THEMINISTRY OF EDUCATION OF Republic of Belarus
THEABSTRACT
Ona theme: Intellectual property. Objects author's and the adjacent rights
MINSK2011
Theorigin of the term «intellectual property» often contacts the Frenchlegislation of the end of XVIII century. Originally was considered, that thepatent or the exclusive right to product use represent the contract between asociety and the inventor (author): the society protects the legal owner,guaranteeing it compensation for promulgation of the invention (work of art)and agreeing to provide its unobstructed and exclusive use in industrial orcommercial objectives. However already John Lock considered, that theintellectual property right should be considered as the natural right, insteadof as the right based on the law.
Thetradition leant against the theory of the natural right the approach toauthor's and to a patent right, received the most consecutive development inworks of the French philosophers-educators. According to the granted theory theright of the founder of any creative result, a literary work or the inventionis its integral, «natural» right, arises from the nature of creativeactivity and «exists irrespective of a recognition of this right thegovernment». Theright arising at the creator to the result reached by it was considered assimilar to the property right arising at the person which work creates amaterial thing.
InFrance at «old regime» for the author the right to literary works hasbeen definitively recognised. Revolution of 1789 dared all«privileges» therefore it has been proclaimed: «Everything, thatthe author opens for public, becomes a public property» (the Decree of theConstituent assembly of 1789), but soon even the new mode has reconsidered thedecision. Two laws (1791 and 1793) For the first time in history guaranteedprotection of all forms of creativity (literary, drama, musical, graphic) atreproduction by all known then methods. In report of ЛеШапельеwhich has laid down in a basis of the first law, affirmed, that «the mostsacred, the most incontestable and if it is possible so to be expressed, mostpersonal of all patterns of ownership is product which fruit of literarythought» is. In the prologue of the French patent law of 1791 it was said,that «any new idea, declaration and which realisation can be useful to asociety, belongs to the one who has created it, and would be restriction ofhuman rights not to consider the new industrial invention as the property ofits creator». Fastening in the French legislation of concepts of theliterary and industrial property became a consequence of such approach. Evenearlier the idea about the copyright as «the most sacred kind of theproperty» has been embodied in laws of several states of the USA. So, inthe law of the State of Massachusetts from March, 17th, 1789 it was specified,that «there is no the property belonging to the person more, than thatwhich grows out of its brainwork»). Similar designs have been fixed in thelegislation of many countries. In «Legal philosophy» underlinedspecial value of protection of scientists and artists from an arbitrariness andencroachments on their rights, rendering of protection of their property asproblems of encouragement of sciences and arts: «just as the mostimportant encouragements of the industry there was a maintenance from robberyon the big road». However philosophical judgement of a category«intellectual property» till now it has not been made.
Alongwith the concept (or a design) in the form of the rights of the industrial property,literary, scientific, art or, in the most universal kind, — intellectualproperty, in the national right of some the countries the category«exclusive rights» («the intellectual rights»,«protection of the industrial rights», etc.), understood as therights of a special sort is widely applied concerning the rights to results ofintellectual activity. Especially it is characteristic for Germany.
Forthe first time the mention of intellectual property has appeared in the Frenchlegislation of an epoch of Great French revolution. The theory of the naturalright which essence consisted that all made by the person, whether it bematerial objects or results of creative activity, admitted its property at thistime dominated. Therefore the founder of results of creative activity had theexclusive right to dispose of them.
InXIX century the copyright of the French sample has served as model for othercountries of continental Europe, and also, after the Second World War, and forthe General declaration of human rights of 1948: «Everyone has the rightto protection of its moral rights and the material interests which are growingout of scientific, literary or art works which author it is».
Somedistinctions are connected with existence of Anglo-American and continentalsystems of the copyright. After in XVIII century protection of products beganto admit for the first time not the privilege granted сувереном,and the right based on the law, there were two directions of scientificthought.
Oneof them — school of the natural right — has been apprehended by the countrieswith legal tradition of Rome. Product admitted belonging to the author owing tothe fact of its creation. The attention was accented on idea of distribution ofprotection not only on property, but also on the personal non-property rightsof authors. Laws only кодифицировалиnaturally existing human rights, in the right protection centre there was aperson of the founder, the creator.
