Taking into account the transitional character of the 1991-2004 periods in modern Ukrainian history, one should not wonder that Ukrainian lawmakers have been intensively producing new legislation, including culture-related, during this period. |
The process began with the adoption of the Basic Law on Culture in February 1992 followed by:
On Printed Media (the Press) (1992),
On Television and Radio Broadcasting (1992),
On National Archive Fund and Archive Institutions (1992),
On Authors' Rights and Adjacent Rights (1993, amended in 2000),
On Museums (1995),
On Libraries (1997),
On Publishing Industry (1997),
On Charities and Charitable Activities (1997),
On Cinematography (1998),
On the Protection of Cultural Heritage (1999),
On Architectural Activity (1999),
On Professional Artists and Artistic Unions (1997),
On Artistic Folk Crafts (2001),
On State Support to National Book Publishing Industry (2003),
On the National Program of the Development of National Film Industry for 2003-2007 (2002),
On Artistic Touring in Ukraine (2003),
On the Protection of Archeological Heritage (2004);
On Theaters and Theatrical Sector (2005),
On the Concept of National Cultural Policy for 2005-2007 (2005).
Legal foundations for budget subsidies to culture
Article 23 (Financing of culture) of the Basic law regulates that:
"The financing of culture is based upon official funding norms and shall be provided by the [State] budget and local budgets, by financial means of enterprises, organizations, civil associations, and from other sources as well. The State guarantees subsidies necessary for cultural development in the amount no lower than 8% of Ukraine's national income ..."
The Budget Code was adopted in 2001. According to it, State budget and local budgets have to be drafted in accordance with the principles of program budgeting which means that, on the national level, sectoral ministries and departments should design «budget programs» for the development of corresponding sectors of national economy as the ground for calculation of budget expenditure.
Regulations on earned income and state-guaranteed cultural services
The Law on Social Welfare Standards and Social Guarantees of the State gives a detailed definition of «State social standards in cultural services» (Article 13); these standards include:
- "the inventory of free-of-charge services provided by cultural institutions, organizations and enterprises;
- quality requirements with regards of services provided by cultural institutions, organizations, enterprises;
- [quantitative] norms of provision of population with cultural organizations, institutions, enterprises".
The Law of Ukraine on Social Services (2005) introduced the concept of social services including several cultural services, once meant for ‘persons in difficult living conditions' (orphans, pensioners, disabled people, low-income families and individuals etc). These services should be provided according to the Law on Social Services by both public and private cultural organizations; either free of charge or chargeable (the law does not specify which services shall be free).
The pricing of all remaining social services should be done according to The rules of regulation of tariffs for social services (approved by Decree of the Cabinet of Ministers of Ukraine No 268, on 9.04.2005): these tariffs should include only production/provision costs, administrative costs and taxes. In other words, providers of social services (including cultural) shall not earn profits from them.
Taxation in cultural sector
Article 26 (Taxes in cultural sector) of the Basic Law on Culture states that:
"The State carries out the policy of tax benefits in cultural sector. It exempts Creative Unions, [ethnic] cultural associations and foundations, other cultural civil associations from taxes. Exempt from taxes are also cultural organizations which are subsidized by [State] budget, by [public] enterprises or by trade unions. [The State] establishes tax exemptions for those incomes of enterprises, organizations and individuals which are donated for cultural needs..."
If a cultural organization is registered as an NPO, tax officials tend to fully tax most of its incomes save for charitable donations (referring to the ambiguous formulation in Article 7.11 of The Law on a Taxation of Profits of Enterprises which will be discussed later here). This in fact forces many cultural organizations to choose between disguising their earnings as donations and abandoning their NPO status.
Legal framework for artists
Article 54 of the Constitution of Ukraine guarantees to citizens of Ukraine "...freedom of literary, artistic, academic, scientific creation, protection of their intellectual property and author's rights, moral and material interests deriving from various kinds of intellectual activity"
These constitutional guarantees form the base for national copyright and legislation for artistic work.
