Реферат: The copyright rights
Реферат: The copyright rights
THE
ABSTRACT
On
a theme: The сopyright
rights
MINSK
2011
Concept
and product signs
The
copyright extends on products of a science, the literature and the arts which
are growing out of creative activity, irrespective of appointment and advantage
of product, and also a way of its expression.
The
legislation does not open the maintenance of concept "product" in
spite of the fact that it is basic concept of institute of the copyright. It
speaks that any possible definition of concept "product" cannot to
define in the exhaustive image the given object of a right protection. Attempts
to make definition to concept "product" repeatedly were undertaken in
the copyright theory. The most successful and, therefore, the most widespread,
is the definition formulated by V.I. Serebrovskiy: «product is a set of
ideas, thoughts and the images which have received as a result of creative
activity of the author the expression in accessible to perception by human
feelings to the concrete form, supposing reproduction possibility».
To
be protected by the copyright, product should be expressed in any objective
form. Product is an object ideal; it initially arises in consciousness of
the author as a complex of ideas, thoughts and images, in the form of a
creative plan. Until, as product not begins to exist out of consciousness of
the author, does not become the independent phenomenon of an objective reality,
there is no necessity legislatively to establish legal connection between the
author and its product. If product cannot be used other persons, there is no
subject of legal regulation for norms of the copyright. Differently, product
should exist in shape which is separated from the person of the author and has
got independent life.
Product
can be presented in following forms:
-
Written (the manuscript, typewriting, a musical notation etc.);
-
Oral (public pronouncing, public execution etc.);
-
video-recordings (mechanical, magnetic, digital, optical etc.);
-
Images (drawing, the sketch, a picture, the plan, the drawing, cinema - a body
- video-or a photoshot etc.);
-
Volume-spatial (a sculpture, model, a breadboard model, a construction etc.);
-
In other forms.
However
not any objectively existing work is protected by the copyright. The copyright
extends only for the works which are growing out of creative activity.
As creative activity recognise the independent intellectual activity of the
person directed on creation of an image of the future product and its
embodiment in any objective form.
The
copyright does not regulate process of creation of product. Therefore for the
question decision about products crucial importance has not character of
activity on product creation, and a corresponding sign of the product created
as a result of this activity. A sign of that product grows out of creative
activity, the majority of researchers name its novelty; some scientists use the
term "originality". Novelty (originality) of product is expressed in
the new maintenance, the new form of product. Thus novelty of the idea taken as
a principle of product, does not influence novelty of the product from the point
of view of the copyright. The same idea, the same plot can be used the
different authors, however each of the products, comprising the same idea (a
subject basis), reflects the person of the author and is perceived by a society
as new, independent product. It is possible to tell that any creative
product is characterised by originality, novelty, originality and uniqueness.
Granting
of protection to product does not depend on its appointment and advantage.
Advantage is understood as the various merits of product concerning its form or
the maintenance: the theme urgency, art value, scientific depth, author's style
etc. copyright Appointment as a whole consists not in selecting worthy
products, and in providing interests of the founder of product when its product
can be used other persons. By the copyright any products in which creativity
and which possess the signs of object of the copyright provided by the
legislation is shown should be protected.
The
products protected by the copyright
The
approximate list of objects of the copyright
is named in Law item 7 «About the copyright both the adjacent rights» and item
993 ГК.
To the products protected by the copyright, concern:
-
Literary works (books, brochures, articles, etc.);
-
Drama and is musical-drama products, choreography and pantomime products and
others сценарные
products;
-
Pieces of music with the text and without the text;
-
Audiovisual products (cinema - a body - video films, filmstrips both other
film-and teleproducts);
-
Products of a sculpture, painting, a drawing, lithograph and other products of
the fine arts;
-
Applied art products;
-
Products of architecture, town-planning and landscape gardening art;
-
Photographic products and the products received in the ways, similar to a
photo;
-
Cards, plans, sketches, illustrations and the plastic products concerning
geography, topography and other sciences;
-
Computer programs;
-
Other products.
