Intellectual property

 

Intellectual property is the legally protected results of intellectual activity and means of individualization. Types of intellectual property rights are usually classified into:

• copyright;
• rights related to copyright;
• patent law;
• non-traditional IP objects (production secrets, chip topology, etc.);
• means of individualization of legal entities (brand name, commercial designation, trademark);
• unified technology (technical data).

Intellectual property rights are divided into three types:

1. Property rights. They are associated with the author; they can be sold on the basis of a contract.
2. Personal non-property rights. They are inseparable from the identity of the author, include the rights to authorship, name. The transfer of rights to another person is not allowed.
3. Other personal non-property rights arise in relation to various types of objects of law. These are the rights: to follow, to patent, to access, to recall.

Intellectual property is divided into two main areas of rights: copyright and related copyrights and industrial property. The copyright category includes works of art or science, as well as computer programs. Related rights are rights in relation to performances, productions, phonograms and other IP objects that have become public domain.

Industrial property is a set of legal norms regulating relations arising in connection with the creation and use of IP objects. Includes:

• Patent property that protects IP objects;
• rights to means of individualization, which apply to brand names and commercial names of companies, trademarks, names of places of origin of goods;
• production secrets, which recognize any information about IP objects in the scientific and technical field and methods of their application.

In the legal provision of IP, there is a distinction between the protection of rights and their protection. The protection of rights is a general legal order in the field of IP, enshrined in normative acts, carried out in an out-of-court and judicial manner. The out-of-court form of protection includes self-defense established by the author in the contract concluded between the copyright holder and the acquirer of the IP right. The judicial forms of protection include civil law, administrative law and criminal law methods of protection.

Personal non-property rights are inseparable from the identity of the author, and their transfer is not allowed. The transfer of property rights from the copyright holder to another person is possible. The copyright holder of property rights has the right to transfer copyrights on the basis of a civil contract. The assignment of IP rights takes place under an exclusive right alienation agreement, and the transfer of copyright for a time by granting the right to use IP to another person takes place according to civil law agreements: alienation, license, and labor, under a state (municipal) contract.

The following offences are subject to administrative responsibility for violations of copyright and related rights:

• violation of copyright and related rights, inventive rights;
• violation of the established patenting procedure;
• sale of goods, performance of work of inadequate quality;
• sale of goods, performance of works in the absence of CCT;
• consumer fraud;
• illegal use of means of individualization of goods;
• illegal movement of goods and vehicles through customs, etc.

When ensuring the legal protection of IP established by the Administrative Code of the Russian Federation, it is necessary to note the problems that complicate legal regulation: the passive attitude of authors and copyright holders to the protection of IP rights, the lack of a methodology for calculating losses in violation of IP rights, the absence of the concept of “counterfeit products” in the law, the ineffectiveness of administrative and legal sanctions, the lack of combating “piracy”.

Thus, if the creator can prove authorship in court and the IP object created by creative work has signs of novelty and originality, then the court recognizes his right to IP. If the author (creator, copyright holder) does not prove his right, the court will refuse the claim.

Arkady has been working in an advertising agency as a photographer for a long time, sometimes moonlights on the side. Last year, the director of the company, with whom Arkady has known for many years, offered a side job in the form of making photographs of the city of Tobolsk to make a desktop calendar for 2019. We have agreed on the terms of the order. The contract was not concluded, but the order was issued by a written application. Arkady took the photos quickly and also passed them through the courier, taking a receipt. The money had to be transferred to a bank card. The money was not received either tomorrow or later. Arkady called back, and was told that the director refused the calendar, and the photos were destroyed. At the beginning of 2019, Arkady, on official business, stopped by one of the construction companies, where he saw a colorful wall calendar with his photographs on the wall behind the director’s chair. They didn’t give him the calendar, but they allowed him to take photos of the calendar pages. So Arkady found out the printing house where the photographs were printed, and the customer. It turned out that the customer did not destroy the photos, but ordered calendars for further use.

The court of first instance denied the claim due to the lack of proof of the fact, due to the failure to submit to the court the camera with which the photographs were taken. Disagreeing, I appealed the court decision to the court of appeal. The judicial board of the regional court considered the case, found that the court of first instance mistakenly concluded that the fact was not proven. The Court of Appeal concluded that the court of first instance unreasonably concluded that there was no copyright contract between the plaintiff and the defendant. As a result, the judicial board of the regional court overturned the decision of the court of first instance and issued a court decision to recover compensation from the defendant in favor of the plaintiff for violation of property rights and moral damage, and also collected court expenses and costs from the defendant.

The given example from my judicial practice shows that it is quite difficult to prove authorship in court. The probability of winning will increase if you choose the appropriate way to protect the violated right and present the proper evidence to the court:

1. Evidence of violation of the author’s rights to the IP object. For example, the Decision of the AC of the Novosibirsk region of May 14, 2018 in case No. A45-33318/2017.
2. Evidence of the ownership of exclusive rights to the plaintiff. For example, the Decision of the Administrative Court of the Kemerovo Region of May 28, 2019 in case No. A27-3997/2019.
3. Evidence of properly fixing the violation of the plaintiff’s right. For example, the Decision of the AU of the Omsk region of June 20, 2019 in case No. A46-2212/2019 and so on.

At the same time, the main way to protect the violated right in court is the creation of the Intellectual Property Rights Court on 01.02.2013 – a specialized arbitration court considering cases on disputes related to the protection of intellectual property rights. In addition, the Intellectual Property Rights Court, as a court of cassation instance, reviews cases that have been considered by the courts of first instance, as well as cases considered by the arbitration courts of the subjects of the Russian Federation in the first instance and arbitration courts of appeal, and also checks the legality and validity of administrative acts. At the same time, if the presence of guilt is established and there is a corpus delicate in the actions of the violator, then the author has the right to resort to criminal legal protection of the right.

Criminal legal protection of IP is carried out in relation to infringement of copyright and related rights, infringement of inventive and patent rights, illegal use of means of individualization of goods, illegal receipt and disclosure of information constituting a commercial, tax secret.

 

Conclusion

In the conditions of modern development of IP law, it needs effective legal protection. Persons illegally using someone else’s IP not only cause significant material damage to the authors (copyright holders), extracting income, but also violate the rights and legitimate interests of society and the state, undermine the fundamental principles of the economy. The complexity of proving this category of cases in courts, the insignificant penalty provided for crimes in the field of IP, undoubtedly requires amendments to the current legislation so that sanctions for violation of intellectual property rights acquire a preventive (warning) value.

 

References

1. English for Professional Communication in Law: Problem Solving / L. S. Artamonova, A. S. Vlakhova, A. A. Godina, etc. ; edited by L. S. Artamonov. – Moscow : Unity, 2015. – 247 p. – Access mode: by subscription. – URL: https://biblioclub.ru/index.php?page=book&id=114705 – Bibliogr. in the book – ISBN 978-5-238-02087-7. – Text : electronic.
2. English for lawyers: textbook / edited by A.A. Lebedeva. – 2nd ed., reprint. and additional – M.: Unity-Dana, 2015. – 375 p. – access mode: http://biblioclub.ru/index.php?page=book_red&id=114706