Четвертый отдел. Право автора и изобретателя

Chapter one. Literary and artistic property rights or copyright (an analogy of property) § 76. Historical development of the idea of copyright. The meaning it has acquired in modern times. The essence of copyright. Different opinions about the exclusivity and fairness of this right. Its limits are in Russian law. Copyright term. Calculation of the period for works published after the death of the author. Certificate of literary ownership The concept of copyright has only been clarified in modern times. The beginnings of it can be found back in the 15th century, but the fundamental beginning of this right was discovered no later than the 19th century, and has not yet been explained with all certainty. At first, the exclusive right of the author to his work seemed to be an exception, based on a privilege that protected against reprinting, so that the latter turned out to be as illegal as it violated this privilege. The first privileges were given by the Venetian Republic and the Nuremberg Senate (1494–1496). Then this right began to be developed by jurisprudence and judicial practice, then it became the subject of legislation and, finally, is now a general, universally recognized civil law. While it was still a privilege, consciousness did not yet penetrate into the essence of this right. Proof is also the fact that the privilege applied mostly to the printer, and not to the author of the work, so that publishing law, not copyright, enjoyed protection. Finally, when science turned to the study of the essence of this right, then doubts and disputes arose and have not yet ceased about what category of civil rights it should be classified in, where to find a place for it in the general system. Copyright cannot be confused with property rights as a completely homogeneous concept. The right of ownership is always associated with a thing, with a material object over which the dominance of a person extends. On the contrary, there is no this necessary connection between person and thing; law here is separated from its material subject. The subject of law is not this or that book, this or that manuscript. Right exists without the need to express itself in domination over a thing existing in space. It can refer, for example, to a spoken speech or to a public reading. The manuscript may burn, the copies may all be destroyed, but the law still exists exactly the same as it was before. The subject of law here has a spiritual, incorporeal quality. The philosopher Kant was the first to draw attention to this property of copyright, and new thinkers began to study it after him. Disputes about the essence of this right continue to this day. The newest researchers (for example, Mandri, Scheffle) assign it a place separately from real rights and from personal claims, creating for it a third, special category of property rights, in which the power over property is similar to the real right, in its unconditionality, but differs from it in that it extends beyond the limits of the material thing that serves as the subject of the right. The earliest development of copyright was French legislation from the point of view of privilege and in connection with the rules on printing and censorship (XVII century). The first copyright law from a new perspective was issued in France in 1793. In 1810, a regulation on the press and on literary property (Loi sur l'imprimerie et la propriété littéraire) was published, supplemented in 1854. In 1864, a new regulation on literary and artistic property came into force. In England, copyright law, regardless of privilege, was previously recognized as natural law and protected by the courts. The first law was issued in 1709. Further developments in legislation led to the publication of statutes in 1814, 1832, 1835 and 1842. The last act of English legislation was the Act on the Right of Artists to Their Works, published in 1862. In Germany, earlier than anywhere else, philosophy began to study this right. But jurisprudence in Germany did not take up its development for a long time, because it treated with contempt everything that was not established on the principles of Roman law. German legislation on this subject developed late. Its sources are the union acts and resolutions of 1815, 1837, 1845, the Prussian law of 1837, the Bavarian law of 1840. In 1864, a special commission drew up, on the basis of the Diet resolution of 1863, a draft of an all-German statute on copyright. On the basis of this project, the law on the right of literary, artistic, musical and dramatic producers (Urheberrecht) for the North German Confederation was issued already in 1870. Legal scholars have been actively engaged in the study of this right in recent times, and heated debates have arisen about issues of primary importance related to the new law, especially about the very essence of this right: to what extent a work of intellect and art can be considered the exclusive property of the author. This question, which has important practical significance for legislation, has not yet been finally resolved and still divides lawyers and economists into two hostile camps. In 1858, a congress of all famous writers, scientists and booksellers of Europe and America was convened in Brussels for a general discussion of issues. Since then there have been several similar congresses. The essence of law. The ability to think and speak is part of the very essence of human nature and constitutes the personal affiliation of each person, which cannot be separated from his personality and transferred to another person. But in a special sense, the word is at the same time the work of a person, his product, something that came from him, generated by him, received being from him, but even by birth is not separated from the personality that gave birth. Therefore, the work of spirit and thought, expressed in words, belongs first of all to the author himself, not as a physical thing, but as a revelation and expression of his personality and the spirit that dwells in him. Between the author and his work there is a similar connection as between the creator and the creature, and this relationship, in its personal exclusivity, cannot but be recognized by everyone. Hence the right of the author to possess his work, to keep it in his person, to oppose its publication, publication in the world against the author’s will, to publish it, to separate it forever or temporarily from its exclusive connection with the person, to establish the law and rules for its publication. To look at this right from one economic point of view would be incorrect; with the word is connected not only benefit, but, and above all, even the honor of the author and the moral responsibility that everyone bears for the word in which his spirit is revealed; By publishing his work to the public, the author gives a significant part of his personality to society, part of his name, his honor. In practice, the economic and property significance of the work is most often put in the foreground; and to such an extent that not only a work published in the world, but also one that has not yet been published in the world, by the mere possibility of such publication, is already of economic interest for the author and his successors. But as soon as the author published his work in the world, from that moment another side of copyright opens up, and the view of its essence changes somewhat. The work no longer consists in an exclusive connection with its creator; it - in its spiritual meaning - has become the property of the whole society; with the publication of a work in the world, the concept of the right of an entire society to the author’s work arises. You cannot, having released a word, turn it back: you cannot, having shared a thought with society, at the same time keep it in your exclusive power. Here is the main point of difficulty for the legislator regarding the definition of copyright. Science and legislation must distinguish in a published work the points at which the copyright's exclusive right meets the right of the public. The right of ownership of a thing continues as long as the thing exists: as long as it is not destroyed, it constitutes the subject of exclusive right. This is not the nature of copyright in its present state. The work still exists, but the copyright's exclusive right may cease. At first an attitude predominates, depending on the personality of the author, but over time it is completely replaced by another attitude; in the end, copyright ceases altogether, and the right to use all its accessories, except the honor of authorship, becomes a completely public property. It is positively recognized by all that copyright in any case constitutes the exclusive property of the author as long as he lives. But almost all legislation allows this right to be transferred to the heirs of the author, and leaves it to them for periods of more or less length. These periods are very varied (from 5 to 50 years). Associated with them is the assumption of a time during which the author’s memory is still fresh and the significance of his creative personality is maintained in full force, therefore, the spiritual interest of the work, and at the same time the property and economic significance of copyright, is still preserved in strength and freshness. It would be unfair to make a right that has a special value, sometimes very great, into the common property of society: this would mean arbitrarily destroying it. If the author of a well-known work that had just appeared had died when the right to publish this work was expensive, for example, 10 thousand rubles, and the exclusive right would have ended with the death of the author, then this value would have been arbitrarily and fruitlessly destroyed; and the public would not gain from this injustice such significant benefits as to make it worth sacrificing the