JURIDICAL NATURE OF PUBLIC LICENSES IN COPYRIGHT AND RELATED RIGHTS SPHERE

Problem setting. The article analyzes juridical nature of public licenses for the utility of copyright and related rights objects. First of all such licenses have a place in software sphere. Thus, some public licenses for free software were made by Free Software Foundation (GNU General Public License, GNU Lesser General Public License etc.). Another non-commercial organization, which was founded for spreading open source software, is Open Source Initiative. But now public licenses are used for other kinds of copyright objects, “sui generis” databases and related rights objects (Creative Commons Licenses, Free Art License, Open Database License etc.). That’s why exists a necessity to discover the perspectives of using the public licenses according to Ukrainian civil legislation. Recent research and publications analysis. The following scientists were engaged in research of the specified question: K. Afanasieva, V. Boridchenko, O. Zhylinkova, A. Nersesian, D. Pyliuchenko, O. Shyshka and N. Yarkina. Paper objective. The purpose of this article is researching juridical nature of the public licenses and making propositions for improvement of Ukrainian legislation about copyright and related rights. Paper main body. In the scientific works are used different terms: “public licenses”, “free licenses”, “open licenses” and “copyleft licenses”. The Recommendations of Ukrainian State Intellectual Property Service contain the term “free public licenses”. We propose to use the term “public licenses”, because such licenses are addressed to the undefined users. But license contract give a right for using object to concrete person. In civil-law literature are represented two opinions about juridical nature of public licenses. Some of the scientists consider that the public licenses are the contracts of adhesion, but other scientists classify public licenses as one-sided deals. We think that in intellectual property law the license is a common term, which include two ways of realization: giving permission for using object to concrete person based on license contract and giving a right for using to the undefined users (public license). That’s why the public license is the volition of one person; this license become enforceable from the moment of it giving by licensor and doesn’t need acceptation. Therefore it is depended to one-sided deals. In accordance with art.640 of Ukrainian Civil Code, the contract is concluded from the moment of reception by person who sent an offer the answer about it acceptance. But licensor who has given the public license doesn’t get an information about it acceptance from each lesser. Thus described license doesn’t have a contractual nature. In despite of that, according to art.1107 of Ukrainian Civil Code, a license and a license contract are represented as different types of the contracts about disposing of intellectual property rights. And the same article of Ukrainian Civil Code fixes a rule that contract about disposing of intellectual property rights must be concluded in literal form, but in another way it will be invalid contract. That’s why it becomes a problem to implement the public licenses into national juridical practice. So we propose to exclude the norms about licenses from the Chapter 75 of Ukrainian Civil Code. As a result, the form of the public licenses will be regulated by the general rules about deals form (Chapter 16 of Ukrainian Civil Code). Conclusions of the research. The author doesn’t agree with opinion, that public licenses have a juridical nature of contract of adhesion. Here is made a conclusion, that public licenses are depended to one-sided deals.