Journal of Rights Vol 18, July 2013, pp 360-368

Copyright Regulation in : Rejection of Classical Theories or Legislative Mistakes?

A G Matveev† Perm State National Research University, 614990, Bukirev st, 15, Perm, Russian Federation, Russia

Received 19 December 2012, revised 2 April 2013

Since 2008 standards determining the relationships in the field of intellectual property have completely been integrated into the in the Russian Federation. This intellectual has introduced some principal changes into the regulation of key institutes, one of which is copyright law. This article presents critical analysis of the Russian copyright regulation from the perspective of its correlation with the international law standards and traditional copyright legal theories. Comparative legal, historic and formal dogmatic methods are used in the analysis. The correlation between a Russian notion ‘intellectual property’ and related international standards is discussed in the article. A new category ‘intellectual rights’ for the Russian law is characterized. Correlation between exclusive and author’s moral rights is analysed and the drawbacks in the regulation of these author’s rights are revealed in the paper. In the author’s opinion, Russian rights model to the integrity of the work does not comply with the Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works.

Keywords: Intellectual property, intellectual rights, exclusive copyright, author’s moral rights, right to integrity of the work, Civil Code, Berne Convention

Federal Law ‘Civil Code of the Russian Federation, this practice in scientific and publicist literature. In Part Four’1 of 18 December 2006, which concerns particular, standards of administrative, rather than the relationship regulation in the field of intellectual civil law are included in the intellectual property property, is in legal force since 1 January 2008 in legislation. First of all, these standards focus more on Russia. This law is the last part of the Civil Code of the patent law and the trademark law. It follows from the Russian Federation. The first part of the Civil this that a great number of administrative law Code was adopted in 1994. So this law indicates that standards should not be included in the Civil Code – completion of the civil law codification took 12 years the essential code of the private law. It should also be in Russia. noted that the acceptance of the Fourth Part of the Till 2008 in Russia, the relationships in the field of Civil Code contradicts the international obligations of intellectual property (IP) were determined by separate Russia from the conceptual perspective as the laws concerning author’s and related rights, patent codification described above does not have any rights, the rights to a selection attainment, the rights to analogy on the international level, where IP is legally a trademark and the rights to a service mark. This protected by separate conventions. practice is worldly recognized. Besides, in some Copyright law which plays a great role in modern countries consolidated legislation determines the society occupies a special place in the intellectual intellectual property issues, e.g. French Intellectual property law. Quite opposing interests of the authors Property Code of 1 July 1992 (ref. 2), which, of the literature, music, art, cinema works and however, is not included in the Civil Code. software products and ordinary citizens using these At present, Russia is the only country in the world, works and products on daily basis and the companies where the standards determining relationships in the which make profit on the works are introduced in this field of IP are completely integrated into the Civil element. The copyright law is the first among the Code. A lot of criticism has been expressed against constituents of the IP law in many aspects. For ______example, the copyright law was the first law in the †Email:[email protected] world, which has provided the right to an intellectual

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product labeled ‘exclusive’ nowadays. There was services and enterprises that are granted legal and is now a lot of debate on copyright, rather than protection (intellectual property) are as follows: patent rights or right to the means of identification (1) works of science, literature, and art; (2) computer that indicates and at the same time determines the programs; (3) databases; (4) performances; fact that the copyright law is in a highly controversial (5) phonograms; (6) broadcasting or diffusion of rights sphere. radio- or television transmissions via cable;

