Features of the protection of authors' moral rights

An author, a holder of related rights or another holder of exclusive rights is entitled to protect his rights by the means provided for by the Civil Code of the Russian Federation.

The article analyses the problematic issues of protecting the moral rights of authors. It identifies the features that distinguish the moral
rights of an author from other moral rights.

In Article 1255 of the Civil Code of the Russian Federation the legislator sets out a list of authors' rights, from which the following moral rights may be singled out: the right of authorship, the author's right to a name, the right to the integrity of the work, and the right of disclosure.
Turning to the theory of copyright, it is worth noting that there are several approaches to the very understanding of the right of authorship and the author's right to a name.
In modern legislation these two rights are treated as independent, and the Civil Code of the Russian Federation gives the following definitions: "The right of authorship is the right to be recognised as the author of the work, and the author's right to a name is the right to use or to authorise the use of the work under one's own name, under an assumed name (pseudonym) or without indication of a name, that is, anonymously." The legislator notes that the said rights are inalienable
and cannot be transferred by any means, including upon the transfer of the exclusive right in the work. A waiver of these rights is void.
Some scholars, however, have expressed their own view of this question,
for example, B.S. Antimonov and E.A. Fleyshits proposed treating the right of authorship and the right to a name as independent entitlements within the framework of the right to a name
[4: p. 46], on the grounds that these two rights are interconnected and that, as
a rule, an infringement of one is accompanied by an infringement of the other. Thus, for example,
if a work was published by a person who is not its author, under that person's own
name or under the name of a third party, then the author, in protecting his right to a name, also protects his right to be recognised as the author. This opinion is undoubtedly interesting and deserves respect, but it is difficult to agree with, since there are known
cases in which the author's right to a name was infringed while the right of authorship was observed.
Thus, for example, a publishing house, in printing a work, indicates the author's real given name
and surname, notwithstanding that the author had expressed the wish to publish the work under a pseudonym. Here the publishing house does not infringe the author's right to be recognised as the author, but it directly infringes the author's right to a name.

Another interesting view of the problem under consideration was expressed by E.V. Romovskaya. She proposed treating the right of authorship in a broader sense, encompassing all of the author's entitlements in respect of the work.
In her work she wrote that "…a person who has created a work is entitled to be
considered the author of the work not because he is vested with the right of authorship,
but precisely because he is its creator… where a third party appropriates another's work, the latter is entitled to demand protection of his
interests not because he possesses the right of authorship, but solely
because that third party took no part in the creation of the work" .
E.V. Romovskaya's opinion is also interesting in that she draws an analogy
between copyright and the right of ownership, on the basis of which she draws an entirely
well-founded conclusion: "…by adapting the idea of the right of authorship to the rights of an owner, with substantial adjustments of course, one could say
that the owner, in addition to the triad of rights, possesses the right to be considered to be
precisely the owner of that thing, and to demand that no one else appropriate this right to himself" .
As regards the author's right to a name, the legislation in force, as
has already been noted above, grants the author the right to appear under his own name, under an assumed name (pseudonym) or without indication of
a name (anonymously). However, I.V. Savelyeva, for example, expresses the opinion
that "the right to a name comprises not only the author's ability to choose
the manner in which his name is designated upon publication of the work, but also the right
to demand that third parties indicate the name he has chosen upon any use of the work" . However, the question of whether
this entitlement should be singled out separately is debatable owing to the obviousness of the assertion, since any rightholder possesses the right to demand that third
parties observe his rights.
The right to the integrity of the work, the content of which is set out in Article 1266 of the Civil Code of the Russian Federation, is an evolution of Article 15 of the Law of the Russian Federation "On Copyright
and Related Rights", which gives the author "the right to protect the work, including its title, against any distortion or other encroachment
capable of causing damage to the author's honour and dignity (the right to protection of the author's reputation)". At the same time, this Article represents a kind of return, though now at a new and higher level, to Article 479 of the Civil Code of the RSFSR
of 1964, where, among other rights, the author was vested precisely with the right to the integrity of the work. This evolution, in the opinion of V.V. Doroshkov,
appears entirely appropriate, since the right to the integrity of the work
is a more reliable and more effective protection than
the right to protection of reputation alone [7: p. 42]. Thus, for example, Article 15 of the Copyright Law established that the author had to prove the distortion
of the work, as well as any other encroachment on his works, if
such distortion causes or is capable of causing damage to the honour and dignity

