acted standard contracts approved by ministries and departments that determined the terms of copyright agreements. The 1993 Law on Copyright and Related Rights is based on consistent principles that include the results creative activity, protected by law, into civil circulation on a market basis, subsequently enshrined in the Civil Code. Judicial practice today is largely confronted with new contractual relations generated by new developing in Russia economic conditions. In this regard, disputes often arise, related, in particular, to the violation of both the personal non-property and property rights of the authors.
Claimant N. filed a lawsuit against the publishing houses "Press-1" and "Press-2" for the protection of infringed copyright. The case was heard by the district court.
During the court session, it was established that the plaintiff entered into an author's agreement with the press-1 publishing house on the transfer of exclusive rights to use his work "Journey into the World of Photography". The press-1 publishing house transferred the right to publish the controversial book to the press-2 publishing house, which published the book.
The dispute arose due to the fact that the name of the author was not indicated either on the cover or on the title page of the publication. It could only be seen in the imprint, where it is usually listed along with other general information about the published edition (dates of delivery to the set, signing for printing, volume of the edition, format, names of editors, proofreaders, etc.).
The plaintiff saw in this a violation of his right to a name and asked to recover 30,000 rubles from the defendants as compensation. In support of his claims, he referred to paragraph 4.2.1 of GOST 7.4-95, according to which the publisher is obliged to indicate the name of the author before the title of the book or on the title page.
The court dismissed the claim. Motivating its decision, the court referred to the fact that the name of the plaintiff as the author of the published work was indicated at the end of the book, and it did not follow from the author's agreement that the author's name should be indicated on the title page. The non-compliance with the GOST rules on the place of indicating the author's name was not recognized by the court as a violation of the author's personal non-property rights.
The legitimacy of the decision raises certain doubts, primarily related to the assessment of the defendant's fulfillment of contractual obligations.
The right to a name is an independent copyright right related to inalienable personal non-property rights. This right is exercised by indicating the name of the author in any form of use of the work and does not require a special agreement between the copyright holder and the user. The corresponding obligation of the user follows from the mandatory provisions of the Law on Copyright and Related Rights (see Art. Art. 15, 19, 20), which establish the personal non-property rights of the author, and therefore is part of the contractual terms.
In connection with the above case, the question arises whether the right to a name is protected if it was not indicated properly. GOST 7.4-95 "System of standards for information, librarianship and publishing. Editions. Imprint", which the plaintiff referred to, was approved by the Resolution of the Committee Russian Federation on standardization, metrology and certification of October 18, 1995 N 545 and put into effect as the state standard of Russia from July 1, 1996 (instead of the similar GOST 7.4-86). In fact, it consolidates those rules for the design of works of art that have developed in the publishing business and reflect many years (and not only Russian, but also foreign) practice - the customs of the business circulation of publishing products. It is enough to go to any library, to any bookstore, to make sure that the author's name, as a rule, is placed on the cover of the book, and if we are talking about a large team of authors, then on the title page, which meets the requirements of GOST.
In this case, in my opinion, there is an improper performance of the contractual obligation by the defendant, expressed not only in violation of GOST, but mainly in violation of business practice (Article 309 of the Civil Code of the Russian Federation).
It should also be taken into account that no formalities are required for the emergence of copyright (unlike, for example, industrial property rights). In accordance with Art. 9 of the Copyright Law "the author of a work is the person named as the author on the original or copy of the work."
In view of the foregoing, in my opinion, it is impossible to agree with the court's decision to refuse to recognize the plaintiff's claims for violation by the defendant of the author's personal non-property rights protected by the Copyright Law (Article 15).
In passing, it should be noted that in foreign jurisprudence, for example in the UK, the condition for the proper indication of the author's name when publishing and otherwise using protected works is one of the essential conditions for copyright protection. The right to a name is considered violated in cases where, when using a work, its author was not properly indicated, if the circumstances of using the work allow them to be classified as cases in which the indication of the name is considered mandatory, and the method of using the work is not a case of free use provided for by law.
I. appealed to the district court with a claim against the publisher I.V. Ivanov for the recovery of compensation for violation of her copyright. The claims were based on the fact that the defendant published the book "Faina Ranevskaya. Cases. Jokes. Aphorisms" (circulation 5 million copies), which included four texts from the previously published book by the plaintiff "Journalists are joking", published by the Izvestia publishing house in 1996 year with a circulation of 5 thousand copies. As compensation for copyright infringement, the plaintiff asked to recover from the defendant 1,000 minimum wages. The district court dismissed the claim. By the decision of the Judicial Collegium for Civil Cases of the city court, the decision was upheld. According to the plaintiff's supervisory appeal, the case was transferred for consideration on the merits to the Presidium of the city court, which canceled all earlier decisions and sent the case for a new trial to the court of first instance in a different composition.