The copyright law has the upper hand among the (7) inventions; (8) utility models; (9) industrial constituents of IP law and civil law in its cultural designs; (10) selection-attainments; (11) topographies value. And here author’s moral rights are of particular of integrated circuits; (12) secrets of production importance. These rights are unique for the copyright (know-how); (13) trade names; (14) trademarks and law and they have been developed under certain service marks; (15) appellations of origin; and historic environment. Nobody denies the fact that (16) commercial names. Besides, the Article 1225 of other constituents of IP have the authorship right. the Civil Code copies an RF Constitution Provision Moral rights are especially developed in the copyright on the point that IP is protected by the law. law. There is an intricate combination of these rights The principle change in the legislative and exclusive rights in the copyright law. The definition of the concept ‘intellectual property’ copyright law is likely to be the leader among the can be explained by the following circumstances. The constituents of IP law in a number of theories ideas on intellectual property by a well-known explaining nature of the constituent and revealing a Russian Professor VA Dozortsev (1928-2003) had connection between moral rights and exclusive rights. made a significant influence on the legislators of the

Russian legislators tried several ways of developing Fourth Part of the RF Civil Code. Prof Dozortsev the standards of copyright in the Fourth Part of the believed that the term ‘intellectual property’ is quite Civil Code. First of all, it was essential to stick to the arbitrary, as any other term. It is used both in commonly accepted theories and principles. Secondly, international documents and in the materials of an effort was made to base the law on one particular political nature. With its arbitrary political and theory. Thirdly, the legislators had to take into economic understanding, rather than juridical nature, consideration both the standards of the international the term can be justifiably used. Prof Dozortsev felt copyright law and the practice of foreign (primarily, that the term ‘intellectual property’ is not appropriate European) countries in copyright legal relationships from the juridical perspective. It may be considered to regulation. Did the Russian legislator manage to deal be related to the results of intellectual activity of the with these points successfully? Were there great ownership. At the same time, the objects of the changes introduced into the legislative theory of the intellectual property and the objects of the ownership copyright in Russia? Does the theory comply with the differ from each other in their nature. The first ones international law? are of non-material nature, while the latter ones are

The objective of the article is to consider the issues the things. It is quite inappropriate to give such different objects the same legal status.4 of correlation between the copyright regulation in Russia and the international law standards and the So, Prof Dozortsev understood inappropriateness of traditional legal theories of copyright. the term ‘intellectual property’ and believed that the literal (word-for-word) understanding of this term Concept of Intellectual Property could lead to wrong identification of the intellectual Clause 1 of the Article 44 of the Russian activity. Indeed, literal interpretation of the term Federation Constitution of 12 December 1993, states ‘intellectual property’ does not reflect the actual that intellectual property is protected by law.3 juridical understanding of the intellectual property. Till 1 January 2008, the term ‘intellectual property’ However, Prof Dozortsev likely exaggerated the was defined by the concept ‘exclusive right’ in the negative influence of the word-for-word interpretation Article 138 of the Civil Code of Russia. Currently the of the term on the legislative system, court practice concept of intellectual property is given in the Article and theory in the area of IP. He did not pay attention 1225 of the Fourth Part of the Civil Code. The results to the fact that in jurisprudence, the terms more often of intellectual activity and means equated to them of than not; acquire specific meaning which is quite individualization of legal entities, goods, work, different from everyday speech of common citizens.