interests of private law. Our legislation clearly recognizes the same principles. It positively distinguishes literary and artistic property from material things (Civil Law, Art. 420, note 2, appendix). Both the author and translator, and the artist have the exclusive right, during his life, to use the publication and sale of his book, to repeat, publish, and reproduce his works in all ways. During his lifetime, he can transfer this right completely or for a period and on conditions to a private person or to a society and institution. Upon his death, this right passes to his heirs by law or will, but cannot last longer than 50 years after the death of the author, artist or composer (ibid., Art. 420, note 2, appendix, Art. 1, 11, 28, 41; Art. 1185). This period is the longest of all adopted by European legislation. At the 1858 Congress, this term was recognized as the fairest of all. Other laws give the publisher's widow a preferential life right. Wed. Cass. decide 1868, N 552. Before the expiration of these deadlines, no one should violate copyright by unauthorized appropriation (ibid., Article 420, note 2, appendix, Articles 11, 12, 28, 42). After these deadlines, the publishing right to the work becomes a common property: anyone can print, publish in the world and sell the book (ibid., Art. 420, note 2, appendix, Art. 11; cf. Art. 1185). The rule of the new French law of 1865 is remarkable. For private individuals, the period of exclusive ownership of literary works is extended to 50 years from the date of death of the author; but even after this period, the publishers, upon putting the book on sale, must pay the author’s heirs 5 percent of the sale price of all printed copies. Thus, copyright acquired the meaning of continuity (le droit de disposer et d'user à perpetuité), but in order to exercise this right in its entirety, the book, upon publication, must be entered into public registers, with formalities and publication in newspapers. The Italian law of 1865 grants the author an exclusive right for life, and in any case for at least 40 years after the publication of the work; If the author dies before this period, then for the rest of the time, up to 40 years, the right passes to his heirs. After 40 years, the right to publish is free for everyone, but is subject to duties for another 40 years in favor of the author’s heirs: publishers are required to pay them 5% of the net proceeds from the publication. According to the North Germ. By law, copyright continues for life, and, in addition, 30 years after the death of the author, for his heirs. However, depending on the difference in the persons and the subject (for example, for a cumulative essay, for journal articles, for an essay published in editions), the law also assigns other deadlines. The question is: how to calculate the period for posthumous works, i.e. published for the first time after the death of the author? It would be unfair to extend to them the general rule of calculating periods from the death of the author, because until then these works remained secret and had no significance for the public. Modern jurisprudence is inclined to the opinion that the first publisher of such works, who has the right of ownership to them, should be placed in the position of the first creator, and the period should be calculated from his death. But this excessive continuation of the exclusive right is hardly fair. Our law calculates the period of 50 years for such works from the time of their first publication. § 77. Subjects of copyright. Literary work. What fits the concept of a literary work? Speeches and readings. Journal articles. A work of art. The meaning of form in a work of art. Feature of artistic reproduction. A work of music, drama, architecture. Russian law of dramatic property. Certificate of artistic ownership. Application and registration. Owner (subject) of copyright. Cumulative right of several participants. Anonymous and pseudonyms. Transfer of copyright. Agreement on assignment of publishing rights. Right of second edition. The right to publish journal articles. Right to publish private correspondence. The difference between the sale of a work of art and the right to publish it Subjects of copyright, essence: 1. Literary works. This word is understood in the broadest sense. This generally includes the concept of a book, an essay, i.e. any kind of independent literary or intellectual work. This concept includes not only original works, but also translations (Civil Law, Art. 420, note 2, appendix, Art. 4, 16), the work of a compiler, collector, compiler, taxonomist, commentator, publication of folk songs, fairy tales, proverbs and stories collected from oral tradition, publication of ancient manuscripts (ibid., Art. 420, note. 2, app., art. 2), publication of anthology, dictionary, maps, tables, indexes, etc. (ibid., Art. 420, note 2, adj., Art. 17). This may also include additional notes and comments on someone else’s text being published. Wed. Corner. Cass. 1870, N 1659; 1871, N 149. 2. Oral speeches and readings given in public. The law (ibid., Art. 420, note 2, adj., Art. 13, paragraph 3) says: “or another composition.” Therefore, this should also include, for example, lectures by professors and sermons. Our law assigns the main copyright to the author, the translator (ibid., Art. 420, note 2, adj., Art. 1) and the first publisher (ibid., Art. 420, note 2, adj., Art. 2, 7), distinguishing in this case the publisher by the initial acquisition of the right (such as, for example, the publisher of songs, fairy tales, etc., publisher collections, anthologies, magazines, etc.) from a publisher by derivative or successive acquisition, whom our law in other cases calls a bookseller (ibid., Art. 420, note 2, appendix, Art. 3, 4). Any work of mental labor that requires more or less creative or organizational activity is the subject of literary property. In 1867, the editor of the magazine “Son of the Fatherland” reprinted from the “St. Petersburg Gazette” scenes from the justices of the peace, written by Nikitin. Nikitin accused him of violating copyright. The defendant objected that these scenes are nothing more than a reproduction of what happened at the trial, and do not constitute literary property, and referred to paragraph 2 of Article 297. Census Est. (corresponding to Article 13, paragraph 2, appended to note 2 to Article 420 of the Civil Code, edition of 1887). Env. the court decided that these scenes belong to the category of literature, as a work of mental labor, and constitute the literary property of the author. The Senate justified this judgment (Cass. decision 1868, N 478). 1872, N 403. Vitsyn, with the consent of the heirs of Professor Meyer, who collected, supplemented with his comments and published his lectures, is recognized, by virtue of Art. 285 and 297. Est. Census (corresponding to Articles 2 and 13 of the above appendix), the rights of the first publisher, and Meyer's heirs are denied rights to this publication. Questions may arise as to what should truly be recognized as a literary work. In relation to copyright, a literary work is usually recognized as anything that can be the subject of literary circulation, that can have literary value. And the signs of this property are not always unconditional, but very often relative. So, for example, small printed news, an order, an administrative order, an announcement - these objects in themselves, taken separately, do not serve as a subject of trade circulation; but when published for a special purpose or in the form of a collection, they can form the subject of trade book publishing. Regarding the reprinting of laws and government orders, it is usually recognized that their publication is free for everyone, unless there is a special exception for special considerations of legislation or administration: only it is generally accepted as a rule that laws can be reprinted only after formal promulgation. With the development of the magazine business, the question of reprinting by magazines of articles borrowed from other magazines has arisen everywhere, but has not yet received a positive resolution. In practice, quite a lot of freedom is given to reprinting editorials and correspondence. Few legislations have addressed this subject. Bavarian law, for example, positively permits the reprinting of magazine articles; Austrian legislation for political magazines requires indications of the source of borrowing. The newest German statutes or draft statutes (for example, Börsenvereinentwurf) absolutely require that it be stated where the article was taken from, and, moreover, dividing journal articles into different categories, they set a deadline no earlier than which editorial articles, correspondence and telegrams taken from other journals can be reprinted. In states in which there is public discussion of government measures and laws and public verbal proceedings, questions still arise to this day about whether the speeches uttered by members of legislative assemblies, the speeches of lawyers and solicitors constitute the exclusive property. All doubt about the former has now been eliminated: they so obviously belong to public affairs that it is not considered possible to allow the right of exclusive ownership in them. (English law recognizes even lectures by professors as public domain.) But some legislation does not allow collections of his speeches to be published without the consent of the speaker. Science regarding judicial speeches is inclined to the same view. According to North German law, it is not considered illegal to reprint: 1) literally citing (quoting) excerpts from another book that constitutes an independent work, or reproducing them in a collection, anthology, etc., as long as the author’s name is mentioned; 2) reprinting of journal articles, with the exception of stories, scientific studies and articles that are marked as prohibited from reprinting; 3) reprinting of laws, orders, official documents; 4) reprinting of speeches made in court, in parliament, in church, community, and political meetings. But it is a violation of the law to print, without the consent of the speaker, speeches delivered for edifying (zur Erbaung) or teaching purposes, or for the amusement and entertainment of the public. A manuscript (letter), even if it has become the property of a third party, cannot be printed without the permission of the person by whom it was written. 