Review of TRIPS Implementing Legislation - Search

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Article 63.2 of the TRIPS Agreement requires Members to notify the laws and regulations made effective by that Member pertaining to the subject matter of the Agreement to the Council for TRIPS in order to assist the Council in its review of the operation of the Agreement.

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Page 18 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America 35. Article 18.6 of the Law on Circulation of Medicines (as last amended on June 25, 2012) states: "The results of the nonclinical trials of medicinal products and clinical trials of medicinal products submitted by the applicant for state registration of the medicinal products shall not be obtained, disclosed, used for commercial purposes and for purposes of state registration without applicant's permission within six years from the date of the state registration of the medicinal product. Violation of the prohibition specified by this Clause shall entail the responsibility in accordance with the legislation of the Russian Federation. The circulation of medicines in the Russian Federation registered with violation of this Clause shall be prohibited." How this provision is implemented? Is the six-year term of protection in force? Are there any implementing regulations that would explain (1) what procedures the MOH would follow in order to protect originator's data from both disclosure and from reliance by generic companies and (2) what procedures would generic companies follow to obtain state registration for medical products. Please explain the relationship of Article 18.6 with Article 26 of the same law, which allows for the accelerated review of the marketing authorization applications for generic drugs.
Article 18 of Federal law FZ-61d.d. 12.04.2010 has been complemented with section 7 of the following content: «It prohibited to receive, disclose, commercially use and use for state registration any information on non-clinical research of medical products and clinical research of medical products, provided by the applicant for state registration of medical products without their permission for six years since the date of state registration of a medical product. Non-observance of the prohibition stated by the abovementioned section entails amenability in compliance with laws of the Russian Federation. Turnover of medical products registered with violation of this section on the territory of the Russian Federation is illegal» The abovementioned section applies after 22 August 2012. To observe requirements of Section 7 of Article 18 and prevent violations of exclusive rights of developers of medical products the Ministry of Health of the Russian Federation in its draft bill «On amendments to Federal law «On turnover of medical products» and to article 333.32.1 of part two of the Tax Code of the Russian Federation» made an amendment to the composition of the registration dossier (article 18, section 3) by including documents that verify: "12) presence of intellectual rights 13) presence of consent of an applicant of an original medical product to use information about results of non-clinical and clinical researches of the original medical product in case less than six years has passed since the registration of the original medical product." Article 26 FZ-61 d.d.12.04.2010 «On turnover of medical products» applies only to urgent production of experts evidence but not to urgent registration. Since rapid production of experts evidence may be applied to reproduced medical products provision of information obtained during non-clinical and clinical researches of the original medical product and published in specialized publications is possible during such procedure if the original medical product is not covered by patent protection. At the same time the Russian Federation according to the Doha Declaration (on the TRIPS Agreement and Public Health) of 2001 in which a concern about the impact of intellectual property rights on medical products prices was expressed and ultimately reserves the right to consider applying Article 8 of the TRIPS Agreement in terms of implementing the right to health, which states that during drafting or amending of national laws or regulations member-states can take measures necessary in protecting population's health, as well as Article 30 of the TRIPS agreement which contemplates some exclusions from exclusive rights granted by patents while barring unjustified limitations of rights of patent-holders and third parties. Particularly the right to «early usage» does not contradict this article (the so-called Bolar provisions) which allows generic drugs producers to conduct all the procedures and trials necessary to registration of a generic drug before patent to the original drug expires (or exclusive research data regulations). As a result they are guaranteed the possibility of entering generic product to the market right after the stated period has expired. Actually a series of amendments in the Law on Circulation of Medicines N61 is considered by the Government.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 1: We would like to confirm our understanding of your response: Article 1232 does not apply to works protected by copyright and related rights, and that although certain types of copyrighted works may register under this Article (i.e. computer programs and databases), such registration is voluntary and not required to receive copyright protection. The phrase "means of individualization" is used a few times throughout this document and we would appreciate an explanation, perhaps just in different words, of what this phrase means. We imagine it may be simply a translation issue and may relate to original authorship but would be grateful for clarification.