The judgments canceled by the Presidium of the city court were based on the following. The plaintiff is the compiler of the book "Journalists are joking", in which she included episodes, jokes, statements heard from her former colleagues in the newspaper "Izvestia" and other media. Based on this statement, the courts concluded that the plaintiff was not the author of the texts placed in the book "Journalists are joking", some of which were reproduced in the book of the defendant "Faina Ranevskaya. Cases. Jokes. Aphorisms". Refusing to satisfy the claim brought against the publisher I.V. Ivanov, the courts were guided by paragraph 3 of Art. 7 and Art. 11 of the Copyright and Related Rights Act.
According to paragraph 3 of Art. 7 of the Law, objects of copyright include composite works that, by the selection or arrangement of materials, are the result of creative work, regardless of whether the works included in them are objects of copyright. And according to Art. 11 of the Law, the copyright of the compiler of the collection is limited by the right to select or arrange materials that represent the result of creative work (compilation). As a result, the copyright of the compiler does not prevent others from independently selecting or arranging the same materials to create their works.
Thus, the essence of the dispute was the assessment of the plaintiff's book as a whole and the short stories contained in it in terms of the requirements imposed by the Law on copyrighted works.
Copyright extends to works of science, literature and art, which are the result of creative work, regardless of the purpose and dignity, as well as the method of expression (clause 1, article 6 of the Law). The author's independent creative search is evidenced, in particular, by the unique form of expression, verbal imagery of the language, etc.
The ruling of the Presidium of the City Court rightly notes that in order to resolve the issue of the nature of works - short stories - special knowledge is needed that the court did not possess. In order to correctly resolve the case, the court should have considered the issue of appointing a judicial literary examination (Article 79 of the Code of Civil Procedure of the Russian Federation).
At the same time, the Presidium of the city drew attention to the fact that in the case there was a conclusion of the UNESCO Chair on Copyright and other branches of intellectual property law, attached to the supervisory complaint. The UNESCO Chair, after conducting a legal and literary analysis of the controversial texts, assessed the short stories from the book "Journalists are joking" as the result of the creative activity of the author of the book, since they were created by her "by putting into literary form the stories in which she was a participant."
The Presidium of the City Court also came to a reasonable conclusion that "the stories from the plaintiff's book" Journalists are joking "have all the features inherent in copyright objects, since each of the stories is published literary work existing in written form".
At the same time, it is emphasized that "the presence of an artistic form and the author's style of presenting short stories testifies to the creative nature of the author's activity in creating these works, and therefore, in accordance with Articles 6 and 7 of the Law on Copyright and Related Rights, each of these stories is an independent object of copyright". These circumstances were not clarified by the court.
The courts considering the case considered that the authors of the short stories collected in the book are those specific persons on behalf of whom jokes, funny episodes and various everyday situations are retold, as a result of which the plaintiff cannot be recognized as their author.
However, this statement directly contradicts the provisions of Art. 9 of the Law and actual circumstances.
From the materials of the case, it followed that the plaintiff's authorship of short stories in the book "Journalists are joking" was confirmed by her surname on the book, indicating her as the author and the sign "copyright". There was no evidence of anyone claiming authorship of the short stories in the case file.
The Presidium of the City Court came to the conclusion that the plaintiff is the author of the book "Journalists are joking" and its constituent parts.
Under these circumstances, according to paragraph 1 of Art. 16 of the Law on Copyright and Related Rights, she owns exclusive rights to use the work in any form and in any way, in case of violation of which civil law and other measures of protection provided for in Art. 49 of the Law on Copyright and Related Rights, including the award of compensation.
According to the copyright law (Articles 1251, 1255, 1265 of the Civil Code and Article 15 of the former Law on Copyright and Related Rights), the author, when using his copyright objects, has the right to indicate his name. This is in theory, but in practice, the non-property right of the author to indicate his name is more often violated than observed, which is especially pronounced when using advertising, broadcasting objects of copyright on television and radio, etc. Will the user bear liability for violation of the non-property right to a name in a litigation case?