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For example, in Russia for about 100 years Still being a rule-of-law state, Russia should comply legislators and judges stuck firmly to the opinion that with the international standards, thus avoiding copyrights and patent rights are included into special discrepancies between the national legislation group of civil rights, rather than into a group of provisions and the provisions of international law. It property law. Prof Dozortsev’s opponents did not should be underlined here that the Russian Federation insist on that fact that the property law should be Constitution proclaims the international law standards the basis to regulate relationships in the usage of a priority over the national legislation standards. For work, invention, trademarks. instance, Clause 4 of the Article 15 states that Prof Dozortsev thought that it was time to change commonly accepted principles and standards of the the terminology in the field in question. A juridical international law and international agreements of the term must not be ambiguous. If an established Russian Federation comprise an integral part of its terminology results in wrong understanding of the legislative system. If an international agreement of the concepts of nature, then it must be abandoned. One Russian Federation establishes the rules other than the should differentiate between the objects and the rights ones stated in the legislative system, then the rules of to them. Prof Dozortsev suggested objects to be the international agreement apply. That is why a named by the term ‘intellectual product’ and the Russian legislator should use the international legal rights to these objects – intellectual rights.4 understanding of the intellectual property combined Thus, Prof Dozortsev did not use the concept with the Clause 4 of the Article 15 of the Constitution ‘intellectual property’ in his theory. However, the in his legislative activity. legislators of the Fourth Part of the Civil Code of Russia could not, but use the term ‘intellectual New Category ‘Intellectual Rights’ property’, as the RF Constitution mentions intellectual The category ‘intellectual rights’ became one of property protection. As a result the Article 1225 of the the conceptual innovations in the Fourth Part of the Civil Code has the definition of the intellectual RF Civil Code. The Article 1226 of the Civil Code property, which is understood as the result of the states that intellectual rights, including exclusive right intellectual activity and the means of identification. which is proprietary right, and also personal The Russian definition of the intellectual property non-proprietary rights (moral rights) and other rights contradicts the Article 2 of the Convention (droit de suite, right of access and others), only in the establishing the World Intellectual Property cases specified by the present Code, are claimed to be Organization (WIPO) of 14 July 1967 (ref. 5). This the results of the intellectual activity and means of article contains the international legal concept of identification. The Article 1226 declares that the intellectual property: ‘intellectual property’ shall intellectual right is not a homogeneous right. On the include the rights relating to literary, artistic and contrary, ‘intellectual right’ is a generic concept with scientific works, performances of performing artists, ‘exclusive right’, ‘personal non-proprietary right’ and phonograms, and broadcasts, inventions in all fields ‘other rights’ as its sub generic concepts. However, of human endeavor, scientific discoveries, industrial the latter two types of rights are not always included designs, trademarks, service marks, and commercial in intellectual rights. The copyright law is the field, names and designations, protection against unfair where these types of rights are widely used. competition, and all other rights resulting from The term ‘intellectual rights’ is not used in the intellectual activity in the industrial, scientific, international agreements signed from the Russian side literary or artistic fields. It is apparent that the and in the foreign countries legislation. Nevertheless, Convention establishing WIPO defines the intellectual regardless of the situation, this term has become one property as the rights to the objects, while the objects of the main categories of IPR in Russia due to the 6 themselves are the intellectual property in the influence of Prof Dozortsev, a theory founder. RF Civil Code. The Russian legislator justified a new category The discrepancy between the Russian definition of ‘intellectual rights’ by saying that this category the intellectual property and the Convention would become a general name for the rights to 7 Provisions establishing WIPO is conceptual. It neither intellectual property. concerns the content of author’s and inventor’s rights, In the works of Prof Dozortsev, there are no nor weakens the efficiency of these rights protection. profound and persuasive arguments for the

