Unprotected objects. Intellectual property as an object of protection under Russian law Can the right of prior use be transferred
Chapter 69. General Provisions
Article 1225. Protected results of intellectual activity and means of individualization
1. Results intellectual activity and equated to them means of individualization of legal entities, goods, works, services and enterprises, which are granted legal protection (intellectual property), are:
1) works of science, literature and art;
2) programs for electronic computers (computer programs);
3) databases;
4) execution;
5) phonograms;
6) communication on the air or by cable of radio or television broadcasts (broadcasting of on-air or cable broadcasting organizations);
7) inventions;
8) utility models;
9) industrial designs;
11) topology of integrated circuits;
12) production secrets (know-how);
13) company names;
14) trademarks and service marks;
15) appellations of origin of goods;
2. Intellectual property is protected by law.
Article 1226. Intellectual rights
For the results of intellectual activity and the means of individualization equated to them (the results of intellectual activity and means of individualization) are recognized intellectual rights which include exclusive right, which is a property right, and in the cases provided for by this Code, also personal moral rights and other rights (the right to follow, the right to access and others).
Article 1227. Intellectual rights and property rights
1. Intellectual rights do not depend on property rights and other property rights on a material medium (thing), in which the corresponding result of intellectual activity or means of individualization are expressed. (as amended by Federal Law of 12.03.2014 N 35-FZ)
2. The transfer of ownership of a thing does not entail the transfer or granting of intellectual rights to the result of intellectual activity or to the means of individualization expressed in this thing, except for the case provided for by paragraph two of Clause 1 of Article 1291 of this Code. (as amended by Federal Law of 12.03.2014 N 35-FZ)
3. The provisions of Section II of this Code shall not apply to intellectual rights, unless otherwise provided by the rules of this Section. (Clause 3 was introduced by the Federal Law of 12.03.2014 N 35-FZ)
Article 1228. The author of the result of intellectual activity
The authors of the result of intellectual activity are not recognized as citizens who have not made a personal creative contribution to the creation of such a result, including those who provided it to the author only technical, consulting, organizational or material assistance or assistance, or only contributed to the registration of rights to such a result or its use, as well as citizens who monitored the performance of the relevant work.
Authorship and author's name are protected indefinitely. After the death of the author, protection of his authorship and name may be exercised by any interested person, except for the cases provided for by paragraph 2 of Article 1267 and paragraph 2 of Article 1316 of this Code.
3. The exclusive right to the result of intellectual activity created by creative labor initially arises from its author. This right can be transferred by the author to another person under an agreement, and can also be transferred to other persons on other grounds established by law.
4. The rights to the result of intellectual activity created by the joint creative work of two or more citizens (co-authorship) belong to the co-authors jointly.
Article 1229. Exclusive right
1. A citizen or legal entity that has the exclusive right to the result of intellectual activity or to a means of individualization (copyright holder) has the right to use such a result or such a means at his own discretion in any way that does not contradict the law. The rightholder may dispose of the exclusive right to the result of intellectual activity or to the means of individualization (), unless otherwise provided by this Code.
The copyright holder may, at his discretion, allow or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition does not count as consent (permission).
Other persons cannot use the corresponding result of intellectual activity or means of individualization without the consent of the copyright holder, except for the cases provided for by this Code. The use of the result of intellectual activity or means of individualization (including their use in the ways provided for by this Code), if such use is carried out without the consent of the copyright holder, is illegal and entails liability established by this Code, other laws, except for cases when the use of the result of intellectual activity or means of individualization by persons other than the rightholder, without his consent, is allowed by this Code.
2. The exclusive right to the result of intellectual activity or to a means of individualization (except for the exclusive right to company name) may belong to one person or several persons jointly.
3. In the event that the exclusive right to a result of intellectual activity or to a means of individualization belongs to several persons jointly, each of the rightholders may use such a result or such a means at his own discretion, unless otherwise provided by this Code or an agreement between rightholders. The relationship of persons to whom the exclusive right belongs jointly is determined by an agreement between them.
The disposal of the exclusive right to the result of intellectual activity or to a means of individualization is carried out by the rightholders jointly, unless otherwise provided by this Code or an agreement between rightholders.
Income from the joint use of the result of intellectual activity or means of individualization or from the joint disposal of the exclusive right to such a result or to such a means shall be distributed among all rightholders in equal shares, unless otherwise provided by an agreement between them.
Each of the rightholders has the right to independently take measures to protect their rights to the result of intellectual activity or to a means of individualization.
4. In the cases provided for by paragraph 3 of Article 1454, paragraph 2 of Article 1466 and paragraph 2 of Article 1518 of this Code, independent exclusive rights to the same result of intellectual activity or to the same means of individualization may simultaneously belong to different persons. (Clause 4 as amended by Federal Law dated 12.03.2014 N 35-FZ)
5. Restrictions on exclusive rights to the results of intellectual activity and to means of individualization, including in the case when the use of the results of intellectual activity is allowed without the consent of the rightholders, but with the preservation of their right to remuneration, are established by this Code.
At the same time, restrictions on exclusive rights to works of science, literature and art, objects related rights, inventions and industrial designs, trademarks are established in compliance with the conditions provided for in paragraphs three, four and five of this paragraph.
Restrictions on exclusive rights to works of science, literature or art or to objects of related rights are established in certain special cases provided that such restrictions do not contradict the usual use of works or objects of related rights and do not unreasonably prejudice legitimate interests copyright holders.
Limitations of the exclusive rights to inventions or industrial designs are established in individual cases provided that such restrictions do not unreasonably contradict the normal use of inventions or industrial designs and, taking into account the legitimate interests of third parties, do not unreasonably prejudice the legitimate interests of rightholders.
Restrictions on the exclusive rights to trademarks are established on a case-by-case basis, provided that such restrictions take into account the legitimate interests of copyright holders and third parties.
(Clause 5 as amended by Federal Law of 04.10.2010 N 259-FZ)
Article 1230. Duration of exclusive rights
1. Exclusive rights to the results of intellectual activity and to means of individualization are valid for a certain period, except for the cases provided for by this Code.
2. The duration of the period of validity of the exclusive right to the result of intellectual activity or to the means of individualization, the procedure for calculating this period, the grounds and procedure for its extension, as well as the grounds and procedure for terminating the exclusive right before the expiration of the period are established by this Code.
Article 1231. Validity of exclusive and other intellectual rights on the territory of the Russian Federation
1. On the territory Russian Federation there are exclusive rights to the results of intellectual activity and to means of individualization established by international treaties of the Russian Federation and this Code.
Personal non-property and other intellectual rights that are not exclusive operate on the territory of the Russian Federation in accordance with paragraph four of paragraph 1 of Article 2 of this Code.
2. Upon recognition of the exclusive right to the result of intellectual activity or to a means of individualization in accordance with an international treaty of the Russian Federation, the content of the law, its effect, restrictions, the procedure for its implementation and protection are determined by this Code, regardless of the provisions of the legislation of the country of origin of the exclusive right, if such an international treaty or this Code does not provide otherwise.
Article 1231.1. Objects Including Official Symbols, Names And Decals
(introduced by the Federal Law of 12.03.2014 N 35-FZ)
1. Legal protection as an industrial design or means of individualization is not granted to objects that include, reproduce or imitate official symbols, names and distinctive signs or their recognizable parts:
1) state symbols and signs (flags, emblems, orders, banknotes, and the like);
2) abbreviated or full names of international and intergovernmental organizations, their flags, emblems, other symbols and signs;
3) official control, guarantee or assay marks, seals, awards and other insignia.
2. The official symbols, names and distinctive signs specified in paragraph 1 of this article, their recognizable parts or imitations may be included in an industrial design or means of individualization as an unprotected element, if there is the consent of the relevant competent state body, body of an international or intergovernmental organization. ...
Article 1232. State registration of the results of intellectual activity and means of individualization
1. In the cases provided for by this Code, the exclusive right to the result of intellectual activity or to a means of individualization is recognized and protected, subject to state registration of such a result or such means.
The copyright holder is obliged to notify the federal authority accordingly executive power on intellectual property and the federal executive body for breeding achievements (Article 1246) on changing information about the rightholder related to state registration of the result of intellectual activity or means of individualization: name or name, location or place of residence and address for correspondence. The risk of adverse consequences in the event that such notification of the relevant federal executive body is not made or false information is provided shall be borne by the copyright holder. (the paragraph was introduced by the Federal Law of 12.03.2014 N 35-FZ)
The federal executive body for intellectual property and the federal executive body for breeding achievements may amend information related to the state registration of the result of intellectual activity or means of individualization in order to correct obvious and technical errors on their own initiative or at the request of any person, having previously notified this copyright holder. (the paragraph was introduced by the Federal Law of 12.03.2014 N 35-FZ)
2. In cases where the result of intellectual activity or a means of individualization is subject in accordance with this Code of state registration, the alienation of the exclusive right to such a result or to such a means under an agreement, a pledge of this right and the granting of the right to use such a result or such means under an agreement, and Equally, the transfer of the exclusive right to such a result or to such a means without a contract is also subject to state registration, the procedure and conditions of which are established by the Government of the Russian Federation.
