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Moral rights and the presence of Ukrainian music on russian platforms

russia’s full-scale war against Ukraine is in its fifth year, and its aggression has not paused for a single week. In the last days of July alone, a ballistic missile and drone barrage with more than 70 missiles and some 280 drones in one night killed at least ten civilians, including children, and wounded dozens across Kyiv and Lviv, with one missile crossing into Poland and NATO scrambling jets in response. Earlier, another wave of strikes killed at least 22 people in a single night. Air raid alerts and funerals remain a routine part of Ukrainian life.

Recently, I was in touch with a fellow songwriter (let’s name her Oksana), who co-wrote songs about Ukraine’s resistance in the war and the courage of the Ukrainian soldiers defending Ukraine at the front with a veteran of the Armed Forces of Ukraine. She found out that these songs were available to stream on russian platforms. Western music often ends up in russia by illegal means, such as pirating. In such cases, it is only theoretically possible to enforce the rights – russian private actors, courts and other authorities basically ignore anything coming from the West. However, in Oksana’s case, nobody had pirated the songs nor stripped the credits and they sounded exactly as they do everywhere else in the world. By all appearances, the songs had been delivered through the ordinary distribution chain, likely, by her own label or its aggregator, under a “worldwide” digital grant that no one switched off after February 2022.

My position is that in the fifth year of russia’s full-scale war against Ukraine, the mere availability of a Ukrainian authors’ works on russian platforms, credited or not, licensed or not, exposes the authors to serious prejudice to their honour and professional reputation in Ukraine.

Oksana’s question was simple: what can I do about it? This article attempts to provide an answer by exploring the exploiters’ responsibility in such cases.

The injury is real

In today’s Ukraine, an artist whose work is found in russia faces an immediate public question: why is your art earning money in the aggressor state? Many Ukrainian artists have been boycotted and publicly shamed over this. Since the distribution chain is invisible from outside, the Ukrainian public draws no distinctions between “the artist chose this” and “the artist’s aggregator forgot a territory exclusion”, and the reputational injury lands on the author. Oksana’s co-author defended the country, their work is generating streams and, somewhere in the chain, roubles in the state he fought against. In my opinion, the intuition that this is a legal wrong and not merely a misfortune is correct, and the doctrinal home for it lies in the moral rights.

Moral rights

According to art. 6bis of the Berne Convention, of which Ukraine and russia are contracting parties, the author has the right to object to “any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation”. The final limb is deliberately separate from the modification limbs - a “derogatory action in relation to the work” captures how the work is used, without requiring a single note to be modified.

In Ukrainian national law, art. 423 of the Civil Code of Ukraine states that among personal non-property rights is the right to “prevent any encroachment on the intellectual property right, capable of harming the honour or reputation of the creator of the object of the intellectual property right”. This legal provision is coherent with art. 6bis of the Berne Convention - the term “encroachment” corresponds to the Berne Convention’s term “derogatory action in relation to the work”.

Moral rights protect different interests of the author. Scholars often state, among those interests, the author’s wish to have a personal reputation as the kind of person who creates certain types of works, like, for example, an Armed Forces of Ukraine veteran’s wish to be known as the co-author of songs about the courage of Ukrainian soldiers at the front.

Across jurisdictions with robust moral rights traditions, it is recognised that an unaltered work can be the vehicle of a moral rights violation when placed in a context that conflicts with its meaning or damages the author’s standing.

The closest precedent is now more than seventy years old, and its geography is bitterly ironic. In Société Le Chant du Monde v. Société Fox Europe, four Soviet composers (Dmitry Shostakovich, Sergey Prokofiev, Aram Khachaturian and Nikolay Myaskovsky) objected to the use of their music in The Iron Curtain, an American anti-Soviet film. The parallel claim failed in New York, in a jurisdiction that does not recognise moral rights, but the Paris court found a violation of the composers’ moral rights and ordered seizure of the film, despite the fact that the USSR had no copyright relationship with France, which made Soviet works effectively in the public domain in France at the time. Nothing in the music had been changed, but the ideological context in which the works were made to appear was contrary to the authors’ views.