Products
of all genres of fiction concern number of literary works,
scientific works (articles, reports, etc.), the educational literature,
speeches, reports, sermons and other oral products; journalism products
(articles, interview, discussions, etc.), business and personal correspondence,
etc. Thus literary works can exist not only in written, but also in other
objective form.
Drama
products are rather close to literary
works. Isolation of drama products is caused by specificity of art means of
expression of thoughts of the author inherent in them as in drama products the
basic accent becomes on a statement of creative idea by means of monologue and
dialogues of characters.
The
copyright protects all kinds of pieces of music. The most
widespread version of pieces of music are pieces of music with the text -
songs. The piece of music with the text is created in the co-authorship the
composer and the poet original (i.e. not compound) product; original character
of a song is predetermined by that all protected elements of a song are created
by its co-authors.
The
special place among objects of the copyright is occupied with audiovisual
products. The product consisting of a series of images connected among
themselves (with support by a sound or without it), movements making
impression, and intended for visual and acoustical (in case of support by a
sound) perceptions is audiovisual. The cinema and other products expressed by
means concern the audiovisual, similar to cinematography (television movies,
video films and similar products).
The
copyright protects products of all directions of the fine arts -
products of painting, a drawing, a sculpture, monumental and decorative art,
etc.
Fine
arts products are adjoined by products of an applied art with
which the legislator allocates in a separate kind of protected products.
Applied character of products means, that they are intended not only for
satisfaction of purely aesthetic requirements of public, but also carry out
other, practical functions. Among applied art products the increasing value is
got by design products. The design is an art of giving to the subject
environment of aesthetic qualities surrounding the person, therefore design as
a direction in an applied art, has set of displays - graphic design, industrial
design, design of interiors of premises, etc.
Architectural
products also has the dual nature as should
not only satisfy essential material requirements - to create habitation and to
arrange well environment, but also to satisfy aesthetic requirements of the
person. The is constructive-technical decision of buildings and constructions
is subject to the right protection art, instead of. Thus the right protection
extends both on appearance of object, and on the art decision internal spaces
(interior).
Products
of all kinds photographic and similar to them concern a category
of the protected - irrespective of object (a portrait, a landscape, the
reporting, etc.), and also the pursued aim (professional or amateur shooting),
etc.
New
enough object of protection by the copyright are computer programs.
Computer programs grow out of creative activity. At the same time, providing
protection of computer programs by norms of the copyright, the legislator
inevitably faces the problems caused by specificity of the computer program as
protected object as in it the maintenance (algorithm) has an unconditional
priority over the form (the algorithm stated by the programming language). The
Major importance for the computer program has its functionality which is
predetermined by algorithm, and the program writing in this or that programming
language can be indifferent for the user. Providing protection to the product
form, the copyright does not protect algorithm laying in its basis. Therefore
more and more actual the question on necessity of granting is represented to
the computer program of special protection which, first, would consider
features of object of protection and, unlike the copyright, extended not only
on the form, but also on the algorithm taken as a principle the program, and,
secondly, there was more operative, cheap and accessible, rather than existing
system of patent protection.
Independent
versions of objects of the copyright are derivative products and compound
products.
Transfers
concern derivative products, summaries, abstracts, the resume, reviews,
performances, musical arrangements and other of products of a science, the
literature and art. All of them admit objects of the copyright as activity on
their creation has creative character. The copyright of translators and authors
of other derivative products has dependent character: the author of derivative
product can carry out the copyright only in the event that use of its product
does not attract infringement of the rights of the author of the product taken
as a principle derivative product. The copyright of the translator and authors
of other derivative products does not interfere with other persons to carry out
the transfers of the same products.