3. State registration of the alienation of the exclusive right to the result of intellectual activity or to a means of individualization under an agreement, state registration of the pledge of this right, as well as state registration of the granting of the right to use such a result or such means under an agreement shall be carried out at the request of the parties to the agreement.
The application can be submitted by the parties to the contract or one of the parties to the contract. If an application is submitted by one of the parties to the agreement, one of the following documents must be attached to the application at the option of the applicant:
a notice signed by the parties to the agreement about the disposition of the exclusive right;
extract from the contract certified by a notary;
the contract itself.
The statement of the parties to the agreement or in the document attached to the application of one of the parties to the agreement must indicate:
type of contract;
information about the parties to the contract;
the subject of the contract indicating the number of the document certifying the exclusive right to the result of intellectual activity or to the means of individualization.
In the case of state registration of the granting of the right to use the result of intellectual activity or means of individualization, along with the information specified in paragraphs seven through nine of this clause, in the statement of the parties to the contract or in the document attached to the application of one of the parties to the contract, the following must be indicated:
the term of the agreement, if such a term is determined by the agreement;
the territory in which the right to use the result of intellectual activity or means of individualization is granted, if the territory is determined by the agreement;
the ways of using the result of intellectual activity provided for by the contract or goods and services in respect of which the right to use the means of individualization is granted;
the presence of consent to grant the right to use the result of intellectual activity or means of individualization for sub license agreement if consent is given (paragraph 1 of Article 1238);
the possibility of terminating the contract in unilaterally.
In the case of state registration of a pledge of an exclusive right, along with the information specified in paragraphs seven through nine of this clause, in the statement of the parties to the contract or in the document attached to the application of one of the parties to the contract, the following must be indicated:
the term of the pledge agreement;
restrictions on the right of the pledgor to use the result of intellectual activity or a means of individualization, or to dispose of the exclusive right to such a result or to such a means.
(Clause 3 as amended by Federal Law dated 12.03.2014 N 35-FZ)
4. In the case provided for in Article 1239 of this Code, the basis for state registration of the granting of the right to use the result of intellectual activity is the relevant court decision. (as amended by Federal Law of 12.03.2014 N 35-FZ)
5. The basis for state registration of the transfer of the exclusive right to the result of intellectual activity or to a means of individualization by inheritance is a certificate of the right to inheritance, with the exception of the case provided for in Article 1165 of this Code.
6. In case of non-compliance with the requirement for state registration of the transfer of the exclusive right to the result of intellectual activity or to a means of individualization under an agreement on alienation of an exclusive right or without a contract, a pledge of an exclusive right or granting another person the right to use such a result or such a means under an agreement, the transfer of an exclusive right, its the pledge or grant of the right to use is considered invalid. (Clause 6 as amended by Federal Law dated 12.03.2014 N 35-FZ)
7. In the cases provided for by this Code, state registration of the result of intellectual activity may be carried out at the request of the copyright holder. In these cases, the rules of paragraphs 2-6 of this article apply to the registered result of intellectual activity and to the rights to such result, unless otherwise provided by this Code.
Article 1233. Disposal of exclusive right
1. The rightholder may dispose of his exclusive right to the result of intellectual activity or to a means of individualization in any way that does not contradict the law and the essence of such an exclusive right, including by alienating it under an agreement to another person (agreement on the alienation of an exclusive right) or by granting another person the right use of the corresponding result of intellectual activity or means of individualization within the limits established by the agreement (license agreement).
The conclusion of a license agreement does not entail the transfer of exclusive rights to the licensee.
2. The general provisions on obligations (Articles 307-419) and on the contract (Articles 420-453), unless otherwise established by the rules of this section and does not follow from the content or nature of the exclusive right.
3. An agreement that does not explicitly state that the exclusive right to the result of intellectual activity or to a means of individualization is transferred to in full, is considered a licensing agreement, with the exception of an agreement concluded in relation to the right to use the result of intellectual activity, specially created or created for inclusion in a complex object (paragraph two of paragraph 1 of Article 1240).
4. The terms of an agreement on the alienation of an exclusive right or a license agreement that restrict the right of a citizen to create results of intellectual activity of a certain kind or in a certain area of intellectual activity or to alienate the exclusive right to such results to other persons are void.
5. In the event of an agreement on the pledge of the exclusive right to a result of intellectual activity or to a means of individualization, the pledger shall have the right, during the term of this agreement, to use such a result of intellectual activity or such means of individualization and to dispose of the exclusive right to such a result or to such a means without the consent of the pledgee, unless otherwise provided by the contract.
Article 1234. Agreement on the alienation of exclusive rights
1. Under an agreement on the alienation of an exclusive right, one party (rightholder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full to the other party (acquirer).
2. An agreement on the alienation of an exclusive right shall be concluded in writing. Failure to comply with the written form entails the invalidity of the contract.
The transfer of an exclusive right under an agreement is subject to state registration in the cases and in the manner provided for by Article 1232 of this Code.
3. Under an agreement on the alienation of an exclusive right, the acquirer undertakes to pay to the rightholder the remuneration provided for by the agreement, unless the agreement provides otherwise.
In the absence of a condition on the amount of remuneration or the procedure for determining it in a compensated agreement on the alienation of an exclusive right, the agreement shall be deemed not concluded. In this case, the rules for determining the price provided for in paragraph 3 of Article 424
Payment of remuneration under an agreement on the alienation of an exclusive right may be provided in the form of fixed one-time or periodic payments, percentage deductions from income (proceeds), or in another form. (the paragraph was introduced by the Federal Law of 12.03.2014 N 35-FZ)
3.1. The gratuitous alienation of the exclusive right in relations between commercial organizations is not allowed, unless otherwise provided by this Code. (Clause 3.1 was introduced by the Federal Law of 12.03.2014 N 35-FZ)
4. The exclusive right to the result of intellectual activity or to the means of individualization shall pass from the rightholder to the acquirer at the time of the conclusion of the agreement on the alienation of the exclusive right, unless otherwise provided by the agreement of the parties. If the transfer of the exclusive right under an agreement on the alienation of the exclusive right is subject to state registration (paragraph 2 of Article 1232), the exclusive right to such a result or to such a means is transferred from the rightholder to the acquirer at the time of state registration. (Clause 4 as amended by Federal Law dated 12.03.2014 N 35-FZ)
5. When substantial violation by the acquirer of the obligation to pay to the rightholder, within the period established by the agreement on the alienation of the exclusive right, remuneration for the acquisition of the exclusive right to the result of intellectual activity or to the means of individualization (subparagraph 1 of paragraph 2 of Article 450), the former rightholder has the right to demand judicial procedure transfer of the rights of the acquirer of the exclusive right and compensation for damages, if the exclusive right has passed to the acquirer.
If the exclusive right has not passed to the acquirer, in case of a significant violation by him of the obligation to pay remuneration for the acquisition of the exclusive right within the period established by the contract, the rightholder may unilaterally withdraw from the contract and demand compensation for losses caused by termination of the contract. The contract is terminated upon the expiration of a thirty-day period from the moment the acquirer receives a notice of cancellation of the contract, if during this period the acquirer has not fulfilled his obligation to pay remuneration. (as amended by Federal Law of 12.03.2014 N 35-FZ)
Article 1235. License Agreement
1. Under the license agreement, one party - the owner of the exclusive right to the result of intellectual activity or to the means of individualization (licensor) grants or undertakes to provide the other party (licensee) with the right to use such result or such means within the limits stipulated by the contract.
The licensee can use the result of intellectual activity or a means of individualization only within the limits of those rights and in the ways provided for by the license agreement. The right to use the result of intellectual activity or means of individualization, which is not directly indicated in the license agreement, is not considered granted to the licensee.
2. The license agreement is concluded in writing, unless otherwise provided by this Code. Failure to comply with the written form entails the invalidity of the license agreement.
The granting of the right to use the result of intellectual activity or means of individualization under a license agreement is subject to state registration in the cases and in the manner provided for by Article 1232 of this Code.
(Clause 2 as amended by Federal Law dated 12.03.2014 N 35-FZ)
3. The license agreement must indicate the territory in which the use of the result of intellectual activity or means of individualization is allowed. If the territory in which the use of such a result or such means is not specified in the agreement, the licensee has the right to use them throughout the territory of the Russian Federation.
4. The period for which the license agreement is concluded may not exceed the period of validity of the exclusive right to the result of intellectual activity or to a means of individualization.
In the event that the term of its validity is not specified in the license agreement, the agreement shall be considered concluded for five years, unless otherwise provided by this Code.
In case of termination of the exclusive right, the license agreement is terminated.
5. Under a license agreement, the licensee undertakes to pay to the licensor the remuneration stipulated by the agreement, unless the agreement provides otherwise.
In the absence of a condition on the amount of remuneration or the procedure for determining it in a paid licensing agreement, the agreement shall be deemed not concluded. In this case, the rules for determining the price provided for by paragraph 3 of Article 424 of this Code shall not apply.
