The right to access to a work of art: problems of legal regulation

The article is devoted to the legal analysis of the right to access a work of art. The article analyzes the features of the legal regime of a work of art. It is established that copyright and the right of ownership of a material object in which a work of art is embodied are independent of each other, and a work of art embodied in a material object may be in the private property of a subject other than the author. It is established that a work of art, as a rule, exists in a single copy, and it is this characteristic that determines the features of legal protection, in particular, the legislative consolidation of the right of resale as an inalienable right to receive fair remuneration, as a share of deductions from each sale of the original work of art. It is proved that the right of resale is compensation to the author in connection with the objective impossibility of replicating a work of art, unlike books and other works. It is substantiated that access to a work is not a property right of the author, and the author may demand access to the work in order to verify the preservation of the work and its condition. It is proven that “access to the work” should cover cases of use of the work in personal exhibitions, expositions, etc.; this right should also belong to the author’s heirs. It is established that the owner of a material object in which the original work of fine art is embodied does not have the right to deny the author access to the work without sufficient grounds; at the same time, the owner of the material object is not obliged to deliver it to the author. The need to enshrine a legislative provision stating that in the event of denial of access to the work, the author may appeal it to court is substantiated. It is substantiated that among the ways to protect rights in Art. 55 of the Law of Ukraine “On Copyright and Related Rights” it is advisable to provide for the possibility of the author filing a claim for access to the original work of fine art, since it is such an obligation that will correspond to the author’s right to access the work. It has been proven that the right to access a work of art is very important for its author; this right includes the possibility of inspecting the work for its safety, the right to demand the provision of the work for holding personal exhibitions and other public displays of the work, etc. It has been proven that formalizing the procedures for access to the work and establishing guarantees for both parties will allow achieving a balance between the interests of the author and the owner of the material medium, ensuring proper protection of creative rights and respect for private property. In order to eliminate the gaps in legal regulation and in order to fill the right to access a work of art with real content, it is proposed to enshrine it as a separate personal non-property right in Art. 11 of the Law of Ukraine “On Copyright and Related Rights”.