Speakers of the panel discussion "The figure of the author in architecture. Is it time to transition from collectivism to individualism?", dedicated to the issue of international and Ukrainian copyright protection practices, became Olga Podushkina, vice-president of NSAU, head of commission on copyright and professional ethics of NSAU, member of the practical committee of the International Union of Architects, founder of FPA-architect; Anna Bondar, architect and People's Deputy of Ukraine of the 9th convocation, co-author of the project of the Urban Planning Code of Ukraine; Iryna Lyaluk, a lawyer at Axon Partners, and Mykhailo Yudin, partner of Axon Partners; Anton Polikarpov, founder and managing partner of Polikarpov UF; Vadim Zhezherin, the head of JSC "Zhezherin" and the author of many objects that have become the hallmark of Kyiv and the moderator Olga Terefeeva, NSAU. PRAGMATIKA.MEDIA analyzed the key theses of the speakers and found out what problems the system of laws regulating the sphere of copyright has, and how architects can protect themselves.
International copyright & Ukrainian copyright: what prevents them from being together?
At the international level, architectural copyright is guaranteed by law and society's attitude towards architects. Nowadays, when Ukrainian architects are working on the reconstruction of objects destroyed by the war together with foreign colleagues, the question of their rights and the observance of these rights has become particularly acute.
Olga Podushkina, founder of FPA-architect: "Even architects who are not members of the union can apply to NSAU. This can be done with the help of an official request by letter, by phone or even by writing to us on the Facebook page"
"In November 2001, ISA adopted recommendations on the issue of copyright, and in September 2017, VIM was added and the question arose of restructuring the balance of interests of owners and architects during the reconstruction of buildings. It is also important to mention the Berne Convention of 1886 — it guarantees the principle of national regime, the principle of independence of protection, the principle of automatic protection and the presumption of authorship. Unfortunately, the latter does not work in Ukraine. In addition, ISA recommends that laws and enforcement acts should not be too complicated or expensive and should not include unreasonable time limits and delays," said Olga Podushkina, founder of FPA-architect.
Olga Podushkina, the founder of FPA-architect, spoke remotely; she spoke about international standards and recommendations from the International Union of Architects
According to Ms. Olga, perfect national "copyright" legislation is not only protection, but also conditions for cooperation with international colleagues and investors.
Olga Podushkina, founder of FPA-architect: "If necessary, contact the Commission on copyright and professional ethics of NSAU. Even architects who are not members of the union can contact us"
"As a representative of the National Union of Architects of Ukraine in the International Union of Architects, I can say that the national legislation of a member of the union should not contradict international acts, because architects can work in other countries only if there is a guarantee that their intellectual property is protected. "Unfortunately, the legislative documents of Ukraine in the field of copyright have many contradictions - both among themselves in various points and with international agreements," said Olha Podushkina.
Participants of the panel discussion: Vadym Zhezherin, Hanna Bondar, Kostyantyn Kovshevatskyi and Olga Terefeeva
One of the most effective ways out of the situation, according to the experts of the panel discussion "The figure of the author in architecture. Is it time to transition from collectivism to individualism?", can be formulated with the following thesis: "unite and do not give up." No matter how banal it sounds, sometimes, Olga Podushkina believes, only methodical efforts of the National Union of Architects of Ukraine can move the rock of legal imperfection.
"If necessary, contact the Commission on copyright and professional ethics of NSAU. Now I am its head. The commission performs many functions, including copyright protection and management, as well as supervision of the implementation of legislation and arbitration during the resolution of disputed issues and conflicts. Even architects who are not union members can contact us. This can be done with the help of an official request by letter, phone or even by writing to us on our Facebook page," advised Ms. Olga.
Laws that no one notices: de facto from Earth, de jure from Mars
The speaker who took the floor after Olga Podushkina, the architect and People's Deputy of Ukraine of the 9th convocation, Hanna Bondar, is a living proof that systematic work in the legal field in the matter of protecting authors' rights is an effective strategy. Currently, Ms. Hanna heads the working group on the development of the Urban Planning Code of Ukraine, which aims, in particular, to provide quality regulation of Ukrainian "author's" legislation.