Payment of remuneration under a license agreement can be provided in the form of fixed one-time or periodic payments, percentage deductions from income (proceeds), or in another form. (the paragraph was introduced by the Federal Law of 12.03.2014 N 35-FZ)
5.1. It is not allowed to grant the right to use the result of intellectual activity or means of individualization free of charge in relations between commercial organizations throughout the world and for the entire period of validity of an exclusive right under the terms of an exclusive license, unless otherwise provided by this Code. (Clause 5.1 was introduced by Federal Law of 12.03.2014 N 35-FZ)
6. The license agreement must provide for:
1) the subject of the contract by indicating the result of intellectual activity or the means of individualization, the right to use which is granted under the contract, indicating, in appropriate cases, the number of the document certifying the exclusive right to such a result or to such a means (patent, certificate); (as amended by Federal Law of 12.03.2014 N 35-FZ)
2) ways of using the result of intellectual activity or means of individualization.
7. The transfer of the exclusive right to the result of intellectual activity or to a means of individualization to the new rightholder is not a basis for changing or terminating the license agreement concluded by the previous rightholder.
Article 1236. Types of license agreements
1. A license agreement may provide for:
1) granting the licensee the right to use the result of intellectual activity or means of individualization, while retaining the right of the licensor to issue licenses to other persons (simple (non-exclusive) license);
2) granting the licensee the right to use the result of intellectual activity or means of individualization without preserving the right of the licensor to issue licenses to other persons (exclusive license).
1.1. The licensor does not have the right to use the result of intellectual activity or the means of individualization himself to the extent that the right to use such a result or such means of individualization is granted to the licensee under an agreement on the terms of an exclusive license, unless otherwise provided by this agreement. (Clause 1.1 was introduced by the Federal Law of 12.03.2014 N 35-FZ)
2. Unless otherwise provided by the license agreement, the license is assumed to be simple (non-exclusive).
3. One license agreement in relation to various ways of using the result of intellectual activity or means of individualization may contain the conditions provided for by paragraph 1 of this article for license agreements of different types.
Article 1237. Execution of a license agreement
1. The licensee is obliged to submit to the licensor reports on the use of the result of intellectual activity or means of individualization, unless otherwise provided by the license agreement or this Code. If the license agreement providing for the submission of reports on the use of the result of intellectual activity or means of individualization does not contain conditions on the time frame and procedure for their submission, the licensee is obliged to submit such reports to the licensor at his request. (Clause 1 as amended by Federal Law dated 12.03.2014 N 35-FZ)
2. During the validity period of the license agreement, the licensor is obliged to refrain from any actions that could hinder the exercise by the licensee of the right to use the result of intellectual activity or means of individualization granted to him within the limits established by the agreement.
3. The use of the result of intellectual activity or means of individualization in a manner not provided for in a license agreement, or upon termination of such an agreement, or otherwise outside the rights granted to the licensee under the agreement, entails liability for violation of the exclusive right to the result of intellectual activity or to a means of individualization, established by this Code, other laws or an agreement.
4. In case of a significant violation by the licensee of the obligation to pay the licensor, within the period established by the license agreement, remuneration for granting the right to use the result of intellectual activity or means of individualization, the licensor may unilaterally refuse the license agreement and demand compensation for losses caused by its termination. The contract is terminated upon the expiration of a thirty-day period from the date of receipt of the notice of cancellation of the contract, if during this period the licensee has not fulfilled the obligation to pay remuneration. (Clause 4 as amended by Federal Law dated 12.03.2014 N 35-FZ)
Article 1238. Sublicense agreement
1. With the written consent of the licensor, the licensee may, under an agreement, grant the right to use the result of intellectual activity or means of individualization to another person (sublicense agreement).
2. Under the sublicense agreement, the sublicensee may be granted the rights to use the result of intellectual activity or means of individualization only within the limits of those rights and those methods of use that are provided for by the license agreement for the licensee.
3. A sublicense agreement concluded for a period exceeding the term of the license agreement shall be deemed concluded for the term of the license agreement.
4. Responsibility to the licensor for the actions of the sublicensee is borne by the licensee, unless otherwise provided by the license agreement.
5. The rules of this Code on the licensing agreement shall apply to the sublicense agreement.
Article 1239. Compulsory license
In the cases provided for by this Code, the court may, at the request of an interested person, decide to grant this person, on the conditions specified in the court decision, the right to use the result of intellectual activity, the exclusive right to which belongs to another person (compulsory license).
Article 1240. Use of the result of intellectual activity as part of a complex object
1. A person who organized the creation of a complex object that includes several protected results of intellectual activity (film, other audiovisual work, theatrical performance, multimedia product, database) acquires the right to use these results on the basis of agreements on the alienation of exclusive rights or licensing agreements, concluded by such a person with holders of exclusive rights to the corresponding results of intellectual activity. (as amended by Federal Law of 12.03.2014 N 35-FZ)
In the event that the person who organized the creation of a complex object acquires the right to use the result of intellectual activity specially created or created for inclusion in such a complex object, the corresponding agreement is considered an agreement on the alienation of the exclusive right, unless otherwise provided by agreement of the parties.
A license agreement providing for the use of the result of intellectual activity as part of a complex object is concluded for the entire period and in relation to the entire territory of the relevant exclusive right, unless the agreement provides otherwise.
2. The terms of the license agreement limiting the use of the result of intellectual activity as part of a complex object are invalid.
3. When using the result of intellectual activity as part of a complex object, the author of such a result retains the right of authorship and other personal non-property rights to such a result.
4. When using the result of intellectual activity as part of a complex object, the person who organized the creation of this object has the right to indicate his name or designation or to demand such an indication.
5. The rules of this article apply to the right to use the results of intellectual activity as part of a unified technology created at the expense of or with the involvement of funds from the federal budget, unless otherwise provided by the rules of Chapter 77 of this Code.
Article 1241. Transfer of exclusive right to other persons without contract
The transfer of the exclusive right to the result of intellectual activity or to a means of individualization to another person without concluding an agreement with the rightholder is allowed in cases and on the grounds established by law, including by way of universal succession (inheritance, reorganization legal entity) and when levying execution on the property of the copyright holder.
Article 1242. Organizations Exercising Collective Management of Copyright and Related Rights
1. Authors, performers, producers of phonograms and other holders of copyright and related rights in cases where the exercise of their rights on an individual basis is difficult or when this Code allows the use of objects of copyright and related rights without the consent of the holders of the relevant rights, but with payment of remuneration to them, may create membership-based non-profit organizations that are mandated to manage the respective rights collectively (collective management organizations) under the authority granted to them by the rightholders.
The creation of such organizations does not prevent other legal entities and citizens from exercising representation of the owners of copyright and related rights.
2. Organizations for the management of rights on a collective basis may be created to manage rights relating to one or more types of objects of copyright and related rights, to manage one or more types of such rights in relation to certain ways of using the corresponding objects, or to manage any copyright and (or ) related rights.
3. The basis for the authority of an organization to manage rights on a collective basis is an agreement on the transfer of authority to manage rights, concluded by such an organization with the rightholder in writing, with the exception of the case provided for by paragraph 1 of paragraph 3 of Article 1244 of this Code.
The specified agreement may be concluded with rightholders who are members of such an organization, and with rightholders who are not its members. At the same time, the organization for the management of rights on a collective basis is obliged to assume the management of these rights if the management of such a category of rights belongs to the statutory activities of this organization. The basis for the authority of an organization to manage rights on a collective basis may also be an agreement with another organization, including a foreign one, the rights manager on a collective basis.
The general provisions on obligations (Articles 307-419) and on the contract (Articles 420-453) apply to the contracts referred to in paragraphs one and two of this clause, unless otherwise follows from the content or nature of the right transferred to management. The rules of this section on agreements on the alienation of exclusive rights and on licensing agreements to these treaties do not apply.
4. Organizations for the management of rights on a collective basis are not entitled to use objects of copyright and related rights, the exclusive rights to which have been transferred to them for management.
5. Organizations for the management of rights on a collective basis have the right, on behalf of the rightholders or on their own behalf, to submit claims in court, as well as to commit other legal action necessary to protect the rights transferred to them for management on a collective basis.
An accredited organization () also has the right, on behalf of an indefinite circle of rightholders, to submit claims in court necessary to protect the rights managed by such an organization.
6. Legal status organizations for the management of rights on a collective basis, the functions of these organizations, the rights and obligations of their members are determined by this Code, the laws on non-profit organizations and the charters of the respective organizations.
Article 1243. Execution by organizations for the management of rights on a collective basis of contracts with rightholders
1. An organization for the management of rights on a collective basis concludes license agreements with users on the granting of rights transferred to it for the management of copyright holders for the appropriate ways of using objects of copyright and related rights under a simple (non-exclusive) license and collects remuneration from users for the use of these objects ... In cases where the objects of copyright and related rights in accordance with this Code can be used without the consent of the copyright holder, but with payment of remuneration to him, the organization for the management of rights on a collective basis concludes with users, other persons who are obliged by this Code to pay funds for the payment of remuneration, agreements on the payment of remuneration and collects funds for these purposes.
The organization for the management of rights on a collective basis does not have the right to refuse the user to conclude an agreement without sufficient grounds.
2. If the license agreement with the user is entered into directly by the rightholder, the organization for the management of rights on a collective basis may collect remuneration for the use of objects of copyright and related rights only on condition that this is expressly provided for by the said agreement.