Collections
concern compound products (the anthology, databases) and other products
representing on selection or an arrangement of materials result of creative
activity. Creative activity of the composer is expressed that it at own
discretion selects a material and (or) has it on the original system. Result of
creative work of the composer is the system of an arrangement of materials
developed by it as the copyright of the composer does not extend on the
products included in compound product, and the copyright of the composer to
compound product as a whole does not interfere with other persons to carry out
independent selection and an arrangement of the same materials for creation of
the compound products. Therefore, a protection subject with reference to
compound products is original selection and (or) an original arrangement of the
picked up materials. If products protected by the copyright are included in
compound product, the composer uses the copyright under condition of observance
of the rights of authors of each by it of the products included in compound
product.
Any
result of the creativity answering by the established legislation on the
copyright to criteria , will admit object of the copyright irrespective
of, whether it is named in the list resulted above, or not.
Protection
of products by the copyright arises owing to the fact of their creation. For
occurrence and copyright realization it is not required observance of any formalities.
Used for the notification about exclusive copyrights the sign on protection of
the copyright (a copyright sign) and consisting of three elements - the Latin
letter "With" in a circle, a name (name) of the owner of exclusive
property rights and year of the first publication of product - carries out
especially information function. In itself absence on a copy of product of a
sign on protection of the copyright does not mean, that the given product is
not protected by the copyright.
The
copyright to product is not connected with the property right to material
object in which product is expressed. Transfer of the property right or the
possession right any material object in itself does not attract transfer of the
copyright to the product expressed in this object.
The
products which are not objects of the copyright
Concepts
"product" and «object of the copyright» are not identical. The first
concept is wider, as the legislation names some categories of products which,
possessing all signs protected by the copyright, owing to a different sort of
the reasons are deduced from sphere of its action. To products which are not
protected by the copyright, concern:
-
Official documents (laws, judgements, other texts of legislative,
administrative and judicial character), and also their official transfers;
-
The state symbols and signs (a flag, the arms, a hymn, awards, monetary and
other signs);
-
Products of the national creativity which authors are not known.
The
copyright also does not extend on ideas, processes, systems, methods of
functioning, the concept, principles, opening or easier information as those
even if they are expressed, displayed, explained or embodied in product.
Authors
of products. The co-authorship
product copyright protect author
The
copyright by the general rule arises at the author. The author of product the
physical person which creative activity creates product admits.
If
product is created by several persons, such persons admit co-authors. The
co-authorship are the legal relations arising owing to the fact of joint
creation of product by several persons.
The
law names two conditions of occurrence of the co-authorship: 1) product should
be created joint work of two or more persons; 2) work of all participating in
creation of product of persons should have creative character.
Joint
character of work should be estimated not on joint process of work, and by in
common reached result; important not that, as well as in what form co-authors,
and that product has grown out of their joint efforts worked. Therefore for
co-authorship occurrence the joint work understood as activity of several
persons, directed on achievement of the co-ordinated result what product
creation is matters. Thus joint activity does not mean its unity in time and
space, and only that authors work on product together, and each of them brings
the contribution to its creation.
Co-authors
those who has brought the creative contribution to product creation can admit
only. The person who has not brought the creative contribution to product
creation, and rendered only the technical help (a manuscript set, bibliography
drawing up, a portrayal of sketches, etc.) cannot admit the co-author.
Essentially important that the basis of occurrence of the co-authorship are
actual is represented, instead of contractual relations of persons, and any
agreement, including issued in writing, has no legal value if co-authors
actually have not been do joint creative work.
