THE MINISTRY OF EDUCATION OF Republic of Belarus
THE ABSTRACT
On a theme: Intellectual property. Objects author's and the adjacent rights
MINSK 2011
The origin of the term "intellectual property" often contacts the French legislation of the end of XVIII century. Originally was considered, that the patent or the exclusive right to product use represent the contract between a society and the inventor (author): the society protects the legal owner, guaranteeing it compensation for promulgation of the invention (work of art) and agreeing to provide its unobstructed and exclusive use in industrial or commercial objectives. However already John Lock considered, that the intellectual property right should be considered as the natural right, instead of as the right based on the law.
The tradition leant against the theory of the natural right the approach to author's and to a patent right, received the most consecutive development in works of the French philosophers-educators. According to the granted theory the right of the founder of any creative result, a literary work or the invention is its integral, "natural" right, arises from the nature of creative activity and "exists irrespective of a recognition of this right the government". The right arising at the creator to the result reached by it was considered as similar to the property right arising at the person which work creates a material thing.
In France at "old regime" for the author the right to literary works has been definitively recognised. Revolution of 1789 dared all "privileges" therefore it has been proclaimed: "Everything, that the author opens for public, becomes a public property" (the Decree of the Constituent assembly of 1789), but soon even the new mode has reconsidered the decision. Two laws (1791 and 1793) For the first time in history guaranteed protection of all forms of creativity (literary, drama, musical, graphic) at reproduction by all known then methods. In report of ЛеШапелье which has laid down in a basis of the first law, affirmed, that "the most sacred, the most incontestable and if it is possible so to be expressed, most personal of all patterns of ownership is product which fruit of literary thought" is. In the prologue of the French patent law of 1791 it was said, that "any new idea, declaration and which realisation can be useful to a society, belongs to the one who has created it, and would be restriction of human rights not to consider the new industrial invention as the property of its creator". Fastening in the French legislation of concepts of the literary and industrial property became a consequence of such approach. Even earlier the idea about the copyright as "the most sacred kind of the property" has been embodied in laws of several states of the USA. So, in the law of the State of Massachusetts from March, 17th, 1789 it was specified, that "there is no the property belonging to the person more, than that which grows out of its brainwork"). Similar designs have been fixed in the legislation of many countries. In "Legal philosophy" underlined special value of protection of scientists and artists from an arbitrariness and encroachments on their rights, rendering of protection of their property as problems of encouragement of sciences and arts: "just as the most important encouragements of the industry there was a maintenance from robbery on the big road". However philosophical judgement of a category "intellectual property" till now it has not been made.
Along with the concept (or a design) in the form of the rights of the industrial property, literary, scientific, art or, in the most universal kind, - intellectual property, in the national right of some the countries the category "exclusive rights" ("the intellectual rights", "protection of the industrial rights", etc.), understood as the rights of a special sort is widely applied concerning the rights to results of intellectual activity. Especially it is characteristic for Germany.
For the first time the mention of intellectual property has appeared in the French legislation of an epoch of Great French revolution. The theory of the natural right which essence consisted that all made by the person, whether it be material objects or results of creative activity, admitted its property at this time dominated. Therefore the founder of results of creative activity had the exclusive right to dispose of them.
In XIX century the copyright of the French sample has served as model for other countries of continental Europe, and also, after the Second World War, and for the General declaration of human rights of 1948: "Everyone has the right to protection of its moral rights and the material interests which are growing out of scientific, literary or art works which author it is".
Some distinctions are connected with existence of Anglo-American and continental systems of the copyright. After in XVIII century protection of products began to admit for the first time not the privilege granted сувереном, and the right based on the law, there were two directions of scientific thought.
One of them - school of the natural right - has been apprehended by the countries with legal tradition of Rome. Product admitted belonging to the author owing to the fact of its creation. The attention was accented on idea of distribution of protection not only on property, but also on the personal non-property rights of authors. Laws only кодифицировали naturally existing human rights, in the right protection centre there was a person of the founder, the creator.