We confirm that the provisions of the Article 1232 of the Civil Code of the Russian Federation do not apply to works, protected by copyright and related rights. Regarding such copyright objects as computer programs and databases state registration is conducted at the option of the right holder and may be made at the Patent Office. Such registration is voluntary. Computer programs and databases are copyright-protected regardless of the fact that the registration has been made or not by the right holder (subparagraph 2 paragraph 4 of Article 1259 and paragraph 1 of Article 1262 of the Civil Code of the Russian Federation (hereinafter - CC RF)). The term "means of individualization" is used in the CC RF as generalized and systematic (paragraph 1 of Article 2; Article 128; paragraph 4 of Article 129; paragraph 1 of Article 1225 of the CC RF etc.). It includes types of an intellectual property intended for individualization of legal entities, goods, works, services and enterprises. Means of individualization include: (1) Trade names (2) Trade marks and service marks (3) Appellations of origin (4) Commercial names The means of individualization are described in chapter 76 of the CC RF.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 2: We would like clarification regarding the first concern raised: Can an author provide an exclusive license limited to only one right (i.e., reproduction) and maintain ownership of the other exclusive rights? And could you confirm that there is no requirement to register a transfer or assignment of exclusive copyright rights? We understand your last paragraph here to mean that Article 1234 does not apply to works protected by copyright or related rights; and that "result of intellectual activity" is a patent-related activity or other non-copyright activity. Is that correct?
Yes, an author can provide an exclusive license limited to only one right (i.e., reproduction) and maintain ownership of the other exclusive rights. For example, the author of the literary composition can provide an editor with an exclusive license to reproduction and distribution of the copies, while maintaining other rights (particularly the right to the translation into other languages, film right, stage right and right to bringing to the public etc.). We confirm that that there is no requirement to register a transfer or assignment of exclusive copyright and related rights. A state registration of an exclusive copyright transfer is required only in case when a computer program or database has been registered at the wish of the right holder at the Patent Office. Such registration is required only in case of alienation of an exclusive copyright for computer program or database, or in case of an exclusive copyright transfer under the procedure of universal legal succession (inheritance, legal entity reorganization). A state registration of a license contract for such computer program is not required. Article 1234 of the CC RF establishes general rules regarding the contract on the exclusive right alienation as special type of civil law contract. This article applies to all the law-protected types of intellectual property, including copyright and related rights objects. A question of a state registration of an exclusive copyright alienation (paragraph 2 of Article 1234) shall be resolved pursuant to the paragraph 2 of Article 1234 of the CC RF. It provides that a state registration of an exclusive copyright transfer or assignment is required only in case when according to the law an exclusive right arises on the ground of mandatory state registration. An exclusive right for copyright and related rights objects arises from the moment of its creation. The registration of the copyright and related rights objects or compliance with other formalities is not required for origin, realization and protection of the copyright and related rights (paragraph 4 of Article1259 and paragraph 2 of Article 1304 of the CC RF). The requirements of the paragraph 2 of Article 1234 regarding state registration are not applied to the exclusive copyright and related rights alienation contracts (except for contracts of alienation of exclusive right for a registered computer program or database – paragraph 5 of Article 1262 of the CC RF). The term "the results of intellectual activity", is used in the CC RF as generalized and systematic as well as term "means of individualization" (paragraph 1 of Article 2; Article 128; paragraph 4 of Article 129; paragraph 1 of Article 1225 of the CC RF etc.). Results of intellectual activity includes objects of copyright and related rights, inventions, utility models, industrial designs, breeding achievements, topographies of integrated circuits, secrets of production (know-how).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 3: We would like to confirm our understanding of your response: is it true that, like Article 1234, Article 1235 does not apply to works protected by copyright and related rights?
