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Copyright issues


the Source of the publication Antique review. № 2. 2011.

Denis Shumsky, advocate of the Law firm "just"

In their daily activities the representatives of the antique market, collectors, art experts interact with those strange objects, the occurrence of which the light is connected with the creative work, creative contribution of their creators. Precisely because of the creative component of these things, which we collectively call the works of literature and art, acquire a special legal status, the status of protected results of intellectual activity and their creators endowed with special rights in relation to these results copyright.

the Term "copyright" is well known. However, as practice shows, the question of what rights are vested with the authors in their works, remains for many unclear. This question is particularly relevant for those who have been involved in the turnover of the objects of copyright. After all, the right of the author creates the responsibility of the participant turnover to do or, more frequently, refrain from certain actions in respect of the protected object.

now, let's look at what rights are included with the current Russian legislation in the scope of copyright and find out what the legal field have to act all those who come in contact with the objects of these rights protected.

First of all, note that copyright zakonom recognized as works of literature and art regardless of the value and purpose of the work, and also from the way in which it is expressed. Such objects are:

  • literary works;
  • works of painting, sculpture, graphics, design, graphic stories, comics and other works of figurative art;
  • works of decorative and theatrical art;
  • works of architecture, urban planning and landscape art, including in the form of projects, drawings, images, and layouts;
  • photographic works and works obtained by processes analogous to photography;
  • geographical, geological and other maps, plans, sketches and plastic works related to geography, topography and other Sciences.

To objects of copyright rights also include derivative works, i.e. works, which are processing another works and composite works, i.e. works representing by selection or placement of materials a result of creative labor. The derived works include, for example, transfer or processing of another (original) work. The composite work can be attributed collections, anthologies, encyclopedias, atlases or other similar works.

the translator or other author of a derived work shall enjoy copyright respectively on the translation or other processing of the original work, and the compiler of the collection of author or other composite work owns the copyright in the selection or arrangement of materials (sostavitel).

having Considered what objects fall under the protection of copyright, it will be natural to deal with the figure of the author, i.e. the person that arise originally given rights. The author of a literary or artistic work shall be deemed a citizen whose creative work is created. As we already mentioned in the beginning, the main criterion for the recognition of the particular subject of the status of the object of copyright is the creative work of the author. Note that the current legislation does not contain a definition of «creative work». However, reverse the legislator defines the signs by which one can judge about the absence of a creative character of labor. So, not recognized by the authors of results of intellectual activities of the citizens who have not made a personal creative contribution into the creation of such a result, including those who have rendered its author only technical, organizational or material assistance or contributed only registration of the rights to such a result. Not recognized authors also citizens who have exercised control over the implementation of the relevant work.

in addition, in determining the authorship law establishes the following presumption: the person indicated as the author on the original or copy of the work shall be considered its author. Rebut that presumption, that is, to confirm that the author is the other person, you can only submit relevant proofs.

For the arising, realization, and protection of copyright does not require either registration of the work or compliance with any other formalities. It is also worth mentioning that copyright does not depend on the property right to the material carrier (thing), in which the corresponding work is expressed. Transfer of ownership to a thing does not entail the transfer or provision of the copyright in the work embodied in that thing. Simply put, if a collector bought the painting, it does not mean that he has acquired the copyright, including the right to its further resale. Learn more about General rules of transfer of rights at work, as well as the exception from these rules we'll discuss later.

now let's go directly to those rights which arise for the author of the work. Conventionally, these rights can be divided into two groups - the moral and economic rights.

the moral rights of the author are, according to the fair remark of doctor of legal Sciences V.I. Eremenko, the primary source of property rights of authors and other pravoobladanie. Therefore, from the moral rights begin. These include rights such as copyright and author's right to a name, the right to inviolability of the work, the right to publication of a work, the right to a response and the right of access.

Hallmark of this group of rights is the fact that the author's moral rights shall belong to him the force of law and cannot be alienated or otherwise transferred. In some cases provided by law, such rights belonging to the deceased author may be exercised and protected by other persons, including heirs of the rightholder.

Determine the the right of authorship and right are defined in article 1265 Civil code of the Russian Federation (CC RF). Under the law is understood as the right of authorship authorship of the work recognized. While the author's right to a name is a right to use or permit the use of the work under his own name, under an assumed name (pseudonym) or without indication of the name, i.e. anonymously.