Meanwhilethe general law developed in other direction. In the general law countries,mainly, in the USA and the Great Britain, the right provided by a general lawbased on «the natural property rights» (Lock's classical formula)admitted. However at codification of these rights by legislators only limitedproperty protection has been given authors. Hand-written laws not кодифицировали«the natural right», and have simply replaced it, initially havingpresented property rights in the form of the urgent exclusive right toreproduction. The law purpose protection of property rights of founders andpublishers which got the rights at the first founder or at its assigneesadmitted first of all. Thus, founders could concede all rights to product (ifother has not been provided by the contract) in exchange for monetarycompensation. The approach accepted in the Great Britain and the USA, on theessence differed from former system of privileges a little.
Underthe Law of the USA on the copyright receive protection such kinds of productswhich in the countries of the continental copyright are often protected on thebasis of systems of the adjacent rights, in particular, executors ofaudiovisual products are considered as authors. Protection on Anglo-Americansystem extends on product irrespective of a category of its legal owner.Protection on continental system of the copyright is based on civil law, itsbasic idea consists that products are a product of creative activity andinseparably linked with the person of their founders. As a result of suchapproach the legislation of some the countries adhering to continental system,did not extend and right protection on legal bodies. In the centre ofregulation of continental legal systems there is a protection of the founder ofproduct while the Anglo-American system of the copyright is aimed at productprotection as that. Hence, in the latter case there was no necessity for anyconcept of the adjacent rights as these rights were regulated by the copyrightin a broad sense.
Inthe XX-th century the great value was got by a question on the internationalprotection of copyrights. It has led to collision of two systems and theirconcepts. Gradually there is a compelled rapprochement of systems. So, thelegislation on the copyright with a view of protection of the non-propertyrights of founders was necessary to reconsider the USA; have gradually startedto admit, though and on the basis of numerous norms of a general law, thepersonal non-property rights of authors as a subject of the right protectiongiven according to the Bern convention. In turn, the continental states beganto provide protection to the legal bodies who are carrying out financing ofcreative activity, recognising necessity of such protection, for example, foreffective operation of film production.
Furtherindustrial production and agriculture rapid development, and also internationaltrade and exchange growth between the countries last achievements of scienceand technology have demanded higher degree of legal regulation of theinternational relations in intellectual property sphere.
Asa result of it, in many countries of the world concerning protection ofprincipal views of intellectual property began to appear international договоры.So, for example, on March, 20th, 1883 in Paris theConvention on protection of the industrial property «which became thebasic document in the field of protection of the rights to intellectualproperty has been accepted». TheBern convention on protection literary and works of art «from September,9th, 1886 was the following document in system of protection of intellectualproperty». Further,the major agreement in the field of intellectual property protection, theprisoner also in the last century in Madrid on April, 14th, 1891 «theAgreement on the international registration of signs»
However,all these documents, protecting the major objects of intellectual property, didnot comprise the concept «Intellectual property». For the first timeit has been entered in international legal договорыby «the Convention establishing the world organisation of intellectualproperty», signed in Stockholm on July, 14th, 1967 and changed on October,2nd, 1979.
Inthe pre-revolutionary Russian legislation the term «intellectualproperty» was not used. For the author, the owner of the privilege(patent) or the person who has carried out registration, for the purpose offastening to them monopolies for use of some results of intellectual creativeactivity or individualization means admitted the property competences makingthe maintenance of exclusive rights. Exclusive rights made independent civillaw.
Inthe conditions of a socialist way of manufacture exclusive rights have lostfunctions of institutes of market economy, therefore and the term «exclusiverights» in the Soviet legislation was not used.
Theterm «intellectual property» in the USSR has appeared for the firsttime in the Law from March, 6th 1990г.«About the property in the USSR», and then in the Law of the Russian Federationfrom December, 24th 1990г.«About the property in RSFSR» and in the Law of Byelorussia from December, 11th1990г.« About the property in БССР». The civil code of 1964 contained sections" the Copyright ","the Right to opening "," the Right to the invention, the efficiencyproposal and the industrial sample ". However in them terms"intellectual property «and» the industrial property «were notused. Moreover, sections of the Civil code» the Right to opening«and» the Right to the invention, the efficiency proposal and theindustrial sample «have become invalid in connection with acceptance in1993 of Laws of Byelorussia» About patents for inventions ","About patents for the industrial sample "," About trade marks andservice marks ", and also many positions of section«Copyright»inconnection with acceptance in 1995 of the Law of Byelorussia" About thecopyright and the adjacent rights ". These laws have radically changed theapproach to intellectual property in the country, as much as possible havingapproached the legislation in this area to the standard international standards.
Inthe new Civil code of Byelorussia it is accurately looked through alreadydeveloped civil law: exclusive rights to results of intellectual activity(intellectual property).
