Special 301 Report on three identified grounds, two of which were: (1) the unfair, nontransparent administration of the system for collective management organizations (CMOs), which are responsible for collecting and distributing royalties to right holders; and (2) failure to implement an effective means to combat widespread online copyright infringement in Ukraine.

In response, CLDP over the years, and in concert with the Ukrainian government, has implemented a number of workshops and other programs. The workshops utilized expertise from the US government as well as from international governmental and non-governmental organizations (such as the World Intellectual Property Organization (WIPO), International Federation of Reproduction Rights Organizations (IFRRO), the Societies' Council for the Collective Management of Performers' Rights (SCAPR), International Federation of the Phonographic Industry (IFPI), International Confederation of Societies of Authors and Composers (CISAC)), to assist the Ukrainian government and rights holders to develop laws and institutional arrangements to enable the protection and management of copyright and related rights in Ukraine. Other programs included the support and facilitation by CLDP of legislative drafting, based upon the results of the workshops.

While specific recommendations were inculcated into relevant draft laws and regulations, by the State Intellectual Property Service of Ukraine and later by the Ministry of Economic Development and Trade of Ukraine (the current title of the ministry is Ministry of Development of Economy, Trade and Agriculture of Ukraine), not enough of these changes survived the process of being made into law in the Supreme Rada. Thus, issues of concern to Ukrainian and international rights holders remain. 

Specifically, in the recommendations of the second Workshop on Collective Copyright Management in Ukraine (July 23-25, 2018) the workshop participants agree that certain provisions of the new 2018 Ukrainian CMO Law (The Law of Ukraine on Efficient Management of Property Rights of Right Holders in the Sphere of Copyright and/or Related Rights) may significantly impair its effectiveness. The participants then indicated that the ways to solve the problem are:

• Introducing changes to the CMO Law

• Introducing additional provisions to the Ukrainian Law on Copyright and Related Rights together with the provisions stating that where the rules of the CMO Law conflict with those of the Law on Copyright and Related Rights, the rules of the Law on Copyright and Related Rights shall prevail.

The government of Ukraine on the basis of these 2018 recommendations proceeded to develop a “technical draft law” aiming to amend some of the key inconsistencies of the CMO law and other laws of Ukraine, while also developing a revised new version of the Ukrainian Law On Copyright and Rights. This revised copyright draft law went through a long process of discussions, before being presented for review at the CLDP workshop in September, 2019. The workshop is timely, given that the new Supreme Rada started functioning in August, 2019, and so far has been showing strong support for the initiatives of the new government. Thus, the key objective of September workshop was to facilitate the review of the Draft Law On Copyright and Related Rights by Ukrainian and international IP experts and propose amendments and supplements to ensure:

• its provisions on copyright and related rights are in line with international standards and best practices.

• its provisions and provisions of other Ukrainian laws on combating internet piracy are in line with international standards and best practices.

• its provisions relevant for collective management of copyright and related rights and the provisions of Law 2415 on collective management of copyright and related rights are jointly sufficient to meet international standards and best practices.

• the Ukrainian judiciary has a clearer understanding of an internationally sound Law “On Copyright and Related Rights”, that would impact future adjudication IP disputes.

The workshop discussions focused on three groups of issues:

(1) General copyright issues

(2) Issues of combating internet piracy

(3) Issues of collective management of copyright and/or related rights

This structure of the workshop agenda determines the structure of the written workshop recommendations, which were discussed at the final session of the September 12-13 workshop and are now pending finalization. Just to illustrate the issues dealt with in the recommendations, they included, among many others:

- for general copyright issues: the need to clarify the term “communication to the public” in the Ukrainian legislation;

- for combating internet piracy: the need to move from “notice and take down” to “notice and stay down”;

- for collective copyright management: the need to consider transferring the accreditation functions from the accreditation commission to the Ministry of Development of Economy, Trade and Agriculture of Ukraine. 

After the workshop the Ministry of Development of Economy, Trade and Agriculture of Ukraine has been considering its strategy for further legislative work. One of the factors is the formation of the new Ukrainian government in the late August of 2019. The “technical draft law”, which already went through significant part of the process of internal approvals in the government of Ukraine, required for the submission of the draft law to the Supreme Rada, will now either have to undergo the same process of approvals again, this time in the new government, or be incorporated into the text of the draft law on the revision of the Law on Copyright and Related Rights, which was discussed in the September 12-13 workshop. The most recent communication from the Ministry to CLDP indicates that the Ministry decided to pursue both procedures at the same time.