3. Users are obliged, at the request of the organization for the management of rights on a collective basis, to submit to it reports on the use of objects of copyright and related rights, as well as other information and documents necessary for the collection and distribution of remuneration, the list and terms of submission of which are determined in the agreement.
4. The organization for the management of rights on a collective basis distributes the remuneration for the use of objects of copyright and related rights among rightholders, and also pays them the specified remuneration.
An organization for the management of rights on a collective basis shall have the right to withhold from remuneration amounts to cover the necessary expenses for the collection, distribution and payment of such remuneration, as well as amounts that are sent to special funds created by this organization with the consent and in the interests of the rightholders it represents, in the amount and in the manner prescribed by the charter of the organization.
The distribution of remuneration and payment of remuneration should be carried out regularly within the timeframes stipulated by the charter of the organization for the management of rights on a collective basis, and in proportion to the actual use of the relevant objects of copyright and related rights, determined on the basis of information and documents received from users, as well as other data on the use of objects copyright and related rights, including statistical information.
Simultaneously with the payment of remuneration, the organization for the management of rights on a collective basis is obliged to submit to the rightholder a report containing information on the use of his rights, including the amount of the collected remuneration and the amounts withheld from it.
5. The organization for the management of rights on a collective basis forms registers containing information about the rightholders, about the rights transferred to it for management, as well as about objects of copyright and related rights. The information contained in such registers is provided to all interested parties in the manner established by the organization, with the exception of information that, in accordance with the law, cannot be disclosed without the consent of the copyright holder.
The organization for the management of rights on a collective basis places in a publicly accessible information system information about the rights transferred to it for management, including the name of the object of copyright or related rights, the name of the author or other rightholder.
6. Failure to pay by the organization for the management of rights on a collective basis of the remuneration collected for the rightholder, as a result of its violation of the procedure for the management of rights established by this Code, entails the application to this organization of measures to protect the exclusive right in accordance with Article 1252 of this Code. (Clause 6 introduced by the Federal Law of 12.03.2014 N 35-FZ)
Article 1244. State accreditation of organizations for the management of rights on a collective basis
1. An organization for the management of rights on a collective basis may receive state accreditation to carry out activities in the following areas of collective management:
1) management of exclusive rights to published musical works (with or without text) and excerpts from musical and dramatic works in relation to their public performance, broadcast or cable, including by retransmission (subparagraphs 6 - 8.1 of paragraph 2 of Article 1270) ; (Clause 1 as amended by Federal Law dated 12.03.2014 N 35-FZ)
2) the exercise of the rights of authors of musical works (with or without text) used in an audiovisual work to receive remuneration for public performance or broadcasting or by cable of such an audiovisual work (paragraph 3 of Article 1263); (Clause 2 as amended by Federal Law dated 12.03.2014 N 35-FZ)
3) management of the succession rights in relation to a work of fine art, as well as author's manuscripts (autographs) of literary and musical works ();
5) the exercise of the rights of performers to receive remuneration for public performance, as well as for broadcasting or by cable of phonograms published for commercial purposes ();
6) the exercise of the rights of producers of phonograms to receive remuneration for public performance, as well as for broadcasting or by cable of phonograms published for commercial purposes ().
State accreditation is carried out on the basis of the principles of openness of the procedure and taking into account the opinions of interested parties, including rightholders, in the manner determined by the Government of the Russian Federation.
2. State accreditation to carry out activities in each of the areas of collective management specified in paragraph 1 of this article may be obtained by only one organization for the management of rights on a collective basis.
An organization for the management of rights on a collective basis may receive state accreditation to carry out activities in one, two or more areas of collective management specified in paragraph 1 of this article.
In relation to the activities of an accredited organization, the restrictions provided for by antimonopoly legislation are not applied.
3. An organization for the management of rights on a collective basis that has received state accreditation (an accredited organization) is entitled, along with the management of the rights of those rightholders with whom it has entered into contracts in the manner prescribed by paragraph 3 of Article 1242 of this Code, to manage the rights and collect remuneration for those copyright holders with whom she has no such agreements.
The presence of an accredited organization does not prevent the creation of other organizations for the management of rights on a collective basis, including in the areas of collective management specified in paragraph 1 of this article. Such organizations have the right to conclude contracts with users only in the interests of rightholders who have given them the authority to manage rights in the manner prescribed by paragraph 3 of Article 1242 of this Code.
4. A copyright holder who has not concluded an agreement with an accredited organization on the transfer of powers to manage rights (paragraph 3 of this article) has the right at any time to fully or partially refuse to manage this organization of his rights. The copyright holder must notify the accredited organization of his decision in writing. If the rightholder intends to refuse to manage an accredited organization only a part of copyright or related rights and (or) objects of these rights, he must provide her with a list of such excluded rights and (or) objects.
After three months from the date of receipt of the corresponding notification from the copyright holder, the accredited organization is obliged to exclude the rights and (or) objects specified by it from contracts with all users and post information about this in a publicly accessible information system. The accredited organization is obliged to pay to the rightholder the remuneration due to him received from users in accordance with previously concluded agreements, and submit a report in accordance with paragraph four of paragraph 4 of Article 1243 of this Code.
5. The accredited organization is obliged to take reasonable and sufficient measures to establish the right holders who are entitled to receive remuneration in accordance with the license agreements and agreements on the payment of remuneration concluded by this organization. Unless otherwise provided by law, an accredited organization shall not be entitled to refuse admission to membership of this organization by a rightholder who has the right to receive remuneration in accordance with license agreements and agreements on the payment of remuneration concluded by this organization.
6. Accredited organizations carry out their activities under the control of the authorized federal executive body.
Accredited organizations are obliged to annually submit to the authorized federal executive body a report on their activities, as well as publish it in the all-Russian mass media. The form of the report is established by the authorized federal body executive power.
7. The standard charter of an accredited organization is approved in the manner determined by the Government of the Russian Federation.
Article 1245. Remuneration for free reproduction of phonograms and audiovisual works for personal purposes
1. Authors, performers, producers of phonograms and audiovisual works shall have the right to remuneration for the free reproduction of phonograms and audiovisual works exclusively for personal purposes. Such remuneration is compensatory in nature and is paid to copyright holders at the expense of funds that are payable by manufacturers and importers of equipment and tangible media used for such reproduction.
The list of equipment and material carriers, as well as the amount and procedure for collecting the corresponding funds, are approved by the Government of the Russian Federation.
2. Fundraising for the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes is carried out by an accredited organization ().
3. Remuneration for the free reproduction of phonograms and audiovisual works for personal purposes shall be distributed among rightholders in the following proportion: forty percent - to authors, thirty percent - to performers, thirty percent - to producers of phonograms or audiovisual works. The distribution of remuneration between specific authors, performers, producers of phonograms or audiovisual works is carried out in proportion to the actual use of the corresponding phonograms or audiovisual works. The procedure for the distribution of remuneration and its payment is established by the Government of the Russian Federation.
4. Funds for the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal use shall not be levied on the manufacturers of that equipment and those tangible media that are the subject of export, as well as on the manufacturers and importers of professional equipment not intended for home use.
Article 1246. State regulation of relations in the field of intellectual property
(as amended by Federal Law of 12.03.2014 N 35-FZ)
1. In the cases provided for by this Code, the issuance of normative legal acts in order to regulate relations in the field of intellectual property related to objects of copyright and related rights shall be carried out by the authorized federal executive body in charge of legal regulation in the field of copyright and related rights.
2. In order to regulate relations in the field of intellectual property related to inventions, utility models, industrial designs, computer programs, databases, topologies of integrated microcircuits, trademarks and service marks, appellations of origin of goods, the authorized federal executive body exercising normative legal regulation in the field of intellectual property, approves the forms of documents (applications, statements, objections, petitions, etc.), which are the basis for the implementation of legally significant actions specified in paragraph 3 of this article, establishes the rules for the preparation and submission of these documents, the rules and procedure for their consideration, including the criteria for making decisions based on the results of the consideration of these documents, and also issues other regulatory legal acts in the cases provided for by this Code.
3. Legally significant actions for the state registration of inventions, utility models, industrial designs, computer programs, databases, topologies of integrated microcircuits, trademarks and service marks, appellations of origin, including the acceptance and examination of relevant applications for the grant of patents and certificates certifying the exclusive right of their holders to such results of intellectual activity and for such means of individualization, and in cases stipulated by law, also other actions related to the legal protection of the results of intellectual activity and means of individualization, shall be carried out by the federal executive body for intellectual property. In the cases provided for by Articles 1401 - 1405 of this Code, the actions specified in this paragraph may also be carried out by federal executive bodies authorized by the Government of the Russian Federation.
4. With regard to breeding achievements, the functions specified in clauses 2 and 3 of this article shall be carried out respectively by the authorized federal executive body in charge of legal regulation in the field of Agriculture, and the federal executive body for breeding achievements.
5. The Government of the Russian Federation shall have the right to establish the rates, procedure and terms of payment of remuneration for service inventions, service utility models, service industrial designs. These rates, procedure and terms are applied in the event that the employer and the employee have not entered into an agreement establishing the amount, conditions and procedure for payment of remuneration for an employee's invention, an employee's utility model, an employee's industrial model.