And although the law does not and did not contain a direct indication that by default, the author's name must be specified(following the logic of the law, we come to the conclusion that the author himself determines how his work should be used), in science, the relevant norms of the law are unambiguously interpreted in such a way that the name of the author, unless the author specifically allowed anonymous use, should be indicated. This is probably correct.
Here I would like to focus on musical works. As a rule, a musical work has several authors-creators, each of which has the right to indicate his name when using:
It can be said that, to some extent, a custom has developed that when using a musical work, only the singer is indicated (on the radio), sometimes the composers are written (for example, on television). On disks, as a rule, all or most of the creators of a musical work are indicated. In practice, this is justified by the fact that when transferring musical works to the radio, it will be at least difficult to name all the authors-creators.
How to be? Of course, each user of copyright objects needs to decide independently. Bearing in mind that listing only the singers is, in principle, a common practice, it should be understood that in the event of a litigation, it is likely to be won by the “forgotten” author.
It is interesting to note that the courts are also psychologically inclined to take the side of users, understanding the common practice and practical difficulty in mentioning all authors and performers. So it was in the case of the author A. Gorokhov, who was suing the ORT TV channel in connection with the fact that the ORT TV channel broadcast a piece of music, the author of the words to which was A. Gorokhov, without specifying the name of the author. The author lost all instances, and only the Supreme Court overturned the decisions of the lower courts and remanded the case for a new trial, stating that ORT did not receive permission from the author to anonymously use his work. The defendant's reference to the fact that in the concluded ORT with the organization for collective management In the Russian Authors' Society agreement there was no indication of how and whether the name of the author (plaintiff) should be indicated at all. The court ruled that in the absence of the author's consent to the anonymous use of his work, the user is obliged to indicate the name of the author, and the agreement with RAO regulates only the scope of property rights.
How to format quotes?
The most common way is to use quotation marks.
Highlighting using italics or using a font 1-2 steps smaller than the font of the main text:
Selection by means of a set of the quote with retraction. In this case, it is possible to use a strike-out ruler in the indent:
Emphasis within a quotation may belong to the citing or the author of the cited text. This determines how the selected text fragments are formatted.
Emphasis belonging to the cited author, it is recommended to save in the form in which they are printed in the source, and if this is not possible or contradicts the style of the publication, then the author's emphasis should be replaced with a selection of another type. The ownership of author's selections is usually not specified. The exception is those cases when there are few author's selections, and, on the contrary, there are a lot of selections belonging to the quoting person; in such cases, it is stipulated that some selections belong to the cited author (these selections are marked), and the rest - to the citing one. In addition, in such cases, the ownership of selections is specially marked in the preface. Selection example:
Emphasis belonging to the citing person is subject to reservation. The comment is given in brackets, the comment is followed by a dot, a dash and the commenter's initials, for example:
Between the quoter's words and the following quote:
a) put a colon if the words preceding the quotation warn that the quotation follows:
Pasternak wrote: “There is a psychology of creativity, problems of poetics. Meanwhile, of all art, it is precisely its origin that is most directly experienced, and one does not have to speculate about it.
b) put a full stop if inside the quote or behind it are the words of the quoting person, introducing the quote into the text of the phrase:
Pasternak said it well. “There is a psychology of creativity, problems of poetics. Meanwhile, of all art, it is precisely its origin that is experienced most directly, and one does not have to speculate about it, ”he wrote in the Safe Conduct.
c) do not put any signs if the quote acts as an addition or as part of a subordinate clause:
Pasternak wrote that "of all art, it is its origin that is most directly experienced."
At the end of a sentence, after closing quotes:
a) put a period if there are no signs before the closing quotes. If the quote is immediately followed by a reference to the source, then the dot is moved beyond the reference:
B. L. Pasternak emphasized: “The most clear, memorable and important thing in art is its emergence, and the best works of the world, telling about the most diverse, actually tell about their birth” (Pasternak 2000, 207).
Attention! The dot is always placed after closing quotes, not before them. An ellipsis, question mark, and exclamation mark are placed before closing quotes.
b) put a full stop if the quote is not an independent sentence, but acts as part of a subordinate clause (even if there is an ellipsis, question mark or exclamation mark before the closing quotes):
B. L. Pasternak emphasized that "the most clear, memorable and important thing in art is its emergence ...".
c) do not put any signs if there is an ellipsis, a question mark or an exclamation mark before the closing quotes, and the quote enclosed in quotes is an independent sentence (as a rule, all quotes after the colon separating them from the words of the quoter preceding them are like this):
The chapter ends with the words: "Farewell philosophy, farewell youth, farewell Germany!"