No. Article 1234 and Article 1235 of the CC RF are located in Chapter 69 «General provisions» and thus apply to all the objects of intellectual property, including works protected by copyright.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 4: Paragraph 3 of Article 14bis of the Berne Convention provides that "unless the national legislation provides to the contrary, the provisions of paragraph (2)(b) above shall not be applicable to authors of scenarios, dialogues and musical works created for the making of the cinematographic work, or to the principal director thereof." Does Article 1240 or another Article of Russian law provide that the provisions of Berne Article 14bis be applied to authors of scenarios, dialogues and musical works created for the making of the cinematographic work? We would also like clarification of how Article 1240 impacts an author's contract with a film producer. In other words, could you describe what rights an author retains in his work when that work is part of a film? And could you specify where those rights are provided for in Russian law? For example, can an author's contract maintain some rights, such as the right of public performance?
The provisions of paragraph (2)(b) of the Article 14bis of the Berne Convention are provided by the Articles 1240 and 1263 of the CC RF. Under paragraph 2 of Article 1263 of the CC RF the authors of an audiovisual work are: (1) the director (2) the author of the script (3) the composer being the author of a musical work (with or without a text) specifically created for the audiovisual work If an author of the film (a producer) makes contracts with these three persons on the alienation of theirs exclusive rights, the exclusive right on film will transfer to him in general. The other authors of the works that are incorporated in an audiovisual work, either existing before (the author of the work that underlies the script, and others) or created in the course of working on it (photography director, art director and others) have their exclusive rights to their works (but not to a film in general). These rights shall be also acquired by a film producer on the grounds of a contract. Article 1240 of the CC RF establishes that if an object of intellectual property is created specially to be included in the film, such contract shall be deemed an exclusive right alienation contract, except as otherwise envisaged by agreement of the parties. Thus, this rule applies to all three authors of a film (paragraph 2 of Article 1263 of the CC RF), and to any other authors, whose works have been specially created for this film (for example to a dialogues author, art director, photography director). The transfer of an exclusive right from an author to a producer is a subject to the contract. Under paragraph 1 of Article 1240 of the CC RF this contract is considered as an exclusive right alienation contract. This provision is defined as dispositive, so the parties of a contract have a choice to conclude a license contract or an exclusive right alienation contract. Paragraph 2 of Article 1240 of the CC RF provides that the terms of a license contract are invalid when they limits the use of the intellectual property when this property is a part of a complex work. This rule reflects the content of Article 14bis of the Berne Convention as it aimed to prevent the refusal of an author to entitle a person who has created a complex object (inter alia, a producer) to use his works which are necessary to dispose the rights to use complex works in general. So, director, author of the script, composer, dialogue writer and any other person who created a work specifically for its use in a film in accordance with Article 1240 of the CC RF are covered by a general rule of para.2(b) Article 14bis of the Berne Convention which complies with a provision of paragraph 3 Article 14bis of the Berne Convention which allows to establish in national legislation the rules which are different from those set in paragraph 2(b) of the named Article. The list of rights conferred to authors of any copyright objects is contained in paragraph 2 of Article 1270 of the CC RF. If the contract on the alienation of the exclusive right is concluded, all the rights conferred to authors entirely transfer to a producer. Exception to this rule is the right of a composer for «a fair compensation» for use of his work as a part of an audiovisual work which is charged when this audiovisual work is publicly performed and also when it is broadcasted or cable transmitted (paragraph 3 of Article 1263 of the CC RF). Composer reserves this right even it has been alienated unless otherwise is expressly provided by his contract with a producer. Entering into a license contract the parties establish themselves a list of rights which are transferred from an author to a producer for using its work. However, this list cannot be narrower than it is necessary for a film use in general (paragraph 2 of Article 1240 of the CC RF). Since a producer needs a right of pubic performance in order to use the film in general, this right could not be reserved by the author.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-up to Question 6: In the second paragraph, could you further explain the different actions one must take to transfer or assign ownership depending on whether a computer program or database is registered or unregistered?