6. The Government of the Russian Federation has the right to establish minimum rates, procedure for collection, distribution and payment of remuneration for certain types of use of works, performances and phonograms in cases where, in accordance with the law, the use of such results of intellectual activity is carried out with the consent of the rightholders and with payment of remuneration to them.
The Government of the Russian Federation has the right to establish remuneration rates, the procedure for collecting, distributing and paying remuneration for the use of works, performances and phonograms in cases where, in accordance with the law, the use of such results of intellectual activity is carried out without the consent of the rightholders, but with the payment of remuneration to them.
Article 1247. Patent attorneys
1. Doing business with the federal executive body for intellectual property may be carried out by the applicant, rightholder, other person independently, or through a patent attorney registered with the said federal body, or through another representative. (as amended by Federal Law of 12.03.2014 N 35-FZ)
2. Citizens permanently residing outside the territory of the Russian Federation and foreign legal entities conduct business with the federal executive body for intellectual property through patent attorneys registered with the said federal body, unless otherwise provided by an international treaty of the Russian Federation.
If the applicant, rightholder, other person conducts business with the federal executive body for intellectual property independently or through a representative who is not a patent attorney registered with the said federal body, they are obliged, at the request of the said federal body, to provide an address on the territory of the Russian Federation for correspondence. (as amended by Federal Law of 12.03.2014 N 35-FZ)
The powers of a patent attorney or other representative are certified by a power of attorney. (as amended by Federal Law of 12.03.2014 N 35-FZ)
3. A citizen of the Russian Federation permanently residing in its territory may be registered as a patent attorney. Other requirements for a patent attorney, the procedure for his attestation and registration, as well as his powers in relation to the conduct of cases related to the legal protection of the results of intellectual activity and means of individualization, are established by law.
Article 1248. Disputes related to the protection of intellectual property rights
1. Disputes related to the protection of violated or challenged intellectual rights are considered and resolved by the court (paragraph 1 of Article 11).
2. In the cases provided for by this Code, the protection of intellectual rights in relations related to the filing and consideration of applications for the grant of patents for inventions, utility models, industrial designs, selection achievements, trademarks, service marks and appellations of origin of goods, with state registration of these results of intellectual activity and means of individualization, with the issuance of the corresponding documents of title, with the challenge of providing these results and means legal protection or with its termination, is carried out in the administrative procedure (paragraph 2 of Article 11), respectively, by the federal executive body for intellectual property and the federal executive body for breeding achievements, and in the cases provided for by this Code, by the federal executive body authorized by the Government of the Russian Federation ( paragraph 2 of Article 1401). The decisions of these bodies come into force from the date of their adoption. They can be challenged in court in accordance with the procedure established by law.
3. The rules for considering and resolving disputes in the manner specified in paragraph 2 of this article by the federal executive body for intellectual property, as well as the federal executive body for breeding achievements, shall be established, respectively, by the federal executive body in charge of normative legal regulation in the field of intellectual property. , and the federal executive body in charge of legal regulation in the field of agriculture. The rules for considering and resolving disputes related to secret inventions specified in paragraph 2 of this article shall be established by the authorized body (paragraph 2 of article 1401). (as amended by Federal Law of 12.03.2014 N 35-FZ)
Article 1249. Patent and other fees
1. For the commission of legally significant actions related to a patent for an invention, utility model, industrial design or selection achievement, with state registration of a computer program, database, integrated circuit topology, trademark and service mark, with state registration and the granting of exclusive rights for the appellation of origin of goods, as well as with state registration of the transfer of exclusive rights to other persons, with state registration of the pledge of these rights and the granting of the right to use the results of intellectual activity or means of individualization under an agreement, patent and other fees are charged accordingly. (as amended by Federal Law of 12.03.2014 N 35-FZ)
2. The list of legally significant actions that are associated with a computer program, database and topology of an integrated microcircuit and for the performance of which state duties are levied, their amounts, procedure and terms for payment, as well as grounds for exemption from payment of state duties, reducing their size, deferral of payment or refund are established by the legislation of the Russian Federation on taxes and fees.
The list of other, except for those specified in the first paragraph of this clause, legally significant actions, for the performance of which patent and other fees are levied, their amounts, procedure and terms for payment, as well as grounds for exemption from payment of fees, reduction of their amounts, postponement of their payment or refund established by the Government of the Russian Federation. (as amended by Federal Law of 30.06.2008 N 104-FZ)
Article 1250. Protection of Intellectual Property Rights
(as amended by Federal Law of 12.03.2014 N 35-FZ)
1. Intellectual rights are protected by the methods provided for by this Code, taking into account the essence of the violated right and the consequences of the violation of this right.
2. The methods of protecting intellectual rights provided for by this Code may be applied at the request of rightholders, organizations for the management of rights on a collective basis, as well as other persons in cases established by law.
3. The measures of responsibility for violation of intellectual rights provided for by this Code shall be applied in the presence of the fault of the violator, unless otherwise established by this Code.
The absence of guilt is proven by the person who violated the intellectual property rights.
Unless otherwise established by this Code, the measures of responsibility provided for by subparagraph 3 of paragraph 1 and paragraph 3 of Article 1252 of this Code for the violation of intellectual rights committed by the violator in the course of his entrepreneurial activity shall be applied regardless of the fault of the violator, unless such a person proves that the violation of intellectual property rights rights occurred due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions.
4. A person to whom, in the absence of his fault, the measures for the protection of intellectual rights provided for by subparagraphs 3 and 4 of paragraph 1 and paragraph 3 of Article 1252 of this Code have been applied, shall have the right to file a recourse claim for compensation for losses incurred, including amounts paid to third parties.
5. The absence of the offender's guilt does not relieve him of the obligation to stop the violation of intellectual rights, and also does not exclude the application of such measures as the publication of a court decision on the violation committed against the violator (subparagraph 5 of paragraph 1 of Article 1252), suppression of actions that violate the exclusive right to a result intellectual activity or a means of individualization or creating a threat of violation of such a right (subparagraph 2 of paragraph 1 of Article 1252), seizure and destruction of counterfeit material carriers (subparagraph 4 of paragraph 1 of Article 1252). These actions are carried out at the expense of the offender.
Article 1251. Protection of personal non-property rights
1. In the event of violation of the author's personal non-property rights, their protection is carried out, in particular, by recognizing the right, restoring the situation that existed before the violation of the right, suppressing actions that violate the right or create a threat of violation, compensation for moral damage, publication of the court decision on the violation.
2. The provisions provided for in paragraph 1 of this article shall also apply to the protection of the rights provided for in paragraph 4 of Article 1240, paragraph 7 of Article 1260, paragraph 4 of Article 1263, paragraph 4 of Article 1295, paragraph 1 of Article 1323, paragraph 2 of Article 1333 and subparagraph 2 of paragraph 1 of Article 1338 of this Code. (as amended by Federal Law of 12.03.2014 N 35-FZ)
3. Protection of the honor, dignity and business reputation of the author shall be carried out in accordance with the rules of Article 152 of this Code.
Article 1252. Protection of exclusive rights
1. Protection of exclusive rights to the results of intellectual activity and to means of individualization is carried out, in particular, by presenting, in the manner prescribed by this Code, the requirements:
1) on the recognition of the right - to a person who denies or otherwise does not recognize the right, thereby violating the interests of the rightholder;
2) on the suppression of actions that violate the right or create a threat of its violation - to the person who commits such actions or makes the necessary preparations for them, as well as to other persons who can suppress such actions;
3) for damages - to a person who unlawfully used the result of intellectual activity or a means of individualization without concluding an agreement with the copyright holder (non-contractual use) or otherwise violated his exclusive right and caused damage to him, including violating his right to remuneration provided for in Article 1245 , paragraph 3 of Article 1263 and Article 1326 of this Code;
4) on the seizure of a material carrier in accordance with paragraph 4 of this article - to its manufacturer, importer, keeper, carrier, seller, other distributor, unscrupulous acquirer;
5) on the publication of a court decision on the committed violation with an indication of the actual rightholder - to the infringer of the exclusive right.
(Clause 1 as amended by Federal Law dated 12.03.2014 N 35-FZ)
2. In order to secure a claim in a case of infringement of an exclusive right, interim measures commensurate with the scope and nature of the offense may be taken, as established by procedural legislation, including the seizure of material carriers, equipment and materials, a ban telecommunication networks, if in relation to such material carriers, equipment and materials or in relation to such actions, an assumption has been put forward of a violation of the exclusive right to the result of intellectual activity or to a means of individualization. (Clause 2 as amended by Federal Law dated 12.03.2014 N 35-FZ)
3. In the cases provided for by this Code for certain types the results of intellectual activity or means of individualization, in case of violation of the exclusive right, the copyright holder has the right, instead of compensation for losses, to demand from the violator the payment of compensation for the violation of this right. Compensation is subject to recovery upon proof of the fact of an offense. In this case, the copyright holder who applied for the protection of the right is exempted from proving the amount of damages caused to him.
The amount of compensation is determined by the court within the limits established by this Code, depending on the nature of the violation and other circumstances of the case, taking into account the requirements of reasonableness and fairness.