3. Works of art, painting, sculpture and music constitute the subject of artistic and musical property. The subject of this property is somewhat different from the subject of property in a literary work. In a work of art, the artist’s thought is so closely and inextricably linked with the form in which it is expressed that it is not always possible to separate one from the other. For a literary work, the form in which it is repeated and reproduced is not essential, but here in the work itself the most exact repetition of creative thought is necessary. Therefore, here the personality of the creator is even more important than in a literary work, and the property market value of the creation is far in the background; for an artist, the reproduction of his creation without thought, in an unworthy form, can be much more offensive than a violation of the material benefits associated with exclusive property. In a literary work, the form, the outer clothing, is not so inextricably linked with the content. Content, spirit, thought, plan, concept - all this is something conceivable even apart from a handwritten or printed book. You can convey, tell, memorize a page, read a poem from memory, and give the same concept about the work that a book or page gives. But this is absolutely impossible with respect to works of the brush or chisel. Here it is in no way possible to separate the form from the content and by conveying the content alone it is impossible to produce the same impression that is born when contemplating the work: no matter how you talk about Raphael’s Madonna, you cannot replace a visual impression with a story. Dramatic and musical works have the peculiarity that the right to reproduce them in the text differs significantly from their artistic performance; the latter does not depend at all on the former and follows a special principle and law: the latter becomes public property much more fully and earlier than the former. The author's musical and dramatic property right to his work, as a right to a thing, or publishing right, must be distinguished from the personal right belonging to the author to authorize or prohibit the public performance of his work, or to receive payment for performance from the Imp. theaters at the established rate. On this basis, in the case of Stellovsky and Dargomyzhsky (Cass. decision 1870, No. 798) it was recognized that the concession by the latter to the former of the musical property rights to the opera “Rusalka” did not, within the meaning of Articles 347 and 349, imply. Census Est. (corresponding to Articles 41 and 43 of the appendix to Note 2 to Article 420, Civil Law, 1887 edition), which personally belonged to the author of the right to receive performance fees for the performance of this opera. The Senate's reasoning on this matter distinguishes the composition of copyright - property rights (eg ownership of a work) from personal rights, constituting a personal advantage: the latter includes the right to a share of the theatrical fee and to free entry into the theater during a performance. See also solve. 1870, N 1346. Finally, it can be said about works of architecture that they constitute private exclusive property, also in a limited sense, insofar as they are connected with the personality of the creator-artist. His name cannot be torn from them and their honor cannot be assigned to others; but as soon as his plans and drawings are executed, the building built according to them represents an image that is open and accessible to the whole society, therefore, then everyone has the right to repeat it, to carry it out for themselves. Our legislation mentions the work and creation of a painter, sculptor, engraver, medalist and other branches of the fine arts of an artist engaged in and, in addition to the ordinary, protected by general laws, the right of ownership to each of his works as a thing, grants him the right of artistic ownership (Civil Law, Art. 420, note 2, appendix, Art. 2). The same applies especially to a musical work (ibid., adj., art. 41). Our law says nothing in particular about the right of a playwright, classifying his work generally as literature. In our country, the right of a dramatic writer is protected by law only in one part, as the writer’s right to reproduce a work in print, but is not protected at all in another, essential part - in reproducing a work on stage. In this sense, we can say that our law has not yet established the concept of dramatic property. The law mentions only indirectly the need to seek the author’s consent to present in a public meeting a play that is someone else’s literary property: in the Code. about the order. there is an article (1684) threatening for this, in addition to liability for loss, imprisonment from 2 to 8 months. But our civil law does not at all define the right to dramatic property in its legal composition and accessories. The main reason for this shortcoming was the concentration of theatrical activity in our capitals, with the assignment of a monopoly to court theaters. Because of this, outside the capitals, we still have an extremely meager market for the development of the value of copyright on the stage, and the capital, state-owned markets provide little benefit for a dramatic writer, due to the legal limitation of this value. The author is obliged to be content with the remuneration that is assigned, according to the regulations of 1827, to writers and translators of dramatic plays and operas when they are accepted for presentation at the imperial theaters (Poln. Sobr. Zak., N 1533). For this purpose, all plays are divided into 5 classes, and their merit is assessed most importantly by the number of acts, i.e. one external measure, and remuneration is given in the form of a known (from 10 to 30 part) percentage of the collection, and another calculation is made from 2/3 of the collection, in respect of the “costs required for production” - and in other cases, from half of the collection. By mutual agreement of the author with the authorities, the play can be purchased for a one-time fee, but even here the maximum amount is indicated - 4000 rubles. Ass. for first class and 500 rub. for the latter, and the entire play becomes the property of the theaters. Moreover, the plays given by the author in favor of the beneficiary, by this very act, turn into belonging to the theaters. It is noteworthy that all these restrictions extend only to Russian authors and composers, while the payment to a foreigner for a drama or opera composed by him is not limited by any price. The theatrical monopoly continues with us to this day; but the regulation of 1827 was already recognized by the legislation itself as not corresponding to modern conditions of dramatic art, and the Minister of the Court was given permission, pending the publication of new laws on dramatic property, to make any changes and additions to that regulation, in accordance with modern needs, and announce them according to the established procedure, for proper execution (Poln. Sobr. Zak. 1871, N 50163). Artistic property consists of the exclusive right to repeat, publish and reproduce one’s original work in all possible ways characteristic of one or another art (Civil Law, Art. 420, note 2, appendix, Art. 28). But in order to fully take advantage of the right of this property, the artist is obliged to fulfill special formalities that are not obligatory for either literary or musical works, for in these latter works the identity of the creation and its connection with the personality of the author can be more conveniently proven, and reproduction requires only mechanical labor, not artistic labor. The artist must present and register his work with a broker or a notary, with a detailed description of the plot, take an extract and notify the Academy of Arts, which then publishes (Law of Citizens, Art. 420, note 2, appendix, Art. 29) about this in general notice. Our law establishes the form of application and registration only for artistic property rights. But foreign legislation for the most part requires compliance with this formality for acquiring literary property rights. This is the rule in English, American, French and most German legislation: registration is of particular importance as evidence of exclusive right for publishers of pseudonymous or anonymous works. Owner of the right. Copyright belongs to a well-known person with whom it is inextricably linked: this person is the author of the work, the producer. But sometimes one work has several producers, and in this case the mutual attitude of the producers and the degree of their participation in the work may not be the same. It happens that an essay is composed of separate parts and each part has its own author, but the general edition, the work of composing a whole from parts, belongs to an individual (dictionary, encyclopedia, magazine, collection, etc.). In this case, each of the individual authors receives ownership of his work individually, and the right to the entire publication as a whole belongs to the main publisher. It also happens that several persons participate together in work, dividing it among themselves, and publish a work on their own behalf together: in this case, their mutual relationship is likened to the relationship of partners in common indivisible property, so that the disposal of the common work and common