United States of America
Russian Federation
Copyright and Related Rights
14. We have numerous questions to help us understand Section 6 of Chapter 71 and how the rights of a publisher of a scientific, literary or artistic work differ from the rights of the authors and the authors' assignees/transferees of those works, as set forth in Chapter 70: (a) Please explain the relationship between the publisher protected here and the author/assignees protected in chapter 70. Specifically, how does this section relate to chapter 70, which gives these rights to the author and her assignees? Who has the rights to the work, the author/assignees under chapter 70, or the publisher under Chapter 71? (b) Article 1337(1) (IP/N/1/RUS/O/2 at 400) appears to take works out of the public domain and give the publisher exclusive rights to that work. What works can be removed from the public domain? (c) Article 1340 (IP/N/1/RUS/O/2 at 401) appears to override the copyright term provided Article 1281 and override any contract or agreement that an author may have entered with a publisher. Please explain.
Intellectual Rights to works of scholarship, literature, or art first made public after their passage into the public domain are rights neighboring on copyright (neighboring rights) according to Article 1303 of the Civil Code of the Russian Federation. Section 6 of Chapter 71 of the Civil Code of the Russian Federation dedicated to publisher's right to works of Scholarship, Literature and Art. According to Article 1337 CC RF publisher is the citizen who lawfully made public or organized the making public of a work of scholarship, literature, or art previously not made public and that has gone into the public domain (Article 1282 CC RF) or that is in the public domain by virtue of the fact that it is not protected by copyright. Author or other person with author's consent have the right to make the work public according to Article 1268 of the Civil Code of the Russian Federation. In this case if author during the life did not made public his work himself or not gave consent to do such actions to other person (also in case if author did not lived any prohibition during his life) than such work may be made public by author's successor during the period of validity of exclusive right to work. Upon the expiration of the time period of effectiveness of the exclusive right, a work including previously unpublished, shall enter the public domain and may be used freely by any person without any consent or permission and without payment of author's compensation in accordance with Article 1282 of the Civil Code of the Russian Federation. For purpose of making public of previously unpublished works Division 6 of Chapter 71 of the Civil Code of the Russian Federation provides other persons possibility to make public of work after termination of guarding of exclusive rights in case of absence author's written prohibition such work. In this way publisher is not author of work or successor, he is person who made public work previously unpublished and is entered the public domain. Publisher has publisher's exclusive right to work made public by him and right to indicate his name on exemplar of work made public and in other cases of use (including translation or other recast of work). Publisher's exclusive right to work coincides with habitual copyright to use work in content, only with taking of right to translate, recast and realize an architectural, designer, town-planning landscape project. In this way publisher of work may not control of use of work in translated or reprocessed form. Outside publisher's sphere of control is spreading of original or exemplars of work are imposed in civil use (principle of depletion of rights) lawfully. Publisher's right in the Civil Code of the Russian Federation is right that not make damage to author's interests and to his successor. Publisher's right is made to protect the interests of investigator, allow to reward them for long or perennial search and further to open new creative results. Need to mark that protection of right of persons who make public previously unpublished works and are entered the public domain are provided in provisions of Article 4 of Directive of European Union 93/98/EEC of 29/10/1993 harmonizing the term of protection of copyright and certain related rights, in accordance with it any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The Civil Code of the Russian Federation establishes several important requirements about object of publisher's right:  It shall be work of scholarship, literature or art;  This work shall be recognized as object of copyright in accordance with acting Russian legislation;  It shall not be made public previously;  The work shall not be in state and municipal archives;  The work shall be made public firstly on the territory of the Russian Federation or beyond the boundaries but by citizen of the Russian Federation. Replacement of terms in comparison with Article 1281 of the Civil Code of the Russian Federation in Article 1240 indicated do not happen. Introduction in Russian legislation of publisher's rights are stipulate for necessity of cultural development of society in relations with promulgation of work of Scholarship, Literature and art previously unpublished that is mean unknown till this event and for encouragement of persons who made these work are known for society (made them promulgation – public). The work which have expired term of exclusive right enters to the public domain that is mean it may be used freely by any person without any consent or permission and without payment of author's compensation. But there is question about possibility to use unknown work is entered to the public domain. In case of made public work is entered to the public domain on the condition that such publishing do not contradict the author's will, publisher have right to use such work (the publisher's exclusive right) effective for 25 years counting from January 1 of the year following the year of publishing, namely to use the work with methods are provided in subpoints 1-8 and 11 of point 2 of Article 1270 of the Civil Code of the Russian Federation.