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introduction of a category ‘intellectual rights’ into the the Article 138 of the revised Civil Code being legislative system. Prof Dozortsev only noted that it effective up to 1 January 2008. Here author’s moral would be a good idea to use a generalized term rights are understood as exclusive ones. The provisions ‘intellectual rights’ along with a term ‘exclusive of the Article 37 of the Law on Copyright and Related rights’. He believed that the term ‘exclusive rights’ Rights support this point. This Article 37 declares that was not a good one and it could not be used as a the right to name and the right to performance generalized word to identify the right to intellectual protection from any distortion are among the exclusive property. The literal understanding of the term rights. Prof A P Sergeev believes that the author ‘exclusive rights’ made the scientist say that the acquires a number of rights of both non-proprietary and exclusive right is the right which only one person 4 proprietary nature in the process of creation of science, owns. Thus, the method of word-for-word literature and art works. These rights are traditionally understanding of the juridical terms resulted in a called ‘exclusive’ in the copyright legislative system paradoxical conclusion – right of obligation could be and in theory.9 Generally, the Russian Law on exclusive as well. Copyright and Related Rights is conceptually similar to Prof Dozortsev criticized the term ‘intellectual French copyright model. The Article L111-1 of the property’ for its juridical inappropriateness, but, at the French Intellectual Property Code of 1 July 1992, states same time, suggested a legislator to use a term that the exclusive incorporeal property right shall ‘intellectual rights’, which is also of ambiguous include attributes of an intellectual and moral nature as nature. The point is that the meaning of the word well as attributes of an economic nature, as determined ‘intellectual’ limits a number of objects of the by Books I and III of this Code. intellectual rights to the results of the intellectual According to Prof Sergeev’s opinion, the author’s activity, as the creativity criterion does not have any moral rights are classified as intangible benefits, thus legislative value in right registration on means of not being exclusive. Prof Dozortsev supported this identification. point of view and believed that only proprietary The notion ‘intellectual rights’ is not mentioned in intellectual rights could be exclusive. His arguments the Chapter 76 of the RF Civil Code ‘rights to means are: First of all, non-proprietary rights are considered of identification of the legal entities, goods, services, not as an object of economic turnover by the works and companies’, although the notion should Civil Code– they comprise minor, but still very equally be applied to the means of identification important part of civil law, which is aimed to protect, according to the Article 1226. Chapter 75 ‘right to rather than regulate them. Secondly, there is no need production secrets (know-hows)’ does not have this for a special category outside the absolute law, as the term either. In some cases, the term ‘intellectual key features of the non-proprietary rights are rights’ repeats some traditional notions of intellectual inalienability and non-transferability, which exclude property law. For example, intellectual rights to their involvement in the economic turnover.4 science, literature and art works are the copyright Scientific ideas of Prof G F Shershenevich (Clause 1 of the Article 1255 of the Civil Code). (1863-1912) exerted a great influence on Intellectual rights to inventions, useful models and Prof Dozortsev’s thoughts on the correlation industrial designs are the patent rights (Clause 1 of the between the exclusive and author’s moral rights. Article 1345 of the Civil Code). Prof Shershenevich wrote that copyright law had proprietary nature, and in case private interests were The Concept and Structure of the Exclusive Copyright somehow protected, this could only be the result of There was some uncertainty on the issue some involuntary effect of the law in question.10 whether the author’s moral right should be The Article 1226 of the Civil Code contains considered to be exclusive right in one of the Russian essential characteristics of the exclusive rights in the legislative system till the time when the Fourth Part acting Russian legislative system. The Article of the Civil Code came into force, that is in the declares that the exclusive right is a proprietary right, period of RF Law on of Copyright and Related Rights and non-proprietary rights cannot be considered of 9 July 1993 (ref. 8). as exclusive. The first viewpoint is based on the Articles 15 and What is more, the key aspects of the exclusive 16 of the Law of Copyright and Related Rights with rights are stated in the Article 1229 of the Civil Code.

