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Copyright Regulation in Russia: Rejection of Classical Theories Or Legislative Mistakes?

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Copyright Regulation in Russia: Rejection of Classical Theories Or Legislative Mistakes? Journal of Intellectual Property Rights Vol 18, July 2013, pp 360-368 Copyright Regulation in Russia: 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 Civil Code in the Russian Federation. This intellectual property law codification 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 Published in Articles section of www.manupatra.com MATVEEV: COPYRIGHT REGULATION IN RUSSIA 361 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. Published in Articles section of www.manupatra.com 362 J INTELLEC PROP RIGHTS, JULY 2013 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.
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