Protection of the exclusive rights of authors. Legal methods. Responsibility for violation

Aug, 08 2022

Contents:

The results of intellectual activity are objects of exclusive, as well as other rights that are protected by the state. The protected list of such objects includes a wide list of names, including scientific and artistic works, photo and video images, software, databases, television messages, inventions, breeding achievements, developed technologies, trademarks and commercial designations. 

The protection of the exclusive rights of authors to the results of intellectual activity is contained in the articles of a number of normative legal acts. Among them are the Civil Code of the Russian Federation, the Code of Administrative Offences of the Russian Federation and the Criminal Code of the Russian Federation. Each of them has articles describing norms or possible sanctions related to the protection of intellectual property rights and their protection. Note that such concepts have their differences. 

The protection of rights is the formation of a general legal regime. 

Protection of rights are measures that are taken in cases where civil rights are violated or challenged.

Legal rights of authors that you need to know about

In a broad legal sense, the author can be any person who has created something. And if this object falls under the category of protected, then the author has rights that he can protect. 

Copyright presupposes the existence of a personal and property aspect. In the first case, it means that the authorship is attributed to the creator. Property rights imply receiving remuneration for any fact of using the results of intellectual activity by other people. Let’s take a closer look at what rights the author has. 

1. The rights to publish the work. 

Any author has the right to decide whether to make the results of intellectual activity public or not. However, it is important to know here that the transfer of copyright to another person is equal to consent to the publication of the work. If the author refuses to publish, he will have to pay financial compensation.  

2. Prohibit third parties from making changes. 

The inviolability of the results of intellectual activity presupposes publication in the original author’s version. Only the author or a person who has the written consent of the author, fixed in a special agreement, can change the work. 

3. Transfer copyrights to other persons. 

The exclusive right to a work presupposes the possibility of transferring copyright to third parties for the purpose of its publication through channels inaccessible to the author. In this case, the author has the right to receive remuneration for the use of the work created by him. 

4. Transfer copyrights by inheritance. 

According to the current legislation, copyrights are valid for 70 years after the death of the author. This means that exactly this time the heirs will be able to dispose of the results of intellectual activity and receive remuneration for it. 

Any person from among relatives or acquaintances whom the author specifies in the will can become the heir. 

5. Prohibit illegal distribution of the work. 

Any public disclosure of someone else’s work or other result of the author’s work without the permission of the creator is illegal and may be the basis for opening an administrative or criminal case. 

Protection of violated exclusive rights 

As we noted earlier, for violation of the rights of authors to the objects of industrial or creative works created by them, responsibility may come. This is a violation of the norms of the Civil Code of the Russian Federation, the Administrative Code of the Russian Federation and the Criminal Code of the Russian Federation. If the fact of copyright infringement is discovered, the creator may make the following demands to the violator.

1. Recognition of rights to the results of activities. 

It should be borne in mind that here we are talking about two types of rights: personal non-property and property. The first are connected, first of all, with the opportunity to publish a work under your own name or to have a choice: to publish the results of intellectual activity or not. Property rights almost always relate to the receipt of material benefits by the creator. 

Thus, the recognition of the right can be expressed in the public disclosure of the name of the creator by the infringer of copyright, as well as material compensation. 

2. Correction of the situation, which concerns the restoration of the author’s position before the violation by the attackers.

Such a measure is used infrequently due to the specifics of its implementation. So, it is possible to return the former position of the author in case of detection of the fact of manufacturing counterfeit products. Thus, the destruction of “pirated” files or the removal of illegal content from the Internet will return the author’s right. This also includes a set of measures aimed at preventing copyright violations by intruders. 

3. To demand compensation for damages, including lost income from the actions of violators. 

If there is evidence of losses incurred by illegal actions of intruders, the rightholder may demand damages in full. As a rule, if we talk about intellectual property, then here the form of expression of the losses incurred is expressed in the lost income from the actions of the violator. Simply put, the author has the right to claim exactly the amount that he would have received under a legal agreement with a person or legal entity that used his work or development.

4. To request in court the amount of income received by the attacker as a result of illegal use of the copyright object. 

According to paragraph 2 of Part 2 of Article 15 of the Civil Code of the Russian Federation, the rightholder may apply to the court in order to seize the illegal income of the violator instead of collecting the lost income. However, it is important to prove that the attacker made a profit precisely because of the use of a work, patent or invention, and not as a result of conducting criminal or other illegal activities. 

It is important to know that when filing such a claim, the copyright holder can simultaneously request compensation for real damage.

5. The claim for compensation for moral damage.

Such a right may be used in exceptional cases, namely in violation of non–property rights – publication of material without the knowledge of the copyright holder or publication of the results of intellectual activity under a false name. 

Ways to protect exclusive rights

The currently existing methods of protecting the exclusive right to works and intellectual property results rely on coercive measures that are designed to recognize, restore rights or stop unfair actions.

In general, the protection of the exclusive rights of authors may be of a general nature (including relying on Article 12 of the Civil Code of the Russian Federation), and also include separate ways to restore justice. 

According to Article 1252 of the Civil Code of the Russian Federation, in order to protect copyright, the creator must recognize this right, as well as restore the situation that was before the violation. As for other methods, they include a number of measures: 

  1. The application of sanctions in accordance with the legislation of the Russian Federation. We are talking about the recovery of damages, compensation or compensation for moral damage through the filing of a statement of claim. It is important to know here that compensation for moral damage can only be applied to protect personal non-property rights.
  2. Compulsory liquidation of a legal entity or sole proprietor who illegally used the results of someone else’s intellectual activity. 
  3. Termination of intellectual property infringement by filing a complaint with supervisory authorities, for example Roskomnadzor. 
  4. Publication in the public domain of the court decision on the violation with the presence of the name of the actual copyright holder.
  5. Seizure and destruction of falsified products and counterfeit physical media with other people’s works. 
  6. Invalidation of an act, decision or action of a state body that, in the author’s opinion, violates his rights. Any of these documents can be appealed by filing a statement of claim. The task of the court is to check the compliance of the appealed official papers with the applicable laws. 
  7. Getting rid of the equipment used by attackers to produce “pirated” content. If there is evidence that certain equipment was purchased and used to increase the number of counterfeit copies of products, then these measures may be applicable with a high degree of probability. At the same time, the destruction occurs at the expense of intruders without compensation from the copyright holders or the state. 

Legal practice shows that such measures to protect the exclusive rights of authors can be applied only if the guilt of the violator is proved. The exception is cases of recovery of damages and compensation from a legal entity that infringed copyright. 

It should be noted that the Civil Code of the Russian Federation does not take into account all methods of copyright protection, which is why in practice it is permissible to use other methods that do not contradict regulatory legal acts. For example, this situation applies to copyright violations on the Internet. The copyright holder has the right to request the removal of “pirated” materials through Roskomnadzor. Also, the law does not prohibit the use of special software to track counterfeit content. 

The law allows for applying to the court with several demands, for example, for the liquidation of an LLC and compensation for damages. However, it is important to know that some protection measures exclude each other. Thus, the copyright holder may demand either damages or compensation.

If there are difficulties with going to court to protect your copyrights, we advise you to seek competent legal assistance. VALEN’s lawyers have extensive experience in the protection of exclusive copyrights.

Author of the article
Protection of the exclusive rights of authors. Legal methods. Responsibility for violation
Valentina Khlavich
Managing Partner
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