Intellectual property in the Russian Federation is subject to legal protection. Various authorities are responsible for its provision. There are many regulatory acts that include provisions on the protection of intellectual property. What are the features of the Russian legal system in this area?
Intellectual Property Definition
What is intellectual property? It can be noted that not only in Russian, but also in world legal practice, this term has been fixed relatively recently. Of course, the history of its use is long - according to a popular historical assessment, it appeared in the 18th century.
However, some experts note that the term received official status only in the 60s of the 20th century. This was facilitated, in particular, by the creation of an international public institution, one of the key competencies of which was the protection of intellectual property. What structure are we talking about? This is the World Intellectual Property Organization. And this, according to many experts, was the first international precedent for the formation of a full-fledged structure of this type. At the level of the WIPO constituent norms, the following basic objects of intellectual property were determined:
- literary works, as well as artistic and scientific sources;
- results of artists, sound recordings, television broadcasts, radio broadcasts;
- inventions;
- scientific discoveries;
- results of industrial developments;
- trademarks and other signs related to the commercial sphere.
It can be noted that at the time of the creation of the World Intellectual Property Organization, few suspected how rapid the development of the computer industry would become. Therefore, in this “constituent” list there are no direct associations with computer programs, although some experts believe that in a number of provisions of the Stockholm Convention, one of the key documents of WIPO, there are items that can be interpreted as relevant to the products of intellectual labor in the form of computer programs. However, in the modern laws of various countries, software, of course, is attributed to copyright.
One can also note a historical fact: despite the fact that the USSR participated in the establishment of the organization in question, the term “intellectual property” in the Soviet Union, as some experts note, was not widely used. Only during the years of Perestroika did initiatives appear in the country regarding the introduction of the corresponding term into legal circulation. So, in the Law “On Property” adopted on March 6, 1990, the phrase “objects of intellectual property” appeared, which is thus correlated with inventions, scientific discoveries, works of literature and other creative products. Subsequently, the term in question was noted in the Constitution of the Russian Federation, as well as in the Civil Code of Russia.
Ownership or exclusive right?
The concept of intellectual property in Russian legal practice is closely related to the term “exclusive right”. Some experts note that in the first versions of the Civil Code of the Russian Federation these concepts were actually identified. However, today's patterns of legislation reflect exclusive rights as one of many aspects of intellectual property.Although, as noted by lawyers, in practice, these terms often carry almost the same semantic load.
By publishing a literary work, the author immediately acquires two types of rights to it. One of them is exceptional. It allows, in particular, to use the result of creative work in a commercial aspect. However, the concept of intellectual property also includes the term “personal rights”. Which, in turn, at the level of Russian laws are defined as non-property. Modern lawyers single out personal rights within the following spectrum:
- the right to be called the author of the product of intellectual labor;
- the right to inviolability of the result of creativity;
- the ability to change the name indicated when publishing the product of creative work.
Thus, having given or ceded the exclusive right on a commercial basis, the author of the work, nevertheless, does not lose his personal, which can also be considered a full-fledged element of intellectual property.
The owner exclusive right by law, has the right to publish a particular creative product indicating the name of the author. That is, if, for example, a web design studio ordered a website concept from a private specialist, then its subsequent publication, if the law is followed, should be made with reference to the name of the developer. This is done, in accordance with Russian law, the protection of intellectual property in terms of guaranteeing the inalienability of personal rights. Although, as many experts note, in practice this norm is not always respected.
At the same time, it should be noted that the exclusive right cannot belong to the author if he created a certain creative product, fulfilling the order in the process of carrying out labor activities under the contract, drawn up in accordance with the norms of the Labor Code of the Russian Federation. All rights to the commercial use of the result of human labor remain on the side of the employing company.
Personal law - outside corporations
It should be noted the most important aspect - intellectual property in the aspect of personal law, according to the law, can be relevant only to individuals. Corporations can operate on products of creative labor, therefore, only in the format of exclusive rights. And this is another feature of Russian legislation (as well as many of its foreign models).
Property Protection
Let us consider in more detail such an aspect as the protection of intellectual property. It can be noted that some lawyers prefer to distinguish this concept from another term - protection. Experts believe that security activities in relation to intellectual property presuppose the predominant activity of legislative structures of power, issuing legal acts aimed at ensuring the preservation of the legal rights of authors of creative products. In turn, the protection of rights involves the predominant activity of executive and judicial structures of power in the form of a response to an actual violation of the law. Although many lawyers prefer to combine the two types of activities in a general category. A little later we will consider in more detail what mechanisms exist to protect intellectual property rights in Russia.