In accordance with paragraph 5 of Article 1262 of the CC RF contracts for the alienation of the exclusive right to a registered computer program or database as well as the transfer of the exclusive right to such a program or database to other persons without a contract shall be subject to state registration. In accordance with Article 1241 of the CC RF the transfer of an exclusive right to a registered computer program or database to another person without a conclusion of a contract with the right holder is admissible in the cases and on the grounds established by law, for instance, in line of universal succession (inheritance, the reorganization of a legal entity) and in the event of the levy of execution on the right holder's property. The license contracts on the granting of the right to use registered computer programs and databases are not required to be registered. Regarding unregistered computer programs and databases there is no requirement to register transfer or granting the rights to such programs and databases.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 7: Is there 1) a limit on the number of copies that can be made by an individual as a free reproduction under Article 1273, and/or 2) a requirement that such copies be made from a lawfully acquired copy of the work? And in reference to your penultimate paragraph, we do not see a definition of "household" within the civil code; is this meant to be understood as one's immediate family (as opposed to a dormitory housing fifty students, for example)
1) The CC RF doesn't contain any indications on a limit on a number of copies that can be made by an individual as a free reproduction. However, the CC RF clearly defines boundaries within which an individual is entitled to make a free copy of the work: Firstly, subparagraph 2, paragraph 5 of Article 1229 of the CC RF stipulates that the provided cases of free reproduction for personal use should not cause unjustified harm to the ordinary use of the results of intellectual activity and impair in an unjustified manner the lawful interests of the right holders. Secondly, paragraph 1 of Article 1273 of the CC RF states that the free reproduction is limited to a necessity of an individual and exclusively for personal purposes, which Article 1273 defines as the subsequent non-commercial use of such copy in order to satisfy personal needs or the needs of its family. 2) In accordance with Article 1273 of the CC RF only legally promulgated works may be subject to free reproduction for personal purposes. Highest judicial bodies of the Russian Federation - the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation – also indicate such matter by stipulating in the paragraph 34 of the Resolution of Plenum of the Supreme Court of the Russian Federation No.5, Resolution of Plenum of the Supreme Arbitration Court of the Russian Federation No.29 dated on 26 March 2009 «On certain issues arisen in connection with coming into effect of the Part IV of the Civil code of the Russian Federation», that while applying the Article 1273 of the CC RF, the courts should take into consideration the fact, that the reproduction should not be considered as a violation of the exclusive rights for reproduction only if at the moment of making the copy the work itself is used legitimately. Thus, reproduction, made with counterfeit copies of work or at unlawful bringing the work to the public (including the unlawful placement on the Internet) shall be considered as a violation of the exclusive rights to the work. The term «household» is taken not from the CC RF, and was used in our explanation to describe «the use for personal proposes».
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 9: We remain concerned that this exception might be broader than the 3-step test permits and would like clarification. For example, would a non-profit entity be able to use this exception to reproduce a work in dot-relief type (which we understand to be Braille) when the copyright owner has made the work available in dot-relief type?
No, it wouldn't. If the author published the work in dot-relief type or in any other special type intended for persons with visual impairment, the provisions of the subparagraph 6 paragraph 1 of Article 1274 of the CC RF are not applied. If the work was published for the first time in a legal way in any other type (not in a special type), it may be used in special type by any person in accordance with the provisions of subparagraph 6, paragraph1 of Article 1274 of the CC RF.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 10: We are not concerned about the ability to provide exceptions for the purposes of parody and caricatures; rather, we remain concerned about the breadth of the specific exception itself. Is this exception limited to taking only the portion of the work necessary for the purposes of the parody? In other words, we are interested in how the parody exception itself complies with the three-step test.
