Copyright Compensation in Ukraine: Practical Aspects of Court Recovery

Statutory compensation is one of the principal remedies available to copyright and related rights holders in Ukraine. Its key procedural advantage is that the claimant is not required to prove the actual extent of loss suffered – demonstrating the fact of infringement is sufficient to establish entitlement. This significantly reduces the evidentiary burden in comparison to claims for damages. At the same time, Ukrainian law establishes only a general framework for calculating compensation, leaving courts with substantial discretion. For this reason, case law is the primary source of practical guidance on how compensation is assessed and awarded.

This article examines the statutory framework, the principles applied by Ukrainian courts in determining the quantum of compensation, and the practical considerations relevant to claimants preparing infringement proceedings.

Statutory Framework

Article 55(2)(6) of the Law of Ukraine “On Copyright and Related Rights” (No. 2811-IX of 1 December 2022) confers on rights holders the right to apply to court for protection of copyright and related rights, including through a claim for statutory compensation.

The calculation methodology is governed by Article 55(3)(4) of the same Law. A claimant may choose between the following bases for quantifying the compensation claim:

• A fixed sum in the range of 2 to 200 subsistence minima for able-bodied persons, at the claimant’s discretion;
• Doubled licence fee – twice the remuneration that would have been payable for authorised use of the infringed work or object of related rights;
• Trebled licence fee – three times that remuneration, where the infringement was intentional.

📋 Claimant’s choice: The selection of the quantification basis rests with the claimant. The appropriate choice depends on the circumstances: where the licence fee is readily ascertainable and the infringement was intentional, the doubled or trebled fee may yield a higher recovery than the fixed-sum range. Where the fee is uncertain or the infringement was limited in scope, the fixed-sum range may provide a more reliable basis.

Regardless of the quantification basis chosen, the Law requires that the compensation amount be effective, proportionate, and deterrent in character, directed at restoring the rights holder’s position, and applied in a manner that does not create unjustified obstacles to the legitimate activity of the user. In determining quantum, courts are directed to consider the duration and systematic nature of the infringement, the scope of the unlawful use (including its territorial reach), the field of activity and intent of the infringer, the form and degree of fault, and other objective circumstances.

Supreme Court Guidance on General Principles

In its ruling of 17 January 2024 in case No. 308/7570/18-ц, the Supreme Court of Ukraine held that proof of acts constituting copyright infringement is sufficient to sustain a compensation claim – the claimant need not establish the quantum of actual loss. Any act qualifying as copyright infringement is therefore an independent and automatic basis for a compensation award.

Ukrainian case law further confirms that each separate instance of unauthorised use of a copyright or related rights object – including repeated use of the same object – constitutes an independent infringement and an independent basis for compensation liability. This principle has significant practical implications for claimants, as it means that the total compensation recoverable is not capped at a single amount per work, but is aggregated across each discrete act of infringement.

Judicial Approach to Quantum: Case Studies

An examination of recent decisions illustrates how courts assess and calibrate the quantum of compensation in practice.

Reduction of claimed amount: proportionality in product design infringement

Case No. 922/527/23  The claimant sought compensation of uah 289,872 in respect of the unauthorised reproduction of a work in a product design. The court found that the claimed amount was disproportionate to the infringement. Taking into account the duration of the infringement (from May 2023 until the date of judgment, with the infringement ceasing upon commencement of proceedings), the absence of evidence of systematic infringement, the territorial scope (nationwide distribution), and the defendant’s commercial activity, intent, and fault, the court awarded compensation of uah 134,200 – equivalent to 50 subsistence minima – as an amount that was effective, proportionate, and deterrent, directed at restoring the claimant’s rights without creating unjustified obstacles to lawful commercial activity.

Reduction of claimed amount: plagiarism and reproduction of collaborative works

Case No. 522/20810/19  The claimant sought uah 250,380 in compensation for the unlawful reproduction and distribution of works in which the claimant held co-authorship rights, together with a plagiarism claim in respect of the attribution of co-authorship to a third party on the infringing copies. Having regard to all circumstances of the case, the court awarded compensation of uah 166,920.

Per-infringement approach: minimal evidence, minimal award

Case No. 926/675/25 (Chernivtsi Economic Court)  The court held that an appropriate and equitable compensation amount was 2 subsistence minima per individual act of unauthorised use of a copyright object. The claimant had adduced evidence of only 2 infringing items purchased. Consequently, instead of the claimed uah 605,600, the court awarded uah 12,112. The decision illustrates that the scope of compensation is directly proportional to the scope of the infringement proved by evidence.

⚠️ Evidentiary implications: The quantum of compensation is bounded by the scope of the infringement the claimant can prove. Courts do not award compensation extrapolated from unproven acts. Each act of infringement requires independent evidentiary support – documentation of the infringing act, the channel or medium of distribution, and the territorial extent of the infringement.

Practical Considerations for Claimants

The case law examined above permits the following practical observations for rights holders contemplating compensation proceedings in Ukraine.

Evidence gathering prior to filing

The quantum of compensation ultimately awarded is directly determined by the evidentiary record. Claimants should, prior to filing, document each discrete act of infringement – including the nature of the infringing use, its territorial scope, duration, and frequency. Evidence of systematic infringement or intentional conduct will support both a higher quantification basis and the upper end of the applicable range.

• Preserve screenshots, purchase receipts, and market monitoring reports demonstrating each infringing act.
• Obtain whois records and website archives where infringement occurs online.
• Commission market surveys or test purchases where territorial scope of distribution is relevant.
• Document any prior notice or cease-and-desist correspondence, as it is relevant to the assessment of intentional infringement.

Selecting the quantification basis

The choice between the fixed-sum range and the licence-fee multiplier should be made on the basis of which approach yields the stronger claim on the specific facts. Where the market rate for a licence is ascertainable – for example, where the rights holder grants licences on established terms, or where comparable market rates can be evidenced – the doubled or trebled fee may support a higher award. Where the fee is uncertain or the infringement was limited, the fixed-sum range provides a floor that does not require proof of the hypothetical licence value.

Managing quantum expectations

Ukrainian courts apply the proportionality criterion actively. A claimed amount that the court considers disproportionate to the proved infringement will be reduced. Claimants should calibrate their claims to the evidence available, with the objective of presenting the court with a well-supported and proportionate figure. Overstated claims carry the risk of full or partial dismissal and adverse cost implications.

✅ Strategic recommendation: A well-prepared compensation claim requires: (1) a clearly structured evidentiary record documenting each act of infringement; (2) a reasoned choice of quantification basis with supporting evidence of the applicable licence fee where the multiplier approach is used; and (3) a quantum that can be justified by reference to the statutory criteria of proportionality, effectiveness, and deterrence.

Conclusion

Statutory compensation under the Law of Ukraine “On Copyright and Related Rights” is an effective enforcement tool, available upon proof of infringement without the requirement to establish actual loss. The three available quantification bases provide rights holders with flexibility to calibrate their claim to the circumstances.

Judicial practice demonstrates that courts seek a balance between effective protection of rights holders and proportionality to the proved infringement. The amount claimed will be subject to close scrutiny against the statutory criteria, and may be reduced where the evidentiary record does not support it. The preparation of a strong evidential foundation – documenting the nature, scope, duration, and intent of the infringement – is accordingly the decisive factor in maximising the compensation recoverable.