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This Article provides a juridical solution to a distribution, public display of the work, public traditionally theoretical question of the structure of performance of the work, broadcast, etc. the exclusive rights. In terms of the Russian Special attention should be paid to the words legislative system, the structure of right consists of the ‘including’ and ‘in particular’ in the Clauses 1 and 2 elements, powers, which are understood as different of the Article 1270 of the Civil Code. These words opportunities for a right holder. According to the most indicate that the list of the ways described in the widely recognized and logical theory, any right has at Clause 2 of the Article 1270 is open (or provisional). least two such elements – an opportunity to perform This practice is quite typical in respect to the right acts and an opportunity to demand a certain type of holder’s actions. However, it is dangerous in respect behaviour from the third parties. However, the to other people who are convicted in exclusive right Article 1229 of the Civil Code suggests another violation, since any action with a work, not explicitly theory with the exclusive rights having 3 elements. listed in the Clause 2 of the Article 1270 of the Civil First, a right holder has the right to use intellectual Code, is potentially viewed as exclusive right. In property in any way which conforms the law. other words, the Article 1270 of the Civil Code is a Secondly, a right holder can dispose of the exclusive tool to bring violators to account for the actions not rights. Thirdly, he can permit or forbid the other explicitly stated in the law. parties to use his IP at his own discretion. Surprisingly, the Plenum of the RF Supreme Court Theoretically, this concept is supposed to be the right supported this legislative inaccuracy in its Resolution one. The disposal of the exclusive rights means to N 14 ‘On the Practice of Hearing of the Criminal perform juridical acts, while IP usage is connected Cases of Copyright, Related, Inventor’s and Patent with some physical acts. It is better to single Rights Violation and of Illegal Usage of the out the physical and juridical acts in different Trademark’ of 26 April 200611 (ref. 11). Clause 4 of types of powers. this Resolution states that according to the Article 145 Surely, the abovementioned facts on the structure of the RF Criminal Code, the court must clear up and of the exclusive rights have doctrinal interpretation specify the actions, which violate the rights of the and are not discussed in courts sessions. Nevertheless, works of authors, their successors, performers, it is quite unique for the Russian copyright law that photogram’s producers, air cast and cable cast probably in no other country purely theoretical issues organizations and other rights holders, in the verdict, have been touched upon in the legislative system. In provided that the fact of illegal usage of the objects of other words the Russian legislator partly developed the copyright and related rights has been proved. the Fourth Part of the Civil Code in terms of theory. RF Supreme Court considers these actions to be as follows: reproduction (production of one or several Exclusive Copyright Content copies of work or its part in any tangible form, Undoubtedly, the general standards of Russian including work recording or phonogram in a computer regulation on exclusive copyrights content correspond memory, on hardware) done without author’s or the to the provisions of the international law. However, related right holder’s consent, sale, hire of work the copyright law in Russia is of specific nature in copies or phonograms, public display or public some points, which have been developed due to the performance of the work, promulgation of works, court practice. phonograms, performances, public play production The Article 1270 of the Civil Code describes the via radio or television (broadcasting), Internet exclusive copyright. Clause 1 of the Article states that network distribution, work translation, its revision, the exclusive right to use the work in any manner and phonogram revision, software modification for a in any legal way (exclusive right to a work), including computer or a database, other actions without any the ways listed in Clause 2 of the given Article, proper legal contract signed. It is wrong to belong to the author of the work or any other specify any other actions, which are not directly copyright holder. Clause 2 enumerates the ways and stated in the law. manners of the work’s usage regardless of the fact The practice described above is quite inappropriate whether these actions are aimed at profit making or for the judicial practices of the countries with the law otherwise. Then 11 possible ways of the work’s usage order having been developed for many years. The are given, they are work reproduction, work exclusive right specificity is that only the