of the author. However, Part Four of the Civil Code of the Russian Federation, adopted later, establishes only
the sufficient requirement that changes, abridgements or additions be made to the work [10: p. 239].
Thus, in proclaiming the right to the integrity of the work,
modern legislation has absorbed the experience of the two previously effective
normative acts regulating these legal relations. On the one hand, paragraph 1 of Article 1266 of the Civil Code of the Russian Federation does not permit, without the author's consent, the making of
changes, abridgements or additions to his work, or the supplying of the work,
when it is used, with illustrations, a preface, an afterword, commentaries or explanations of any kind whatsoever. On the other hand, paragraph 2 of Article
1266 of the Civil Code of the Russian Federation gives the author the right to demand protection of his honour, dignity or business reputation where they have been defamed (or where there has been an encroachment)
by the perversion, distortion or other alteration of the work.
V.V. Doroshkov concludes that the law provides the author with the right to protect the work against any alteration, irrespective of whether
that alteration has caused damage to his honour, dignity or business reputation, and also
against the defamation of the author's honour, dignity or business reputation, irrespective of the form of the alteration of the work [6: p. 33]. Moreover, some
scholars consider that in the latter case one should speak "not of an infringement
of the right to the integrity of the work, but of one of the ways of encroaching upon the author's dignity by means of an encroachment upon the work" [6: p. 32].
Here, however, it is difficult not to agree with those scholars who consider that the wording of Article 1266 of the Civil Code of the Russian Federation appears rather debatable if it is interpreted in the light of the provisions of Article 44 of the Constitution of the Russian Federation, which enshrines
the principle of freedom of creative work. If a work is regarded as the result of freedom of creative work and as an expression of the author's inner world, then encroachments upon works may be considered encroachments upon the author's inner world,
that is, upon his dignity. If some encroachment upon a work changes society's attitude to the author or to his work for the worse, then two variants are possible: in the first case, if the author is not troubled by such a change, the provisions of paragraph 2 of Article 1266 of the Civil Code of the Russian Federation are not subject to
application; in the second case the author, where his honour
and business reputation are infringed as a result of the encroachment upon the work, becomes
dependent on public opinion, which is a violation of the constitutional principle of freedom of creative work.
Thus, it follows from a systematic interpretation that paragraph 2 of Article 1266
of the Civil Code of the Russian Federation concerns an encroachment only upon the author's dignity, and not upon his
honour and business reputation
As has already been noted above, the law grants the author the right to demand protection of his honour, dignity
and business reputation where they have been defamed
by the perversion, distortion or other alteration of the work, or where

there has been an encroachment involving such acts. The legislator implies that harm
to the author's honour, dignity and business reputation may be caused by various forms of alteration of the work. In practice, however, it not infrequently happens
that the use of a work in its original form may compromise the author solely by virtue of the work being used in an inappropriate place
or in connection with the context in which the work is performed or displayed. V. Weincke put this very well in his book:
"A special type of infringement" consists not in the work being altered,
but in the unaltered work being used in such circumstances or displayed in such a setting as compromises the work" . Thus, in speaking of the protection of honour and dignity
of the author, it appears reasonable to speak not only of an encroachment upon the content of the work in the form of various kinds of alterations to it, but also of an encroachment upon the spirit of the work.
In our view, V. Weincke's point of view deserves particular attention, for, as surveys of musicians conducted as part of our
research activity have shown, cases of harm being caused to the honour
and business reputation of authors precisely by the context or circumstances of the use of an unaltered work are not infrequent.
The most telling example, as K.M. Meshkova notes, was an incident involving a work by A. Pavlova: a song about war written by the author and entitled "The Enemy" was performed, without notice to or the consent of the author, at a gathering of a nationalist organisation (it was not performed by the author),
and a video recording of the performance was made which was circulated
over the Internet in many thousands of copies . Neither the lyrics nor the music of the song were altered; however, in view of the circumstances of the performance, the line "The enemy
remains the enemy forever" acquired a new semantic content that had not been intended
by the author when creating the work. This led to heightened and unwelcome interest in the author's creative work on the part of certain groups of citizens, as well as to the formation, at a certain level, of an opinion about her work, which can undoubtedly be regarded as causing harm to the honour and business reputation
of the author. This example is also telling in that the video was circulated
without any indication of authorship, which led to an infringement of the moral right of authorship (Article 1265 of the Civil Code of the Russian Federation), not to mention the fact that
the exclusive rights were also infringed (reproduction, distribution, public performance — Article 1270 of the Civil Code of the Russian Federation). Work is currently under way to remove the infringing video from all accessible servers.
Returning to the thesis that a work is a reflection of the author's inner world, it should be noted that the legal questions connected with distortions of the author's world view are very complex and ambiguous, since honour and dignity are moral and ethical categories
and the thresholds at which damage is caused to them differ from person to person. In hearing cases