When a published work is anonymous or pseudonymous (except when the author's pseudonym leaves no doubt as to his identity), the publisher whose name is indicated on the work, is generally representative of the author and as such has the right to protect the author and to ensure their implementation. This provision is valid until while the author of the work reveals his identity and declares his authorship.

the Following in the list of the moral rights of the author should be inviolability of the work. the Content of this law is formulated in article 1266 of the civil code and is that without the consent of the author of the entry in his work changes, abbreviations and additions to, procurement of works when using illustrations, a Preface, afterword, commentaries or any notes is not allowed.

at The same time, the legislator provides a kind an exception to this rule. So, when the use of a work after the death of the author of the person having the exclusive right to a work (the main of property rights, which is described below), may allow the introduction of the product of changes, reductions or additions, provided that this does not distort the intent of the author and without prejudicing the integrity of the perception of the work and is not contrary to the will of the author, explicit them in a will, letters, diaries, or other written form.

the Fourth moral right is the right of disclosure of the work. According to article 1268 CCRF the author has the right to take action or consent to carry out the action, which first makes the work accessible to the public. The product can be released to the public by publication, public display or in any other way.

the Work published during his lifetime, could be announced after his death, the person having the exclusive right to a work, if the disclosure is not contrary to the will of the author of the work, explicit them in written form (in a will, letters, diaries, and so forth).

the Right of withdrawal is derived from the right of disclosure, but, nevertheless, shall be deemed an independent moral right. In accordance with article 1269 civil code in force of this law, the author may renounce a decision taken earlier to disclose the work, but with the condition of compensation to the person to whom alienated exclusive right to a work or are granted the right to use the work, the losses caused by such decision. If a work has been published, the author is also required public notice of its recall. The author has the right to withdraw from circulation the previously released copies of the work, compensating the losses caused by this.

the Last in the list of the moral rights of the author of the call right, which is in contrast to the above, apply to only one of kinds of works, namely to works of fine art. This is the the right of access. the Content of this law disclosed in section 1292 of the civil code. Under the access right refers to the right of the author of a work of fine art, require the owner of the original of a work by providing opportunities author to make a copy of his work. In other words, the original owner is obliged to provide the author with direct contact with a piece of it: put it in their homes (or in another place, where is the original copy of the work) or pass the original works of the artist at a reasonable time. The law gives the author only able to demand access to the work, but not to dictate his conditions. Also it is impossible to demand from the owner of the original of a work to deliver the work to the author.

the second group copyrights are property rights. Despite the critical importance of personal rights, which we mentioned above, all the same property rights play a key role. The main property right is exclusive right in the work. Unlike inalienable moral rights, exclusive right in the work may be transferred by the author to another person, called the rightholder, by contract or by way of inheritance or in any other manner permitted by law.

However, we should not forget that the transfer of ownership of the thing expressed work, does not mean transfer of the exclusive right to this work. The transfer of such rights of the alienation of the original of a work (manuscript, the original of a work of painting, sculpture, and the like) should be expressly provided for in the agreement between the author (his heirs) and the acquirer. In the case when the exclusive right to a work has not passed to the acquirer of its original purchaser may, without the author's consent and without payment of remuneration only to demonstrate acquired into the ownership of the original work, and play in the catalogues of exhibitions and publications devoted to his collection, and send the original of the work to demonstration at exhibitions, organized by other persons.

the Only exception, which we have already mentioned, is a case in which the original work is alienated by the owner, possessing the exclusive right to a work, but are not the author of the work. Under such conditions, the exclusive right to the work shall pass to the buyer the original of a work without explicitly naming it in the contract.

the Concept of the exclusive right to work is revealed in articles 1229 and 1270 of the civil code. In force of such a right, the right holder (the author or other person, who passed the law) has the right to use the work according to his discretion in any way not contradicting the law. Holder may, at its discretion to permit or prohibit other persons to use the work. No ban is not considered the consent (permission). Other persons may not use the work without the consent of the owner, except for cases directly provided for by the code of cases of free use).

Certain how to use the product directly specified by the law. These include, in particular, include reproduction of the work, distribution of the work, its public display, import of the original or copy of work and other ways.

Other property right of the author is the right of resale. This right applies only to a specific category of works: works of fine art, the author's manuscripts (autographs) of literary and musical works. The resale right is regulated in article 1293 civil code. In case of alienation of the author's original version of one of those pieces of each public resale of a respective involving as seller, buyer or intermediary art gallery, art salon, shop, or other similar organization, the author is entitled to receive from the seller compensation. This fee is a percentage deductions from the resale price. The size of the interest payments as well as the conditions and procedure of their payment is approved by the Resolution of the Government of the Russian Federation dated April 19, 2008, № 285. Droit unlike the exclusive rights shall be inalienable, but can be passed after the author's death his heirs.

now, in this article we have tried to broadly define the scope of protection provided by copyright, and, thereby, to devise guidelines that will not allow the reader to get lost in the vastness of copyright regulation. More details on the issues identified, as well as to cover other topical problems of copyright, we try in our subsequent publications.

1 the Main part of the law governing copyright, is contained in the fourth part of the Civil code of the Russian Federation, which entered into force in 2008.
2 Eremenko V.I. About property rights to works of science, literature and art // the Lawyer. 2010. № 9.

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