If by one action the rights to several results of intellectual activity or means of individualization are violated, the amount of compensation is determined by the court for each unlawfully used result of intellectual activity or means of individualization. In this case, if the rights to the corresponding results or means of individualization belong to one copyright holder, overall size compensation for violation of rights to them, taking into account the nature and consequences of the violation, can be reduced by the court below the limits established by this Code, but cannot be less than fifty percent of the amount minimum sizes all compensation for violations. (as amended by Federal Law of 12.03.2014 N 35-FZ)
4. In the event that the manufacture, distribution or other use, as well as the import, transportation or storage of tangible media in which the result of intellectual activity or a means of individualization is expressed, lead to a violation of the exclusive right to such a result or to such a means, such tangible media shall be considered counterfeit and, by a court decision, are subject to withdrawal from circulation and destruction without any compensation, unless other consequences are provided for by this Code.
5. Equipment, other devices and materials, mainly used or intended to commit a violation of exclusive rights to the results of intellectual activity and to means of individualization, by a court decision, are subject to withdrawal from circulation and destruction at the expense of the offender, unless the law provides for their conversion into the income of the Russian Federation.
6. If various means of individualization (company name, trademark, service mark, commercial designation) are identical or similar to the point of confusion and as a result of such identity or similarity, consumers and (or) counterparties can be misled, the means of individualization, the exclusive right to which arose earlier, or in cases of establishing a conventional or show priority an individualization that has an earlier priority.
If the means of individualization and the industrial design turn out to be identical or similar to the point of confusion and as a result of such identity or similarity consumers and (or) counterparties can be misled, the means of individualization or the industrial design, the exclusive right in respect of which arose earlier, or in in cases of establishing a convention, exhibition or other priority, a means of individualization or an industrial design in relation to which an earlier priority has been established.
The owner of such an exclusive right, in the manner established by this Code, may demand the invalidation of the grant of legal protection to a trademark, service mark, invalidation of a patent for an industrial design, or a complete or partial prohibition of the use of a trade name or commercial designation.
For the purposes of this clause, a partial prohibition of use means:
in relation to the company name, the prohibition of its use in certain types of activities;
in relation to a commercial designation, the prohibition of its use within a certain territory and (or) in certain types of activities.
(Clause 6 as amended by Federal Law dated 12.03.2014 N 35-FZ)
6.1. In the event that one violation of the exclusive right to a result of intellectual activity or a means of individualization is committed by the actions of several persons jointly, such persons shall be jointly and severally liable to the rightholder. (Clause 6.1 introduced by Federal Law of 12.03.2014 N 35-FZ)
7. In cases where the violation of the exclusive right to the result of intellectual activity or to a means of individualization is recognized in the prescribed manner as unfair competition, the protection of the violated exclusive right can be carried out both in the ways provided for by this Code, and in accordance with antimonopoly legislation.
Article 1253. Liquidation of a legal entity and termination of activities of an individual entrepreneur in connection with violation of exclusive rights
(as amended by Federal Law of 12.03.2014 N 35-FZ)
In the event that a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court, in accordance with paragraph 2 of Article 61 of this Code, in the presence of the fault of such a legal entity in violation of exclusive rights, may decide to liquidate it at the request of the prosecutor. ... If such violations were committed by a citizen while carrying out entrepreneurial activity as an individual entrepreneur, the activity of a citizen as an individual entrepreneur may be terminated if he is guilty of violating exclusive rights by a decision or a court verdict in accordance with the procedure established by law.
Article 1253.1. Features of the responsibility of an information intermediary
(introduced by the Federal Law of 02.07.2013 N 187-FZ)
1. A person transferring material in the information and telecommunication network, including the Internet, a person providing the ability to post material or information necessary to obtain it using the information and telecommunications network, a person providing access to the material in of this network, - an information intermediary - is responsible for the violation of intellectual rights in the information and telecommunication network on the general grounds provided for by this Code, in the presence of fault, taking into account the specifics established by paragraphs 2 and 3 of this article.
2. An information intermediary transferring material in an information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of this transfer, provided that the following conditions are met:
1) he is not the initiator of this transfer and does not determine the recipient of the specified material;
2) he does not change the specified material in the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;
3) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is illegal.
3. An information intermediary providing the possibility of posting material in an information and telecommunications network is not responsible for the violation of intellectual rights that occurred as a result of posting material in the information and telecommunications network by a third party or at his direction, while the information intermediary observes the following conditions:
1) he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is illegal;
2) he, in case of receiving in writing a statement of the copyright holder about the infringement of intellectual rights, indicating the page of the site and (or) the network address on the Internet on which such material is posted, promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law.
4. Requirements for the protection of intellectual rights (paragraph 1 of Article 1250, paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code), not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it.
5. The rules of this article apply to persons providing the opportunity to access the material or information necessary to obtain it using the information and telecommunications network.
Article 1254. Peculiarities of protection of the rights of the licensee
If the violation by third parties of the exclusive right to the result of intellectual activity or to a means of individualization, for the use of which an exclusive license has been issued, affects the rights of the licensee obtained on the basis of a license agreement, the licensee may, along with other methods of protection, protect his rights in ways, provided for in Articles 1250 and 1252 of this Code. (as amended by Federal Law of 12.03.2014 N 35-FZ)
In the national legislation on intellectual property, some objects are protected by copyright, others - by patents, etc. Therefore, objects protected, for example, by patent law, are unprotected objects of copyright. However, there are objects that can be protected by both copyright and patent law, for example, works of applied art, industrial designs, topologies of integrated circuits, etc. That is why, within the framework of the copyright system, a list is established unguarded objects, which may be protected by other legislation. On the other hand, copyright law does not recognize the protection of some works, despite the fact that they may comply with eligibility conditions(see § 2.8).
works for which legal protection is not granted;
objects that may be protected by other legislation.
The specific list of objects falling under the first and second categories of unprotected objects depends on the specifics of national legislation in general and may differ significantly in different countries.
The first category in the Russian Federation includes: * official documents (laws, court decisions, other texts of legislative, administrative and judicial nature), as well as their official translations;
* works of folk art.
state symbols and signs (flag, coat of arms, anthem, orders, banknotes and other signs);
ideas, concepts, principles, etc .;
reports of events and facts.
Let's take a quick look at these non-copyrighted items.
Official documents. The Berne Convention permits its members not to protect official texts of a legislative, administrative and judicial nature and official translations of such texts 1. Disclaimer of legal protection official documents is done in the public interest, since any protection limits access to such works. It should be noted that personal non-property right (right of authorship) can be granted to the developers of official documents, as established in Art. 1264 (1) Civil Code Russian Federation.
Works of folk art. The authors of works of folk art, as a rule, are unknown, and their personal non-property rights cannot be ensured, although they are recognized as eternal, and their exclusive right has expired due to the limited validity period. On the basis of this circumstance, in most countries, works of folk art are considered to have passed into public domain(see § 4.21) and can be freely used by anyone.
State symbols and signs. Such objects include state flags, coat of arms, anthem, orders, monetary and other symbols and signs. Although these objects bear the characteristics of works of art, they are not considered to be copyrighted. State signs and symbols are protected by special legislation. For example, copying banknotes and other signs, as well as some state symbols criminally punishable.
Ideas, concepts, principles, etc. d. in Art. 9 (2) of the TRI PS Agreement states that "copyright protection is granted for expressive forms, and not for ideas, procedures, operating methods or mathematical concepts as such" 1. In accordance with Art. 2 of the WIPO Copyright Treaty "copyright protection applies to the form of expression and not to ideas, processes, methods of operation or mathematical concepts as such" 2. Both norms are in fact absolutely identical, since the difference in wording exists only in the Russian text, and in English they are the same: "Copyright protection extends to expressions and not to ideas, procedures, methods of operations or mathematical concepts as such" ".
This international norm expresses dichotomy principle, according to which not ideas are protected, but all forms of their expression. Since the form of expression of ideas is the content of the work, therefore, the content of the work is protected, but not the ideas that are expressed in it. The dichotomy principle establishes a legal distinction between the ideas and the content of the work, but not between the form and the content of the work, as is sometimes believed.
International treaties have recognized not only ideas as unprotected by copyright, but also processes, methods of functioning and mathematical concepts as such. It should be emphasized that some of them (ideas, processes, methods, etc.) may be protected by patent law (see § 5.6).
In accordance with Art. 1259 (5) of the Civil Code of the Russian Federation "copyright does not apply to ideas, concepts, principles, methods, processes, systems, methods, solutions to technical, organizational or other problems, discoveries, facts, programming languages" 1.
Messages about events and facts. V accordance with Art. 2 (8) of the Berne Convention "the protection afforded by this Convention does not apply to news reports of the day or to reports of various events having the nature of simple press information" 2. Any messages are always described and expressed in a material medium, but such a description is not always creative. In other words, one or more conditions of protection of works, discussed in the next section may not hold. This is why messages or "just information" are not copyrighted. This approach is used in Art. 1259 (6) of the Civil Code of the Russian Federation, in accordance with which are not objects of copyright "messages about events and facts, which are of an exclusively informational nature (messages about the news of the day, TV programs, timetables Vehicle etc)".