It would be rather difficult to formulate such provisions in a law. For example, paragraph 4 of Article L122-5 of French Intellectual Property Code does not contain any details regarding the possible scope of work use for the purposes of a parody creation. These questions are resolved by a judicial practice. The courts are also guided by three-step test. In the ruling of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11 November 2013 № 5861/13 on a claim of "Pervoe muzykalnoe izdatelstvo" (English: "First music publishing company"), LLC to "MTF Production", LLC to recover a compensation for violation of exclusive rights for a musical work with lyrics, the Court satisfied claims of the plaintiff and reversed a judgments of courts of inferior jurisdiction. The Supreme Arbitration Court specified that the courts of inferior jurisdiction considered the music video as a subject of parody but did not take into account that it was accompanied with the music works which had not been arranged for parody. So, since music works themselves were not subjects of parody, it was necessary to obtain the permission for their use and it means that exclusive rights for these works were infringed. It seems that such ruling of the court shows that judicial practice forms a right approach to such adjudgements.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 13: This answer seems to indicate that this Article impermissibly usurps the exclusive rights of the authors whose works are incorporated into a database. Please explain how Article 1334(2) accounts for the rights of authors of works included in a database.
Wording of a paragraph 2 of Article 1334 of the CC RF provides only that related rights arising for author of a database, whose creation requires significant financial, material, organizational or other costs, regarding the retrieval of data from such database don't affect copyrights on data, which constitutes this database, itself and also copyrights of author of such database. For example, similar provision is contained in paragraph 4 of Article 1260 of the CC RF. This rule allows to consider exclusive rights for works from a database and rights for a database in general as separate, not creating a co-authorship, not absorbing each other, requiring the protection individually. Rights of the authors of materials included into the database are protected under paragraph 3 of Article 1260 of the CC RF, which states that any author of derivative or complied work (database is considered as a complied work – paragraph 2 of Article 1260 of the CC RF) exercises his copyrights provided that the rights of authors of works, used in derivative or complied work creation, are respected. The Federal Law dated 12 March 2014 No.35 "On amending Parts I, II and IV of the Civil Code of the Russian Federation and certain legislative acts of the Russian Federation" supplemented the Article 1303 of the CC RF by paragraph 3. In accordance with this paragraph «related rights are exercised with observance of the author rights to the works of science, literature or art, used while creating objects of related rights. Related rights are recognized and exercised regardless of the existence and operation of copyrights for these works». This provision comes into force from October 1, 2014 and applies to all the cases when the related rights objects may contain objects of copyrights, including to the provisions of section 5 Chapter 71 of the CC RF.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 14: We would like further clarification. Do we correctly understand that Chapter 71 protects scientific, literary and artistic works after the copyright term has expired and those works have fallen into the public domain and Chapter 70 applies to those works while they are protected by copyright?
No, this understanding is not correct. Firstly, First, Chapter 71 of the CC RF regulates the relationships of the use of all the objects of related rights. The rights of the publisher are regulated by only one section (section 6) of the Chapter 71 of the Civil Code of the Russian Federation. Secondly, the right of the publisher can arise not only in case when protection of an exclusive right to work expired and this work has fallen into public domain but also in case when the work has never been protected by copyright. As an example of the second case could be the publication of the work unknown before, whose author had created this work prior to the beginning of legal copyright protection in Russia (till 1828). Provisions of section 6 Chapter 71 of the CC RF are formulated by analogy with the Article 4 of the Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (the codified version).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 14: What type of works could be protected under Chapter 71?
Chapter 71 of the CC RF protects the objects of related rights. Section 6 of Chapter 71 of the CC RF protects scientific, literary or artistic work (music works, works of art, literary works, etc.), previously not made public and that have fallen into the public domain or that are in the public domain by virtue of the fact that they are not protected by copyright.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 14: Paragraph 3 of the answer notes that "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." Could you further explain what types of rights this would confer, and to whom?
