On a subject:The
& # 1089 ;
Concept and merchandise marks
The right of first publication extends on merchandises of a scientific discipline, the literature and the humanistic disciplines which are turning out of originative activity, irrespective of assignment and advantage of merchandise, and besides a manner of its look.
The statute law does non open the care of construct “ merchandise ” in malice of the fact that it is basic construct of institute of the right of first publication. It speaks that any possible definition of construct “ merchandise ” can non to specify in the thorough image the given object of a right protection. Attempts to do definition to concept “ merchandise ” repeatedly were undertaken in the right of first publication theory. The most successful and, hence, the most widespread, is the definition formulated by V.I. Serebrovskiy: & # 171 ;merchandise is a set of thoughts, ideas and the images which have received as a consequence of originative activity of the writer the look in accessible to perceptual experience by human feelings to the concrete signifier, saying reproduction possibility
& # 187 ; .
To be protected by the right of first publication,merchandise should be expressed in any nonsubjective signifier
. Merchandise is an object ideal ; it ab initio arises in consciousness of the writer as a composite of thoughts, ideas and images, in the signifier of a originative program. Until, as merchandise non begins to be out of consciousness of the writer, does non go the independent phenomenon of an nonsubjective world, there is no necessity legislatively to set up legal connexion between the writer and its merchandise. If merchandise can non be used other individuals, there is no topic of legal ordinance for norms of the right of first publication. Differently, merchandise should be in form which is separated from the individual of the writer and has got independent life.
Merchandise can be presented in following signifiers:
– Written ( the manuscript, typewriting, a musical notation etc. ) ;
– Oral ( public pronouncing, public executing etc. ) ;
– video-recordings ( mechanical, magnetic, digital, optical etc. ) ;
– Images ( pulling, the study, a image, the program, the drawing, cinema – a organic structure – video-or a photoshot etc. ) ;
– Volume-spatial ( a sculpture, theoretical account, a bread board theoretical account, a building etc. ) ;
– In other signifiers.
However non any objectively existing work is protected by the right of first publication. The right of first publication extends merely for the plantswhich are turning out of originative activity
. As originative activity recognise the independent rational activity of the individual directed on creative activity of an image of the future merchandise and its incarnation in any nonsubjective signifier.
The right of first publication does non modulate procedure of creative activity of merchandise. Therefore for the inquiry determination about merchandises important importance has non character of activity on merchandise creative activity, and a corresponding mark of the merchandise created as a consequence of this activity. A mark of that merchandise grows out of originative activity, the bulk of research workers name its freshness ; some scientists use the term “ originality ” . Novelty ( originality ) of merchandise is expressed in the new care, the new signifier of merchandise. Thus freshness of the thought taken as a rule of merchandise, does non act upon freshness of the merchandise from the point of position of the right of first publication. The same thought, the same secret plan can be used the different writers, nevertheless each of the merchandises, consisting the same thought ( a capable footing ) , reflects the individual of the writer and is perceived by a society as new, independent merchandise. It is possible to state thatany originative merchandise is characterised by originality, freshness, originality and singularity
Allowing of protection to merchandisedoes non depend on its assignment and advantage
. Advantage is understood as the assorted virtues of merchandise refering its signifier or the care: the subject urgency, art value, scientific deepness, writer ‘s manner etc. copyright Appointment as a whole consists non in choosing worthy merchandises, and in supplying involvements of the laminitis of merchandise when its merchandise can be used other individuals. By the right of first publication any merchandises in which creativeness and which possess the marks of object of the right of first publication provided by the statute law is shown should be protected.
The merchandises protected by the right of first publication
The approximative list of objects of the right of first publication
is named in Law point 7 & # 171 ; About the right of first publication both the next rights & # 187 ; and item 993 & # 1043 ; & # 1050 ; . To the merchandises protected by the right of first publication, concern:
– Literary plants ( books, booklets, articles, etc. ) ;
– Play and is musical-drama merchandises, stage dancing and dumb show merchandises and others & # 1089 ; & # 1094 ; & # 1077 ; & # 1085 ; & # 1072 ; & # 1088 ; & # 1085 ; & # 1099 ; & # 1077 ; merchandises ;
– Pieces of music with the text and without the text ;
– Audiovisual merchandises ( cinema – a organic structure – picture movies, filmstrips both other film-and teleproducts ) ;
– Merchandises of a sculpture, picture, a drawing, lithograph and other merchandises of the all right humanistic disciplines ;
– Applied art merchandises ;
– Merchandises of architecture, town-planning and landscape gardening art ;
– Photographic merchandises and the merchandises received in the ways, similar to a exposure ;
– Card games, programs, studies, illustrations and the plastic merchandises refering geographics, topography and other scientific disciplines ;
– Computer plans ;
– Other merchandises.