property must occur with common consent: the material division of property and copyright is, for the most part, impossible in these cases. The term of copyright is calculated for such a work - from the death of the participant who dies last. According to North German law, copyright in respect of a whole book belongs to the publisher of a collection composed of articles written by different persons, provided that the book constitutes one whole (einheitliches Ganzes); but each of these persons retains especially the right to his own composition. It happens that when publishing a work, the author does not announce his name or hides his real name under a fictitious name (anonymous and pseudonymous). In such cases, questions may arise about the true name and identity of the author and who truly owns the copyright. These questions are quite difficult to resolve, and the positive law nowhere offers precise principles for guiding the solution. If, in such cases of uncertainty, copyright is granted to the first publisher of a work in the world, then a doubt arises: what rights can the author then have if his identity is subsequently discovered - and it can be discovered in himself or in the person of his successors, when the period of exclusive ownership of the publication has already expired for the publisher. The resolution of such issues is facilitated where prior registration of copyright is required for approval, i.e. filing in public books and registers. This application cannot be nameless; and thus, for each work that retains exclusive copyright, proof of the identity of the author is acquired in advance. Russian legislation does not mention all these issues. Transfer of rights. The transfer of copyright must be distinguished from the sale of a physical publication or finished copies of a book. A book, already printed, an engraving printed, is a thing; even a manuscript is a thing: you can sell both without the right to publish. But the sale of the right to publish does not mean the sale of full ownership rights. The author, even having ceded the material benefit from his work, still retains the spiritual connection of the creator with the creation, honor and responsibility. Our law distinguishes literary works from artistic works. He is aware of such a close connection between the personality of the author and his work, even printed, but not yet sold or assigned, that he excludes such a work from the property subject to sale to satisfy creditors. Neither during the life nor after the death of the author, handwritten or printed works found in his property can be sold without the consent of him or his heirs (Pol. Execution. Civil., Art. 354, 355; Establishment of Civil. Court., Art. 1041). In the event of the sale of property from a bookseller for debts and in a competition, the manuscripts belonging to him and the right to print them are transferred to the buyer only with the obligation to fulfill all the conditions concluded by the previous owner. Paintings, statues and other fine works can be sold at public auction to satisfy the debts of the artist, but with their acquisition the right of artistic ownership does not pass to the buyer (1040 Art. Est. Sud. Gr.). Then the transfer by the author of his rights to a third party can be more or less complete, urgent or conditional. It depends on the contract. The conditions are with the broker (Civil Law, Art. 420, note 2, appendix, Art. 4, 19). But the law does not prohibit verbal agreements of this kind (cf. Cass. decision 1867, No. 42). A condition that is not at all revealed to the broker does not, for this reason alone, lose its force, but is subject to discussion as evidence according to the rule of Art. 438 and 458. Est. Citizen Sudopr., since the resolution of Art. 288 qualification mouth (corresponding to Article 4 appended to Note 2 to Article 420, Law of Civil Code, ed. 1887) regarding the appearance of a broker, has no unconditional significance (Cass. decision 1869, No. 178). An author or artist may well cede his work, with full ownership, during his lifetime or by will. In this case, the ownership right passes to the successor and his heirs, in all its economic meaning. But in order to fully take advantage of this right, the successors must announce this and provide evidence no later than one year after the death of the ceded or transferred (foreign 2 years: Law. Civil., Art. 420, note 2, app., Art. 6, 30, 34). The law does not explain in what form and where this statement must be made: whether a general publication in the gazettes is enough to enforce the law, or not. In the case between Lisenkov and Kozhanchikov about the right to Shevchenko’s works, Lisenkov referred to the statement he made about his right to the censorship committee and to his private publication in the journals. The Chamber, recognizing this as insufficient, decided that within the meaning of Art. 290. qualification mouth (corresponding to Article 6 of the above appendix) the acquirer is obliged, upon the death of the transferor, to present, like the heirs, evidence of his right to the court that has jurisdiction over the inheritance case; but the Senate rejected such reasoning as not based on the law, recognizing that missing the one-year deadline under Art. 290. qualification mouth (corresponding to Article 6 of the above appendix) does not deprive the acquirer of the opportunity to prove his rights during general prescription, and that the law does not require announcement to the place that has jurisdiction over the inheritance case (Cass. decision 1869, No. 178). Rule Art. 6 applications to approx. 2, to Art. 420 Zak. Citizen It raises a misunderstanding whether the law does not equate all acquirers of literary property, upon transfer from the author, to his heirs, and does not place them in the same position as them? Such a rule would be very strange, because according to the general property of succession, the private acquisition of property by transfer during the life of the transmitter (succ. singularis) differs significantly from hereditary succession (s. universalis); therefore, since the law did not directly express such a confusion of concepts, it would be unfounded to assume it in the law. Article 6 of the said annex requires an application within a time limit so that the subject persons can, in relation to the assigned works, “assume all the rights of the legal heirs.” Consequently, the private acquirer of the right is obliged to submit to this formality only to protect this interest, since he has it; but the right of ownership of the work acquired by him, according to the agreement with the author, cannot be taken away from him for failure to declare it. The author can sell the right to just one edition of his book, or to several editions, or to all editions unconditionally, and it is up to the contracting parties to determine who owns the rights to the subsequent edition, and how long after the first edition the second may appear. The unlimited right of the author to publish a second edition of his book, when the right to the first edition is assigned to another person, could serve to the detriment of this latter, since another edition could appear on sale at the author’s expense, while the first, acquired by another person, has not yet been sold out. – To protect in this case persons who acquired the right to publish from the author, Article 3 of the appendix to approx. 2 to art. 420 Zak. Citizen 321 that the rights to the second edition of a book must be the result of preliminary agreements between the author (translator, publisher) and the bookseller. If there is no written agreement between them, then the author, or his heir, can print the book in a second edition after 5 years have passed from the date of issue from the censorship of a ticket allowing the publication of it. According to the literal meaning of this article, the bookseller, within the prescribed five-year period, would have reason to oppose the publication of the second edition by the author, even if the entire first edition had already been sold out. It is obvious that such an application of the law would not correspond to its main purpose and would excessively restrict copyright; but authors must keep this contingency in mind when assigning the rights to the first edition to booksellers. However, the law authorizes the author, and regardless of any conditions, to print his book in a second edition, if at least two-thirds have been changed or added to it, or when the book is given a completely different form, so that it can be considered a new work (same adj., art. 5). Societies publishing works given to them by the author retain the exclusive right for 50 years (same appendix, art. 22, 23, 24, 28, note). But, having published his article in a magazine, collection or works of the society, the author is not deprived of the right to publish it separately, if there were no contrary conditions with the publishers and it is not contrary to the charter of the society (same appendix, art. 8, 25). Wed. Cass. decide 1867, No. 42. This is not prevented by the remuneration received from editors for articles. In the case of Stellovsky with Krestovsky and Wolf, the question arose: behind the force of Art. 292. mouth qualification (corresponding to Art. 8, appendix to note 2, to Art. 420 of the Civil Code) did Krestovsky, having ceded to Stellovsky the right to publish all his works in the “Complete edition of the works of Russian authors,” then transfer to another person the right to a separate edition of one of these works. The Senate interpreted that used in Art. 292. mouth qualification (corresponding to Article 8 of the above appendix) the expression “or other collections” covers not only magazines, almanacs, collections of small works, which are mentioned in Article 291. mouth qualification (corresponding to Article 7 of the same appendix), but also all other