The copyright maintenance

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THE ABSTRACT

On a theme: The copyright maintenance

MINSK 2011

The copyright maintenance

Authors of products of a science, the literature, art posess personal non-property and property rights copyrights.

Personal non-property copyrights

The personal non-property rights making the copyright are characterised by a close connection with the person of the author. It predetermines their features expressed in непередаваемости. Непередаваемость the personal non-property rights means impossibility of their transfer for the limited period of time - impossibility of full and irrevocable transfer to other person. The legislator especially stipulates, that the personal non-property rights remain for the author even in case of a concession of exclusive property rights. One more feature of the personal rights of the author is their non-property (not commodity) character expressed in absence at these rights of any economic maintenance - realisation of the personal non-property rights is not connected with acquisition of material benefits.

The law of Byelorussia «About the copyright and the adjacent rights» recognises following personal non-property rights for the author of product:

- A copyright;

- The right to a name;

- The right to reputation protection;

- The right to promulgation;

- The right to a response.

The copyright is defined as legally provided possibility of the person to be considered as the author of product and the possibility connected with it to demand a recognition of the given fact from all other persons. The copyright allows to individualise results of creative activity and to provide interests of the founder of product by social recognition of communication of its person with product.

The right of the author to a name means the right of the author to select how the product created by it will be connected with its person - by instructions of own name, an assumed name (pseudonym) or without name instructions (anonymously), and this choice the author can make only.

The right to protection of reputation of the author urged to provide, first of all, safety of that form which the author has originally given to the product, at its further use. It is expressed that the author can protect the product, including its name, from any distortion. Besides it the author has the right to protect the product from any other encroachments, capable to cause a damage of honour and to advantage of the author.

The right to promulgation can be defined as the right of the author independently to solve a question on, whether its product becomes known to public, and also to choose time, a place and a way of the first finishing of product to public.

The right to a product response means the right of the author to refuse earlier made decision on promulgation of product under condition of compensation to the user of the losses caused by such decision, including the missed benefit. If product has already been promulgated, the author is obliged to notify on its response publicly; thus it has the right to withdraw at own expense from a civil turn earlier made copies of product.

Property copyrights

The owner of property rights on result of intellectual activity posesses the exclusive right of lawful use of object of intellectual property in any form and any way.

The given rule concerning objects of the copyright is in the Law «About the copyright and the adjacent rights» which item 16 establishes, that the author concerning its product or to other owner of copyrights the exclusive right to carry out or allow to carry out following actions:

- Product reproduction;

- Distribution of the original or copies of product by means of sale or other transfer of the property right;

- Hire of originals or copies of computer programs, databases, audiovisual products, musical texts of pieces of music and the products embodied in soundtracks;

- Import of copies of product, including the copies made of the author or other owner of copyrights;

- Public display of the original or a product copy;

- Public execution of product;

- Transfer of product;

- Other message of product for general data;

- Transfer of product into other language;

- Alteration or other processing of product.

Product reproduction it is defined in the Law «About the copyright and the adjacent rights» as manufacturing of one or more copies of product in any material form, including constant or time storage in the digital form in electronic means. A product copy is the copy of product made in any material form. Therefore an essential sign of reproduction is manufacturing of copies of product in the form of material objects.

Distribution of the original or product copies is independent way of use of product at which the number of the persons familiar with product, increases at transition of the property right or the right of possession of a copy of product from one person to another. The copyright has territorial character, therefore the right to distribution helps the author to limit territory on which the copies of product made of the author will be is in a civil turn. However the recognition for the author of the exclusive right to distribution of copies of product without an establishment of limits of its realisation can paralyse their civil turn. Therefore concerning the right to distribution uses a principle of exhaustion, which that the copies of legally published product entered with the permission of the author in a civil turn by means of sale or other transfer of the property right, can extend further in territory of Byelorussia without the consent of the author and without compensation payment. However exhaustion of the right to distribution will not mean the termination of the right of the author on product delivery in hire.

Along with the right to distribution the Law names the right of the author to import product copies. Allocation of the granted right is necessary to give, first of all, to the owner of the copyright possibility to stop import in the country of counterfeit copies of its product.

Public display is display of the original or a product copy the cinema - a shot body - on the screen is direct or in the form of a slide, by means of any other mean or a different way (concerning audiovisual product - display of separate shots out of their sequence) in places where are present or there can be the persons who are not belonging to a usual circle of a family or to close acquaintances of a family. The given way of use most typical for fine arts products.

Public execution is execution of product by means of the recitation, games, dance or any otherwise, including by means of means (concerning audiovisual product - display of shots in their sequence with support by a sound) in places where are present or there can be the persons who are not belonging to a usual circle of a family or to close acquaintances of a family. All kinds of theatrical performances, concerts, circus representations, execution of pieces of music concern public execution on dance pavilions and discos, clubs, bars, restaurants and other public places. Demonstration of audiovisual products also concerns public execution at cinemas, video salons and other public places.