Distinguish
two kinds of the products created in the co-authorship: the products forming
one indissoluble whole, and the products consisting of parts, each of which has
independent value. The product part admits having independent value if it can
be used irrespective of other parts of product. Accordingly, two kinds of the
co-authorship - separate and unseparable differ. The separate
co-authorship takes place when collective product consists of parts, each of
which has independent value and thus it is known, by whom from co-authors these
parts are created. In this case each of co-authors has the right to use the
part of product created by it at own discretion if other is not provided by the
agreement between co-authors. At the unseparable co-authorship the product
created by two or more co-authors, or represents uniform indissoluble whole, or
it is impossible to allocate the contribution of the concrete co-author to
collective product. Therefore the copyright to the collective product created
in the unseparable co-authorship, all co-authors in common carry out. The
legislator, trying to provide interests of all co-authors, establishes, that in
the event that product of co-authors forms one indissoluble whole, any of
co-authors has not the right without the sufficient bases on that to forbid
product use.
The
principle of the joint order product does not interfere with authors to enter
into among themselves the agreement defining a procedure of the rights
concerning collective product. By the legal nature the agreement of co-authors
is one of versions of contracts on an order of using the right, similar to the
contract of proprietors on an order of use of property.
Office
products
The
law of Byelorussia «About the copyright and the adjacent rights» defines office
product as the product created as performance of the office task or official
duties.
The
law does not contain accurate definition of sphere in which norms about office
products are applied. Nevertheless, it is possible to say that the concept
"office" can be used only with reference to the products created
within the limits of labour relations. The legislator uses the term
"employer", definition to which is given in the Labour code of
Byelorussia. According to item 1 ТК
the employer is legal or the physical person to whom the legislation gives the
right of the conclusion and the termination of the labour contract with the
worker. Besides, the legislator uses concepts "official duties" and
«the office task» which are applied in labour relations.
The
first possible basis of a recognition of object of the copyright office is that
its creation is included into official duties of the worker. The current
legislation does not give that direct definition, that such "official
duties". The labour code uses concept «office position of the worker» at
definition of the term "post". Thus office position of the worker is
defined by circle of its duties, the official rights and character of
responsibility. Proceeding from it, it is possible to put an equal-sign between
concepts "official duties" and «official duties». In turn, official
duties assume presence of labour relations which should be issued the labour
contract; in the labour contract or in duty regulations official duties of the
worker also should be fixed. Thus, the status office can receive product in the
event that its creation is included into labour duties of the author.
The
law «About the copyright and the adjacent rights» establishes a special
legal status concerning office products. The personal non-property rights
to the product created as performance of the office task or official duties
(office product), belong to the author. Property rights on office product
belong to the employer if the contract between it and the author does not
provide other.
As
follows from norm of item 14 of the Law, the presumption of an accessory of
property rights on office product to the employer can be denied conditions of
the prisoner between it and the author of the contract. The employer and the
author in the labour contract (contract) can establish, that property rights on
office product in full arise at the author; in this case its legal regime will
not differ from a legal regime of the product created outside the limits of labor
relations, and to the employer interested in its use, it will be necessary to
conclude the author's contract with the worker. Property rights according to
the agreement will be divided between the worker and the employer (on ways of
use of product or territory on which the right will be carried out).
The
law limits the author of office product in possibility to take advantage of the
personal non-property rights belonging to it. In the event that the owner of
property rights on office product is the employer, the author has not the right
interfere with promulgation such intergovernmental cooperation administrative
Besides, the author of office product cannot to carry out the right to a
response also.
The
recognition of property copyrights to office product for the employer deprives
of the author of such product of the right to reception of compensation both
the employer, and the third parties.
The
literature
1.
The copyright and the adjacent rights. Laws, conventions, договоры
and agreements. - Minsk, 2010.
2.
Intellectual property. The basic materials: In 2 parts the Translation from
English, Novosibirsk, 1993.
3.
Intellectual property. The Dictionary-directory/under the editorship of A.D. Korchagina.
- M, 2011.
4.
Savelyev I.V. legal regulation of relations in the field of art creativity. - М,
2009.
5.
Serebrovsky V.I. Voprosy of the Soviet copyright. - М,
1956.
6.
Sergeys A.P. Intellectual in the Russian Federation. TH., 2008.
7.
Tchernyshev S.A. Аuthor's
the contract. - М,
2011.
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