meetings (Cass. decision 1867, No. 42). Letters may be written for the public, in which case they follow the general rule of literary works (Civil Law, Art. 420, note 2, app., Art. 9), or relate to private correspondence. The latter are addressed exclusively from person to person and are in no way connected with the idea of ​​​​providing them as literary property to anyone. Therefore, the unauthorized publication of such letters is associated with the concept of insulting the personality of a correspondent who, against his will, appears before the public as an author. Such letters can only be published with the joint consent of the correspondents or their heirs. The same goes for private notes and other papers that were not intended for publication in the world (same appendix, art. 9, 10). Austrian law provides for one case in which the unauthorized printing of correspondence is not considered illegal, namely when it was done for the special purpose of exonerating oneself from public accusations brought against the publisher. An artist, having sold or commissioned his work for churches, palaces, museums and government places in general, loses the right of artistic ownership to this work (same appendix, art. 31). In relation to orders from private individuals, he can negotiate this right for himself with a special condition, but otherwise he cannot sell, publish and reproduce his work without the consent of the person who bought it and his heirs (same appendix, art. 32). This rule is based not on copyright considerations, but on property rights in general. The question arises: does the right to reproduce it in copies and prints pass to the person who purchased the work? You must answer negatively; for to own a material thing as a work of art and to own the author’s right to reproduce and publish it in the world is not the same thing. The artist himself, only when publishing a set of his creations, can include the sold work among them (same appendix, art. 33). It seems that one should distinguish from copyright the rights to a periodical that exists under a well-known name - a magazine, newspaper, or the like. collection. Censorship rules April 6 1865 means especially the publisher and editor of periodicals. In order to establish a new publication of this kind, government permission is required; but when permission is given, the right to begin and continue publication according to the approved program and under a known name becomes the property of the publisher, his civil right in property, which he can transfer to another person, declaring only the transfer to the government, but without asking for a new permission; permission is required to change the editor. For these reasons, the Senate in the Pavlov case (Cass. dec. 1868, No. 552) admitted that the son of the deceased Pavlov, who refused the inheritance after his father, is nevertheless subject to hereditary liability, because after his father he accepted the continuation of the periodical publication “Russian Vedomosti”, which he began, and cannot make the excuse that his publishing right is based solely on permission received from the government, since the newspaper “Russian Vedomosti” was his father’s property. – In this decision, Pavlov’s right is equated to the right of literary property, but it would almost be more correct to recognize this kind of right not as an author’s, but as a special right to a publishing company. As recognized in this decision, the publisher bears the actual material part of the magazine business, and his activities do not involve independent literary work. On the other hand, copyright, in the civil sense, extends to something already created, existing in appearance, as a work of the mind. And the right in question is the exclusive opportunity of a well-known publisher to continue publishing under a well-known company, just as a well-known trading house has the exclusive right to trade under a well-known company. § 78. Copyright infringement. Confusing the principles - the claim with the policeman in the prosecution of the violation. The concept of counterfeiting. Reprint of translations. Items that do not fit the concept of counterfeiting. Reprint of excerpts. Moderate borrowing. Translation of someone else's work. Repetition and borrowing of works of art and especially music. Responsibility for copyright infringement and prosecution. Russian-French Convention on Literary and Artistic Property In existing legislation, the boundary between the private civil and public, criminal side of this violation is not yet clearly drawn. Associated with it are the following consequences: demand for satisfaction and reward, and punishment for a misdemeanor or crime. A reasonable civil principle of action should exclusively prevail here. In general, we have decided that prosecution for unauthorized publication can only be initiated as a result of a complaint from the offended person (Law. Court. Civil, Art. 548). But, on the other hand, the law connects the concept of offense with violation and instructs censorship committees to monitor the implementation of rules regarding literary property, which until 1887 were placed not in civil laws, but in the censorship statute. According to the Penal Code (1683–1685), the person guilty of counterfeiting is subject to criminal penalties, regardless of the civil claim and complaint of the offended party. Only the prosecution of borrowings is made exclusively dependent on the complaint (1685). Violation of copyright, regarding literary works, is unauthorized publication (counterfeiting): i.e. when a work is published in the world for the first time without the consent of the author or his successor in law, and also when such a publication is repeated or reprinted without his consent, at least with a translation into another language, or with the addition of a different title, notes, etc. (Law Civil Code, Art. 420, note 2, appendix, Art. 12). The sale in Russia of a book reprinted abroad from a publication made in Russia also fits this concept (same appendix, article 13, note 2). Reprinting the translation is prohibited on the same basis as reprinting the original work. The violator can make partial changes in the translation in order to cover up his violation, but to prove a reprint it is enough when two-thirds are repeated in a row, word for word, from the previous translation (same appendix, art. 16). Our law does not say that the concept of reprinting should also include the concept of lithography from a printed page; but it is certainly included, and the word reprint, in fairness, should be understood in a broad sense. The following do not fit the concept of illegal reprinting: 1. Moderate reprinting of certain passages from someone else’s work. This includes the accidental (i.e., not constant, without the intention of taking advantage of someone else’s work) reprinting in some publication of a small article that does not occupy more than 1 printed page: this usually happens during reviews in magazines; but when a journalist, under the guise of a review or under another pretext, completely and constantly reprints small articles from other publications, even if they occupy less than 1 printed page of the latest edition, then the law is violated (same adj., art. 13). It is not a violation of the law to reprint political news from other publications related to science, literature and the arts, indicating the sources from which they were borrowed (ibid.). On the same basis, it seems that the reprinting of telegraphic dispatches cannot be prohibited. It is not a reprint to place excerpts from someone else’s work in references to this book, if the references contain no more than 1/3 of the book (exceeding one printed sheet), and if the author’s text is twice as much as references from one book (same adj., Art. 15). 2. Moderate borrowings from other people's works - excerpts and small articles, for placement in special collections. This includes anthologies and other educational books, even if the complexity of borrowing from different places amounted to more than one printed sheet (same adj., art. 14). 3. Translations of other people's works are left to the will of everyone. The right of exclusive translation into another language can be exercised by the author of only such a book for which special scientific research was necessary; but to do this, he must announce his intention in advance during the publication of the original, and must issue his translation before the expiration of 2 years from the time he received permission from the censorship to release the original (same appendix, art. 18). A book reprinted in Russia may be published in translation into another language, only without the original text attached. The regulations on this subject of legislation differ from each other. Not everyone views the exclusive right of translation with the same rigor. It is true that it is difficult to exclude the concept of the right to translation from the concept of copyright. The Brussels Congress decided that the right of the author includes equally the right to translate within the state in which the original work appeared. But outside the state, this right is limited by time limits, depending on whether the translation was published or not published by the author himself. Foreign legislation for the most part combines with copyright a preferential, however urgent, right to publish a translation of one’s work. The exceptions are the rules of Belgian, Dutch and the latest French law. The newest international treatises on literary property express a desire to protect the author's right to translate from the free competition of translators in a foreign market. Such are the rules of the recent treaties of Great Britain and France with foreign states. For the agreement between France and Russia on this subject, see the note at the end of the article. North German The