Merchandises of all genres of fiction concern figureof literary plants
, scientific plant ( articles, studies, etc. ) , the educational literature, addresss, studies, discourses and other unwritten merchandises ; news media merchandises ( articles, interview, treatments, etc. ) , concern and personal correspondence, etc. Therefore literary plants can be non merely in written, but besides in other nonsubjective signifier.
are instead near to literary plants. Isolation of play merchandises is caused by specificity of art agencies of look of ideas of the writer inherent in them as in play merchandises the basic speech pattern becomes on a statement of originative thought by agencies of soliloquy and duologues of characters.
The right of first publication protects all sortsof pieces of music
. The most widespread version of pieces of music are pieces of music with the text – vocals. The piece of music with the text is created in the co-authorship the composer and the poet original ( i.e. non compound ) merchandise ; original character of a vocal is predetermined by that all protected elements of a vocal are created by its co-authors.
The particular topographic point among objects of the right of first publication is occupiedwith audiovisual merchandises
. The merchandise consisting of a series of images connected among themselves ( with support by a sound or without it ) , motions doing feeling, and intended for ocular and acoustical ( in instance of support by a sound ) perceptual experiences is audiovisual. The film and other merchandises expressed by agencies concern the audiovisual, similar to filming ( telecasting films, picture movies and similar merchandises ) .
The right of first publication protects merchandises of all waiesof the all right humanistic disciplines
– merchandises of picture, a drawing, a sculpture, monumental and cosmetic art, etc.
Fine humanistic disciplines merchandises are adjoinedby merchandises of an applied art
with which the legislator allocates in a separate sort of protected merchandises. Applied character of merchandises agencies, that they are intended non merely for satisfaction of strictly aesthetic demands of public, but besides carry out other, practical maps. Among applied art merchandises the increasing value is got by design merchandises. The design is an art of giving to the capable environment of aesthetic qualities environing the individual, hence design as a way in an applied art, has set of shows – in writing design, industrial design, design of insides of premises, etc.
besides has the double nature as should non merely satisfy indispensable stuff demands – to make habitation and to set up good environment, but besides to fulfill aesthetic demands of the individual. The is constructive-technical determination of edifices and buildings is capable to the right protection art, alternatively of. Thus the right protection extends both on visual aspect of object, and on the art determination internal infinites ( interior ) .
of all sortsphotographic and similar to them
concern a class of the protected – irrespective of object ( a portrayal, a landscape, the coverage, etc. ) , and besides the pursued purpose ( professional or recreational shot ) , etc.
New adequate object of protection by the right of first publication arecomputing machine plans
. Computer plans grow out of originative activity. At the same clip, supplying protection of computing machine plans by norms of the right of first publication, the legislator necessarily faces the jobs caused by specificity of the computing machine plan as protected object as in it the care ( algorithm ) has an unconditioned precedence over the signifier ( the algorithm stated by the programming linguistic communication ) . The Major importance for the computing machine plan has its functionality which is predetermined by algorithm, and the plan authorship in this or that programming linguistic communication can be apathetic for the user. Supplying protection to the merchandise signifier, the right of first publication does non protect algorithm puting in its footing. Therefore more and more existent the inquiry on necessity of granting is represented to the computing machine plan of particular protection which, foremost, would see characteristics of object of protection and, unlike the right of first publication, extended non merely on the signifier, but besides on the algorithm taken as a rule the plan, and, secondly, there was more operative, inexpensive and accessible, instead than bing system of patent protection.
Independent versions of objects of the right of first publication arederivative merchandises
Transportations concernderivative merchandises
, sum-ups, abstracts, the sketch, reappraisals, public presentations, musical agreements and other of merchandises of a scientific discipline, the literature and art. All of them admit objects of the right of first publication as activity on their creative activity has originative character. The right of first publication of transcribers and writers of other derivative merchandises has dependent character: the writer of derivative merchandise can transport out the right of first publication merely in the event that usage of its merchandise does non pull violation of the rights of the writer of the merchandise taken as a rule derivative merchandise. The right of first publication of the transcriber and writers of other derivative merchandises does non interfere with other individuals to transport out the transportations of the same merchandises.