concerning encroachments upon an author's honour and dignity, judges must strive to understand the author's personality and inner world as fully as possible, rather than proceeding from the world of
the average person.
A very interesting position among the author's moral rights
is occupied by the right of disclosure of a work. Under the legislation in force (Article 1268 of the Civil Code of the Russian Federation) this right means the performance of an act, or consent to the performance of an act, which for the first time makes the work available to the general public. In the same Article the legislator explains
which acts may entail the publication of a work, listing among them publication, public display, public performance, and communication transmitted over the air or by cable networks. The list is not exhaustive and remains open. The right of disclosure, while considered
a moral right, is at the same time very closely connected with economic rights and is, in essence, a transitional link, since disclosure is the condition without which the use
of the work becomes impossible. The work must be disclosed in its entirety. It will not count as disclosure, for example, to give a public
performance of part of a work or to announce a work.
It should be noted that the disclosure of a work is a legal fact and thereby changes the author's legal status, reduces the degree of his control over the work, and in some cases is the starting point for calculating the term of the exclusive right in the work. For example,
a work disclosed anonymously or under a pseudonym has a term
of the exclusive right limited to 70 years beginning on 1 January of the year following the year of its lawful disclosure. This rule has an exception, which provides that if the author of a work disclosed anonymously or under a pseudonym discloses his identity within the said term,
or if his identity ceases to be in doubt, then the author's exclusive right will run under the general rule,
i.e. for 70 years counting from 1 January of the year following the author's death
(paragraph 2 of Article 1281 of the Civil Code of the Russian Federation). A work disclosed after the author's death enjoys an exclusive right which runs for 70 years after
its disclosure, counting from 1 January of the year following the year of its disclosure, provided that the work was disclosed within 70 years
after the author's death (paragraph 3 of Article 1281 of the Civil Code of the Russian Federation).
The Civil Code of the Russian Federation supplements the right of disclosure of a work with two important aspects. The first aspect relates to the transfer of the right to use
the work. In accordance with Article 1268 of the Civil Code of the Russian Federation, an author who transfers a work to another person for use is deemed to have consented to the disclosure of the work, that is, the very fact that the author has concluded a contract
providing for the use of the work may be regarded as the author's consent to the disclosure of the work. The second aspect
Private Law 89
concerns works not disclosed during the author's lifetime. For such
works provision is made for their disclosure by the person holding the exclusive right in the work, provided that such disclosure does not run counter to the will of the author as expressed in a diary, a will, etc.
Very closely connected with the right of disclosure is the right to withdraw a work. The right of withdrawal is governed by Article 1269 of the Civil Code of the Russian Federation, which gives it
an independent character.
Previously, under the Copyright Law, the right of withdrawal was treated as
part of the right of disclosure. This approach appears more accurate,
since the right of withdrawal is a right that operates in a narrower form than the right of disclosure. This right applies only to computer programs, as well as to works made for hire and to works which
form part of a complex object. The author is given the opportunity to renounce a previously taken decision to disclose the work through
the mechanism of the right of withdrawal, on condition that he compensates the losses which this
act may cause to the person holding the alienated exclusive right to use the work .
Where, however, the author exercises his right of withdrawal after the work has been disclosed, the author is placed under an obligation to give public notice of his decision. In the latter case the author acquires the right to recall
the copies of the work put into circulation, having compensated the losses
caused. However, the right to recall copies put into circulation appears rather declaratory, since in practice carrying out such a recall may encounter a number of insurmountable difficulties. Thus, for example,
it is impossible to track the movement of, and to recall, a print run of many thousands of compact discs which has been dispersed among hundreds of retail outlets and already bought up by the author's admirers .
The means of protecting an author's moral rights have been given legal expression in Article 1251 of the Civil Code of the Russian Federation, paragraph 1 of which lists these means. Among them the following are named: recognition of the right; restoration of
the situation existing prior to the infringement of the right; suppression of acts infringing the right or creating a threat of its infringement; compensation for moral harm; publication of the court decision concerning the infringement committed. But whereas the first
four means are common to all civil rights, and their content
has already been set out within the framework of our work, the following should be said about the last: this means is proclaimed, as has already been said, by Article 1252 of the Civil Code of the Russian Federation,
while its implementation is made possible by the Law "On the Mass Media", Article 35 of which obliges editorial offices to publish a court decision which has entered into legal force and which contains a requirement that such a
decision be published through that mass medium .
Thus, the study and analysis of the literature and of the provisions of the legislation on the protection of an author's moral rights have made it possible to conclude

that these rights possess certain unique features. The moral rights of an author, like other moral rights, are characterised by the absence of material content and by an indissoluble connection with the personality of the holder of the right; they are inalienable, and any
contracts and agreements on the transfer of such rights, as well as any waiver of them,
are deemed void. The law, however, provides that after the author's
death the holder of the exclusive rights in the work retains the right
to the integrity of the work and the right of disclosure. In other words, for the holder of the exclusive right in the work these rights arise not by virtue of
succession, but by virtue of the legal composition of the right, which includes,
first, the fact of the author's death and, second, his holding of the exclusive right in the work.