The Law on Professional Artists and Artistic Unions (1997) defines the legal status of professional artistic workers and lays legal foundations for artistic associations (a.k.a. ‘creative unions'). The condition for a person to enjoy the status of ‘professional creative worker' is that earnings from artistic activity should be his/her main source of income. Under current circumstances in Ukraine, not many artists meet these requirements and those who do, usually work in commercial cultural industries and don't seem to need much protection from the state.
There are a number of laws regulating the activities of cultural industries:
Law on Printed Media (the Press),
Law on Television and Radio Broadcasting,
Law on Authors' Rights and Adjacent Rights, Law on Publishing Industry,
Law on Cinematography etc.
Basically, these legal acts define how enterprises in particular industries shall be established, registered or licensed (the latter concerns media outlets), in which language they may operate (as a rule, Ukrainian language applies for media outlets, unless they serve cultural needs of minorities), how public enterprises in these industries can be privatized; they also define the rights of journalists and other workers, etc.
There are also two rather special legal acts, adopted after a long struggle between Ukrainian publishers and the liberally-minded state financiers and legislators: the Law on State Support to National Book Publishing Industry (2003), and Law on Some Amendments to Legal Acts Concerned with State Support to Book Publishing (2003) whose purpose is the introduction of a set of tax exemptions and other incentives for the development of Ukrainian book publishing and printing industry. Many believe that it is thanks to these tax incentives that Ukrainian book industry seems to overcome its prolonged crisis.
National film industry has been less lucky, however. In 2003, the Law on Cinematography was amended so as to harmonize it with the new version of the Law on Copyrights. The Law on the National Program of the Development of National Film Industry for 2003-2007, similar to the above-mentioned publishing-related laws, was adopted in December 2002. The introduction of tax exemptions and other protectionist measures was anticipated by this National Program.
Ukraine, as a legal successor of the USSR, is a member of the Geneva Copyright Convention of 1952. It also joined the Bern Convention on the protection of literary and artistic works in 1995, the Rome Convention on protection of the interests of phonographic producers and broadcasters (1961) in 2001, and the Phonographic convention of 1971 in June 1999.
Ukraine also joined the International Intellectual Property Association and ratified in 2001 its two major treaties, On Authors' rights and On Rights for Artistic Performances and Phonographic Recordings.
The initial version of the Law of Ukraine on Author's Rights and Adjacent Rights was adopted in 1993; its thoroughly revised new version was adopted in July 2001, as a part of general harmonization of Ukrainian legislation with international legal standards on copyrights and anti-piracy regulations.
Another elements in this harmonization process have been the Law on Dissemination of Audiovisual Works and Phonographic Recordings (March 2000) and the Law on the Peculiarities of State Control Over the Entrepreneurial Activities Related to Production, Export and Import of Discs With Laser Reading Systems (a.k.a. the Laser Disc Act, January 2002), intended to fight the then-flourishing copyrighted piracy in Ukraine and adopted by the parliament of Ukraine under a serious pressure from international copyrights organizations. This act, however, left Western copyright owners unsatisfied, and the sanctions against Ukraine were lifted only in 2005 after a new, more restrictive law on laser discs was adopted.
NGOs and charities in culture.
There is no special law on non-profit organizations in Ukraine, despite prolonged efforts to approve one. On the other hand, NGOs do exist, and there are specific legal regulations for them.
In 1997, an important amendment to Article 7 of the Law on Taxing of Profits for Enterprises was made. It provided some tax exemptions for non-profit organizations (for which certain types of cultural organizations are also eligible).
The Law on Charity and Charitable Organizations regulates how such organizations shall be established, registered, managed, taxed etc. It also contains a list of activities that may be regarded as charitable (and therefore eligible for tax relief). The Law defines that administrative expenses of a Charity shall not exceed 20% of its budget.
As for tax relief for charitable donations, the Law on Taxing of Profits of Enterprises (article 5.2.13) rules that a charitable donation is excluded from taxed income if it is no less that 2% and no more than 5% of the total income of the donor subject to profit tax. Some experts believe that this relief is too insufficient to encourage charitable activities of Ukrainian businesspeople.
This legal structure, incomplete and complicated at the same time, as well as the insufficient tax relief, results in small and weak «third sector» in Ukraine.