The publisher is a citizen who has legally promulgated or organized the promulgation of a work that was in the public domain and was unknown for the public. Such citizen could be, for example, someone from descendants of the dead author, but also could be any citizen who found somebody's manuscripts or illustrations at his attic or dustbin, provided that such works correspond to the provisions of paragraph 1 of Article 1337 of the CC RF and a such citizen made an effort to promulgate these works. The provisions of Article 1337 of the CC RF provide the following rights to the publisher: (1) exclusive right to: reproduction of the work, distribution, public show, import, hiring out, public performance, radio or television broadcasting, cable communication, bringing the work to the notice of the public. Exclusive right of publisher covers almost all the authorities as the exclusive right of the author, except for the translation or other processing of the work as well as the practical implementation of an architectural, design, town planning or landscaping project; (2) the right to indicate his name on copies of a work which he made public and in other cases of its use including translation or other processing of a work (of course this right by no means doesn't except the necessity to indicate the name of its author at this work).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 14: Also, does this Chapter protect publication of works that are outside the scope of copyright (i.e., "not protected by copyright"), such as ideas, procedures, methods of operation or mathematical concepts? This may be a translation problem, but we remain unclear about whether/how non-copyrightable works are protected and why they would be protected here.
According to paragraph 2 of Article 1337 of the CC RF the rights of the publisher extend to works that, irrespective of the time of creation thereof, could be deemed objects of copyright in accordance with the rules of Article 1259 of the CC RF. In accordance with Article 1259 of the CC RF copyright does not extend to ideas, concepts, principles, methods, processes, systems, manners or the resolution of technical, organizational or other problems, inventions, facts, programming languages. Thus, ideas, procedures, methods of operation and mathematical concepts are not covered by Chapter 71 of the CC RF.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 14: Finally, we would like to confirm understanding that the 25 year term set forth in Article 1340 only applies to publications of unpublished works that occur after the term of the exclusive right set forth in Article 1281 has expired.
Yes, it's true. 25-year period establishes for the earlier unpublished works if the general term of copyright, established by Article 1281 of the CC RF, had already expired. Thus, protection of publisher rights doesn't rival the copyright for the work, but establishes in addition to such protection.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 15: We understand in your response that the Russian Federation uses the "rule of the shorter term," a familiar concept permitted under the Berne Convention for works. We would like some further clarification, however. Would a US work published in the US in 1975 be protected under Russian law? In the United States, for example, a work published here in 1975 would initially be protected under the 1909 US Copyright Act and would be protected from the date it was published with a copyright notice. That work would initially have been protected for a term of 28 years from that date for the first term and then, due to amendments to US law, automatically extended another 67 years for the second term for a total of 95 years from 1975. Would a US sound recording published in the US in 1975 be protected under Russian law? (keeping in mind that a sound recording in the US is a "work" but under Russian law a sound recording receives neighboring rights protection, and the Rule of the Shorter Term only applies to Berne works).
The term of protection granted by Article 7 of the Berne Convention doesn't depend on the date of accession to this Convention and by general rule shall be no less than 50 years after the death of the author (paragraph 1 of Article 7 of the Berne Convention). According to paragraph 4 of Article 1256 of the CC RF the legal protection to the works on territory of Russian Federation according to international treaties of Russian Federation is granted to works which have not fallen to the public domain in the country of origin due to the expiration of such exclusive right validity term for these works and have not fallen to the public domain of Russian Federation due to the expiration of exclusive right validity term for them in accordance with the CC RF. At the same time validity term of an exclusive right on territory of Russian Federation cannot exceed an exclusive right validity term set out in a country of origin of a work. In accordance with the provisions of the CC RF the principle of calculating the term of protection depending on the date of death of the author is set as a general rule for calculating the exclusive right validity term: the exclusive right to a work shall be effective for the whole lifetime of the author and 70 years from January 1 of the year following the year of the author's death (subparagraph 1. Paragraph 1 of Article 1281 of the CC RF). The exclusive right in a work created by co-authors shall be effective for the whole lifetime of the author who survives the other co-authors and 70 years from January 1 of the year following the year of his death (subparagraph 