Transfer is defined as the message of product for general data by means of wireless transfer, including transfer through the companion. The given author's competence represents special value as assumes finishing of product to data of the widest audience. Thus has no the value, what quantity of persons actually perceived the broadcasted product; object of the right is possibility to perceive product.

The right to the message of product for general data is defined in the Law «About the copyright and the adjacent rights» as the message for general data as «transfer on wires or means of wireless communication of images or sounds … in such a manner that they become the persons accessible to perception which are not belonging to a usual circle of a family or to close acquaintances of a family, in the places so removed from a place of transfer, that without transfer such images or sounds would not be accessible to perception; the message of product for general data also is finishing of product to general data in such a manner that representatives of public can provide access to product from any place and at any time at their own choice». Thus, the given author's competence covers both the product message on a cable, and its placing in a network the Internet.

The right to carry out or allow to translate product on other language is traditionally recognised right of the author. By and large transfer is a special case of processing of product, and allocation of the right to transfer in separate competence is no more than a tradition tribute. Therefore many researchers mark necessity of association of the specified competences for one, for example, in the uniform right to product transformation.

The right to process product includes possibility of the author most to process product in other kind, to give to product other form, to translate it in other genre, etc., and also to allow to carry out to other persons such processing and to use product in the processed kind. The most widespread ways of processing of product are literary work transfer in drama product, the scenario or other similar product.

Supposed cases of free use of products protected by the copyright are listed by exhaustive image in Law articles 18-21 «About the copyright and the adjacent rights».

Term of protection of the copyright

The copyright, the right to a name and the right to protection of reputation of the author are protected is termless. During lifetime the author independently carries out and protects the personal non-property rights. After death of the author its personal non-property rights cannot be carried out any more, however are subject to protection against possible infringements, - protection of the personal non-property rights of the died author its successors, and in the absence of successors - the special representative carry out the state body. Now such functions are assigned to the State committee on a science and technologies of Byelorussia.

Property copyrights operate during all life of the author and 50 years after his death.

Certain features are established concerning an order of calculation of period of validity of property rights concerning the product published anonymously or under a pseudonym. Term of protection of such product makes 50 years from the moment of the first lawful publication of product. If during the specified term the author of anonymous product or product under a pseudonym opens the person or its person will not leave further doubts period of validity of property rights is defined according to the general rules proceeding from life expectancy of the author.

Property rights on the product created in the co-authorship, operate during all life and 50 years after death of last author, gone through other co-authors.

For convenience of calculation all terms of protection begin since January, 1st of the year following after year in which the legal fact which is the basis to start a current of term (death of the author, publication, finishing to general data or product creation) took place.

Property copyrights pass by right of succession to copyright period of validity. The order product наследодателя is carried out by all successors in common and only by a mutual consent. Mutual relations of successors in questions of use of product are similar to mutual relations of co-authors at the unseparable co-authorship, behind that exception, that the Law does not provide the mechanism of the decision of disputes arising between them. Told does not concern the right of successors to reception of the award which is share. Shares of each of successors are defined on the basis of the will; in the absence of the will and the special agreement between successors about the sizes of shares of their share are defined by the equal.

The adjacent rights

Objects of the adjacent rights: executions, soundtracks, transfers of the organisations of an announcement.

The adjacent rights as an independent category of intellectual property rights have less long history, than the copyright. In first half of XX-th century in the legislation on the copyright of the separate industrially developed states norms which in the subsequent have been allocated in independent legal institute began to appear. The first actors-executors have demanded a special right protection. Technical progress on a boundary XIX - the XX-th centuries has generated a problem of vulnerability of interests of this category of creative specialists. Executors do not create new objects of the copyright, however their activity connected with finishing of products to public carries, undoubtedly, creative character. If earlier execution could be carried out only «in live» sound recording occurrence, and then radio and TV have allowed to fix execution on various carriers, and also to duplicate it. As a result live execution became less demanded, that has led to "technological" unemployment of many professional executors, and they began to demand to enter the rules of law protecting them interests. In the same way development of technologies of a sound recording has led to that representatives of the sound recording industry began to lobby acceptance of the legislation which would protect their interests in struggle against not authorised copying of soundtracks. And as sound recording firms not always could get exclusive copyrights at authors of written down products, other was necessary for them, except the copyright, the legal tool for protection of the interests. The third category of interested subjects - the announcement organisations - demanded protection of the transfers from not authorised relaying by other broadcasting organisations. copyright maintenance protection

On October, 26th, 1961 in Rome the International convention on protection of the rights of executors, manufacturers of soundtracks and the broadcasting organisations which unified approaches in protection of the adjacent rights has been signed. For this reason after acceptance of the Roman convention the considerable number of the states was repeated by its norms about protection of the rights of executors, manufacturers of soundtracks and the broadcasting organisations in the national legislation. In the majority of the states the norms devoted to the adjacent rights, are united in one acts with norms of the copyright that speaks the close connection of these legal institutes expressed in dependent character of the adjacent rights in relation to the copyright.