If the phrase does not end with a quote, then after the quote put a comma (if the quote is part of a participial phrase or completes the first part of a complex sentence) or a dash (if the quote ends with an ellipsis, exclamation point or question mark, and also if, according to the conditions of the context, it is not possible to separate the subsequent text with a comma need to).
After a poetic quotation, a punctuation mark is placed at the end of a poetic line, which refers to the entire text with a quotation.
A quotation begins with a capital (capital) letter in the following cases:
When the quoting person begins a sentence with a quotation, even if initial words and it opens with an ellipsis:
When a quote comes after the quoter's words (after a colon) and begins a sentence in the source:
If the cited source is indicated in the bibliography or in the list of references, only the author's surname and the year of publication of the book are indicated at the end of the quotation. This design method saves space. For instance:
in the text:
“The dictionary of the revolutionary era (historical and cultural guide) includes words that arose or are characteristic of the era of war and revolution” [Ozhegov 2001, 411].
in the bibliography:
Ozhegov 2001- S. I. Ozhegov. Revolutionary Dictionary. Historical and Cultural Handbook (Preliminary Sketches). - 1920s // Dictionary and culture of Russian speech: To the 100th anniversary of the birth of S.I. Ozhegov. M.: Indrik, 2001. - 560 p. pp. 410-412.
(According to the book:
A. E. Milchin, L. K. Cheltsova. Publisher's and Author's Handbook. M., 2003.)
Like any other intangible good, the right of authorship is inalienable and otherwise non-transferable.
The inalienability of the right of authorship, as well as the right to a name, is specifically stipulated in paragraph 1 of Art. 1265 of the Civil Code of the Russian Federation, which emphasizes the personal nature of these rights and means that they cannot be transferred to another person either during the life of the author or, of course, after his death. These rights are not transferred when the exclusive right to a work is transferred to another person and when he is granted the right to use the work.
Despite the obviousness of the inalienability of the right of authorship and the right to a name, the application of these provisions in practice is still not always clear.
The author of a work of science, literature or art is the citizen whose creative work it was created. Like Art. 9 of the Administrative Code (p. 2), art. 1257 of the Civil Code of the Russian Federation establishes the presumption of authorship - the person indicated as the author on the original or copy of the work is considered its author, unless otherwise proven. Proving otherwise in practice is quite difficult. As you know, the most common violation of copyright is plagiarism - from the Latin "plagiatus" (theft)<41>.
Closely related to the right of authorship is the right to a name. The right of any citizen to acquire and exercise rights and obligations under his own name, including the surname and first name, as well as patronymic (unless otherwise follows from the law or national custom), is enshrined in par. 1 p. 1 art. 19 GK. In cases and in the manner prescribed by law, a citizen may use a pseudonym, i.e. fictitious name. In turn, Art. 1265 of the Civil Code of the Russian Federation indicates that the author's right to a name is the right to use or allow the use of a work under his own name, under an assumed name (pseudonym) or without specifying a name, that is, anonymously. In other words, the right to a name is the right to the way in which the author's name is indicated when using the work.
In Art. 1265 of the Civil Code of the Russian Federation, the legislator mentions three possible ways name indication. The first and most common way is to indicate the real name. Without special instruction the author's work is personified by the surname, name, patronymic of the author or his surname and initials.
As you know, in the future, a pseudonym can become not only a second name, but also the first, since Art. 19 of the Civil Code of the Russian Federation (clause 2) grants a citizen the right to change his name in the manner prescribed by law (Chapter VII of the Federal Law of November 15, 1997 N 143-FZ "On acts of civil status").
The Civil Code of the Russian Federation, like the ZoAP, does not establish any restrictions when choosing a pseudonym - any name can be used as a pseudonym. However, the limitations of this right are obvious and are due to the very meaning of civil law. Thus, it is hardly legal to use as a pseudonym a name that coincides with the name of a famous person and thereby misleads the public about the authorship of this work (for example, using the pseudonym V.V. Putin or A.B. Pugachev). Of course, the choice of such a pseudonym will violate the rights and interests of others and may be considered as an abuse of the right. In general, the prohibition of the improper exercise of civil rights, including the abuse of the right, is established by Art. 10 of the Civil Code of the Russian Federation.