Specificity of intellectual property rights
What can be intellectual property? Some lawyers identify a key criterion that allows you to fix the belonging of a product of creative work to the objects in question. It is the existence of legislative provisions that guarantee legal protection for a particular type of product. That is, in accordance with this point of view, intellectual property cannot be fully protected due to the fact that the nature of its objects is not properly enshrined in the legislation.
As some lawyers believe, in practice this state of affairs was observed in the Russian Federation in the 90s and in the early 2000s with regard, in particular, to computer programs. Legislation that would uniquely characterize software as an object of intellectual property was absent for a long time. And this has become, experts say, one of the reasons for the distribution of pirated versions of software in Russia through a variety of channels. The fact that, say, abroad, certain objects are fixed in the legislation does not matter if relevant legal acts are not adopted in the Russian Federation, experts say.
Intellectual Property Rights: Controversial Aspects
Many lawyers believe that Russian law is still far from being perfect in such areas as the protection of intellectual property. That is, the ambiguity of the criteria in terms of determining the object of copyright is not the only problematic nuance. Consider the relevant aspect in more detail.
As you know, one of the key legal acts in accordance with which copyright protection was carried out was considered the Law of the Russian Federation No. 5351, adopted in 1993. According to lawyers, this legal act and relevant laws did not allow us to uniquely identify a product of intellectual labor as a work subject to legal protection. That is, in practice, the authors could have difficulty confirming their direct participation in the creation of a product of intellectual labor. Instead of the said Law of the Russian Federation, new provisions of the Civil Code were introduced. But even some lawyers believe that they did not bring enough clarity to the problem area under consideration.
Experts believe that the Russian sphere of intellectual property is highly dependent on judicial practice. That is, what is formulated in normative acts often requires further interpretation in the process of the corresponding type of hearing. In accordance with what criteria do courts most often determine the person who created certain objects of intellectual property rights? Lawyers note that among the basic - novelty and originality. That is, if the author in court managed to prove that he wrote the book first, then he recognized the right to protect the product of his labor.
Legal mechanisms for the protection of intellectual property
Despite the imperfection of legislation in the field of intellectual property, recognized by a number of lawyers, in the legal system of the Russian Federation, one way or another, there are sufficiently formed legal mechanisms for protecting copyright. Consider the essence of some of them.
Thus, the Civil Code will be the main source of law for us. Among the basic provisions of the Russian legislation relating to the protection of intellectual property is the provision of the Civil Code of the Russian Federation that copyright to any creative work does not require confirmation, that is, it arises immediately after the creation of a formalized product.
In accordance with the current provisions of the Civil Code, the alleged copyright infringer must, as a matter of priority, prove that he is not guilty. Also, liability measures can be applied to persons who in one way or another controlled the actions of actual violators.
As regards unlawful acts in the field of intellectual property that were committed on the Internet and other digital networks, a provider can also be held liable, which provided the technical possibility of actions by violators.
Some provisions of the law governing how a person can manage intellectual property are interesting.So, for example, if some musical composition is published on the air of a radio station, then the right to a monetary reward will remain not only for the composer who composed the melody, but also for other authors of the audio recording.
In this case, a variant is possible in which the song producer (track manufacturer) will receive the exclusive right to the corresponding intellectual work product, unless otherwise provided by the agreements concluded with the composer and other song authors.
Patents and Licenses
Intellectual property is, in accordance with the laws of the Russian Federation, also patented inventions. This area is regulated by a separate group of laws. Another form of protection of intellectual property that is sufficiently close to the patent as provided for by Russian law is a license. It is used in areas such as software development, in music, in the cinema industry.
Copyright and trademarks
Also, Russian and international intellectual property can be protected through legal norms that provide for the use of special graphic symbols that record the fact of protection of the object of creative work by copyright. For example, it can be an easily recognizable copyright icon or, for example, a trademark that is registered in the prescribed manner.
Russian enterprises can protect their rights by registering their own brand names. By default, all business entities in the Russian Federation must have the appropriate attribute. However, only after they have issued it within the framework of the relevant registration procedure, the name may be the subject of exclusive right.
There is an independent authority, the competence of which is to ensure the protection of relevant rights: Federal Service for Intellectual Property. This agency is responsible for improving efficiency. copyright protection, as well as for the development of legislative provisions relevant to their activities.
Responsibilities for violations
What are the measures of liability provided for by laws of the Russian Federation for violation of the rights to use intellectual property?
Among the most significant experts, we single out the provision according to which the rightholder who finds that his product of intellectual labor is used outside the norms prescribed by law has the right to demand damages from the violator in court. The amount of possible compensation varies from 10 thousand to 5 million rubles. Or it will be charged in an amount twice the average cost of the right to use a product of creative work of a similar type.