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wrongdoings specified in the legislative documents personal non-proprietary rights (moral rights) and are sued. This approach has some historical other rights (Article 1226). On the other hand, background, as at the very beginning of the copyright unfortunately, in the RF Civil Code there is no list of development criminal responsibility for counterfeit author’s moral rights similar to the one in the foreign with preliminary or open list of the criminal countries legislative systems. wrongdoings played the key role. Some rights are directly recognized as personal author’s moral rights in the Civil Code. These are Author’s Moral Rights authorship rights and the right of author in his name. The question of whether author’s moral rights Right to the integrity of the work, right to make a should be recognized as exclusive or not, is first of work public and right of withdrawal, which are surely all, of theoretical value. J A L Sterling says: ‘different author’s moral rights; do not belong to any type of legal traditions adopt different approaches and intellectual rights in the Civil Code. This inaccuracy theories to support recognition of rights. National has some practical consequences, because every type laws evolved separately, often from different 12 of intellectual right is specifically protected with its starting points’. own protection method in Russia. So during a court In the latest 15-20 years, the Russian copyright law session a question may arise whether the right to has followed the French tradition, where the author’s make a work public and the right of withdrawal moral rights are exclusive ones. At the same time only should be protected by the author’s moral rights author’s proprietary rights are recognized to be protection methods. exclusive in many legislative systems. For example, German Law on Copyright and Related Rights of The Right to Integrity of the Work 9 September 1965 follows this approach.13 But it The right to integrity of the work is a complex right cannot be said that due to this the German tradition of with complicated content. It is difficult for a legislator the copyright regulation weakens the protection of the to specify its limits. For example, the Article 121-1 of author’s moral rights. the French Code of the Intellectual Property states that an author has the right to have his work However, in Russia exclusion of the author’s moral respected. So there is no need to specify the limits. rights from the group of exclusive rights negatively But French legislator has got the right to be laconic, affected the protection of the rights, which are because the French legislative system has substantial important for the copyright law. According to the background and court practice with all law aspects of Civil Code, the author has no right to demand right to respect of the work developed. The Russian compensation for moral rights violation, while, copyright law is just at the very beginning of its according to the RF Copyright and Related Rights development, that is why a legislator has a very Law, it could be possible. The next drawback is serious and challenging job of precise and faith narrowing of the term of pirated copies of the works. regulation of the intricate relationships. According to the Paragraph 4 of the Article 1252 of The right to integrity of the work is highly the RF Civil Code, tangible media, the usage of which ideologized. This right is based on the belief that results in exclusive rights violation only, are work is the reflection and continuation of the author’s considered to be the pirated copies. According to the personality, and this personality should also be earlier law, the pirated copies were stated to be the protected in the work. It is clear that there are a whole copies of the works, reproduction and distribution of range of humanistic and individualistic views on which may lead to any author’s copyrights violation personality which underlie this right. The limits of (Paragraph 4 of Article 48). Correspondingly, at rights of the work integrity are philosophically, present there is no reason to confiscate and destroy aesthetically and politically determined, on the one copies of the works, usage of which may result in hand, but on the other hand , they influence culture, author’s moral rights violation only. art and media. Some inaccuracies could be found in the Russian Generally, the right to the work integrity should legislative system in the regulation of author’s moral harmonize quite controversial interests: on the one rights list. On the one hand, the Fourth Part of the hand, an interest to maintain work authenticity and Civil Code is based on strict differentiation of the integrity, on the other hand, an interest to protect intellectual rights into three groups: exclusive rights, unlimited free creativity, interpretation of the cultural