Meanwhile the general law developed in other direction. In the general law countries, mainly, in the USA and the Great Britain, the right provided by a general law based on "the natural property rights" (Lock's classical formula) admitted. However at codification of these rights by legislators only limited property protection has been given authors. Hand-written laws not кодифицировали "the natural right", and have simply replaced it, initially having presented property rights in the form of the urgent exclusive right to reproduction. The law purpose protection of property rights of founders and publishers which got the rights at the first founder or at its assignees admitted first of all. Thus, founders could concede all rights to product (if other has not been provided by the contract) in exchange for monetary compensation. The approach accepted in the Great Britain and the USA, on the essence differed from former system of privileges a little.
Under the Law of the USA on the copyright receive protection such kinds of products which in the countries of the continental copyright are often protected on the basis of systems of the adjacent rights, in particular, executors of audiovisual products are considered as authors. Protection on Anglo-American system extends on product irrespective of a category of its legal owner. Protection on continental system of the copyright is based on civil law, its basic idea consists that products are a product of creative activity and inseparably linked with the person of their founders. As a result of such approach the legislation of some the countries adhering to continental system, did not extend and right protection on legal bodies. In the centre of regulation of continental legal systems there is a protection of the founder of product while the Anglo-American system of the copyright is aimed at product protection as that. Hence, in the latter case there was no necessity for any concept of the adjacent rights as these rights were regulated by the copyright in a broad sense.
In the XX-th century the great value was got by a question on the international protection of copyrights. It has led to collision of two systems and their concepts. Gradually there is a compelled rapprochement of systems. So, the legislation on the copyright with a view of protection of the non-property rights of founders was necessary to reconsider the USA; have gradually started to admit, though and on the basis of numerous norms of a general law, the personal non-property rights of authors as a subject of the right protection given according to the Bern convention. In turn, the continental states began to provide protection to the legal bodies who are carrying out financing of creative activity, recognising necessity of such protection, for example, for effective operation of film production.
Further industrial production and agriculture rapid development, and also international trade and exchange growth between the countries last achievements of science and technology have demanded higher degree of legal regulation of the international relations in intellectual property sphere.
As a result of it, in many countries of the world concerning protection of principal views of intellectual property began to appear international договоры.So, for example, on March, 20th, 1883 in Paris the Convention on protection of the industrial property "which became the basic document in the field of protection of the rights to intellectual property has been accepted".The Bern convention on protection literary and works of art "from September, 9th, 1886 was the following document in system of protection of intellectual property". Further, the major agreement in the field of intellectual property protection, the prisoner also in the last century in Madrid on April, 14th, 1891 "the Agreement on the international registration of signs"
However, all these documents, protecting the major objects of intellectual property, did not comprise the concept "Intellectual property". For the first time it has been entered in international legal договоры by "the Convention establishing the world organisation of intellectual property", signed in Stockholm on July, 14th, 1967 and changed on October, 2nd, 1979.
In the pre-revolutionary Russian legislation the term "intellectual property" was not used. For the author, the owner of the privilege (patent) or the person who has carried out registration, for the purpose of fastening to them monopolies for use of some results of intellectual creative activity or individualization means admitted the property competences making the maintenance of exclusive rights. Exclusive rights made independent civil law.
In the conditions of a socialist way of manufacture exclusive rights have lost functions of institutes of market economy, therefore and the term "exclusive rights" in the Soviet legislation was not used.
The term "intellectual property" in the USSR has appeared for the first time in the Law from March, 6th 1990г. «About the property in the USSR», and then in the Law of the Russian Federation from December, 24th 1990г. «About the property in RSFSR» and in the Law of Byelorussia from December, 11th 1990г. « About the property in БССР ». The civil code of 1964 contained sections" the Copyright "," the Right to opening "," the Right to the invention, the efficiency proposal and the industrial sample ". However in them terms" intellectual property "and" the industrial property "were not used. Moreover, sections of the Civil code" the Right to opening "and" the Right to the invention, the efficiency proposal and the industrial sample "have become invalid in connection with acceptance in 1993 of Laws of Byelorussia" About patents for inventions "," About patents for the industrial sample "," About trade marks and service marks ", and also many positions of section"Copyright"in connection with acceptance in 1995 of the Law of Byelorussia" About the copyright and the adjacent rights ". These laws have radically changed the approach to intellectual property in the country, as much as possible having approached the legislation in this area to the standard international standards.
