Legal Framework
In Russia, copyright issues are governed by Part IV of the Russian Civil Code ("CC") that became effective on January 1, 2008. It replaced the 1993 copyright law which, in turn, drew heavily upon provisions of the conventions of Berne and Rome regarding copyright and neighboring rights and the model laws of World Intellectual Property Organization ("WIPO"). Part IV of the CC establishes a comprehensive legal framework governing intellectual property (IP) issues, however, in many substantive respects its provisions that are applicable to copyright are similar to the provisions of its predecessor 1993 Russian copyright law. Chapter 69 of the CC sets out general provisions applicable to IP, including copyright. Chapter 70 deals with copyright (called "author's right") and Chapter 71 deals with neighboring rights such as rights to phonograms and broadcasting, as well as scientific works (neighboring rights are outside the scope of this analysis).
Article 5 of Federal Law No. 231-FZ, dated December 18, 2006 (as amended), that brought CC Part IV into force, provided that the provisions of CC Part IV applied not only to all new works, but also new rights and obligations that would arise on pre-existing works. Article 5 further established that existing IP rights were henceforth protected in accordance with CC Part IV, but the authorship and other initial rights were determined by the law effective at the time when a work was created. Pursuant to Article 6 of Federal Law No. 231-FZ, the general 70-year copyright term established by Part IV of the CC applies to situations where the previously applicable 50-year copyright term had not expired by January 1, 1993, as well as to copyrights held by legal entities (as opposed to individuals) that arose prior to August 3, 1993.
Russian Federal Service for Intellectual Property, Patents and Trademarks (Rospatent) is the federal agency overseeing the use and legal protection of IP rights in Russia. Russia is party to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886 (as amended) and the Universal Copyright Convention of September 6, 1952 (as revised on July 24, 1971). Both became effective for Russia on March 13, 1995. As Russia is a party of the WTO, it is bound by the Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS). In 2008, Russia joined the WIPO Copyright Treaty (WCT) that entered into force with regard to Russia on February 5, 2009.
General Provisions
General provisions applicable to IP, including copyright, are set out in CC Chapter 69. Article 1225 of the CC lists types of protected IP, including literary, scientific and artistic works. Unlike the Soviet-era law that allowed legal entities to be deemed "authors", both the 1993 copyright law and CC Part IV only recognize individuals who created the work as authors. Article 1228 expressly states that persons who provide technical, advisory, financial or logistical assistance or supervision, but do not contribute to the creative process, cannot be recognized as authors.
IP rights include the exclusive right and, to the extent provided by the CC, may include "personal non-economic rights" or "other rights" (CC Article 1226). The exclusive right is an economic right that is transferable. It has a period of duration. The exclusive right holder may use the work in any legitimate way and derive financial reward from it, as well as authorize or prevent certain acts in relation to the work. Specifically, the rights owner may authorize or prohibit the reproduction of the work (such as in printed publications), the distribution of its copies, its broadcasting or other communication to the public, its translation into other languages or its adaptation (such as novel into a screenplay). "Personal non-economic rights" (including right to claim authorship of the work) are moral rights allowing the author to take certain actions to preserve the personal link between him or her self and the work. They are non-transferable and cannot be waived (CC Articles 1228 and 1265).
Rules on Copyright
In Russia (as in many continental European countries) copyright is known as "author's rights". CC Article 1259 contains a detailed list of works that are subject to author's rights, including literary works, derivative works (such as translations), collections (such as encyclopedias or data bases), artistic and graphic works, photographs and similar works, computer programs, etc. Article 1259 expressly excludes certain items (such as folklore, news items and official documents and symbols or ideas, discoveries, processes, etc.) from the definition protected works of authorship. It provides that the protection extends both to published and unpublished works and that no registration or other formalities are required for the creation, exercise or protection of author's rights.
Specific provisions governing copyright appear in Chapter 70 of the CC. Pursuant to Article 1255 and related Articles, the author's rights include:
- exclusive right to the work (discussed in more detail below);
- right of authorship (i.e. the right to be recognized as the author of the work);
- "right to name" (i.e. the right of the author to use or authorize the use of a work under his or her name, under a pen name or anonymously);
- right of integrity (i.e. the requirement that any modifications, edits, commentaries or illustrations to the work may only be made or added with the consent of the author, as well as the right of the author to demand protection of its reputation and personal integrity),
- right of publication (an author who has contractually transferred to another person the right to use its work is deemed to have consented to the publication of the work by such person); and
- in cases provided by the CC, other rights (such as the right to withdraw its consent to the publication of work subject to compensating the publisher for resulting damages).
Author's rights discussed under items (ii) through (iv) enjoy protection during an indefinite term. The general term of the author's exclusive right is 70 years after the death of the author (Article 1281) following which the work becomes public domain and may be freely used by anyone (except for unpublished works whose author during his or her lifetime expressly objected to their publication).
Consistent with the general provisions regarding the scope of exclusive rights to IP set out in Chapter 69 of the CC, Article 1270 offers examples of uses of protected rights. Those include reproduction (such as reproduction by the publisher), distribution, public display, import, rental; public performance, broadcasting and similar communication to the public; translation or other adaptation of the work (i.e. creation of a derivative work) or making the work publicly available in any other way. Some forms of reproduction (e.g. certain types of quotations, certain uses in educational text books or by libraries) do not require the author's consent or payment of compensation to the author, provided that the name of the author and the source are clearly indicated.
Generally, it is the author who holds the exclusive right. However, when a work is created by an author who is employed for the purpose of creating that work, then it is the employer, not the author, who holds copyright in the work, unless otherwise provided by contract between the author and the employer. CC Article CC 1295 provides certain exceptions and limitations to this rule.
CC Article 1284 provides that the exclusive right held by the author is not subject to attachment. However, author's claims to third persons under exclusive right transfer agreements or licensing agreements, as well as any revenues derived from the use of a work, may be attached. Similarly, exclusive rights held by persons other than the author, as well as licensee's rights to use a work, may be subject to attachment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