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values, completely frees adaptation of works. The first Code restrict the author’s actions in opposing interest is sacralisation of the work and the author, the contextual offences. The Clause 1 of the Article 1266 latter one is parasiting on culture. Sticking on one of the Code mentions only and the most primitive interest will result in a disbalanced culture. type of such offences – including pictures, foreword, When the Fourth Part of the Civil Code came into afterword and commentaries in the work. This force, regulation of the right to integrity of the work unjustified narrowing of the content of the right to has substantially changed in comparison with the law integrity of the work both limits the author’s interests on copyright and related rights of 9 July 1993. Clause 1 and contradicts the Article 6bis Berne Convention for of the Article 1266 of the Civil Code states that no the Protection of Literary and Artistic Works of changes, abridgements and additions, foreword, 9 September 1886, which states that the author shall afterword, commentaries or any other explanations, have the right to object to any distortion, mutilation or interspersing illustrations through the book are other modification of, or other derogatory action in allowed without the author’s consent (the right to the relation to the said work, which would be prejudicial work integrity). to his honor or reputation.15 So concerning the list of The legislators of the Fourth Part of the Civil Code illegal derogatory actions in relation to the work the believe that the content of the right to work integrity Russian right to the work integrity neither follows the set in the Article 1266 is much broader than the French tradition to protect the works from any content of the right to protection of author’s honour contextual offences, nor has any models in the and reputation in the RF law on the copyright and copyright laws of the European countries. In other related rights. 6 Prof D A Medvedev, the President of words, the Russian legislators made a mistake in the the Russian Federation from 2008 till 2012, says: regulation of the right in question. This mistake could ‘Alongside with the measures aimed at strengthening be explained by non-critical adherence to the model author’s proprietary rights protection, the Code sets of the right to integrity of the work taken from the other measures, which are applied to protect author’s legislative system of USSR, which did not participate moral rights, for example, then known in the Russian in the development of Berne Convention. legislative system for many years approach to the It is quite interesting to see how the legislators of right to integrity of the work has been restored. In the Fourth Part of the Civil Code made every effort to content this right is broader than the right to ensure compliance of the Article 1266 of the Code protection of author’s honor and reputation set in the with the Berne Convention. Presumably, to show link law on copyright and related rights, and the author’s to the Berne Convention it was decided to include interests are under stronger protection’.14 Clause 2 into the Article 1266, which states that the Are the legislators of the Fourth Part of the Civil author shall have the right to demand protection of his Code right by saying that the content of the right to honour, dignity and reputation in accordance with the integrity of the work is broader? Yes, to some extent Article 152 of the present Code in case of any this statement is true, because the Article 1266 of the distortion, mutilation or other modification of the Civil Code introduces a subjective concept of the work. The legislators of the Fourth Part of the Civil right to integrity of the work, that is, the author is Code justify the Clause 2 of the Article 1266 by empowered to oppose any changes, abridgements, saying that the author’s reputation protection has legal additions, and it is not limited to the cases when these force in case of his work distortion even after the 6 actions could harm author’s interests or his/her honor, Fourth Part of the Civil Code will be legalized. dignity and reputation. The stated subjective theory of Thus, an attempt of the Russian legislators to the right in question was founded and recognized in ensure compliance of the Article 1266 of the Civil the French copyright law and here the Russian right to Code with the Clause 1 of the Article 6bis of the the integrity of the work is related to the French law Berne Convention by including Clause 2 into the on respect to the work. Code appeared to be unsuccessful, and it reveals the However, if this right is considered from the fact that the legislators of the Fourth Part of the Civil perspective of the prohibited offences, it should be Code lack understanding of the minimal international noted that since 1 January 2008, content of the right to standards in the field of protection of the right to the integrity of the work has become significantly integrity of the work. First of all, the wording narrower, since norms of the Article 1266 of the Civil in the Article 6bis of the Berne Convention on