Thus, making a Ukrainian author’s songs available to the russian market during russia’s war against Ukraine is a “derogatory action in relation to the work”. It is an act of exploitation (delivery, licensing or failure to withdraw) prejudicial to the honour and reputation of the author. The relevant public for assessing an author’s reputation is their own audience, the industry and Ukraine’s civic community. Among them, presence on russian platforms carries a concrete, documented stigma with professional consequences. Correct attribution which normally protects an author aggravates the harm here, as the work is a reflection of the personality of its creator and the credits are tying the author’s name to the aggressor’s market.

The licence is no answer

In cases like Oksana’s, the works usually do not reach russian platforms by piracy, but through the author’s own chain under a grant signed in a different, pre-war world. However, moral rights are separate to any arrangement the author may have signed with exploiters. They are personal, inalienable and intended to protect the author’s personality.

The French Cour de cassation made the point in the landmark Asphalt Jungle case: John Huston’s heirs blocked the broadcast of a colorised Asphalt Jungle in France even though, under the American contracts and American law governing the work, the studio owned everything and Huston owned nothing. Moral rights applied as mandatory rules (laws of immediate application or “lois de police”) that no contract and no choice of foreign law could displace.

If exploitation in a particular context violates moral rights, the licence is no answer. The author may assert the moral rights claim against every link in the chain. For this reason, moral rights matter so much in this scenario.

Also, the exploiters have duties of their own. According to the general principles of good faith (art. 3§6 of the Civil Code of Ukraine), they must exercise rights in good faith. Continuing to feed the russian market with a Ukrainian author’s catalogue in war, without consultation, contrary to the reputational risk it creates sits poorly with that duty. If an exploiter that delivered the content can also withdraw it, it basically controls the remedy. A written demand to them is therefore the fastest fix and the beginning of the evidentiary record. By refusing to comply with such a letter, they would make a choice.

What “distribution in russia” even means now

russia has made “lawful” exploitation impossible anyway. Since 2022, russia has designated Ukraine and about 50 other states as “unfriendly” and built a counter-sanctions regime around that label. russian licensees “pay” royalties owed to rights holders from unfriendly states into special “type O” rouble accounts in russian banks, with the exchange rate being decided by the Central Bank - payment the rights holder cannot practically access, as transfers of funds from type O accounts to foreign banks are subject to the government’s approval, and the government chooses not to approve any. Yet, such payments discharge the debt under russian law. Also, this violates russia’s other obligations: national treatment under art. 5 of the Berne Convention and art. 3 of TRIPS.

So, there is no scenario in which a Ukrainian author is fairly remunerated from russia. The market an exploiter serves by leaving russia on is one that has legislated the author’s economic rights into fiction. The exploitation in russia yields the author no benefit and exposes them to pure harm.

Coda

The art industry was built for a world where more territories always meant more royalties and no one asked what a stream means - it ended for Ukrainian authors in February 2022. A veteran’s song played in the state he fought against is a wound to the author’s name, inflicted through the work itself. The law of moral rights exists for injuries of that kind, and its language, “other derogatory action in relation to the work”, is broad enough to reach them and, where the exploiters actually have power in the matter, could be proven effective.

References

• Berne Convention for the Protection of Literary and Artistic Works, art. 6bis and art. 5
• Civil Code of Ukraine, art. 423 (personal non-property intellectual property rights) and art. 3§6 (principle of good faith)
• TRIPS Agreement, art. 3 (national treatment)
• Société Le Chant du Monde v. Société Fox Europe, Cour d’appel de Paris, 13 January 1953
• Shostakovich v. Twentieth Century-Fox Film Corp., 80 N.Y.S.2d 575 (Sup. Ct. 1948)
• Huston v. Turner Entertainment (the Asphalt Jungle case), Cour de cassation, 1re civ., 28 May 1991