New edition of Art. 1225 of the Civil Code of the Russian Federation
1. The results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises, which are granted legal protection (intellectual property), are:
1) works of science, literature and art;
2) programs for electronic computers (computer programs);
3) databases;
4) execution;
5) phonograms;
6) communication on the air or by cable of radio or television broadcasts (broadcasting of on-air or cable broadcasting organizations);
7) inventions;
8) utility models;
9) industrial designs;
10) selection achievements;
11) topology of integrated circuits;
12) production secrets (know-how);
13) company names;
14) trademarks and service marks;
15) appellations of origin of goods;
16) commercial designations.
2. Intellectual property is protected by law.
Commentary on Art. 1225 of the Civil Code of the Russian Federation
1. The list of types of intellectual property (objects of intellectual rights) is closed, since not every intangible benefit is protected, but only that which is protected by law (paragraph 1 of paragraph 1 of the commented article). So, a kind of intellectual property is production secrets (know-how) (subparagraph 12, paragraph 1 of the commented article), but not any other information.
At the same time, one should distinguish between types of intellectual property and types of intellectual rights for a specific object. So, in § 6 of Ch. 71 of the Civil Code contains the regulation of the rights of the publisher. This is a special type of intellectual rights, but it does not have a special object, the object of the publisher's rights is a work of science, literature and art (see subparagraph 1 of paragraph 1 of the commented article). In addition, a work of science, literature and art is, of course, an object of copyright (Chapter 70 of the Civil Code of the Russian Federation), an object of performer's rights (§ 2 Chapter 71 of the Civil Code of the Russian Federation) and other intellectual rights.
2. When it is said that intellectual property is protected (see paragraph 1 of paragraph 1 of the commented article), or that intellectual property is protected by law (see paragraph 2 of the commented article), we are talking primarily about protective regulation of relations with respect to intellectual property - these are measures for the protection of intellectual rights (Art. Art. 1250 - 1254 of the Civil Code of the Russian Federation). However, it should be borne in mind that, in accordance with the relationship with respect to intellectual property as a whole, they are included in the subject of civil law regulation and therefore are subject to detailed regulation not only by protective, but also by regulatory methods.
3. The commented article sets the structure of the entire part of the fourth Civil Code. Relations with regard to the regulation and protection of rights to specific types of intellectual property are discussed in detail in the following chapters and articles of the Civil Code.
3.1. Rights to works of science, literature and art, as well as rights to computer programs and rights to databases - Ch. 70 (Articles 1255 - 1302).
3.2. Performance rights, phonogram rights, broadcasting rights of broadcasting or cablecasting organizations - § 2-4 Ch. 71 (Art. Art. 1313 - 1332), as well as the rights of the manufacturer of databases - § 5 Ch. 71 (Articles 1333 - 1336) and the publisher - § 6 Ch. 71 (Articles 1337 - 1344).
3.3. Rights to inventions, rights to utility models and rights to industrial designs - Ch. 72 (Art. Art. 1345 - 1407).
3.4. Breeding Achievement Rights - Ch. 73 (Art. Art. 1408 - 1447).
3.5. Rights to the topology of integrated circuits - Ch. 74 (Articles 1448 - 1464).
3.6. Rights to trade secrets (know-how) - Ch. 75 (Art. Art. 1465 - 1472).
3.7. Rights to company names, rights to trademarks and service marks, rights to appellations of origin of goods, rights to commercial designations - Ch. 76 (Articles 1473-1541).
4. Objects of intellectual rights are very heterogeneous, since there is a significant diversity in the spheres of intellectual activity in which these objects are created.
Intellectual property rights can be grouped into three main blocks:
Patent rights;
Rights to means of individualization.
Another commentary on Art. 1225 of the Civil Code of the Russian Federation
1. The commented article resolves an old dispute about the content of the concept of "intellectual property". In the Civil Code, this concept is disclosed in accordance with the World Declaration on Intellectual Property, which considers intellectual property as objects of protection, to which the intellectual property right is already enshrined. In part 4 of the Civil Code, intellectual property is understood as the protected results of intellectual activity and means of individualization. Intellectual rights are granted in relation to such objects (see Art. 1226 of the Civil Code of the Russian Federation).
2. The combination of the results of intellectual activity and means of individualization is determined by the general intangible nature of such objects, however, these groups of objects differ quite strongly, primarily by the fact that the presence or absence of a creative component does not play a role for the emergence of rights to means of individualization. That is why the means of individualization are only equated with the results of intellectual activity.
3. The list of objects protected under Part 4 of the Civil Code is exhaustive. Other results of intellectual activity and means of individualization may exist (it is enough to remember at least domain names), but in respect of them intellectual rights will not be recognized. The restrictive approach is dictated by the monopoly nature of the exclusive right. As technology develops, there may be a need to provide protection for new objects (which has already been repeatedly in the history of mankind), but this will require amendments to the Civil Code, which will prevent the unjustified expansion of the scope of such a monopoly.
4. As follows from Art. 1225 of the Civil Code, computer programs are now excluded from the number of works of science, literature and art. This is a special object of protection, the originality of which is taken into account by the Code. The norms of the Civil Code on copyright apply to computer programs, but with a rather large number of exceptions. Allocation of computer programs into an independent type of objects allows the general regime of copyright to be applied to them with the necessary adjustments.
Currently, in the Russian Federation, legislation on intellectual property is included in part four of the Civil Code. Codification of legislation on intellectual property is typical not only for the Russian Federation. Part 4 of the Civil Code of the Russian Federation entered into force on January 1, 2008 (in accordance with federal law of December 18, 2006 No. 231-FZ), section VII "Rights to the results of intellectual activity and means of individualization", which defines intellectual property as a list of the results of intellectual activity and the means of individualization that are granted legal protection.
Since the entry into force of Part 4 of the Civil Code of the Russian Federation, the following regulatory legal acts have become invalid:
On the legal protection of programs for electronic computers and databases. Law of September 23, 1992 No. 3523-1
About trademarks, service marks and appellations of origin. Law of the Russian Federation of September 23, 1992 No. 3520-1
Separate chapters of the Civil Code of the Russian Federation now correspond to the repealed laws: Chapter 70. Copyright (Art. 1255-1302) and Chapter 71. Rights adjacent to copyright (Art. 1303-1344), Chapter 72. Patent Law (Art. 1345-1407) , Chapter 74. The right to the layout of integrated microcircuits (Art. 1448-1464), Chapter 76. The rights to the means of individualization of legal entities, goods, works, services and enterprises) (Art. 1473-1541)
The rest of the laws and other legal acts are applied insofar as they do not contradict part four of the Code (Article 4 of the Federal Law of December 18, 2006 N 231-FZ "On the enactment of part four of the Civil Code of the Russian Federation"). Such laws include, in particular:
One of the scientific institutions in Russia dealing with intellectual property issues is the Federal State state-financed organization"Federal Institute industrial property"(FIPS). One of the central educational institutions in this area is the Republican Research Institute of Intellectual Property.
In the Russian Federation, there are four independent institutions that form a system of legal protection of intellectual property: copyright; patent law; legislation on means of individualization of participants civil turnover and their products (works, services); legislation on non-traditional objects of intellectual property.
1. Latin letter "C" in a circle;
2. The name (title) of the owner of the exclusive copyright;
A work must be the result of creative activity, regardless of purpose, dignity, completeness, way of expressing it, and whether it is made public or not;
The work must have an objective form of expression that ensures its reproduction;
The work must be original
The functions of control and supervision in the field of legal protection and use of intellectual property objects, including patents and trademarks, are currently carried out by federal Service on Intellectual Property, Patents and Trademarks, which is the federal executive body. This service is under the jurisdiction of the Ministry of Education and Science of the Russian Federation. Its main functions are:
a) ensuring the provision established by the Constitution of the Russian Federation, federal constitutional laws, federal laws and other regulatory legal acts the procedure for granting legal protection to intellectual property objects in the Russian Federation, as well as the procedure for their use;
b) exercising control and supervision over the examination of applications for intellectual property objects and the issuance of titles of protection in accordance with the procedure established by the legislation of the Russian Federation;
c) registration of rights to objects of intellectual property, as well as licensing agreements and contracts of assignment of rights in the field of intellectual property and publication of information on registered objects of intellectual property;
d) exercising control and supervision over the observance of the procedure for payment of patent fees and registration fees;
e) certification and registration of patent attorneys of the Russian Federation and control over their compliance with the requirements, provided by law Russian Federation.
In general, it can be recognized that a certain framework has been created in the Russian Federation legal regulations, aimed at regulating relations in the area under consideration. At the same time, a number of issues remain unresolved within the framework of current legislation and is actively discussed in the scientific literature. It can be concluded that today there is no full-fledged protection of intellectual property rights in Russia. Enterprises use their intellectual property rights with extreme caution and do not always consider them to be a liquid asset.
1. What objects are not protected by the legislation of the Russian Federation on intellectual property:
a) topology of integrated circuits
* b) protection against unfair competition
c) utility models
d) computer programs
2. In what international treaty listed different kinds protected objects of intellectual property, including objects not protected by Russian legislation on intellectual property:
* a) in the Stockholm Convention Establishing the World Intellectual Property Organization, 1967.
b) in the Paris Convention for the Protection of Industrial Property of 1883.
c) in the Berne Convention for the Protection of Literary and Artistic Property of 1886.