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moral rights is misinterpreted by the Russian independent court practice and developed court legislators as a necessity to protect honor and dignity practice in copyright, in the Fourth Part of the Civil of the author in case of his work distortion. In fact, Code instead of progress in regulation of the personal moral rights is a qualifying element to protect non-proprietary rights, that could have been expected a work from any offences. The wording of the to happen due to adhesion of Russia to the Berne Article 6bis of the Berne Convention on the honour Convention. On the one hand, underlying principle of and dignity of the author is known to be a the Fourth Part of the Civil Code is a clear compromise between Romano-Germanic and Anglo- classification of the intellectual rights into three American copyright laws.16 Such qualifying element groups: exclusive rights, personal non-proprietary as harm to the legal personal or creative interests of rights and other rights. On the other hand, in the the author done by any distortion corresponds to RF Civil Code there is no such list of author’s moral Romano-Germanic tradition of copyright law. rights similar to the one in the legislative systems of Secondly, Clause 2 of the Article 1266 of the the foreign countries and the one the legislative Civil Code does not contain any recommendations system of Russia used to have. regarding any other offences towards the work One of the most serious mistakes is that the (contextual offences). Consequently, the provisions of Russian right to the integrity of the work does not this Clause have failed to broaden the content of the permit author to oppose contextual offences right to the work integrity. towards work, which contradicts the Article 6bis of the Berne Convention for the Protection of Literary Conclusion and Artistic Works. The Russian legislators faced a challenging task of codifying intellectual property right in the Civil Code. Acknowledgement Some serious changes have been introduced into the The author acknowledges that the research was copyright regulation due to this codification. Most of supported by the Russian Humanitarian Science these changes are of conceptual nature. For example, Foundation, grant 13-03-00191. introduction of the category ‘intellectual rights’ in the Civil Code reveals commitment of the Russian References legislators to the theory of Prof Dozortsev. However, 1 Civil Code of the Russian Federation (Part Four) of desire to stick to this theory has led the legislators to 18 December 2006, http://www.wipo.int/wipolex/en/ some legislative mistakes, but not all mistakes are the details.jsp?id=11320 (12 December 2012). result of the legislative embodiment of the intellectual 2 Intellectual Property Code of the France of 1 July 1992, http://www.wipo.int/wipolex/en/text.jsp?file_id=180336 rights theory. (12 December 2012) Russian definition of the intellectual property 3 Constitution of the Russian Federation of 12 December 1993, contradicts the Article 2 of the Convention http://www.departments.bucknell.edu/russian/const/constit.ht establishing WIPO. Intellectual property is ml (12 December 2012). understood as right to the objects in the Convention, 4 Dozortsev V A, Intellektualnyye prava: Ponyatiye. Sistema. Zadachi kodifikatsii (Statut, Moscow), 2005, p. 37-38, whereas it is the objects themselves in the Civil Code 54-56,138-139. of Russia. This contradiction is conceptual, which 5 Convention Establishing the World Intellectual Property does not weaken the protection of copyrights. Organization of 14 July 1967, http://www.wipo.int/treaties/ The list of methods to use the work set in the Civil en/convention/trtdocs_wo029.html (12 December 2012). 6 Kommentariy k chasti chetvertoy Grazhdanskogo kodeksa Code, which is the content of exclusive author’s right, Rossiyskoy Federatsii (Statut, Moscow), 2008, p. 277, 399, 400. is open (or provisional). The open nature of the 7 Explanatory Note to the draft of the Forth Part of the Civil methods of the work usage is a regular practice in Code of the Russian Federation. http://www.lawmix.ru/ relation to the right holder’s actions. However, it is a lawprojects/35893 (29 March 2013). dangerous tool for those accused of exclusive right 8 Law on Copyright and Related Rights of the Russian Federation violation, since any action with the work not directly of 9 July 9 1993 (law was repealed), http://www.wipo.int/ named in the law is expected to be covered by the wipolex/en/details.jsp?id=7217 (12 December 2012). 9 Sergeyev A P, Pravo intellektualnoy sobstvennosti v Rossiyskoy content of the exclusive right. Federatsii (Izdatelstvo ‘Prospekt’, Moscow), 2001, p. 191. One can observe a setback, a fall back to the rigid 10 Shershenevich G F, Avtorskoye pravo na literaturnyye patterns, which could have been acceptable in proizvedeniya (Tip. Imperatorskogo Univ., Kazan), 1891, p. 69.

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11 Resolution of the Plenum of the Russian Federation 14 Medvedev D A, Novyy Grazhdanskiy kodeks Rossiyskoy Supreme Court ‘On the Practice of Hearing of the Criminal Federatsii: voprosy kodifikatsii, Kodifikatsiya rossiyskogo Cases of Copyright, Related, Inventor’s and Patent Rights chastnogo prava (Statut, Moscow), 2008, p. 20. Violation and of Illegal Usage of the Trademark’ of 15 Berne Convention for the Protection of Literary and Artistic 26 April 2006, N 14, http://www.rg.ru/2007/05/05/sud- Works of September 9, 1886, http://www.wipo.int/treaties/ prava-dok.html (29 March 2013). en/ip/berne/trtdocs_wo001.html (12 December 2012). 12 Sterling J A L, World Copyright Law (Sweet & Maxwell, London), 2003, p. 39. 16 Ricketson S and Ginsburg Jane C, International Copyright 13 Law on Copyright and Related Rights of the Germany of and Neighbouring Rights: The Berne Convention and 9 September 1965, http://www.wipo.int/wipolex/en/text.jsp? Beyond (Oxford University Press, New York-Oxford), nd file_id=239044 (29 March 2013). 2 edn, 2006, p. 592-596.

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