The work can be used without indicating the author's name (anonymously), which is the third way to exercise the author's right to a name.
If a work is used under a pseudonym or without specifying the name of the author (anonymously), persons who know the real name of the author are not entitled to disclose his real name without the consent of the author.
In practice, the way in which the author's name is indicated and the conditions for anonymity are established in the contract, under which the author acquires rights and obligations under his real name. As a general rule, after the conclusion of the contract, the parties are not entitled to change the way the name of the author is indicated unilaterally.
According to paragraph 2 of Art. 1265 of the Civil Code of the Russian Federation when publishing a work anonymously or under a pseudonym (except when the author's pseudonym leaves no doubt about his identity), the publisher (clause 1 of article 1287 of the Civil Code of the Russian Federation), whose name or title is indicated on the work, in the absence of evidence to the contrary, considered to be the representative of the author. In this capacity, the publisher has the right to protect the rights of the author and enforce them. For judicial protection of the rights of the creator of a work, the publisher does not need to submit a power of attorney from the author to the court. When submitting an application, it is sufficient to present a copy of the work on which the name or title of the publisher is indicated. If the author of such a work does not disclose his identity or does not declare his authorship until the dispute is resolved on the merits, in accordance with the Decree of the Plenum of the Supreme Court of the Russian Federation of June 19, 2006 N 15 "On issues that have arisen with the courts when considering civil cases, connected with the application of the legislation on copyright and related rights", the court decides to satisfy the claim in favor of the publisher.
The right of authorship and the right to the name of the author are protected indefinitely. After the death of the author, the protection of his authorship and name can be carried out by any interested person, except in cases where the author, in the manner prescribed by Art. 1134 of the Civil Code of the Russian Federation, indicated the person to whom he entrusts the protection of authorship, the name of the author and the inviolability of the work (paragraph 2, clause 1, article 1266 of the Civil Code of the Russian Federation) after his death. This person exercises his powers for life.
21. Free use of a work by reproduction, free use of works located in places open to the public, free public performance of musical works.
Under reproduction(reprographic reproduction) is a facsimile reproduction of a work by any technical means, carried out not for the purpose of publication.
Reproduction does not include the reproduction of a work or the storage of its copies in electronic (including digital), optical or other machine-readable form. The only exception is the creation by technical means of temporary copies intended for reproduction.
Article 1275 of the Civil Code of the Russian Federation allows, without the consent of the author or other right holder and without payment of remuneration, reproduction (subclause 4, clause 1, article 1273 of the Civil Code of the Russian Federation) in a single copy without making a profit:
Lawfully published work - by libraries and archives to restore, replace lost or damaged copies of the work and to provide copies of the work to other libraries that have lost them for any reason from their funds;
Individual articles and short works lawfully published in collections, newspapers and other periodicals, short excerpts from lawfully published written works (with or without illustrations) - by libraries and archives at the request of citizens for use in educational or scientific purposes, as well as educational institutions for classroom activities.
Returning to the situation with libraries and their users, it should be emphasized that Art. 1275 of the Civil Code of the Russian Federation allows reproduction without the consent of the author or other right holder and without payment of remuneration:
Only individual articles and short works lawfully published in collections, newspapers and other periodicals, short excerpts from lawfully published written works (with or without illustrations);
In a single copy;
No profit making;
At the request of citizens - for use in educational or scientific purposes.
It is assumed that in the absence of at least one of these conditions, reproduction requires the consent of the author (another right holder) and the payment of remuneration to him.
As in the previous case (Article 1274 of the Civil Code of the Russian Federation), a prerequisite for the legality of such use is the indication of the name of the author whose work is used, and the source of borrowing.
Free use of a work permanently located in a place open to the public for free visit.
According to Art. 1276 of the Civil Code of the Russian Federation, without the consent of the author or other right holder and without payment of remuneration, the reproduction, broadcasting or transmission by cable of a photographic work, a work of architecture or a work of fine art that is permanently located in a place open to free access (for example, a park, a cinema, etc.) .d.).
Exceptions are cases when the image of the work in this way is the main object of this reproduction, broadcast or cable transmission, or when the image of the work is used for commercial purposes.
Free public performance of a musical work
It is allowed without the consent of the author or other right holder and without payment of remuneration, the public performance of a musical work during an official or religious ceremony or funeral to the extent justified by the nature of such a ceremony (Article 1277 of the Civil Code of the Russian Federation).