law also classifies as counterfeiting the unauthorized publication of a translation in the following cases: when it is made from a dead language in which the work was written into a living language; when a work published by the author himself in several languages ​​is translated into one of these languages; when the author on the title page retained the right to translate, only the author himself must actually use this right, starting his translation within one year and finishing within 3 years (for dramatic works instead of 3 years 6 months). The concept of reprinting hardly fits the manual rewriting of a work, no matter how many copies it was copied, and at least the copyist would benefit from this correspondence: for here, in the reproduction of copies, the personal work of the copyist receives exceptional importance, regardless of the subject of the correspondence; Moreover, it is hardly possible to apply a measure of book market value to handwritten copies of a book that has already been printed. North German The law also classifies correspondence as counterfeiting if it is used intentionally to reproduce lists, instead of printing. In works of painting and sculpture, a violation of artistic property rights is considered to be the illegal copying or repetition and reproduction of the work as a whole for monetary gain, as well as the borrowing or extraction of individual parts for the same purpose, without the formal consent of the person who owns the property right (same appendix, art. 35, 36). Therefore, making private copies for one’s own use does not fit this concept, nor does making copies for distribution to others, as long as not for sale. In this last respect, the definition of the law seems too narrow and is limited to the economic meaning of property alone. For an artist, the most important thing may be the distortion of his work distributed to the public, and from this side it makes no difference to him whether it is distributed for monetary gain or free of charge. Copying and repetition can be in different forms: it can either require mechanical work alone, have only craft value, or require independent talent, artistic thought, so that a copy, in turn, is a work of art that has an independent meaning of its own, but still constitutes - in relation to the original work - a repetition of someone else's thought, someone else's creation. Such, for example, is an engraving in relation to a painting. The law does not pay attention to how the copying was made and declares it counterfeiting: at least it was produced using the methods of another related art, if its main goal is to repeat the work (same adj., Art. 37). But when a work of painting (with its branches) is depicted through sculpture, this is not considered counterfeiting. There is no repetition here, but imitation (same adj., v. 39). The factory reproduction of products of sculpted art, through weaving, printing or painting with its branches, and vice versa (Industrial Regulations, ed. 1893, art. 203, approx. 3). Is it possible to repeat artistic works entirely on handicraft and factory works? The law does not directly prohibit this, but it recognizes copying as illegal when its main purpose is to repeat the work in its entirety, for monetary gain: a concept under which the mentioned case fits. In addition to repetition and copying, there may also be borrowing of individual parts of a work and repeating them separately. It is considered illegal (plagiat) if details and circumstance are transferred under the name of one’s own, into one’s own work from someone else’s, in compliance with the same drawing and lighting, and are also placed in exemplary drawings in one’s own name (Civil Law, Art. 420, note 2, appendix, Art. 38). But borrowing figures and ornaments from works of art for manufactured and handicraft products is not considered counterfeiting (same adj., art. 39). Regarding musical, as well as dramatic works (which our law does not specifically mention), violation of property rights consists of: a) unauthorized performance; b) in unauthorized publication and reproduction; c) in unauthorized borrowing. a) The public performance of musical works alone can be considered a violation of copyright: no one can be prohibited from performing any work at home or in a circle of friends, just as from reading anyone’s literary work. But also regarding public performance, there is a difference between published and unpublished plays. Unpublished works cannot be performed publicly without the consent of the author, either in full or with omissions. And for those published in the world (except for operas and oratorios), such a prohibition applies only if the author, during publication, negotiated this right for himself and indicated the prohibition on the printed copy. But operas and oratorios cannot under any circumstances be performed before the public without the permission of the author. If a musical work was once performed in a theater or concert, then this alone does not give others the right to repeat the performance publicly (same adj., Article 43), just as it does not give the right to unauthorized publication (same adj., Art. 42, paragraph 2). b) Without the consent of the author and his heirs and without a condition with them, it is impossible to publish his musical work or reprint it another time. Unauthorized arrangement of a piece on other instruments, printing in extracts or with a change in accompaniment is also considered counterfeit (same appendix, art. 42). c) Borrowing is permitted only when the deviations from the idea or form are so significant that the work can be recognized as new (same adj., art. 44). It is considered a violation to bring or distribute and sell in Russia copies of a play printed abroad, to which someone else has the right of ownership in Russia, so that this person suffers damage. You can bring with you no more than 10 such copies (same appendix, art. 47). The author himself is accused of counterfeiting if he causes damage to the person to whom he ceded the right to publish his works in Russia (same appendix, art. 46); for example, if he imports into the Empire more than 10 copies of a musical work printed by him abroad, knowing that they are counterfeits, and sells and distributes them (same adj., art. 47). A Russian composer enjoys the same right regarding works that he published abroad or assigned to a foreign publisher; so does a foreign composer as long as he stays in Russia. Only all such foreign publications are reported in writing to the Foreign Censorship Committee (same appendix, art. 48, 49). Responsibility for violation and procedure for prosecution. In foreign legislation, not only the one who unauthorizedly published a book, etc., is recognized as a violator of literary property and is subject to recovery, but also the one who knowingly traded in counterfeits and distributed them. Our law speaks only about the responsibility of the publisher (same appendix, art. 13). The law speaks in the same sense about musical works (same adj., art. 42). Where the law talks about the responsibility of the seller, it means the seller-publisher (same adj., art. 46, 47). But regarding artistic property, all those who knowingly participated in the violation are subject to penalties for violation. Here the concept of a violator is broader. This includes those engaged in making prints of engravings and lithographs, foundry workers and the very sellers of illegally reproduced works (Law. Court. Civil., Art. 546 et seq.). Penalty for the unauthorized publication of literary and musical works consists of: 1) the return to the legal publisher of all that loss, which is calculated based on the actual payment for all production of copies of the unauthorized publication, and the sale price previously announced from the legal publisher; 2) in the selection in favor of the legal publisher of available copies of an unauthorized publication (Law Civil Code, Art. 420, note 2, appendix Art. 20, 45). Moreover, the legal owner of the musical right may demand the destruction or surrender of boards and stones made for unauthorized publication (same appendix, art. 35). For the unauthorized performance of a musical work in front of the public, those responsible are subject to double recovery of the fee received, without deduction of costs. The violator of artistic right loses in favor of the rightful one all copies and projectiles used for counterfeiting, and, moreover, must compensate for the loss (Law. Court. Civil., Art. 554, 555). For filing a complaint about violation of literary and musical property, the deadline is 2 years, and for those abroad - 4 years, after the appearance of the subject constituting the violation (Law. Court. Civil, Art. 549). Cases about this, as well as about violation of artistic property, are decided by an arbitration court, and in case of disagreement - in a judicial place; but they can also be started directly in the judicial place (Law. Court. Civil., Art. 546, 547). Until the case is resolved, the sale is stopped and an arrest is imposed (Law. Court. Civil., Art. 551). Complaints about violation of artistic property are submitted to the police with the presentation of an act (Law. Court. Civil., Art. 553). There is no mention of a deadline here. It also does not say whether cases of violation of literary and musical property should be opened by the police. One can assume that no, because only uncontroversial cases begin with the police. A claim based either on possession or on a document is considered indisputable. Consequently, the author and composer must still prove their right in court. However, it should be noted that the publisher’s right in either case can be based on a document or condition with the author (cf. Art. 29 New Establishment of the Court. Gr. 322). Russian-French Convention on Literary and Artistic Property. In 1881, the now defunct convention