The word-combination «the adjacent rights» is a literal translation used in the text of the Roman convention of the term «neighbouring rights» (English neighbouring - adjacent, adjoining) by which the special category of the rights adjoining the copyright has been designated.

The institute of the adjacent rights consists of the norms providing protection of the rights of three categories of legal owners:

- Executors;

- Manufacturers of soundtracks;

- The organisations of a radio and cable announcement.

Object of protection of the adjacent right of the executor is execution. The concept "execution" of the Law «About the copyright and the adjacent rights» is not defined. Law article 4 defines concept "executor" proceeding from which execution can be defined as process of representation of a literary work, art or national creativity by means of game, singing, reading, recitation, game on a musical instrument, dance or otherwise. Object of a right protection is activity on execution which can be written down and in the subsequent is reproduced, broadcasted, informed for general data on a cable or used by the different ways, allowing to finish execution to the public who directly were not perceiving it.

Object of protection of the adjacent right of the manufacturer of a soundtrack is the soundtrack. The soundtrack is defined in the Law «About the copyright and the adjacent rights» as any exclusively sound record of executions or other sounds or displays of sounds. Object of a right protection are any soundtracks irrespective of, whether the execution of product carried out by the actor is written down on them either others are written down natural or is artificial the created sounds - singing of birds, surf noise, the sound effects made by technical devices. A soundtrack the record of sounds included in audiovisual product does not admit; however in case of music underneath use separately from a film, its record should be considered as a soundtrack.

Object of protection of the adjacent right of the broadcasting organisation is its transfer. Transfer is defined in the Law as the transfer created by the organisation of a radio or cable announcement, and also under its order and at the expense of its means - other organisation. Object of the adjacent right of the organisation of an announcement are products not extended by them, and transfer containing these products, that is, in essence, all program of an announcement made and transformed by the organisation of an announcement in an electromagnetic signal, broadcasted or on a cable. Thus use by other person of any fragment of an announcement of a signal transferred by the organisation will be use of its transfer as any fragment of the program of an announcement inherently also is transfer. In favour of similar interpretation speak norms of the Roman convention on protection of the rights of executors, manufacturers of soundtracks and the broadcasting organisations which for definition of object of a right protection use the term «transfer to an aether».

The adjacent right of executors

The executor concerning its execution posesses following rights:

The right to a name;

The right to protection of execution from any distortion or any other encroachment, capable to cause a damage of honour and to advantage of the executor (the right to reputation protection);

The execution right of use in any form, including the right to reception of compensation for each kind of use of execution.

The personal non-property rights of the executor (the right to a name and the right to reputation protection) are protected is termless.

The property rights provided by the present Law concerning the executor, operate within 50 years from the moment of the first record of execution.

The adjacent right of manufacturers of soundtracks

The exclusive right to soundtrack use means the right to carry out or allow to carry out following actions:

To reproduce (expressly or by implication) a soundtrack;

To alter or a different way to process a soundtrack;

To extend the original or copies of a soundtrack by means of sale or other transfer of the property right;

To import copies of a soundtrack with a view of distribution, including the copies made of the manufacturer of this soundtrack;

To hand over in hire the original or soundtrack copies;

To lead up to general data a soundtrack on wires or means of wireless communication so that representatives of public could provide to them access from any place and at any time at their own choice.

The property rights provided by the Law concerning the manufacturer of a soundtrack, operate within 50 years after the first publication of a soundtrack or within 50 years after its first record if the soundtrack has not been published during this term.

The adjacent right of the organisations of an announcement

The exclusive right of the organisation of an on-air broadcasting to authorise for use of its transfer means the permission to realisation of following actions:

To broadcast its transfer by other organisation of an on-air broadcasting;

To inform transfer for general data on a cable;

To write down transfer;

To reproduce transfer record;

To inform transfer for general data in places with a paid input;

To extend among public of record of transfer or copies of record of transfer by means of sale, hire or other transfer of the property right; this right, except for the right to hire, stops concerning record of transfer or copies of record of transfer which with the permission of the on-air broadcasting organisation have been entered in territory of Byelorussia into a civil turn by means of sale or other transfer of the property right; the right to hire remains behind the organisation of an on-air broadcasting irrespective of an accessory of the property right to record of transfer or its copies.

The rights provided by the Law concerning the organisation of a radio or cable announcement, operate within 50 years from the moment of realisation of transfer to a cable accordingly.

The literature

1. The copyright and the adjacent rights. Laws, conventions, договоры and agreements. - Minsk, 2010.

2. Intellectual property. The basic materials: In 2 parts the Translation from English, Novosibirsk, 1993

3. Intellectual property. The Dictionary-directory/under the editorship of A.D.Korchagina. - m, 2011.

4. Savelyev I.V.legal regulation of relations in the field of art creativity. - М, 2009.

5. Serebrovsky V.I.Voprosy of the Soviet copyright. - М, 1956.

6. Sergeys A.P.intellectual in the Russian Federation. TH., 2008.

7. Tchernyshev S.A.author's the contract. - М, 2011.

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