Objectsof the copyright and the adjacent rights
Thecopyright is the legal term designating therights, given to authors literary and works of art. The copyright extends onproducts of a science, the literature and the arts which are growing out ofcreative activity, irrespective of appointment and advantage of product, andalso from a way of its expression. The copyright extends both on promulgated,and on the unpublished products existing in any objective form:
1)written (the manuscript, typewriting, a musical notation etc.);
2)oral (public pronouncing, public execution etc.);
3)videorecordings (mechanical, magnetic, digital, optical etc.);
4)images (drawing, the sketch, a picture, the plan, the drawing, cinema — a body– video etc.);
5)volume-spatial (a sculpture, model, a breadboard model, a construction etc.)etc.The copyright does not extend on actually ideas, methods, processes,systems, ways, concepts, principles, opening, the facts.
Accordingto the legislation on copyrights of Byelorussia to object of the copyright itis necessary to carry:
1)literary works (books, brochures, articles, etc.);
2)drama and is musical-drama products, choreography and pantomime products andothers сценарныеproducts;
3)pieces of music with the text and without the text;
4)audiovisual products (cinema — a body — video films, filmstrips both otherfilm-and tele-products);
5)products of a sculpture, painting, a drawing, lithograph and other products ofthe fine arts;
6)applied art products;
7)products of architecture, town-planning and landscape gardening art;
8)photographic products and the products received in the ways, similar to aphoto;
9)cards, plans, sketches, illustrations and the plastic products concerninggeography, topography and other sciences;
10)computer programs;
11)other products.
Protectionof computer programs extends on all kinds of computer programs (includingoperational systems) which can be expressed in any language and in any form,including the initial text and an objective code.
Objectsof the copyright also concern:
1)derivative products (transfers, processings, summaries, abstracts, the resume,reviews, performances, musical arrangements and other processings of productsof a science, the literature and art);
2)collections (anthologies, databases) and other compound products representingon selection or an arrangement of materials result of creative activity.
Thecopyright and the adjacent rights are necessary conditions of development ofcreativity, giving to authors stimulus in the form of a recognition and fairmaterial compensation. This system of protection of the rights provides toauthors a guarantee of distribution of their products without fear of notmanufacturing of copies or a piracy. And it, in turn, provides more an easyapproach of the population of the countries of the world to cultural values, toknowledge and entertainments, and also guarantees their higher quality.
Theadjacent rights are the rights which belong toexecutors, to manufacturers of soundtracks and the on-air broadcastingorganisations accordingly concerning their executions, soundtracks andtele-broadcasts.
Theadjacent rights differ from the copyright that they belong to owners who areconsidered as intermediaries at manufacturing, record or distribution ofproducts. Communication with the copyright is caused by that fact, that threecategories of owners of the adjacent rights are auxiliary links in the courseof intellectual creativity as they assist authors at the message of products ofthe last for general data. The musician executes a piece of music written bythe composer; the actor plays a role in the play written by the playwright;manufacturers of soundtracks or more often named as «the writing down industry»write down and let out songs and the music, written by authors and thecomposers, executed by musicians or singers; the on-air broadcastingorganisations transfer products and soundtracks on the radio or televisionbroadcasting stations.
Inсоответств іі from item 994 ГК the adjacent rightsextend on executions, statements, soundtracks, transfers of the organisationsof a radio and cable announcement. Foroccurrence and realisation of the adjacent rights it is not required observanceof any formalities. The copyright and theadjacent rights are necessary conditions of development of creativity, givingto authors stimulus in the form of a recognition and fair materialcompensation. This system of protection of the rights provides to authors aguarantee of distribution of their products without fear of not authorisedmanufacturing of copies or a piracy,and it, in turn, provides more an easy approach of the population of thecountries of the world to cultural values, to knowledge and entertainments, andalso guarantees their higher quality.
object rightintellectual property
The literature
1. The copyright and the adjacentrights. Laws, conventions, договорыand agreements. — Minsk, 2010.
2. Intellectual property. The basicmaterials: In 2 parts the Translation from English, Novosibirsk, 1993
3. Intellectual property. TheDictionary-directory/under the editorship of A.D.Korchagina. — m, 2011.
4. Savelyev I.V.legal regulation ofrelations in the field of art creativity. — М,2009.
5. Serebrovsky V.I.Voprosy of theSoviet copyright. — М,1956.
6. Sergeys A.P.intellectual in theRussian Federation. TH., 2008.
7. Tchernyshev S.A.author's thecontract. — М, 2011.