between the Russian and French governments on the mutual protection of literary and artistic property rights in both countries was published. By force of this convention, authors of literary and artistic works who have an exclusive right in one of the two states enjoy this right within the other state, but only to the extent that such exclusivity is allowed under its laws. It follows that an author who does not have, for example, in France the exclusive right to publish his work (for example, a lawyer or a member of the legislative assembly regarding a speech delivered), cannot exercise this right in Russia. Copyright of the French in Russia and Russians in France after the death of the authors themselves is preserved for direct heirs under a will for 20 years, and for lateral heirs for 10 years. Copyright infringement is the unauthorized publication of a work without the consent of the person enjoying the exclusive right of publication. For our literature, it is very important: does an arbitrary publication of a French work in a Russian translation fit the concept of copyright infringement? A work by a Frenchman published in France cannot in any case acquire in Russia more rights regarding translation than a French book published by the author in Russia would have: the general rule of our legislation on translations is certainly attached to it. But the author’s right to prohibit the translation of his book to a stranger is not assumed in itself. It is permitted only under special conditions and requires special recognition. The authors of such books, for which special scientific research was necessary, can receive from us the exclusive right to publish them in Russia and in other languages, but in order to take advantage of this right, they must declare their intention during the publication of the original book and issue their translation before the expiration of two years from the time they receive permission from the censorship to publish the original. If these conditions are not met, the publication of the book in translation is left to the will of everyone; in the same way, the right of translation should be considered free if the author, who declared his intention, did not publish his translation within two years. The same fair rule should apply to the works of French authors published in France. But the translation text itself is in any case considered the inviolable property of the translator. Articles extracted from periodicals of one state can be freely reprinted (reproduits) in periodicals of another state, only with indication of the source, unless the author of the original article, when publishing it, imposed a ban on it. But this prohibition in no case applies to political articles. Evidence of copyright must be evidence from a public authority that such and such a work is original and enjoys exclusive rights in the country where it was published. In case of violation, the claim is satisfied and penalties are determined according to the laws of the state where the claim is filed. In this regard, the position of the plaintiff in France will not be the same as the position of the plaintiff in Russia, because the French law on counterfeiting is stricter and more extensive than the Russian one. Chapter two. The right to new inventions and discoveries in industry and agriculture § 79. Basis of this right. The procedure for certification and issuance of patents. Subject of verification and certification. Formalities for issuing a privilege. Validity of privileges and duration thereof. The rights granted and duties imposed by the privilege. Violation of privilege. Ownership of factory drawings and models under the 1864 Act The inventor is granted the right to exclusive use of the application of his discovery and to retain it in his name and person. It is assumed, from a legal point of view, that the inventor must have the right to use what he has produced with the personal powers of his spirit, to use the power that he himself has created. From a political-economic point of view, this right is explained by the benefit of the whole society. It constitutes an incentive for discoveries and for their immediate publication, and destroys the reason for keeping them secret. However, just like the right to literary property, this right should not be eternal and perpetual property, but after a certain time it should become public property. Ownership of inventions is not assumed in itself, but must be specifically certified and recognized. The system of patents and privileges is based on this. Their issuance began primarily in England and is now organized everywhere on principles that are not always the same. Everywhere the formation of law is preceded by the declaration and recognition of it by the government, but this recognition does not have the same meaning everywhere. Existing legislation follows one of three accepted systems. 1) A patent is issued to anyone who requests it, subject to the prescribed formalities. The state does not care about verification of the invention, but interested parties themselves are left to protect their interests and challenge the legality of the patent. This system is followed by France, Belgium, and Austria. Russian legislation also partially applies to it. 2) Before a patent is issued, the invention is subjected to thorough research through specialists to determine whether it fits the legal conditions; then, if the patent is granted, it already receives decisive force. Prussia and North America adhere to such a system. 3) Between the request for a patent and the issuance of a patent there is a probationary period, during which both officials and private individuals are given the opportunity to file their objections; This does not, however, eliminate the possibility of challenging it after the patent is issued. This principle has been followed by new English legislation since 1852. Then there are quite a few minor details on which patent laws differ. The main differences relate to the definition of the first inventor, to the system of fees on patents, to privileges for foreign discoveries and for improvements on other people's inventions. This right is not recognized by law everywhere. Swiss law does not allow the grant of patents; they are not mentioned in Danish law. Holland abolished them by law in 1869. One might think that its example will soon find imitators, because patent law has long been, and increasingly, subject to criticism and arousing complaints and objections. Especially since international industrial exhibitions have become common, the basic concept of the meaning of a new invention has changed. It turned out that there are very few inventions that can be fairly attributed to one person: almost all industrial inventions are essentially the result of the thought, work and research of many individuals and entire generations. Meanwhile, patents are issued everywhere in abundance, and there is no way to distinguish the serious from the frivolous, the essentially new from a modified combination of the old, the useful from the empty and insignificant; so that patents are issued mostly at random, and the exclusive right becomes the property of the manufacturer not by merit, but by blind chance. Meanwhile, the issuance of patents entails many lawsuits and litigation, in which the court is put in extreme difficulty to decide who was the first inventor. These are the reasons why the issue of patents is now considered one of the controversial issues that arouses heated debate in the legal and economic literature. From science, the dispute has long since moved to legislative assemblies in France, England, and Germany. (The note of the Union Chancellor Count Bismarck, presented in 1866 to the Union Council, on the destruction of patents is known.) Our legislation directly declares every discovery, invention and improvement of any generally useful object or method of production in the arts, manufactures and crafts and agriculture the property of the person by whom it was made (Constitution of Industry, ed. 1893, art. 167, 184, note). These, therefore, are the two properties required to establish the concept of exclusive property: the news of the discovery and its general usefulness. But beyond that, the discovery must have practical (obvious) significance in the area to which it relates. To do this, when requesting a privilege, it is necessary to show the application of the discovery and provide a detailed description of the mechanisms and projectiles through which it can be applied (ibid., Art. 178). For basic principles alone, without application to an artificial object, the privilege is not issued (ibid., Art. 174). Privileges are not granted for inventions and discoveries related to military needs and means of state defense, the use of which is available to the Government alone; but when use is also available to private individuals, privileges may be issued so that their effect does not extend to the maritime and military-land departments (ibid., Art. 176). The discovery must be of general benefit: - a privilege is not granted for an insignificant discovery that shows only the sharpness and ingenuity of the mind, but does not promise significant benefit, or could be harmful to society or state revenues (ibid., Art. 175). New: – a significant change or improvement made by the inventor himself in his previous invention can be called new (ibid., Art. 194). But if an improvement is made in someone else’s invention, then the special privilege for improvement is issued only after the end of the privilege to the first inventor, and in the event of this latter, only by agreement with the inventor (ibid., Art. 195). In addition to the privilege for an invention, there may be a privilege for introducing into Russia an invention made in other states. If there this invention is protected by a privilege, then the validity of our privilege