3. Does the regime of property rights apply to objects of intellectual property:
a) no, these objects are subject to the exclusive rights regime
c) no, the rights to these objects are not protected in the Russian Federation
d) no, except for the topologies of integrated circuits
4. Are all intellectual property objects the results of creative activity:
b) no, the exception is, for example, phonograms and some other objects
c) no, objects of intellectual property are not the results of creative activity
d) yes, except for utility models
b) yes, in all cases
* c) yes, but provided that it is the result of creative activity
d) no, with the exception of names registered as a trademark
6. Which of the works are not protected by copyright in the Russian Federation:
* a) works of folk art
7. For how long is the author's right to a name protected:
a) indefinitely
8. From what moment does the calculation of the term of copyright protection begin:
* a) from January 1 of the year following the year during which the legal fact, which served as the basis for the beginning of the course of the term
b) from January 1 of the current year, in which there was a legal fact that served as the basis for the beginning of the course of the term
d) from the moment of creation of the work
9. What works are in the public domain:
* b) works for which the copyright has expired
d) unpublished works
12. Who owns the exclusive rights to use the "service work":
b) always to the employer
* c) to the employer, unless otherwise provided by the agreement between the author and the employer
13. Are photographic works protected in the Russian Federation:
d) yes, if on back side of the photo, the author indicated his surname
a) no, under no circumstances
* b) the right to use the work as a whole belongs to the co-authors jointly
d) yes, without any restrictions
15. Which of the following persons are the authors of the audiovisual work:
b) producer
b) the right of reproduction
c) the right to processing
d) the right to distribute
17. Who reimburses the user for losses incurred as a result of the author's withdrawal of the work:
b) the state
c) losses are not subject to compensation, since the right of withdrawal is a non-property right
18. To whom the right of succession may pass by inheritance:
a) only heirs by law
b) only heirs by will
* c) any heirs
19. In what cases is it not allowed to reproduce a work without the consent of the author and without payment of royalties:
a) in all cases when the work is used for personal purposes
b) when reproducing books (in full) and musical texts
* c) when reproducing individual articles by libraries at the request of individuals for educational and research purposes
d) when using the work in court
b) the right to reproduce the work
c) the right to publish the work
d) the right to translate the work
21. How are computer programs protected in the Russian Federation:
b) as objects patent law
c) as objects of related rights
d) computer programs have special treatment other than copyright and patent law
* a) computer programs and databases
b) audiovisual works
c) any objects
d) photos
23. Can a legal entity in the Russian Federation be the subject of copyright:
* b) cannot
c) can, but only a non-profit organization
24. Who are the subjects of related rights:
* a) performers, producers of phonograms, broadcasting or cablecasting organizations
25. What rights belong to the producer of the phonogram:
b) the right to a name
* c) the right to use the phonogram in any form
d) the right to protection of reputation
26. Is it necessary to obtain the consent of the author of the literary work for which the production was performed in order to exercise the related rights to the production:
c) yes, but only for the exercise of related rights by artists
d) yes, but only for the exercise of the related rights of the director
27. Can a legal entity act as a subject of related rights:
* a) yes, for example, as a producer of phonograms
b) no, it cannot
c) can, but provided that it is non-profit organization
d) yes, including as a performer
28. What amount of compensation is established by law for violation of copyright and related rights:
a) from 10,000 to 5,000,000 rubles
b) from 5 to 10,000 times the minimum wage
c) from 10 to 50,000 rubles
* d) such sizes are not established by law
29. Which of the listed persons cannot recover compensation for violation of copyright and related rights:
* a) the owner of rights under an agreement on the transfer of exclusive rights
b) the owner of the rights under the transfer agreement non-exclusive rights
d) all of the above persons
30. What circumstances must be proven to recover compensation for violation of copyright and related rights:
c) consumer goods
d) devices
31. Can an employer, notified of the creation of an invention by an employee, keep it secret without filing an application for a patent:
c) yes, but only with the consent of the employee
* d) no, unless the employee agrees with such a decision
32. What government agency carries out registration of objects of patent law:
* a) Russian Agency for Patents and Trademarks
b) Ministry of Justice of the Russian Federation
d) Federal Service for Intellectual Property, Patents and Trademarks
33. What is the period of validity of a patent for a utility model:
34. Can the right of prior use be transferred:
a) no, under no circumstances
* b) yes, but only in conjunction with the production in which the use of the identical solution took place or the necessary preparations were made
c) yes, without any restrictions under the patent and license agreement
d) no, except for the cases stipulated by the contract
35. What actions are not recognized as a violation of the exclusive rights of the patent owner:
* a) the use of the means containing the invention for personal purposes without generating income
b) the use of means containing the invention for advertising purposes
c) the use of means containing the invention in construction
d) storage of funds containing the invention
36. What are the names of the persons who can represent on behalf of the copyright holder in the Patent Office:
a) patent attorneys
* b) commercial attorneys
c) patent representatives
d) lawyers
37. What types of examination are carried out in relation to a utility model:
a) only formal examination
b) only examination on the merits
c) formal and substantive examination
* d) formal examination, and at the request of the applicant - substantive examination
38. For how long can the validity of a patent for an industrial design be extended:
* a) ten years
b) five years
c) three years
d) two years
39. Who can be the subject of patent rights:
* a) citizens and legal entities
b) only legal entities
c) only individuals, provided that they are individual entrepreneurs without forming a legal entity
d) only individuals
40. How foreign applicants can apply to the Patent Office to obtain a title of protection for a patent:
a) only through patent attorneys
b) through any citizen of the Russian Federation, if a power of attorney is issued for him
c) can submit an application to the Patent Office themselves
* d) they are deprived of the right to file an application with the Patent Office of Russia
41. What document confirms the exclusive right to a utility model:
a) patent or certificate issued by the Patent Office
* b) a patent issued by the Patent Office
c) a certificate issued by the Patent Office
a) yes, provided that the employer uses the invention created by the employee
c) yes, the remuneration is determined in proportion to the benefit received by the employer or could have been received by him in the proper use of the industrial property object
* d) no, with the exception of cases provided by law
43. Who can be the subject of the right to a firm name:
a) any legal entity
b) only a commercial organization, including on the basis of a commercial concession agreement
c) any subject civil relations
* d) upon registration - only commercial organizations, upon acquisition of rights under a commercial concession agreement - also individual entrepreneurs
44. In whose name a trademark may be registered:
a) in the name of a legal entity, and natural person implementing entrepreneurial activity
* b) in the name commercial organization, as well as an individual engaged in entrepreneurial activity
c) in the name of any person who carries out the relevant activity (sale of goods, performance of work, provision of services)
d) exclusively in the name of any commercial organization
45. Which designations cannot be registered as a trademark:
a) designations indicating the type, quality, quantity, properties of goods
* b) trademarks registered in relation to other goods, works, services
c) any names and surnames
d) historical names settlements
46. What is the validity period of a trademark certificate:
47. Can the validity of the trademark registration be renewed:
* a) yes, every time for 10 years
b) yes, only once every 10 years
c) yes, only twice for 10 years
48. The rights to which objects can be transferred under a license agreement:
a) for trademarks
* b) for appellations of origin of goods
c) for company names
d) for information know-how
49. How long is the registration of an appellation of origin valid:
a) indefinitely
* d) 10 years from the date of receipt of the certificate
50. For how long is the exclusive right to a firm name valid:
a) within 10 years from the date of registration of a legal entity
* b) during the entire period of existence of the legal entity
c) within 20 years from the date of filing an application for registration
d) within 10 years from the date of filing an application for registration
51. Can the appellation of origin of goods be the historical name of a geographical object:
* c) yes, but provided that it is generally known and is used as a designation of a certain type of product
d) no, except for the names of states
52. How long is the formal examination of a trademark application carried out:
* a) within one month from the date of filing the application with the Patent Office
b) within two months from the date of filing the application with the Patent Office
c) within three months from the date of filing the application with the Patent Office
d) the timing of the preliminary examination is not established by law
53. For how long is an appellation of origin registered:
* a) indefinitely
b) 10 years from the date of registration
c) 5 years from the date of receipt of the certificate
d) 20 years from the date of registration
54. What are the signs of protectability of the invention:
* a) novelty, inventive step, industrial applicability
b) novelty, originality, industrial applicability
c) novelty, creative level, industrial applicability
d) novelty, inventive step
55. Who has the right to obtain a patent for an invention created in connection with the performance of an employee's official duties:
a) to the employee, unless otherwise provided by the contract
* b) to the employer, unless otherwise provided by the contract
c) in all cases to the employee
d) always to the employee and the employer together
56. What is the period of validity of a patent for an invention:
57. In what cases is it possible early termination validity of a patent:
a) in case of failure to pay the fee for maintaining the patent in force on time
* b) in case of non-use of the patented object
c) when transferring a patent under a patent assignment agreement
d) when concluding an agreement on the transfer of rights under the terms of a full license
58. What document confirms the exclusive right to a utility model:
a) patent or certificate
* b) patent
c) evidence
G) securities
59. What objects are not recognized as patentable inventions:
* a) scientific theories and mathematical methods
b) devices
c) cell cultures of plants and animals
d) ways
60. What objects are protected as utility models:
a) methods, substances, strains of microorganisms
* b) means of production and their components
c) consumer goods
d) devices