The specifics of the emergence and confirmation of copyright is the absence of requirements to register them through authorized bodies. This automatically complicates the process of protection of personal and exclusive rights of the author, if they are violated by other persons. In this material we will consider what violations the author or right holder has to face, and how the protection of copyright objects takes place.
Illegal use of copyrights
Authorship of the results of creative work can arise only for individuals. However, a legal entity or an entrepreneur may acquire exclusive rights to a work. Let us distinguish the grounds with which the law associates the emergence of copyrights:
creation of a work, other object of creative work, or their independent part;
acquisition of rights by inheritance or succession;
transfer of rights to a newly created work under the copyright contract, in which case only proprietary rights will be transferred, since the author will retain a set of personal powers;
acquisition of rights under the contract of cession, donation and other types of transactions - the law does not provide for the condition of registration of such transactions, so the transfer of rights will take place immediately upon signing the contract.
Only the author or the right holder will be able to make a claim in case of detection of violations. Moreover, a situation may arise where dissimilar claims can be made by the creator of the work and the actual owner of the property rights, if they do not coincide in one person.
The use, copying or distribution of a work by others will be considered legitimate only with the consent of the author and/or copyright holder. Consent or permission can be expressed in the following ways:
by making the work publicly available to the general public - in printed form, on digital media, through the Internet and by other means;
transfer of rights under contracts of assignment, copyright or license agreement - depending on the terms of the transaction, the rights can be acquired permanently or temporarily, for a fee or gratuitously;
acquisition of copyright and related rights by consumers for personal purposes without making a profit.
In the presence of such consent, the scope of permitted use will be determined by the terms of the contract, the will, the legal regime of exclusive rights.
The lack of consent or permission to use, copy and distribute would be an infringement of personal or proprietary rights. Let us distinguish the most common types of violations, which the owner of personal or proprietary rights may encounter:
Plagiarism, i.e. the appropriation of authorship of a work by others, borrowing in whole or in part when creating a new object;
copying or distribution of the work without the consent of the author by any means, including non-profit;
violation of the terms of permitted use provided for in the licenses;
refusal to pay remuneration for the use of another's work;
other types and methods of violations.
Types of liability and the list of measures to be taken against the guilty parties will depend on the nature of the violation, the amount of damage caused, and other factors. Let's consider how to prove the fact of violation and what sanctions may face the perpetrators.
How to detect and prove a violation
The copyright holder can identify infringement on his own or through law enforcement, customs and other agencies. For this purpose open sources of information, analysis of content on the Internet, control purchases in retail outlets or on the wholesale market, and other methods can be used. Evidence of the illegal use of objects of creativity may be:
acts of control purchase, sales and cash receipts on the purchase of counterfeit products;
procedural documents on the seizure of counterfeit goods in retail outlets and wholesale markets;
customs declarations and other documents on the movement of products across the border;
materials confirming the placement of illegal content on the Internet - certified copies of pages, inspection protocols of Internet resources;
testimonies of witnesses;
audio, photo and video recordings with evidence of the violation;
material and digital media with someone else's work.
In addition to revealing the fact of violation, it is necessary to assess and prove the amount of damage caused. This is necessary for the recovery of damages, the calculation of punitive compensation, as well as for the correct qualification of the criminal offense.
Penalty for copyright infringement
The author or right holder can independently use protective measures against violators, or ask for help from law enforcement agencies. The law gives an opportunity to protect interests in the following directions:
filing written demands when violations or the threat thereof are detected - to stop unlawful use of another's work, to remove content from the Internet, to pay remuneration or to compensate for losses;
appeal to the courts - to recover damages or compensation, to terminate licensing agreements early, to block Internet resources with illegal content, to make other demands;
submitting appeals to law enforcement authorities for administrative or criminal liability - the most serious consequences are caused by large or especially large-scale damage as a result of unlawful activity.
In almost any format of infringement it is possible to demand confiscation of material or digital carriers with the illegally used work, equipment and raw materials intended for the production of counterfeit. If the counterfeit goods are not banned for circulation in Russia, the rights holder has the right to file a petition for the transfer of the seized tangible media.
When applying to the court, it is possible to recover damages, or to demand compensation. The amount of damages must be proved by the plaintiff, but this will not be necessary when claiming punitive compensation. The law allows for the calculation of compensation in the following ways:
in a fixed amount from 10 thousand rubles to 5 million rubles. - the exact amount of compensation will be determined by the court, taking into account the nature of the violation;
in the amount of twice the value of the tangible media with the illegal work;
two times the value of the valuation of the exclusive rights to the work.
The exclusive rights of the author or right holder are subject to evaluation. Therefore, when claiming damages or considering criminal cases, it is necessary to present evidence confirming the amount of damage. For this purpose, an expert examination is carried out - at the initiative of the plaintiff or law enforcement authorities. The expert opinion will be used as evidence in any variant of liability proceedings.
Protective measures can also be presented when the personal rights of the author are violated:
If the fact of misappropriation of authorship, i.e. plagiarism, is revealed;
If the right to inviolability of the work has been violated, i.e. its content or structure has been changed without the consent of the creator;
if the name of the work is changed, in the absence of the consent of the author.
These violations may be discovered after the death of the author. In this case, the heirs or legal successors of the creator of the creative object will be able to file a claim or lawsuit. In this case, the consent to change the work or its name the author may leave in the will, which will be executed by the heirs.
We have to deal with copyright infringement every day, and illegal copying or distribution of works on the Internet is not difficult even for ordinary users. Even a minor infringement of copyright can lead to significant losses or lost profits. Our company offers a full range of services to protect the interests of authors and copyright holders:
consulting services in confirmation of authorship, disposition of rights and bringing offenders to responsibility;
help in drawing up contracts for the disposal of copyright;
Support of the procedure of bringing the infringers to responsibility, assistance in calculating the amount of damages and claims;
representation of interests of the client in courts, law enforcement and other bodies.
We will achieve a full protection of personal and proprietary rights to works and other objects of creativity, we will help to bring the offenders to justice. To find out more about working with our specialists please use phone consultation or ask questions through the feedback form on the website.
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