should not extend longer than the period for which the foreign one is valid. If abroad it exists without a privilege, then in our country the privilege is issued in the form of an exemption, due to the government’s special respect for the benefits and costs of the enterprise (ibid., Art. 173). A foreign citizen also has the right to receive privileges, if only he can set up factories and factories in Russia (ibid., Art. 177). The grant of a privilege must be preceded by a description. It must be complete, and the invention must be complete. The request for issuance is submitted to the Department of Manufactures and Trade (ibid., Art. 178), and if the privilege relates to agriculture, then to the Department of Agriculture and M. Land. and State Them. Then follows the consideration of the privilege and its verification in the Council of Trade and Manufactures or in the Scientific Committee of the Ministry. Earth and State Them. It aims to make known that the object is described with due clarity, completeness and accuracy, that no privileges have been previously granted to it, that there is nothing harmful or dangerous in it (ibid., Art. 180, 181, 183. T. XII, Ust. Selsk. Khoz., ed. 1893, Art. 25). Then, as before, until 1870, the case went to the State Court for consideration. advice. But in 1870 it was established that the privilege, after determining its duration in accordance with the situation of the subject industry, is finally approved by the Minister of Finance or the Land. and Gosud. Property For each privilege, duties from 90 to 450 rubles are collected, depending on the period and whether it is your own or a foreign invention (Const. Industry, ed. 1893, art. 181. Const. Rural Household, ed. 1893, art. 25; vol. V, ed. 1893, Const. Duty Art. 321, 322). – It is published in the statements (Constitution of Industry, edition of 1893, article 190). In addition to privileges, but depending on them, it is allowed to issue certificates to declare the inventor’s ownership of a discovery: - three months after the issuance of this certificate, he must present everything that is required to issue the privilege itself (ibid., Articles 178, 179). Action of privilege. Privileges are valid for a certain period, which is assigned at the request of the petitioner and at the discretion of the government, for 2, 5 and 10 years, and for foreign inventions no longer than 6 years. This period cannot be extended (ibid., Art. 185, 186. Law of Civil., Art. 2147). It begins from the day the certificate of filing the request is issued, which is published in the statements (Const. Industry, ed. 1893, art. 187). The exclusive right is that one privileged person can use the discovery as his property, introduce it, use it, etc. his discovery and the objects that he produces on the basis of it. He can cede, transfer his right both in full and in part, cede the use of this right on conditions (ibid., Art. 171); but the one who has received the privilege does not have the right to enter into a company with it on shares or sell it to such a company, without the special permission of the government (ibid., Art. 193. Zak. Gr. 2145, 2152). In general, all transactions involving the transfer of privileges must be notified to the Department of Manufactures and published in the statements (Constitution of Industry, ed. 1893, Art. 192). The privileged one can pursue any counterfeit and demand compensation for harm and damages. A completely similar production of an invention is considered a counterfeit, even if minor and insignificant changes or even improvements were made, which include significant parts of the previous discovery (ibid., Art. 172). The privilege not only gives the right, but at the same time it obliges: it obliges to bring the invention into full effect no later than within 1/4 of the urgent time, and then after 6 months to submit a certificate of this to the Department of Manufactures (ibid., Art. 191). Otherwise, the effect of the privilege is destroyed (ibid., Art. 197. Law. Gr. 2156). In addition to termination by expiration and non-use, the privilege is also terminated by order of the government or by court verdict, when the privilege itself turns out to be illegal and void in its essence, although it was legally issued by the government (Const. Industrial, ed. 1893, art. 169). The issuance of a privilege does not deprive anyone of the right to prove to the court that the discovery belongs to him or was already introduced by him before the issuance of the privilege (ibid., Art. 170); also, that it was used anywhere without privilege (excluding those introduced by special respect from other states: 197 Statute of Industry); or that the description provided was not complete, and that it does not resemble in significant parts the actual production (ibid., Art. 197). In all cases of termination, this is also published (ibid., Art. 198). Investigation of disputes over privileges and proceedings are carried out in commercial or general courts of the first degree. An investigation is underway. Seals are applied to cars, things and products. The disputants are resolved by arbitration (Law. Court. Civil., Art. 562–570) 323. Violation of a privilege, in addition to private remuneration, subjects the offender to a fine (Code 1353); therefore can be persecuted on behalf of the government. In 1864, the Highest approved regulation on the right of ownership of factory drawings and models was published (Statute on Industry, Art. 199–209) 324. By virtue of this provision, the inventor of a design or model for factory, factory or handicraft products may be granted a temporary right to the exclusive use of the invention. The invention of the factory's draftsmen is considered the property of the factory owner. To ensure this exclusive right, a descriptive application for the invention in the required form is required in the department of trade or in the Moscow branch of the manufacturing council. It is necessary that a drawing or model constitute a new invention, and this requirement is unconditional, so a foreign design that has already been in trade is not considered news. The exclusivity of the right is certified by a note in the book and a formal certificate from the treasury department. On each product, the exclusive right is certified by a stamp or seal. But whoever has not received an exclusive right by application is prohibited from using such marks on his products, subject to a fine. This right is granted, at the request of the applicant, for a period of 1 to 10 years. It can be transferred to another person with an application to the same place from which the certificate was issued. Violation of this right is called forgery: unauthorized reproduction of a declared sample in whole or in parts that make up the news, regardless of size, material or method, is considered a forgery. For counterfeiting, in addition to the recovery of damages in favor of the owner, a government fine of up to 200 rubles is imposed. Disputes in cases of this kind are resolved by the court, but preliminary investigation of the claims is provided to the department of trade and the manufacturing council. In 1875 (Poln. Sobr. Zak., N 54783) special rules were issued on the procedure for ensuring that exhibitors of the permanent exhibition at the Museum of Applied Knowledge in St. Petersburg have the right to receive new privileges for the new inventions they presented. 1876, No. 592. Violation of a privilege may consist not only in counterfeiting the most generally useful item for which it is issued, but also in using a obviously privileged method of production without the consent of the owner of the privilege; such use constitutes an action that violates the rights of the owner, and as a result imposes on the perpetrator, by virtue of Art. 684. X t. 1, the obligation to compensate the victim for the losses caused to him through this, regardless of whether such an action even constitutes a crime or misdemeanor. Therefore, the provision in paragraph 2 of Article 129 of Art. XI volume 2 parts. about industrial factory and head (corresponding to paragraph 2 of Article 171 of the Constitution of Industry, ed. 1893) who has received the privilege of the right to prosecute any counterfeit in court and to seek satisfaction in incurring losses from it cannot deprive him of the right to seek satisfaction in losses from someone who knowingly took advantage of this counterfeit, both by virtue of the above legislation and by virtue of Art. 130. 2 parts of XI volume (corresponding to Article 172 of the Constitution on Industry, edition of 1893) and Art. 1353 laid about the laws that define this responsibility not for forgery alone, but in general for violation of privilege. In the first edition of this book, the meaning of the article given in the text was expressed erroneously; For correcting this error, I thank the author of the note published in the journal. gr. and bargaining. rights for 1871 on page 165. North German law establishes one central superior court for copyright infringement cases, namely the Supreme Federal Commercial Court in Leipzig. In each of the union states it is proposed to establish a special committee of experts to examine cases of this kind. In 1870, an agreement was reached between the French government and the Russians on the mutual protection of private rights to Russian and French factory marks (Poln. Sobr. Zak. 1870, No. 48359). The same with Germany (Poln. Sobr. Zak. 1873, No. 52557). With Austria (Full. Collected Law. 1874, No. 53206). From North America (Complete Collection of Laws, 1874, No. 53408). According to the new charter, the court. gr. (Article 349) cases of privileges are carried out in an abbreviated manner in general court places, and the previous rules on this subject have been abolished. See court. mouth ed. state chancellor vol. I, p. 703. Complete. Collection Zach. 1874, No. 53966.