Collections concerncompound merchandises
( the anthology, databases ) and other merchandises stand foring on choice or
an agreement of stuffs consequence of originative activity. Creative activity of the composer is expressed that it at ain discretion selects a stuff and ( or ) has it on the original system. Consequence of originative work of the composer is the system of an agreement of stuffs developed by it as the right of first publication of the composer does non widen on the merchandises included in compound merchandise, and the right of first publication of the composer to intensify merchandise as a whole does non interfere with other individuals to transport out independent choice and an agreement of the same stuffs for creative activity of the compound merchandises. Therefore, a protection topic with mention to compound merchandises is original choice and ( or ) an original agreement of the picked up stuffs. If merchandises protected by the right of first publication are included in compound merchandise, the composer uses the right of first publication under status of observation of the rights of writers of each by it of the merchandises included in compound merchandise.
Any consequence of the creativeness answering by the established statute law on the right of first publication to standards, will acknowledgeobject of the right of first publication
irrespective of, whether it is named in the list resulted above, or non.
Protection of merchandises by the right of first publication arisesowing to the fact of their creative activity.
For happening and copyright realisation it is non needed observation of any formalities. Used for the presentment about sole right of first publications the mark on protection of the right of first publication ( a right of first publication mark ) and dwelling of three elements – the Latin missive “ With ” in a circle, a name ( name ) of the proprietor of sole belongings rights and twelvemonth of the first publication of merchandise – carries out particularly information map. In itself absence on a transcript of merchandise of a mark on protection of the right of first publication does non intend, that the given merchandise is non protected by the right of first publication.
The right of first publication to merchandise is non connected with the belongings right to material object in which merchandise is expressed. Transportation of the belongings right or the ownership right any material object in itself does non pull transportation of the right of first publication to the merchandise expressed in this object.
The merchandises which are non objects of the right of first publication
Concepts “ merchandise ” and & # 171 ; object of the right of first publication & # 187 ; are non indistinguishable. The first construct is wider, as the statute law names some classs of merchandises which, possessing all marks protected by the right of first publication, owing to a different kind of the grounds are deduced from domain of its action. To merchandises which are non protected by the right of first publication, concern:
– Official paperss ( Torahs, opinions, other texts of legislative, administrative and judicial character ) , and besides their official transportations ;
– The province symbols and marks ( a flag, the weaponries, a anthem, awards, pecuniary and other marks ) ;
– Merchandises of the national creativeness which writers are non known.
The right of first publication besides does non widen on thoughts, procedures, systems, methods of operation, the construct, rules, opening or easier information as those even if they are expressed, displayed, explained or embodied in merchandise.
Writers of merchandises. The co-authorship
merchandise right of first publication protect writer
The right of first publication by the general regulation arises at the writer. The writer of merchandise the physical individual which originative activity creates merchandise admits.
If merchandise is created by several individuals, such individuals admit co-authors.The co-authorship are the legal dealingss originating owing to the fact of joint creative activity of merchandise by several individuals
The jurisprudence names two conditions of happening of the co-authorship: 1 ) merchandise should be created joint work of two or more individuals ; 2 ) work of all take parting in creative activity of merchandise of individuals should hold originative character.
Joint character of work should be estimated non on joint procedure of work, and by in common reached consequence ; of import non that, every bit good as in what signifier co-authors, and that merchandise has grown out of their joint attempts worked. Therefore for co-authorship happening the joint work understood as activity of several individuals, directed on accomplishment of the coordinated consequence what merchandise creative activity is affairs. Therefore joint activity does non intend its integrity in clip and infinite, and merely that writers work on merchandise together, and each of them brings the part to its creative activity.
Co-authors those who has brought the originative part to merchandise creative activity can acknowledge merely. The individual who has non brought the originative part to merchandise creative activity, and rendered merely the proficient aid ( a manuscript set, bibliography pulling up, a portraiture of studies, etc. ) can non acknowledge the co-author. Basically of import that the footing of happening of the co-authorship are existent is represented, alternatively of contractual dealingss of individuals, and any understanding, including issued in authorship, has no legal value if co-authors really have non been do joint originative work.