In the new Civil code of Byelorussia it is accurately looked through already developed civil law: exclusive rights to results of intellectual activity (intellectual property).
Objects of the copyright and the adjacent rights
The copyright is the legal term designating the rights, given to authors literary and works of art. The copyright extends on products of a science, the literature and the arts which are growing out of creative activity, irrespective of appointment and advantage of product, and also from a way of its expression. The copyright extends both on promulgated, and on the unpublished products existing in any objective form:
1) written (the manuscript, typewriting, a musical notation etc.);
2) oral (public pronouncing, public execution etc.);
3) videorecordings (mechanical, magnetic, digital, optical etc.);
4) images (drawing, the sketch, a picture, the plan, the drawing, cinema - a body – video etc.);
5) volume-spatial (a sculpture, model, a breadboard model, a construction etc.) etc.The copyright does not extend on actually ideas, methods, processes, systems, ways, concepts, principles, opening, the facts.
According to the legislation on copyrights of Byelorussia to object of the copyright it is necessary to carry:
1) literary works (books, brochures, articles, etc.);
2) drama and is musical-drama products, choreography and pantomime products and others сценарные products;
3) pieces of music with the text and without the text;
4) audiovisual products (cinema - a body - video films, filmstrips both other film-and tele-products);
5) products of a sculpture, painting, a drawing, lithograph and other products of the fine arts;
6) applied art products;
7) products of architecture, town-planning and landscape gardening art;
8) photographic products and the products received in the ways, similar to a photo;
9) cards, plans, sketches, illustrations and the plastic products concerning geography, topography and other sciences;
10) computer programs;
11) other products.
Protection of computer programs extends on all kinds of computer programs (including operational systems) which can be expressed in any language and in any form, including the initial text and an objective code.
Objects of the copyright also concern:
1) derivative products (transfers, processings, summaries, abstracts, the resume, reviews, performances, musical arrangements and other processings of products of a science, the literature and art);
2) collections (anthologies, databases) and other compound products representing on selection or an arrangement of materials result of creative activity.
The copyright and the adjacent rights are necessary conditions of development of creativity, giving to authors stimulus in the form of a recognition and fair material compensation. This system of protection of the rights provides to authors a guarantee of distribution of their products without fear of not manufacturing of copies or a piracy. And it, in turn, provides more an easy approach of the population of the countries of the world to cultural values, to knowledge and entertainments, and also guarantees their higher quality.
The adjacent rights are the rights which belong to executors, to manufacturers of soundtracks and the on-air broadcasting organisations accordingly concerning their executions, soundtracks and tele-broadcasts.
The adjacent rights differ from the copyright that they belong to owners who are considered as intermediaries at manufacturing, record or distribution of products. Communication with the copyright is caused by that fact, that three categories of owners of the adjacent rights are auxiliary links in the course of intellectual creativity as they assist authors at the message of products of the last for general data. The musician executes a piece of music written by the composer; the actor plays a role in the play written by the playwright; manufacturers of soundtracks or more often named as «the writing down industry» write down and let out songs and the music, written by authors and the composers, executed by musicians or singers; the on-air broadcasting organisations transfer products and soundtracks on the radio or television broadcasting stations.
In соответств іі from item 994 ГК the adjacent rights extend on executions, statements, soundtracks, transfers of the organisations of a radio and cable announcement.For occurrence and realisation of the adjacent rights it is not required observance of any formalities.The copyright and the adjacent rights are necessary conditions of development of creativity, giving to authors stimulus in the form of a recognition and fair material compensation. This system of protection of the rights provides to authors a guarantee of distribution of their products without fear of not authorised manufacturing of copies or a piracy, and it, in turn, provides more an easy approach of the population of the countries of the world to cultural values, to knowledge and entertainments, and also guarantees their higher quality.
object right intellectual property
The literature
1. The copyright and the adjacent rights. Laws, conventions, договоры and agreements. - Minsk, 2010.