Hanna Bondar, architect and People's Deputy of Ukraine of the 9th convocation: "I'll start with a quote from the artist Ada Rybachuk: the state must guarantee the author's right to start and finish his work"
"I'll start with a quote from the artist Ada Rybachuk: the state must guarantee the author's right to start and finish his work. This "finish" is very important, because customers very often try to change the architect in the process of designing or building, or later, the reconstruction of the existing object. A classic example: we are reviewing the documentation of a kindergarten, and one of the experts says that he has a question, and the head of the Department of Capital Construction answers: well, there are no problems, we will change everything at the design stage. As a district deputy, I ask: "How will you change it? You have a draft project and you have to continue with the same author." And they answer me: "He transferred the property rights in the contract for the development of project documentation, so we will order the stage of the project from another architect," - Ms. Hanna outlined the problem.
Hanna Bondar, architect and People's Deputy of Ukraine of the 9th convocation: "We have several different laws regulating the field of architecture and construction. Therefore, we propose to eliminate these contradictions and harmonize the definition of the main terms and provisions with the law of Ukraine on copyright"
According to Hanna Bondar, this practice has already become so common that customers usually immediately divide the design into several stages and sign contracts with different architects. According to the expert, this situation has developed because Ukrainian legislation does not prevent it in any way.
Hanna Bondar, an architect and People's Deputy of Ukraine of the 9th convocation, told how she is improving the legislative norms that regulate the "copyright" rights of architects in Ukraine
"Currently, we have at least three laws regulating the distribution of property rights, and each one says something different. The law "On copyright and related rights" states that property rights to a work created by order are fully transferred to the customer from the moment of its creation, unless otherwise stipulated by the contract. It is written in the Civil Code that this happens when the contract or law does not provide otherwise. In the law "On architectural activity" it is written that property rights belong to the creator of the object and the customers jointly.
Let's go further. We have several different laws regulating the field of architecture, construction, real estate and urban planning. And all this creates chaos regarding the definition of what a work of architecture is. Therefore, we propose to harmonize the definition of the main terms and provisions with the law of Ukraine "On copyright" and to define a clear list of property rights of the author of a work of architecture, in particular, the exclusive right to participate in the implementation of the project of the work and to make changes during the construction process and during the reconstruction of the object. , - concluded Mrs. Hanna.
The expert also considers what her colleague Olha Podushkina spoke about to be a good solution: the development of Ukrainian legislation following the international example, which takes into account more nuances and details.
"If the word "architecture" is used five times in our copyright law, five pages are devoted to the British activity of architects. Accordingly, there are the concepts of "license" and "limited license", according to which, if the architect is removed from the next stages of construction or if they want to copy his work, the need for a license is included - additional payment of the fee," she said.
Iryna Lyaliuk, a lawyer at Axon Partners, and Mykhailo Yudin, a partner at Axon Partners, talked about how they almost “repelled” Flowers of Ukraine in court
It would seem that clear laws will solve the problem once and for all. However, unfortunately, not only current obstacles but also "legislative flashbacks" of the times of the Soviet occupation stand in the way of Ukrainian architects from time to time. One of the most famous examples of violation of author's rights due to such a "flashback" is the story of the destruction of the facade of the "Flowers of Ukraine" building by Mykola Levchuk.
Mykhailo Yudin, partner of Axon Partners: "Colleagues, during my professional activities I often hear that copyright does not work in Ukraine. In fact, it is there, it’s just... You need to apply"
"Everyone knows the case when in 2021 the developer destroyed the facade of the building designed by Mykola Levchuk. This is one of the few cases on the protection of an architect's copyright on a building in Ukraine and the first case in which the court granted an application for a ban on construction work pending the start of the review and rendering of a decision. It is also the first case on the protection of the architect's rights that reached the Supreme Court. And the court satisfied our cassation appeal, so we are starting a new trial with demands to stop the reconstruction of the building and use its project to develop a reconstruction plan, return the building to its previous state in accordance with the author's plan and, of course, to compensate for moral damage.
As for the history of the proceedings, the courts of first instance refused us because the building was built in the 80s and, therefore, is regulated by Soviet legislation. And since there is no definition of what should be understood by a work of architecture in the article of the Soviet code, nor in the modern laws of Ukraine, the court interpreted this norm in such a way that the author transferred all his copyrights to the customer. The fact that the Supreme Court overturned these decisions of the courts of previous instances is really a turning point," said Iryna Lyalyuk, a lawyer at Axon Partners, who is defending the case of Mr. Mykola Levchuk in court.