2, paragraph 1 of Article 1281 of the CC RF). At the same time, if the work is promulgated after the author's death the exclusive right for such work shall be effective for 70 years after the promulgation thereof from 1 January of the year following the year of the promulgation, provided the work is promulgated within 70 years of the death of the author (paragraph 3 of Article 1281 of the CC RF). Thus the work which received the protection in the US since 1975 for a general term of 95 years, will be protected under Russian legislation from 1975 for a term of the author's life and 70 years after his death, if the 95-years term under US legislation is expired earlier this term (in such case the protection will be expired on the base of shorter term rule). Slightly different conditions of legal protection are provided in respect of solely sound recordings (phonograms) - objects of related rights. In the Russian Federation recognition of foreign right holders' exclusive rights for phonograms is conducted in accordance with the international treaties of the Russian Federation provided that two conditions are respected, that is: with respect to phonograms that (1) have not passed into the public domain in their countries of origin due to the expiry of the effective term of exclusive rights to such object established in those countries, and (2) have not passed into the public domain in the Russian Federation due to the expiry of the effective term of exclusive right envisaged by the CC RF (paragraph 3 of Article 1304 of the CC RF). Thus, if the phonogram falls into the public domain in the country of its origin, it will not be protected in the Russian Federation, even if the term of protection of such phonogram has not expired in the Russian Federation. Both the Russian Federation and the US are the members of the WIPO Performances and Phonograms Treaty. In accordance with Article 17 of this Treaty the term of protection to be granted to performers shall last, at least, until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram; the term of protection to be granted to producers of phonograms shall last, at least, until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made. Regarding the term of validity of the exclusive right to a phonogram, Article 1327 of the CC RF also fixes a 50 year term from January 1 of the year following the year in which the recording took place. However if the phonogram is promulgated before the end of this 50-years term, the exclusive right validity term will be expired after 50 years from the moment of its promulgation but not from the moment of its recording. Thus, a sound recording, promulgated in the US in 1975, will be protected in accordance with the Russian law as an object of related rights for 50 years from the date of its promulgation.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 15: Could you also clarify what is meant by a work "made public" in the third paragraph of your response? More precisely, do you mean "published?" "first published" and/or "simultaneously published"?
In accordance with Article 1268 of the CC RF making the work public means an action which opens the work to the public for the first time by means of publication, public show, public performance, broadcast or cable or in any other manner. In such case the publication (release to the world) is the release for circulation of copies of the work which are copies of the work in any material form in a quantity sufficient for meeting the public's reasonable needs depending on the nature of the work. Thus, publication (release to the world) of the work is one of the means of making the work public (promulgation of a work).
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 16(a): Because of the manner in which it was translated, we would like to confirm that subpoint 3 of point 1 of Article 1256 grants protection for US authors for published and unpublished works. ("the works promulgated outside the territory of the Russian Federation or non-promulgated but located in any objective form outside the territory of the Russian Federation, and it is recognized on the territory of the Russian Federation to be held by authors (their successors) being citizens of other states or stateless persons in accordance with international treaties of the Russian Federation.")
Yes, subparagraph 3, paragraph 1 of Article 1256 of the CC RF in accordance with the Berne Convention, both Russian Federation and the US are its members, grants protection to US authors for published and unpublished works.
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 16(b): We would like to confirm that subpoint 3 of point 1 of Article 1256 grants protection to non-Berne authors for works first published in the US
Yes, subparagraph 3, paragraph 1 of Article 1256 of the CC RF in accordance with the Berne Convention, both Russian Federation and the US are its members, grants protection to non-Berne authors for works first published in the US
09/02/2016
IP/Q/RUS/1, IP/Q2/RUS/1, IP/Q3/RUS/1, IP/Q4/RUS/1 Russian Federation United States of America Follow-Up to Question 16(c): We would like to confirm that subpoint 3 of point 1 of Article 1256 grants protection to authors who are not nationals of a Berne country but who have their habitual residence in the US
Yes, subparagraph 3, paragraph 1 of Article 1256 of the CC RF in accordance with the Berne Convention, both Russian Federation and the US are its members, grants protection to authors who are not nationals of a Berne country but who have their habitual residence in the US
09/02/2016

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