Lecture
The objects protected by copyright belong to such fields of human activity as science, literature and art; first, they are the result of creative activity and, second, they exist in some objective form. The absence of either of these criteria makes it impossible to speak of a work as an object of copyright. Moreover, an object of copyright may be either a work as a whole or a part of it (including its title) that satisfies the said criteria of protectability and can be used independently. Creative activity is understood to mean intellectual activity culminating in the creation of a creatively independent result in science, literature or art. Such activity is sometimes called productive, as opposed to reproductive activity, which consists in reproducing ready-made ideas or images according to the rules of formal logic or other known rules. Of course, creativity is a subjective criterion, and no generally acceptable criterion of creative activity has been found to date. As a general rule, any intellectual activity is deemed creative, and the result of such activity is protected by copyright unless it is proved that it is the consequence of direct copying, "piracy" or plagiarism, or that by law it cannot be an object of copyright at all. That is to say, there exists a kind of presumption of the creative nature both of the intellectual activity itself and of any of its results. Where pirated copying has taken place, the body considering the dispute — first and foremost the court — may order an expert examination. Specialists in the relevant field of creative work will give their opinion as to whether the work was created independently or whether there was unauthorised full or partial borrowing of another person's work. In the latter case the work or a part of it will not be an object of copyright. Moreover, all measures will be taken to protect the rights of the genuine author. For copyright purposes, the actual scientific, literary or artistic merits of a work are irrelevant. Copyright protects any creatively independent works irrespective of their purpose and merit. It is only necessary that a creatively independent work meet the second criterion — that it be expressed, i.e. exist in some objective form. The law provides an illustrative list of objective forms of works:
written form (manuscript, typescript, musical notation and so on);
oral form (public utterance, public performance and so on);
sound or video recording (mechanical, magnetic, digital, optical and so on);
image (drawing, sketch, painting, plan, blueprint, film, television, video or photographic frame, etc.);
three-dimensional form (sculpture, model, maquette, structure and so on);
in other forms.
Paragraph 5 of Article 6 of the Copyright Act expressly emphasises that copyright is not connected with the right of ownership in the material object in which the work is expressed. And naturally, "the transfer of the right of ownership in a material object or of the right of possession of a material object does not in itself entail the transfer of any copyright in the work expressed in that object". The only exceptions are the so-called right of access and the resale right (droit de suite), governed by Article 17 of the Copyright Act. For a work expressed in an objective form to be recognised as an object of copyright, the manner of its expression is likewise irrelevant. Legally irrelevant, too, is such an aspect of a work as its disclosure to the public. Copyright extends both to works disclosed to the public and to undisclosed works, provided they exist in some objective form. The forms of disclosing a work to the public are its publication, public display, public performance, broadcasting and the like. A work is deemed to have been disclosed to the public from the moment when it became potentially accessible to an indefinite range of persons, irrespective of the number of persons who actually perceived that work. Publication is the issuing into circulation, with the author's consent, of copies of a work in a quantity sufficient to satisfy the reasonable requirements of the public, having regard to the nature of the work. Most literary (including scholarly) works are disclosed to the public in the form of publication, being issued in print runs justified by reader demand. The display of a work means, in particular, the showing of the original or a copy of the work directly or on a screen by means of film, a slide, a television frame or other technical means. Typical objects of copyright disclosed to the public in the form of display are motion pictures and works of painting exhibited at public exhibitions. A copy of a work means its reproduction made in any material form. Performance is the presentation of a work by means of acting, recitation, singing or dance, live or with the aid of technical means (television and radio broadcasting, cable television, etc.); the showing of the frames of an audiovisual work in sequence (with or without accompanying sound). Broadcasting means the communication of a work by transmitting it by radio or television. In order for display, performance or broadcasting to be treated as disclosure of a work to the public, they must be public in nature, i.e. must make the work potentially accessible to an indefinite range of persons. The first showing of a work with the author's consent over cable television channels is not deemed to be broadcasting and, consequently, is not disclosure of that work to the public. Public display, public performance or communication of a work to the general public are understood as any display, performance or communication of a work directly or with the aid of technical means in a place open to free attendance, or in a place where a significant number of persons not belonging to the ordinary family circle are present.
The law gives only an illustrative list of the most widespread of such objects, taking into account not only their objective form but also their purpose, genre, sphere of application and the interrelationship of individual works of creative endeavour. The objects of copyright are, in particular:
literary works (including computer programs in any language and in any form, including source code and object code);
dramatic and dramatico-musical works, screenplay works;
choreographic works and pantomimes;
musical works with or without words;
audiovisual works (motion pictures, television films and video films, slide films, filmstrips and other cinematographic and television works);
works of painting, sculpture, graphic art, design, graphic stories, comics and other works of fine art;
works of applied art and stage design;
works of architecture, town planning and landscape gardening art;
photographic works and works produced by processes analogous to photography;
geographical, geological and other maps, plans, sketches and plastic works relating to geography, topography and other sciences;
other works.
derivative works (translations, adaptations, annotations, abstracts, summaries, reviews, dramatisations, arrangements and other reworkings of works of science, literature and art);
compilations (encyclopaedias, anthologies, databases) and other composite works which, by reason of the selection or arrangement of their material, constitute the result of creative labour.
Derivative works and composite works are protected by copyright irrespective of whether the works on which they are based or which they incorporate are objects of copyright.
In view of their particular practical importance and the specific features of their legal protection, perhaps only computer programs, databases and integrated circuit layout designs require further explanation.
Protection under Russian copyright law of works irrespective of their location, disclosure to the public and the citizenship of their creators.
Copyright extends to all works, whether disclosed to the public or not, that exist in some objective form on the territory of the Russian Federation, irrespective of the citizenship of the authors and their successors in title. In respect of works, whether disclosed to the public or not, that are located outside Russia, copyright is recognised only for authors who are citizens of the Russian Federation and for their successors in title. For citizens of other States, copyright in such works is recognised only in accordance with the international treaties of the Russian Federation, including the Berne Convention for the Protection of Literary and Artistic Works of 1886 (as revised in 1971) and the Universal Copyright Convention of 1952 (as revised in 1971). One further rule is also important. A work is likewise deemed to have been published in the Russian Federation if, within 30 days after the date of its first publication outside the Russian Federation, it was published on the territory of the Russian Federation.
Copyright does not extend to ideas, methods, processes, systems, means, concepts, principles, discoveries or facts.
The following are not objects of copyright:
The possibility of using a law or banknotes cannot be made dependent on the discretion of the persons who drafted them or produced their design. For this reason, such expressions as "the author of a law, a coat of arms, a flag" should be understood in a purely everyday sense rather than in a copyright sense. At the same time, it should be borne in mind that creative labour in systematising laws, judicial decisions, administrative and similar acts does give rise to copyright. Derivative and composite works are therefore protected by copyright even where they are based on works that are not objects of anyone's copyright.
Comments