Hanna Bondar, architect and People's Deputy of Ukraine of the 9th convocation: "But I want to say this: a window of opportunity is now open in Ukraine. And it seems to me that in order to survive, we need, first of all, to unite, that is, to all enter into a union. Apart from the union, no one will protect you. Secondly, you need to constantly move - step by step"
Iryna's colleague Mykhailo Yudin, a partner at Axon Partners, added: the case, which his colleague almost won, will also become an important turning point in the field of protection of non-property rights. "The requirement not to carry out any actions that distort the original intention is precisely the parish of non-property rights. Colleagues, during my professional activities I often hear that copyright does not work in Ukraine. In fact, it is there, it's just... You need to apply. We have been defending Levchuk's case for three years, because it is difficult from a judicial point of view, but the concept was clear after 10 minutes. At the same time, many people don't even try to buy a lottery ticket in order to win a million," Mykhailo added.
Vadym Zhezherin, head of JSC "Zhezherin" and a legendary Ukrainian architect, called on all architects to join the union and fight together
Mykola Levchuk's colleague Vadym Zhezherin supported this thesis. The famous Kyiv architect believes that the situation can and should be changed. "There are three ways to destroy an object: to destroy it, to transform it so that you don't recognize it, and the third is to build something next to it that will look disgusting all together. So, there is not a single object of mine that has not been destroyed in the center of Kyiv. However, it is really necessary to fight," said Vadym Zhezherin.
"All of us, architects, are traumatized. But I want to say this: a window of opportunity is now open in Ukraine. No matter how strange it is, it is. And it seems to me that in order to survive, we need, first of all, to unite, that is, to all enter into a union. Apart from the union, no one will protect you. Secondly, you need to constantly move - step by step. For example, the Council is currently considering draft law 11520 on public procurement. And there, colleagues, there will be section No. 3, which is called "Project Competitions". I have been working at the Ministry of Economy since 2015. Nine years of my life were spent to ensure that this section appeared in the law on public procurement. That is, I am talking about the fact that it will not be easy, but the result will be. Everyone in the union, and do not give away property rights at once! Please bargain," advised Hanna Bondar.
Anton Polikarpov, founder and managing partner of Polykarpov JF: "The legislation proceeds from the fact that if you have not provided for your rights as the creator of a certain design or architectural work, then the property rights will automatically pass to the customer, unless otherwise established by the contract »
Copyright of designers: attention to the contract
Finally, the experts also discussed the topic of protecting designers' copyright. In the field of object design, there are also many cases of copyright violations, for example, objects are copied, royalties are not paid, etc.
"The legislation proceeds from the fact that if you have not provided for your property rights, then they will automatically pass to the customer, unless otherwise established by the contract. Also, be careful what rights you transfer. You can transfer all of it, i.e. actually sell your work, or you can transfer only a portion, i.e. the right to use it. If you grant a specific license, see what type of license it is - exclusive, non-exclusive. It depends on whether you will be able to grant someone else the rights to use your design," said Anton Polikarpov, the founder and managing partner of Polikarpov Youth Business.
Anton Polikarpov, founder and managing partner of "Polikarpov" JF
As for how to protect yourself from competitors, Anton Polikarpov advises: you should register your rights to the work immediately after its creation.
Anton Polikarpov, founder and managing partner of Polikarpov Youth Fund: "Document, forward, send emails, sketches and projects. All this will leave a certain digital footprint that will play in your favor"
"The following is about object design: uniqueness is important above all. For example, you received a certificate for an industrial design, but if someone proves that your design is not unique, because there is already an analogue in some country of the world, the industrial design will be declared invalid in court," the expert said.
If you do not plan to register your rights, the object should still be "documented".
The Design & Architecture Summit site gathered architects, designers and journalists
The Design & Architecture Summit site gathered architects, designers and journalists
"Document, forward, leave emails, sketches and projects. Take a photo and post it on your social media page. Participate in exhibitions and public discussions. Publish in protected Ukrainian media, for example, PRAGMATIKA.MEDIA and PRIMA interior, which always protect authors. Later, all this will be proof that you have already demonstrated this item. We had a case when an artist posted her painting on Facebook 10 years ago and thanks to this proved that she was its author. And, of course, register your copyright. However, even if you do not have a registered copyright, you can still go to court," the expert advised.