Distinguish two sorts of the merchandises created in the co-authorship: the merchandises organizing one insoluble whole, and the merchandises dwelling of parts, each of which has independent value. The merchandise portion admits holding independent value if it can be used irrespective of other parts of merchandise. Consequently, two sorts of the co-authorship –separate
differ. The separate co-authorship takes topographic point when corporate merchandise consists of parts, each of which has independent value and therefore it is known, by whom from co-authors these parts are created. In this instance each of co-authors has the right to utilize the portion of merchandise created by it at ain discretion if other is non provided by the understanding between co-authors. At the unseparable co-authorship the merchandise created by two or more co-authors, or represents unvarying insoluble whole, or it is impossible to apportion the part of the concrete co-author to corporate merchandise. Therefore the right of first publication to the corporate merchandise created in the unseparable co-authorship, all co-authors in common carry out. The legislator, seeking to supply involvements of all co-authors, establishes, that in the event that merchandise of co-authors signifiers one insoluble whole, any of co-authors has non the right without the sufficient bases on that to prohibit merchandise usage.
The rule of the joint order merchandise does non interfere with writers to come in into among themselves the understanding specifying a process of the rights refering corporate merchandise. By the legal nature the understanding of co-authors is one of versions of contracts on an order of utilizing the right, similar to the contract of owners on an order of usage of belongings.
The jurisprudence of Byelorussia & # 171 ; About the right of first publication and the next rights & # 187 ; defines office merchandise asthe merchandise created as public presentation of the office undertaking or official responsibilities
The jurisprudence does non incorporate accurate definition of domain in which norms about office merchandises are applied. However, it is possible to state that the construct “ office ” can be used merely with mention to the merchandises created within the bounds of labour dealingss. The legislator uses the term “ employer ” , definition to which is given in the Labour codification of Byelorussia. Harmonizing to point 1 & # 1058 ; & # 1050 ; the employer is legal or the physical individual to whom the statute law gives the right of the decision and the expiration of the labor contract with the worker. Besides, the legislator uses constructs “ official responsibilities ” and & # 171 ; the office undertaking & # 187 ; which are applied in labour dealingss.
The first possible footing of a acknowledgment of object of the right of first publication office is that its creative activity is included into official responsibilities of the worker. The current statute law does non give that direct definition, that such “ official responsibilities ” . The labour codification uses concept & # 171 ; office place of the worker & # 187 ; at definition of the term “ station ” . Thus office place of the worker is defined by circle of its responsibilities, the official rights and character of duty. Continuing from it, it is possible to set an equal-sign between constructs “ official responsibilities ” and & # 171 ; official responsibilities & # 187 ; . In bend, official responsibilities assume presence of labor dealingss which should be issued the labour contract ; in the labor contract or in duty ordinances official responsibilities of the worker besides should be fixed. Therefore, the position office can have merchandise in the event that its creative activity is included into labour responsibilities of the writer.
The jurisprudence & # 171 ; About the right of first publication and the next rights & # 187 ; establishesa particular legal position
refering office merchandises. The personal non-property rights to the merchandise created as public presentation of the office undertaking or official responsibilities ( office merchandise ) , belong to the writer. Property rights on office merchandise belong to the employer if the contract between it and the writer does non supply other.
As follows from norm of point 14 of the Law, the given of an accoutrement of belongings rights on office merchandise to the employer can be denied conditions of the captive between it and the writer of the contract. The employer and the writer in the labor contract ( contract ) can set up, that belongings rights on office merchandise in full arise at the writer ; in this instance its legal government will non differ from a legal government of the merchandise created outside the bounds of labour dealingss, and to the employer interested in its usage, it will be necessary to reason the writer ‘s contract with the worker. Property rights harmonizing to the understanding will be divided between the worker and the employer ( on ways of usage of merchandise or district on which the right will be carried out ) .
The jurisprudence limits the writer of office merchandise in possibility to take advantage of the personal non-property rights belonging to it. In the event that the proprietor of belongings rights on office merchandise is the employer, the writer has non the right interfere with announcement such intergovernmental cooperation administrative Besides, the writer of office merchandise can non to transport out the right to a response besides.
The acknowledgment of belongings right of first publications to office merchandise for the employer deprives of the writer of such merchandise of the right to response of compensation both the employer, and the 3rd parties.
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2. Intellectual belongings. The basic stuffs: In 2 parts the Translation from English, Novosibirsk, 1993.
3. Intellectual belongings. The Dictionary-directory/under the editorship of A.D. Korchagina. – Meter, 2011.
4. Savelyev I.V. legal ordinance of dealingss in the field of art creativeness. – & # 1052 ; , 2009.
5. Serebrovsky V.I. Voprosy of the Soviet right of first publication. – & # 1052 ; , 1956.
6. Sergeys A.P. Intellectual in the Russian Federation. TH. , 2008.
7. Tchernyshev S.A. & # 1040 ; uthor ‘s the contract. – & # 1052 ; , 2011.