États-Unis d'Amérique

Fédération de Russie

Droit d'auteur et droits connexes

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.